COMMENTS (REPRESENTATION) FORM · 2020. 3. 18. · Doncaster Local Plan Publication Draft 2019 (For Official Use Only) Ref: COMMENTS (REPRESENTATION) FORM Please respond by 6pm Monday

Doncaster

Local Plan

Publication Draft 2019

Ref: (For Official Use Only)

COMMENTS (REPRESENTATION) FORM

Please respond by 6pm Monday 30 September 2019. The Council considers the Local Plan is ready for examination. It is formally “publishing” the Plan to invite comments on whether you agree it meets certain tests a Government appointed independent Inspector will use to examine the Plan (see Guidance Notes overleaf). That is why it is important you use this form. It may appear technical but the structure is how the Inspector will consider comments. Using the form also allows you to register interest in taking part in the examination. All comments received will be sent to the Inspector when the plan is “submitted” for examination. Please email your completed form to us at If you can’t use email, hard copies can be sent to:

Planning Policy & Environment Team, Doncaster Council, Civic Office, Doncaster, DN1 3BU. All of the Publication documents (including this form) are available at: www.doncaster.gov.uk/localplan

This form has two parts: Part A – Personal Details and Part B – Your Comments (referred to as representations)

Part A Please complete in full. Please see the Privacy Statement at end of form.

1. Personal Details 2. Agent’s Details (if applicable)

Title Ms

First Name Clare

Last Name Plant

Organisation (where relevant)

SYHA Enterprises Ltd & A.A Lund DLP Planning Ltd

Address – line 1 c/o agent Ground Floor

Address – line 2 2 Tenter Street

Address – line 3 Sheffield

Postcode S1 4BY

E-mail Address

Telephone Number

http://www.doncaster.gov.uk/localplan

Guidance Notes (Please read before completing form) What can I make comments on? You can comment (make representations) on any part of the Doncaster Local Plan Publication Version and its supporting documents. These include: Sustainability Appraisal, Habitat Regulations Assessment, Topic Papers and other supporting technical (evidence base) documents. The full list of documents is available at: www.doncaster.gov.uk/localplan. However, this stage is really for you to say whether you think the plan is legally compliant and ‘sound’ (see below ). Do I have to use the response form? Yes please. This is because further changes to the plan are for a Planning Inspector to consider during an Examination in Public and providing responses in a consistent format is important. For this reason, all responses should use this response form. You can attach additional evidence to support your case – but please ensure it is clearly referenced and succinct. The Inspector will decide if further additional evidence is required before or during the Public Examination. For the inspector to consider your comments, you must provide your name and address with your response. Additional response forms are available online at www.doncaster.gov.uk/localplan Can I submit representations on behalf of a group or neighbourhood? Yes you can. Where there are groups who share a common view on how they wish to see the plan modified, it would be

helpful for that group to send a single form that represents that view. In such cases the group should indicate how many people it is representing including a list of their names and addresses, and how the representation was agreed e.g. via a parish council/action group meeting, signing a petition, etc. It should still be submitted on this standard form with the information attached. Question 3 (below) – What does ‘legally compliant’ mean? Legally compliant means asking whether or not the plan has been prepared in line with statutory regulations, the duty to cooperate and legal procedural requirements such as the Sustainability Appraisal (SA). Details of how the plan has been prepared are set out in the published Consultation Statements and the Duty to Cooperate Statement, which can be found at: www.doncaster.gov.uk/localplan Questions 4/5 (below) – What does ‘soundness’ mean? Soundness means asking whether or not it is ‘fit for purpose’ and ‘showing good judgement’. The Inspector will explore and investigate the plan against the National Planning Policy Framework’s four ‘tests of soundness’1. These are:

Positively prepared - the Plan should be prepared so it meets Doncaster's objectively assessed needs for housing and other development, including infrastructure and business development.

Justified – the Plan should be based on evidence, and be an appropriate strategy for the Borough when considered against other reasonable alternatives.

Effective – the Plan should be deliverable and based on effective joint-working on cross-local authority boundary matters as evidenced in a Statement of Common Ground.

Consistent with national policy – the plan should enable sustainable development and be consistent with the Government's National Planning Policy Framework (NPPF).

Question 8 (below) – Do I need to attend the Public Examination? You can present your representation at a hearing session during the Public Examination but you should note that Inspectors do not give more weight to issues presented in person than written evidence. The Inspector will use his/her own discretion to decide who should participate at the Public Examination. All examination hearings will be open to the public.

1 Paragraph 35 of Framework: https://www.gov.uk/guidance/national-planning-policy-framework/3-plan-making



http://www.harrogate.gov.uk/info/20101/planning_policy_and_the_local_plan/556/local_plan_-_evidence_base


https://www.gov.uk/guidance/national-planning-policy-framework/3-plan-making

Part B Please complete this Part to make your comments. After this Publication stage, further submissions will only be

at the request of the Inspector, based on the matters and issues she/he identifies for examination.

If after reading the Guidance Notes you don’t know how to answer these questions, please contact us at:

or

Name / Organisation Name:

DLP Planning Ltd

1. To which document does your response relate? (Please tick all that apply)

Doncaster Local Plan Publication Draft ☒ Policies Map ☒

Sustainability Appraisal ☐ Habitats Regulations Assessment ☐

Topic Paper? If so, which one(s): ☐ Other Document(s)? If so, which one(s): ☐

2. To which part(s) of the document / map does your response relate?

Page No.: Paragraph:

Policy Ref.: Policy 3, 6, 7, 8 Site Ref.: 446

Policies Map: Auckley and Hayfield Green

3. Do you consider the Local Plan is Legally compliant (including with the Duty to Cooperate)? No ☐ Yes ☒

4. Do you consider the Local Plan is Sound? No ☒ Yes ☐ (If yes, go to Question 6) 5. If you consider the Local Plan is NOT SOUND, is this because it is NOT: (Please tick all that apply)

Positively prepared ☒ Justified ☒

Effective ☒ Consistent with National Policy ☒

6. Please give reasons for your answers to Questions 3, 4 and 5 where applicable. If you believe the Doncaster Local Plan is not legally compliant and/or not sound please provide all the information, evidence and supporting information necessary to justify your comments.

Please also use this box if you wish to comment on any of the documents you marked in Question 1 above.

You can attach additional information but please make sure it is securely attached and clearly referenced.

Please see the attached representation.

7. What change is necessary to make the Doncaster Local Plan legally compliant and/or sound? Please set out what change(s) you consider necessary to make the Doncaster Local Plan legally compliant or sound – based particularly on how you answered Question 6 relating to the tests of soundness. You need to say why the change(s) will make the plan legally compliant or sound. It will also be helpful if you put forward your suggested revised wording of any policy or piece of text. Please be as precise as possible.

(If you are suggesting that the Plan is both legally compliant and sound – please go to Question 9).

Please see the attached representation.

8. If your representation is seeking a change, do you consider it necessary to participate at the hearing sessions of the Public Examination? (tick one box only)

☐ No, I do not wish to participate at the examination. I would like my representation to be dealt with by written representation.

☒ Yes, I wish to appear at the Examination.

If you have selected No, your representation(s) will still be considered by the independent Planning Inspector by way of written representations. 9. If you wish to participate at the hearing sessions, please outline why you feel this is necessary:

To support the representation and Inspectors understanding of the site.

Please note: the Inspector will determine the most appropriate way to hear those who wanted to participate at the hearing session. Your Signature

Date 30/09/2019

Please send your completed form, by no later than 6pm on 30th September 2019, to:

Planning Policy & Environment Team, Doncaster Council, Civic Office, Doncaster DN1 3BU

or email: Electronic copies of this form are available to download at www.doncaster.gov.uk/localplan

Privacy Notice The Council is committed to meeting its data protection obligations and handling your information securely. You should make sure you read and understand the Planning Services privacy notice (see link below), which sets out what you need to know about how Doncaster Council will use your information in the course of our work as a Local Planning Authority. http://www.doncaster.gov.uk/services/the-council-democracy/planning-service-privacy-notice. Hard copies are available on request from:


http://www.doncaster.gov.uk/services/the-council-democracy/planning-service-privacy-notice

The Council reserves the right not to publish or take into account any representations which are openly offensive

or defamatory.

For and on behalf of SYHA Enterprises Ltd and A.A Lund

REPRESENTATION TO THE PUBLICATION VERSION OF THE DRAFT DONCASTER LOCAL PLAN CONSULTATION (REGULATION 19)

Land East of Hurst Lane, Auckley, Doncaster (Site ref: 446)

Prepared by DLP Planning Ltd

Sheffield

September 2019

Local Plan Representation – SYHA Enterprises Ltd and Lund Family YK5788/3P – Land south of Mosham Road, Auckley

September 2019 - FINAL

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Prepared by:

Matthew Pruce MPlan Planner

Approved by:

Clare Plant MRTPI AssocRICS Director

Date: September 2019

DLP Planning Ltd Ground Floor V1-Velocity Tenter Street Sheffield S1 4BY Tel: DLP Consulting Group disclaims any responsibility to the client and others in respect of matters outside the scope of this report. This report has been prepared with reasonable skill, care and diligence. This report is confidential to the client and DLP Planning Ltd accepts no responsibility of whatsoever nature to third parties

to whom this report or any part thereof is made known. Any such party relies upon the report at their own risk.



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CONTENTS PAGE 1.0 EXECUTIVE SUMMARY ................................................................................................. 4

2.0 INTRODUCTION .............................................................................................................. 6

3.0 OBJECTIONS TO DRAFT POLICIES .............................................................................. 8

Policy 3 – Level and Distribution of Growth ................................................................................ 8

Policy 6 – Housing Allocations .................................................................................................. 12

Policy 7 – Doncaster Sheffield Airport and Business Park ....................................................... 15

Policy 8 – Delivering the Necessary Range of Housing ............................................................ 22

Policy 13 – Strategic Transport Network ................................................................................... 23

4.0 SITE ASSESSMENT – LAND AT MOSHAM ROAD, AUCKLEY (SITE 446) ................. 25

5.0 CONCLUSIONS ............................................................................................................. 38

Appendix 1 Representation by Walker Morris Appendix 2 Representation by SPRU Appendix 3 Letters from Auckley and Blaxton Parish Council Appendix 4 Letter of support from Peel Investments



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1.0 EXECUTIVE SUMMARY

1.1 These representations are made on behalf of SYHA Enterprises Ltd and the Lund Family (as

landowner) in response to the Doncaster Local Plan consultation 2019. These comments

follow the extensive promotion of land south of Mosham Road, Auckley during previous

consultation on the new Doncaster Local Plan.

1.2 This representation is made on the basis that the Doncaster Local Plan Publication draft, as

prepared, contains significant deficiencies, in relation to the Site; the Strategic Policies and

the Distribution of Growth.

1.3 DLP Planning Ltd is of the view that in order to provide for strategic housing requirements

and sustained economic growth and regeneration of the Doncaster area, there will be a

requirement for the allocation of relatively unconstrained land surrounding existing

settlements to support the sustainable growth of the Borough.

1.4 It is our opinion that the level of housing and employment development discussed within this

representation can only be delivered through the release of additional, unconstrained and

underused sites that are attractive to the market. Such releases should be made in locations

which meet other objectives such as the regeneration of Doncaster, realising the potential of

airport, and the redevelopment of former mineral sites.

1.5 The release of brownfield land such as the site at Mosham Road, Auckley in these

circumstances will increase the supply of allocations from brownfield land, in accordance with

the National Planning Policy Framework, from the current figure of 41% of allocated land

within the draft local plan. It will also minimise the need for Green Belt release in other

locations.

1.6 We consider that there is significant scope within Auckley and Hayfield Green in particular to

build upon the employment opportunities created by the airport to support the future

sustainability of existing settlements. Land at the Former Blaxton Quarry, situated east of the

site subject of these representations, is identified as an ‘Employment Allocation with

Permission’ (Policy 4) (under 09/01292/OUTM as amended via 14/00877/WCC) in the Pre-

Submission Local Plan. This site is within the Lund’s ownership and further reflects the

support for economic development in this part of the plan area.



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1.7 The Mosham Road site (LPA ref 446) subject of this representation, is located between the

site of the proposed Airport railway station (LPA ref 06/000459/FULM) and the village of

Auckley and is identified within the DSA Masterplan as an area for future housing delivery

(see Figure 1 below). It is considered that this land can play an important role in delivering

Local Plan objectives in this regard.

Figure 1. DSA Masterplan Area (Mosham Road Site and location of proposed Lincoln Line Station indicated in red)

1.8 In order to realise the potential of this site, this representation raises objections to a number

of policies as drafted and sets out recommendations for proposed amendments, in order to

ensure the soundness of the Local Plan.



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2.0 INTRODUCTION

2.1 This representation is made to the Doncaster Local Plan Publication Policies & Proposed

Sites Consultation on behalf of SYHA Enterprises Ltd and A.A. Lund and relates to the site

identified under Local Plan reference 446 as ‘Blaxton Quarry Phase 2, Mosham Road,

Auckley’ (Fig. 1).

2.2 The Lund family has promoted Site 446 for development through the Local Plan consultation

period for in excess of 15 years and during this period has engaged with local stakeholders

including the Parish Council to secure stakeholder support for the appropriate development

of the site.

2.3 Most recently submissions have been made to the informal consultation on the Draft Policies

and Proposed Sites held between September – October 2018 and the Auckley

Neighbourhood Development Plan consultation held in September 2018.

2.4 SYHA Enterprises Ltd is a housing association providing homes across the South Yorkshire

Region. Their current growth strategy is to promote the delivery of housing-led and mixed

use development sites, in order to facilitate the delivery of affordable housing.

Figure 2. Site location Plan



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2.5 The site is sustainably located adjacent to the villages of Auckley and Blaxton and is

brownfield land, as confirmed within the Walker Morris representation at Appendix 1, which

concludes that the Site has not blended into the landscape and is not subject to any

development management procedures to restore the land. The Site is therefore previously

developed land and its redevelopment should be a priority, in accordance with the Framework

and draft Local Plan policies.

2.6 The site is also identified within the Doncaster Sheffield Airport (DSA) Masterplan Area. The

Masterplan Consultation document (2018) identifies the site for the future delivery of housing

in order to support the wider economic growth aspirations of the airport. The DSA Masterplan

has been prepared by Peel Investments, as majority landowner, together with support from

stakeholders including Doncaster Council.

2.7 Despite this, the site is indicated to be retained within a Countryside Policy Area in the draft

Local Plan. DLP strongly objects to the omission of the site from the proposed Housing

and/or potentially Employment allocations.

2.8 To this end, this representation considers the strategic approach to housing and employment

delivery within the draft Local Plan and makes recommendations for amendments to specific

policies in order to ensure the soundness of the plan.

2.9 The recommendations and accompanying justification set out the sustainable and extensive

site specific characteristics, which indicate that Site 446 is an appropriate location for new

development.



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3.0 OBJECTIONS TO DRAFT POLICIES

Policy 3 – Level and Distribution of Growth

3.1 The level of housing development to be delivered is set out in Policy 3, which states that the

council will seek to facilitate the delivery of at least 920 (net) new homes each year over the

plan period 2015-2032 (15,640 homes in total) with sufficient land allocated to deliver at least

15 years’ supply (13,800).

3.2 Paragraph 59 of the National Planning Policy Framework (the ‘Framework) sets out the

Government’s objective of significantly boosting the supply of homes, through the

identification of a sufficient amount and variety of land where it is needed and to meet the

needs of groups with specific housing requirements [authors own emphasis].

3.3 The SPRU report provided at Appendix 2 assesses the soundness of the proposed jobs-led

housing requirement and the implications for the proposed spatial strategy.

3.4 For the reasons outlined within the report, DLP objects to policy 3 of the draft Local Plan

as there are found to be substantial soundness failings with the draft Local Plan resulting

from a failure to test an appropriate reasonable alternative based on meeting the strategic

priorities for economic development over a full 15-year plan period. These issues are

compounded based on treating the housing requirement from 2018-2033 as a ‘residual total’

to account for perceived oversupply in the period 2015-2018, which has not been adequately

justified.

3.5 The Council’s approach fails to accurately reflect the strategic priorities and future economic

potential of the Sheffield City Region and further assessment of the proposed requirement is

recommended to reflect the requirements of the revised Strategic Economic Plan (once

published) and to consider recent trends in jobs growth and housing delivery across the sub-

region. This is anticipated to lead to a reassessment of current and future demographic

trends in relation to future labour supply.

3.6 The SPRU report also concludes that arbitrary constraints to the requirement for additional

development are applied, which will lead to an overreliance on extant planning commitments

and historic allocations in previous iterations of the development plan. The implications of

this in terms of prospects for maintaining a five year supply of deliverable sites and meeting

the housing needs of different groups have not been fully assessed, however it is anticipated



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that there could be a failure to meet housing need, particularly in respect of affordable

housing in the short to medium term, as the physical and viability related constraints that

have prevented these sites being delivered to date may persist.

3.7 The report concludes that these issues are capable of remedy within the Council’s broad

emerging approach to managing the distribution of growth across the spatial strategy. This

acknowledges that significantly greater levels of potentially suitable growth could be provided

at different tiers of the settlement hierarchy. We endorse the Council’s position that Main

Towns are appropriate locations to accommodate up to 10% of the economic-led component

of the housing requirement. However we also recommend the consideration of Tier 3 –

Service Towns and Larger Villages as potential locations for additional growth, where

sustainable growth opportunities are identified.

Recommendation

3.8 The Local Plan should be updated to reflect the housing requirement of 1,073

dwellings per annum for the plan period to 2035.

Justification

3.9 For the reasons set out above and within the appended SPRU report, it is correct to

accommodate growth based on meeting requirements under the full assessment of jobs-led

growth (1,073 dpa) for the full plan period to 2035.

Distribution of Growth

3.10 The proposed housing distribution within the draft plan has a strong focus on the Main Urban

Area with 50% of development proposed in the Doncaster Main Urban Area, followed by 40%

in second tier (Main Towns) locations, 10% in Services Towns and Larger Villages and

limited development in Defined Villages. The proposed distribution is based on the

Settlement Background Paper which forms a settlement hierarchy and informs the location

of housing and employment sites.

3.11 The Publication Doncaster Local Plan identifies Auckley-Hayfield Green as one of 10 Service

Towns/Villages which will provide about 10% of the Borough’s total housing requirement

during the plan period. Specifically, Auckley-Hayfield Green is identified to deliver 125

dwellings.



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3.12 Based on existing permission (115 units) and new allocations (140 units), the settlement is

identified to deliver 255 new units in the plan period, above its proposed requirement by 130

units, or double the settlement’s housing target. This oversupply is intended to form supply

at the end of the plan period.

3.13 The Sustainability Appraisal for the Publication Local Plan forms discounts Site 446 and all

other alternatives within Auckley/Hayfield Green from allocation based on the proposed

housing distribution and the level of housing already committed within the settlement. We

object to this approach and consider it to be unsound.

3.14 It is not considered appropriate that such limited levels of allocations have been identified in

reasonably sized settlements such as Auckley. The only justification put forward for failing to

allocate new sites for development is based on existing permissions within these settlements.

However, these sites have yet to be delivered and may suffer from issues including viability

that could impact future delivery.

3.15 Settlements including Auckley/Hayfield Green have been identified as ‘Larger Villages’ within

the settlement hierarchy. There is a population of over 6,800 people in the immediate area

surrounding the airport (Finningley, Blaxton and Hayfield Green) and as such it is larger than

the Tickhill (over 5,200 people) and Askern (over 5,500 people) and is of a similar size to

Edlington (7,500). As at 2011, the immediate Auckley Area had a total of 3,100 people

between the ages of 15 and 75 of which some 2,000 were economically active. However the

draft plan proposes to retain existing settlement boundaries in Auckley and Finningley,

allowing only infill small scale affordable housing.

3.16 The proposed approach to the delivery of housing, as drafted, fundamentally fails to

recognise the emphasis within the Framework on the deliverability of housing and the need

to support the prosperity of settlements outside of the main urban area

3.17 The draft plan proposes a housing target based on economic growth objectives, a substantial

element of which will be linked to the growth of the airport. The approach to limiting the

expansion of those settlements surrounding the airport, together with the objectives of draft

Policy 7, which seeks to support ‘windfall’ housing development linked to employment growth

within the airport sites, risks creating an isolated community and fails to take the opportunity

to ensure the future sustainability of existing communities located in close proximity to the

airport.



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3.18 While settlements such as Auckley may rely on towns to provide essential services, the need

to sustain the existing services will require additional employment and housing. The

continuing trend for a reduction in household size means downsizing will undercut the

customer / user thresholds to which current amenities and facilities have become

accustomed. This poses a significant threat to the current level of sustainability enjoyed by

the settlement.

3.19 The housing allocations requirements should not be based purely on the hierarchy of a

settlement as there are a number of considerations namely urban capacity, need and

demand for housing, regeneration, environmental and social considerations, prioritising

brownfield land which need to be taken into account to ensure the growth of settlements in a

sustainable manner.

Recommendation

3.20 The distribution of housing provision within Policy 3 – Service Towns and Larger

Villages should be increased to meet the updated housing requirement, and

reapportioned (or alternatively flexibility introduced) to support the delivery of a

higher proportion of the housing within sustainable and desirable locations close to

economic growth.

Justification

3.21 The Local Plan as drafted us overly reliant on a significant quantum of sites within the Main

Urban Area. This approach relies on the delivery of a notable number of large sites, which

will require substantial enabling infrastructure in order to deal with constrains that may

include contamination and highways infrastructure upgrades as well as drainage and other

matters.

3.22 The growth potential of a number of Service Towns and Larger Villages has been

underplayed and that Auckley/Hayfield Green, together with neighbouring Finningley should

have an increased allocation of housing land within these settlements, in order to capture the

regeneration opportunities provided by the proximity to the airport and to deliver housing in

sustainable locations where there is recognised demand.

3.23 Given the size of the committed level of airport related employment on the airport itself it is

also considered that the current approach fails to consider the obvious beneficial impact of

concentrating further employment and residential development in close proximity to the



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airport, especially as there are large areas of despoiled land that are well related to public

transport infrastructure and can be developed for mixed use schemes.

3.24 The limited housing target apportioned to Auckley/Hayfield Green, as well as neighbouring

Finningley does not appear to be appropriate and there seems to be no justification of not

meeting some level of demand and need in these locations. This approach is likely to result

in not only a missed opportunity to support the projected economic growth but also lead to

the decline of those settlements.

3.25 The potential for sustainable land in these areas should be realised where deliverable in

order to support the long term viability of these areas. A proportionate increase in housing

provision for the settlement at Auckley is consistent with the Plan’s strategic priorities,

including ensuring future support for economic growth, and would assist in ensuring the Local

Plan meets needs for a full 15 year period following adoption. By reviewing existing

Countryside designations around these settlements, boundaries can be rationalised to

allocate land for development to serve the purposes of these policy areas.

3.26 New housing allocations and mixed use schemes are considered to be an appropriate

response to accommodating further development in these locations.

Policy 6 – Housing Allocations

3.27 The Housing Allocations required to deliver the housing requirement and distribution as set

out in Policy 3, are identified by Policy 6.

3.28 Site 446 (Mosham Road) is not included as an allocation (see Figure 2) and is shown to be

retained within the Countryside Policy Area. This approach is considered to be unsound and

also conflicts with the objectives of the DSA masterplan, which identifies the site for housing.

We strongly object to the omission of the site from allocation within Policy 6 on this

basis.



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Figure 3. Draft Publication Local Plan Policies Map Extract

3.29 Section 4 of this representation sets out a detailed assessment of Site 446 including

reference to the site context, planning history, deliverability of the site, and an assessment

of alternative sites promoted for development within Auckley, in order to demonstrate that

the site is appropriate and deliverable for Housing-led development.

3.30 A Mixed Use redevelopment of the site has been subject to discussions with Blaxton and

Auckley Parish Councils, reflecting the potential for the site to accommodate not only

residential but also employment development in association with the new railway station . As

set out in Appendix 3, there is support in principle for the development of the site in order to

enhance the appearance of the land and secure the benefits that could accrue from the

proposed development.

3.31 Peel Investments, as the main stakeholder in the DSA Masterplan have also confirmed their

support for the development of Site 446, as set out in Appendix 4. This support reflects the

importance of the site’s allocation to the delivery of the masterplan and specifically the

proposed railway station, which was granted planning permission under LPA ref

06/0000459/FULM, and is to be located as shown in fig, 4.



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Figure 4. Extract from DSA Masterplan including proposed railway station

Recommendation

3.32 Land at Mosham Road, Auckley to be removed from the Countryside Policy Area and

allocated for Housing. Reference to also be included to the potential provision of the

new railway station and associated employment uses within the allocation.

3.33 Based on the total site area of 16 hectares and a developable site area of 11 ha. taking

account of the railway station (including associated infrastructure), it is suggested that the

site could accommodate up to 400 dwellings, subject to further requirements for open space

provision and other policy requirements.

Justification

3.34 The site should be allocated for housing-led development in order to meet the future short-

medium term housing requirement, as discussed with reference to policy 3 above. The

allocation would also take the opportunity to deliver new sustainable development on

brownfield land, adjacent to an existing settlement in order to meet the needs of the local

population.



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3.35 The allocation of the site will also support the delivery of the DSA Masterplan, including the

provision of the planned new railway station (LPA ref 06/00459/FULM) within the site, and

will enhance the vitality and viability of services within the existing village.

3.36 Full justification for this recommendation is set out within Section 4 of this representation and

outlines that the site is suitable, deliverable and developable. The site is also demonstrated

to be sequentially preferable for development against other sites within Auckley as set out in

section 4 of this representation.

Policy 7 – Doncaster Sheffield Airport and Business Park

3.37 These representations endorse the support for Doncaster Sheffield Airport (DSA) outlined in

the Pre-Submission Local Plan. This strategically important location is central to the strategic

priorities of the plan area and delivery of the Local Plan’s objectives. However, it is necessary

to highlight a number of issues of soundness regarding the relationship between DSA and

the Council’s approach to the wider spatial strategy. These concerns should be read in the

context of the SPRU commentary regarding the appropriateness and the housing

requirement identified in the Pre-Submission Local Plan and the resulting outcomes for scale

and distribution of development (see Appendix 2).

3.38 This Appendix highlights the need to ensure that the number of new homes proposed in

Policy 3 adequately reflects the requirement to support economic growth and availability of

labour to meet the future potential for growth in the number of jobs in the borough. The Pre-

Submission Local Plan should therefore support the delivery of 1,073 dwellings per annum

for the full plan period 2015-2035, ensuring provision for a full 15 years following adoption.

3.39 The Council must consider a more flexible approach to the scale and distribution of growth

to recognise the range of potentially suitable locations to meet development need identified

under the government’s standard method plus the component of the requirement necessary

to support economic growth (and ensure the delivery of affordable housing).

3.40 Policy 7 ‘Doncaster Sheffield Airport and Business Park’ is therefore supported in principle

but should be modified to ensure that it is effective, positively prepared and appropriately

justified. In order to achieve this, it is necessary to adopt a more flexible approach to

supporting suitable areas for residential development identified in the Draft DSA Masterplan.



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Land at Mosham Road and Relationship to the DSA Masterplan and Spatial Strategy

3.41 Specifically, these representations demonstrate that the Local Plan should support mixed use

development on land at Mosham Road and that the site should be reassessed in the context

of Auckley – Hayfield’s ability to support the spatial strategy in the Local Plan.

3.42 This site represents a suitable and sustainable location to meet the growth needs of existing

settlements. The site is located within the DSA Masterplan area and identified as a potential

location for residential development (see fig. 5). The site is also assessed in the Council’s

HELAA (Ref: 446) and found to be suitable for development, subject to local policy

constraints.

Figure 5. DSA Masterplan Area

3.43 The HELAA identifies the site as a ‘Greenfield Urban Extension’, which is not justified given

the Council’s assessment of capacity at around 350-400 homes. This location should be

regarded as a small/medium size site that will provide sustainable links to nearby Auckley



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and represent an appropriate contribution to the scale and distribution of growth as part of

the spatial strategy. This would ensure a positively prepared response to local demand for

growth. This strategy for promotion of the site at Mosham Road seeks to avoid an ad-hoc

approach to development in nearby settlements that has occurred over recent years without

an up-to-date plan in place.

3.44 It is therefore requested that Site 446 be identified as an allocation in the draft Local Plan

contributing towards housing requirements during the plan period. This approach is

consistent with the objectives of the DSA Masterplan and would overcome soundness

concerns regarding the Council’s proposed approach to restrict housing growth directly

related to an increase in jobs at DSA.

3.45 Delivery of this site towards the Local Plan housing requirement would also support achieving

the economic growth-led component of the housing requirement given the proximity to DSA

and would thus complement the potential for economic development at this location.

However, for the reasons outlined in the SPRU Appendix and these representations, delivery

of this site should not be tied to monitoring of job growth at the airport as currently proposed

in draft Policy 7.

Objection to Policy 7 – Relationship with the Spatial Strategy

3.46 The Pre-Submission Local Plan represents an extremely narrow interpretation of the DSA

Masterplan’s identified potential for job growth. A key implication of this is that the approach

in the Local Plan looks to divorce DSA from its role in the wider spatial strategy. This is

significant because it overlooks the existing demand for jobs (and by association the

requirement for homes and labour supply) associated with role of DSA as a growth driver.

This also raises issues of consistency with national policy, given the ability of DSA to support

a prosperous rural economy. Specifically, the spatial strategy fails to recognise that a number

of settlements in close proximity to DSA, including Auckley-Hayfield and Finningley, have

significant potential to support sustainable patterns of development associated with the

delivery of housing and economic growth consistent with paragraphs 78 and 83 of the

NPPF2019 and achievement of the airport’s objectives.

3.47 It is therefore not justified that the proposed spatial strategy, and the approach to the scale

and distribution of housing outlined in proposed Policy 3, does not support any contribution

to the economic-led component of housing growth at Service Towns and Larger Villages in



18

close proximity to DSA. This only applies to ‘Main Towns’ identified as potentially suitable to

deliver up to 10% of the economic-led growth requirement. We advocate that suitable sites,

sustainably located in relation to settlements at Auckley-Hayfield and Finningley, and which

complement the strategy for DSA, should be identified to meet the need for jobs-led growth

in the overall housing requirement. It is appropriate that such sites contribute towards the

borough’s identified housing needs without delivery being directly linked to jobs growth at

DSA.

3.48 The potential for such an approach was explored in the Council’s ‘Settlement Background

Paper – Local Plan Evidence Base’ (2018), however the Council rejected the argument that

Auckley – Hayfield Green could be classified as a ‘smaller urban area’, despite previous

patterns of growth and the functional relationship between the settlements. Instead a

preference was stated to assess the settlements ‘as is’. This assessment is considered

unsound, particularly in the context of the objectives for DSA and acknowledgement of the

economic-led component of housing growth. It is appropriate to revisit these conclusions in

the context of the DSA Masterplan (including the delivery of new infrastructure) and our

concerns regarding the overall housing requirement outlined in the SPRU Appendix.

3.49 It should also be noted that the DSA Masterplan 2018-2037 ‘Interim Consultation Summary

Report’ (August 2018) (p.41) identifies that, in terms of demand for residential development

to support the airport’s objectives, surrounding settlements already demonstrate high

volumes of property transactions. This is a strong indicator of local demand and reflects that

pressure for housing in the local area already reflects the area’s significant contribution to the

wider sub-region. This is best addressed through the plan-led approach.

Objection to Policy 7 – Jobs-Growth Related Housing Provision

3.50 The overall vision for DSA demonstrates the importance of the airport in boosting productivity,

job creation and as a catalyst for the sub-region. The Masterplan is underpinned by the

potential for the creation of up to 73,000 jobs, which reflects aspirations beyond the plan

period. Policy 7 of the Pre-Submission Local Plan is underpinned by a significantly reduced

estimate of the potential for jobs growth associated with the airport. This in effect relies on

the assumption of only 170 jobs per annum from 2020. This figure is used to justify the initial

amount of housing development in association with the DSA Masterplan. While the figures

quoted in the DSA Masterplan should not necessarily form a substitute to the Local Plan’s



19

wider evidence for overall development needs they form an important part of the context for

DSA’s relationship to strategic priorities in the sub-region and the overall justification for the

employment-led component of the Local Plan’s requirement for housing growth to support

labour supply. This is in-turn important evidence to inform the distribution of growth to this

part of the plan area. The significant ‘gap’ between the assumptions for job growth in the DSA

Masterplan and the potential for development identified in Policy 7 indicate that this element

of the spatial strategy is not positively prepared.

3.51 Our soundness concerns with the proposed approach to Policy 7 are that the relationship to

potential jobs growth (and existing levels of employment at DSA) is based on an extremely

narrow interpretation of the Draft Masterplan’s explanation of the airport’s contribution

towards economic development. Page 6 of the Draft Masterplan states that the airport

currently supports around 1,000 jobs, which is the figure relied upon in Policy 7 as the

baseline above which future housing growth in association with delivery of the Masterplan

will be supported.

3.52 The approach to identifying the ‘baseline’ in Policy 7 also wholly fails to acknowledge

significant existing planning commitments that complement opportunities for jobs growth

outside of the DSA Masterplan (and Local Plan allocation) boundary. The Council’s Housing

and Employment Land Availability Assessment confirms 3.6ha of deliverable supply on the

site of the Former Blaxton Quarry (see Policy 4). Planning permission for the site (under

09/01292/OUTM) provides indicative totals for floorspace of 215,003 sqft (19,975sqm)

B2/B8/Sui Generis and 7459sqft (693sqm) B1 Offices. This would provide for an estimate of

at least 375 jobs in accordance with jobs-to-floorspace densities used in the Council’s

HELAA.

3.53 This interpretation of the baseline in terms of its relationship with future potential and the

economic-led component of housing growth to support necessary growth in the labour force

is not justified. Draft Policy 7 relies on reference to the 1,000 existing jobs figure, plus the

Council’s pro-rata assumption for provision of 2,545 jobs over the whole plan period to 2035,

in order to account for initial support for up to 280 homes within the DSA Masterplan (at Hurst

Lane – Site E2).

3.54 This is divorced from the ‘Core growth scenario economic benefit summary’ outlined in the

Draft Masterplan, which anticipates growth to 4,495 Full-Time Equivalent jobs by 2026 (DSA



20

Draft Masterplan, 2018, p.90).

3.55 The Council provides no clear justification for how it interprets the role of the airport in the

local and sub-regional economy and as a result Policy 7 does not provide a basis to assess

the overall contribution to economic development. The core scenario of the DSA Masterplan

provides a wider view, and recognises that a substantial proportion of this activity will be

generated locally and induced by increased passenger numbers and associated visitor

spending associated with use of the airport. The Draft Masterplan notes:

“Based on average inbound visitor spending and assumptions regarding the proportion of

spending that could be retained within Sheffield City Region, it is estimated that the spending

of inbound visitors could support a further 638 gross FTE jobs annually by 2037” (DSA Draft

Masterplan 2018, p.89)

3.56 This is in addition to the substantial potential for growth in permanent, FTE, jobs associated

with the construction phase. While this calculation is based on development of DSA airport

itself this sector of the economy will support delivery of the Local Plan’s overall requirement

for growth; equally some growth in the construction workforce may take place before aspects

of the DSA Masterplan are implemented. Neither of these components of economic

development appear to be recognised in the Council’s Appendix 3 associated with monitoring

jobs growth at DSA.

3.57 National planning policy requires that Local Plans are reviewed at least every five years. The

objective for a substantial opportunity for residential growth south of the Airport Approach

Road should, as outlined in the Council’s Pre-Submission Local Plan (paragraph 5.30), form

part of measures to ensure comprehensive delivery and masterplanning. The measures to

control any potential additional growth in the plan period through Policy 7 and the

accompanying Appendix 3 are not justified and would not be effective. This would generate

significant uncertainty surrounding future monitoring requirements (in terms of measuring job

growth) and barriers to implementing the policy as intended.

3.58 It is notable that the Council’s own 2018 Housing and Economic Land Availability Assessment

(HELAA) indicates that for Site Ref 940 (‘Poplars Farm, Hurst Lane’) only 140 should be

regarded as deliverable in years 0-5 of the plan period. This is significantly less than the 280

units indicated as a first phase of growth (Site E1) nearest the approach road and indicative

location for the Commercial Plaza. This strongly indicates that the future requirements for



21

comprehensive development can most effectively be addressed as part of Local Plan review,

whereas both Site E2 (as identified in the Local Plan) and the proposed additional capacity

at Mosham Road provide essential opportunities to address the housing requirement upon

adoption.

3.59 DSA is a focus for airport related employment growth, suited to high growth industries and

logistics. The airport and hinterland is identified as being the best location for aircraft and air

service related businesses. There is therefore an opportunity to provide for this expected high

growth related employment within the immediate locality.

3.60 Attracting high growth industries and logistics to the area would also compliment the skills

base of the existing workforce in the locality: Census (2011) information for the South East

ward of Doncaster (which includes Finningley and Blaxton), indicates that there is a higher

concentration of managers, professional and technical people employed and living in the

south east area of Doncaster compared with other Doncaster wards.

3.61 As set out within the letter provided at Appendix 4, the Mixed Use allocation of the Mosham

Road site is supported by Peel Investments, as operators of the airport site, in order to

support the vision for the airport and the provision of the proposed railway station.

Recommendation

Policy 7 be amended to include reference to the Housing Allocation of Site 446.

Justification

3.62 To ensure accordance with the DSA Masterplan and to reflect the previously developed

nature of the site, its close proximity to airport, and importantly the proposed location of the

airport railway station. It is deemed the most sustainable location for which to accommodate

new housing and employment development to support growth within the area.

3.63 The allocation of the site for Housing-led redevelopment under the appropriate policies will

support the comprehensive regeneration of the site and the sustainable future of the village

of Auckley. The additional capacity provided by the site in respect of housing provision will

support the uplifted housing figure proposed within this representation in relation to Policy 3.

3.64 If the Council is not minded to accept this figure, the inclusion of the site for development

under Policy 7 (i.e. in addition to the standard Local Plan figures) is also considered to be



22

justified on the basis of supporting sustainable economic growth associated with the DSA

Masterplan. These representations highlight that substantial additional benefits that would be

delivered in accordance with the priorities of the Local Plan through acknowledging support

for additional development compliant with the DSA Masterplan. These include prioritising

brownfield land; minimising loss of Green Belt; maximising multi-modal transport choice and

minimising the number and length of journeys.

3.65 This approach will ensure appropriate support for the delivery of the railway station as a key

part of the DSA Masterplan, as well as the other much wider benefits outlined within this

report. These amendments will also ensure the soundness of the plan.

Other Policies relevant to the consideration of Site 446

Policy 8 – Delivering the Necessary Range of Housing

3.66 Policy 8 point b) sets out that the delivery of wider range and mix of housing types, sizes and

tenures will be supported. In relation to affordable housing the policy sets out that:

“there is a clear requirement for the provision of affordable housing to meet local

needs in each individual community. Housing sites of 15 or more homes (or 0.5 Ha

or above) will normally be expected to include 23% affordable homes in the Borough’s

high value housing market areas (as defined in explanatory text below), or a lower

requirement of 15% elsewhere in the Borough (including starter homes / discounted

market sales housing which meet the definition in the NPPF) on-site.

3.67 This representation is submitted on behalf of SYHA Enterprise Ltd, who are a key provider

of affordable housing within the South Yorkshire region. Based on their support for the site,

it is considered that the site will be capable of achieving at least the minimum policy compliant

affordable housing requirement.

3.68 The Housing allocation of the site will therefore provide the opportunity to make a significant

contribution towards affordable housing provision within the locality and the Borough.

3.69 The supporting text for Policy 8 sets out that the required affordable housing percentages

have been determined from the Doncaster Local Plan Viability Testing (2016) evidence base.

3.70 It is of note that there is no specific mention within the policy itself of the affordable housing

requirement being subject to viability testing. However, Policy 67 (Development Viability)



23

states the following with regard to such testing:

“Where the applicant can demonstrate that particular circumstances justify the need for a

Viability Appraisal, the Council will take a pragmatic and flexible approach to planning

obligations and consider their genuine impact on viability of development proposals on an

independent and case by case basis, at the applicant’s expense, and in line with the following

principles:

a) Development which is unable to make the full contribution at the point at which the

application is submitted may be supported where:

1. a robust and fit for purpose viability assessment shows that the full

contribution would make the development unviable;

2. the possibilities for reduced, deferred or phased contributions have been

fully explored; and,

3. it can be demonstrated that the wider benefits of the scheme outweigh its

lower level of contribution.

b) Where a lower level of contribution is agreed, this may be subject to reassessment

once the development commences and / or any other suitable trigger point(s) as

appropriate and agreed between the Council and the applicant.”

Recommendation

3.71 Policy 8 to include direct reference to the need to consider viability in accordance with

Policy 67.

Justification

3.72 The Council should include a reference to Policy 67 to ensure clarity in the application of this

policy and to ensure that the plan remains viable and deliverable, as therefore sound, within

the plan period.

Policy 13 – Strategic Transport Network

3.73 Policy 13 supports the improvements to rail transport including a new electrified main line rail

connection and new railway station at Doncaster Sheffield Airport, connecting the airport onto



24

the East Coast Mainline.

3.74 The inclusion of a policy advocating a new station at Doncaster Sheffield Airport is

strongly supported. Such infrastructure provision will not only support the sustainable

development of the DSA area but also the enhanced sustainability of the existing settlements

within the locality.

3.75 The allocation of Site 446 for Housing development will help to deliver this significant piece

of infrastructure to support the continued growth of the DSA Masterplan.



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4.0 SITE ASSESSMENT – LAND AT MOSHAM ROAD, AUCKLEY (SITE 446)

Site and Context

4.1 The site referred to as ‘Blaxton Quarry Phase 2, Mosham Road, Auckley’ (Local Plan ref 446)

is shown in Fig. 3.

Figure 6. Location Plan

4.2 The site is located immediately north of the Doncaster to Lincoln railway line, and to the south

of Mosham Road, Auckley in Doncaster. The site is well defined by existing landscape

features including hedgerows to site boundaries.

4.3 It is approximately 16 hectares in size and was previously worked for mineral extraction

although this use has now ceased. Other quarries lie to the east and the west of the site with

residential development to the north and south of the site, beyond the railway line.

4.4 There was no specific conditional requirement to comprehensively restore the site following

minerals extraction and no topsoil remains. The site has only been backfilled to a limited

degree.



26

4.5 The southern boundary of the site fronts onto a railway line, with housing beyond. Hurst Lane

and Gatehouse Lane/Mosham Road adjoining the eastern and western boundaries

respectively. Overall the site is enclosed being bounded by road and rail corridors, with

residential, amenity, and commercial uses in adjacent areas.

4.6 The site is accessible to the strategic motorway network. The M18, A1(M) and the M180 run

through the Doncaster area. Access to the motorway network can be gained from the A614

to the M180, M18/M62 and the A638 to the A1 (M).

4.7 Immediate road access to the site is via Hurst Lane, which runs south to the A638 (Great

North Road). A route north from the site is provided by the A614.

4.8 The new railway station to serve the airport site and surrounding area is proposed on the part

of the railway line directly adjacent to the site, for which planning permission (LPA ref

06/000459/FULM) has previously been granted. Those exiting the northern platform would

gain access to the local road network through the Mosham Road site. The strategically

important nature of the sites location is illustrated in Fig. 7 in relation to the airport site,

neighbouring villages and the employment area at the I-port to the west.

Figure 7. Location of Site 446 within local context



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Current UDP Designation

4.9 The site is allocated as Countryside in the adopted Doncaster UDP. Policy ENV2 outlines

the principles for this policy area and policy ENV4 sets out criteria under which development

may be undertaken are the relevant policies for the site.

4.10 It is considered that this policy guidance is outdated and no longer reflects the strategic and

economic requirements which are relevant to the area today. It is evident that there is a need

to provide additional housing, employment and investment in the locality and improve the

overall physical quality of the environment.

4.11 Overall it is considered that the site can accommodate up to 400 dwellings together with

landscape and open space requirements and alongside provision of the proposed railway

station and associated infrastructure.

4.12 The site represents a significant opportunity to deliver much needed affordable homes and

key worker accommodation for the rapidly expanding airport and its surrounding business

park. This is particularly given the support from SYHA Enterprises.

DSA Masterplan

4.13 As set out within this representation, the DSA Masterplan includes Site 446, which is shown

for housing. The site is also anticipated to include the northern platform of the proposed DSA

railway station. The railway station offers the opportunity to provide frequent public transport

connections towards Sheffield and Lincoln.

4.14 The station would make the site an extremely sustainable location for housing development

in terms of access to public transport, giving residents access to surrounding areas without

being dependent on the car, which would promote sustainable transport in the area.

4.15 The development of the site for housing-led development alongside the delivery of the new

railway station would create a highly sustainable link between the settlement of Auckley and

the wider area.

Proposed Housing Allocation

4.16 In order to ensure that there is a sufficient and suitable supply of land to deliver their housing

and previously developed land objectives, Local Planning Authorities are required at the local



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level to identify broad locations and specific sites which will enable a continuous delivery of

housing for at least 15 years. Local Planning Authorities are also required to identify a further

five years supply of specific housing sites for years 6-10 that are developable, and if possible

specific sites for years 11-15 but if not broad locations for future growth.

4.17 Specifically, Local Planning Authorities should identify sufficient deliverable sites for the first

five years, to be considered deliverable sites, at the point of adoption of the Local Plan.

4.18 For sites to be deliverable they need to be: available (the site is available now), suitable

(development of the site would contribute to the creation of sustainable communities) and

achievable (there is a reasonable prospect that housing on the site will be deliverable on the

site within 5 years).

Deliverability

4.19 It is considered that this site can be comprehensively developed to deliver residential and

employment uses together with commercial uses, which will complement the commercial

development of the Airport and its hinterland.

4.20 Also included within this is the potential for the site to accommodate a new rail station to

serve the new Airport and future industry. The planning permission for the Airport also

included a new rail station to be located in part within the boundary of the site. Given that

Doncaster at present has a lack of rail connected employment sites, this site provides real

potential for delivering employment together with a transport interchange.

4.21 Comprehensive planned development around the airport is critically important, both to the

long term success of the airport and the economic benefits it can bring, and to ensure that

any environmental impacts are fully assessed, controlled and mitigated. The Mosham Road

site is identified within the DSA Masterplan for housing as part of proposals to support the

growth of the airport. It is unclear as to why the Council had not reflected this aspiration within

the Local Plan as part of draft Policy 7.

4.22 The site is being jointly promoted by a housing association, who would look to deliver

affordable housing as part of any proposal for the site. The Doncaster Housing Strategy

document confirms that:

“We are generally supportive of new affordable housing development in this area due



29

to the amount of economic development taking place in the area around the airport,

which is expanding its operations, and the number of jobs that are expected to be

created in the near vicinity as a result of completing the airport link road ‘the great

Yorkshire Way”.

4.23 The figures collected by SYHA for housing bids in the period 2016-2018 confirm that there is

a shortage of housing available for Auckley, Blaxton and Finningley. For example, no three

bed units became available for the two years to the end of August 2018.

4.24 The figures however showed clear demand in the area for affordable housing in Auckley, as

the latest figures show that 117 people bid for one of the 3 beds that became available in the

year ending August 2018 and two bed demand was also noted.

4.25 The provision of housing within the site would therefore address current need within the

housing market.

Available & Achievable

4.26 The site is within the ownership of one land owner and therefore development of the site can

be undertaken comprehensively. The landowner has promoted the site for development

through the local plan preparatory process demonstrating their commitment to bring the site

forward.

4.27 The proposals also have the support of SYHA Enterprises Ltd, who are an affordable housing

provider and operator, committed to the delivery of the proposals to meet a range of housing

needs within the locality.

Suitable

4.28 It is considered that the site is located within a suitable location for development and would

not only help to deliver Doncaster’s strategic employment and housing requirements but

assist in providing market and affordable housing in an area in need of regeneration.

Development on the site would also lead to the creation of a sustainable community.

4.29 The site and the surrounding area does not lie within the Doncaster Green Belt or within a

flood plain therefore making allocation and subsequent development on the site more

acceptable than would otherwise be the case.



30

4.30 Extensive site investigation reports have previously been undertaken to support earlier

representations. The nature of the site and the individual characteristics of the area indicate

that there are very few identified physical or environmental constraints to future development.

4.31 The site is well located in relation to the local schools and bus stops, providing access to

settlements with a wider range of services and facilities. The site itself is bounded by treeline

which provides some element of separation from the wider countryside and as the site is

situated between two residential areas, development would provide a logical extension to the

south of the village between the two residential areas.

4.32 The site adjoins the existing settlement boundary of Auckley, which offers a range of services.

The site lies in close proximity to a range of public services and facilities including:

The Hayfield School (320m)

St Saviour’s Church (500m)

Hayfield Lane Primary School (600m)

Nisa Local (650m)

Auckley Post Office (500m)

Co-op Food Auckley (550m)

Walkers Nurseries & Garden Centre (750m)

TaleGate Theatre (1km)

Eagle and Child Inn (1km)

Auckley Friery (900m)

Yorkshire Wildlife Park (1.7km)

Doncaster Sheffield Airport (1.5km)

Prospective employment site directly adjacent

4.33 The site is accessible by public transport with the nearest bus stop being located

approximately 330m from the site on Hurst Lane. The services running from this location

connect the site to Auckley, Doncaster Town Centre and Doncaster Sheffield Airport and

include the following:

No. 57a: Doncaster – Cantley

No. 57c: Doncaster – Auckley

No. 588: Tickhill – Cantley



31

No. 57f: Doncaster – Finningley

4.34 The site currently benefits from informal access points on the western boundary and both

Hurst Lane and Mosham Road benefit from footpaths and grass verges along the length of

the site boundary, leading to adjacent residential areas. A vehicular access point could be

achieved from Mosham Road to provide access to the adopted highway.

4.35 Additionally, the development of the Great Yorkshire Way link road between the M18

(junction 3) and the airport and the proposals for a new rail link significantly enhance the

accessibility of the site.

4.36 The most recently available Housing and Economic Land Availability Assessment (HELAA)

published July 2019 but with an April 2018 base data, identified the site under reference: 446

- Blaxton Quarry Phase 2, Mosham Road, Auckley.

4.37 The HELAA assessment identified that the site:

Has no physical constraints

Has no availability constraints

Is suitable but with local policy constraints

Is developable in a timeframe of 0-15 years for 357 units.

4.38 The Environmental Agency’s Magic Maps database indicates that the site is not subject to

any environmental constraints or designations.

4.39 The site is entirely located in Flood Zone 1, as such it is considered to be at the lowest risk

of flooding and is therefore suitable for residential development.

Capacity

4.40 The site area extends to approximately 16 hectares and is considered to have capacity for

up to 400 dwellings including landscape buffers and in addition to the proposed railway

station and associated infrastructure. The allocation of this site for housing/employment

would create a practical development to the south of Auckley.

Landscape/Visual Impact

4.41 The landscape character of the site can be described as undulating with little hedge or field



32

boundaries. The site displays an overall character of a degraded landscape with limited

vegetation and a vacant land use. The lower land level generally curtails long distance views

across the site.

4.42 It is our opinion that the poor quality degraded nature of the landscape can effectively

accommodated change without having a detrimental impact upon the landscape and its

surroundings. The ability of the site to accommodate change is determined by the diversity

and value of elements within the site which are in this case degraded and of little landscape

value in terms of their contribution to character and as such are considered to be of poor

value.

4.43 The site is distinctly different in character to that of the land to the north of the site, which is

more connected to the rural area. It is considered that mixed use development at the site

would form a natural extension to the built form of the airport and its hinterland.

4.44 The character of the area is also assessed in the Council’s Landscape Character

Assessment of Doncaster Borough published in March 2007. The Study was undertaken to

inform the Doncaster LDF and includes landscape character descriptions, landscape

capacity and deign guidance for each landscape character area. A detailed strategic

employment survey of the area to the north of the Airport has been undertaken. The area is

described as a small area which extends from the settlements of West Barrier to Finningley

and from the B road through Blaxton to the north and the existing airport infrastructure to the

south.

4.45 It describes the area as fragmented with diverse land uses which include horticultural

nurseries with lines of ornamental conifers; sand and gravel quarries; a well screened railway

on an embankment; busy B roads and a partially tree screened fuel depot for the airport. Part

of this area to the north of the airport is currently under development for large-scale strategic

employment. Land to the west of the B1396 is currently being developed with new housing.

There are isolated remnants of farmland, including pasture for bulls, with no readily identified

arable field pattern. These are not easily viewed being surrounded by urban influences.

4.46 It describes the area as neither tranquil nor remote and is already surrounded and heavily

influenced by new and existing urban development. It has an indistinct character, is in poor

condition and is already isolated from rural influences. Therefore the landscape quality and

value is considered low.



33

4.47 Due to the existing urban influences and the fragmented nature of much of the landscape

strategic employment development would have a limited landscape impact. However, it

would erase remnants which are not large enough to create a pattern. Any such a

development would also fit with existing boundary lines and with appropriate treatment of the

landscape has the potential to improve and unify this diverse landscape. However it would

be very visible locally, such as from the new housing estate to the west of the B1396 and for

residents on the southern edge of Blaxton, but may be screened from further away due to

existing woodland and the well treed railway embankment.

4.48 Overall the landscape capacity for strategic employment on the northern edge of Doncaster

Sheffield Airport is judged to be high. Based on this, it should also be considered that the

landscape has the capacity to accommodate built development whether it is employment or

housing development.

4.49 Golder Associates (UK) ltd. were commissioned to carry out further landscape assessment

to examine in greater detail localised areas where there is considered to be pressure for

housing and/or strategic employment development. However this only relates to the area

immediately to the west of the airport run way i.e. the area proposed for allocation under

Policy 7 and therefore the 2007 Landscape Character Assessment is considered to remain

the most relevant evidence to the consideration of the Mosham Road site.

Soils

4.50 Due to extensive sand and gravel extraction there is limited soil resource across the site. The

site is generally degraded and bereft of any top soils.

Ecology

4.51 With regards to wildlife there is no indication of any protected plants or species existing within

or using the site. Development of the site and the subsequent introduction of additional

planting and potential wildlife habitats will assist in helping to attract and encourage wildlife

to the area.

4.52 In conclusion, the environmental impacts from development of this vacant underused site are

considered to be low and any concerns related to landscape or noise can be designed out

of any scheme. New housing would support social, economic and aesthetic needs in the

locality and provide for an enhanced environment.



34

4.53 Overall as a site, which is located on the fringes of the built up fringes of the airport, this site

performs well in sustainability terms and can make an important contribution to the delivery

of Doncaster’s housing trajectory.

Assessment of Alternative Sites – Auckley- Hayfield Green

4.54 The Site Selection Methodology which forms part of the Local Plan evidence base provides

an overview of how the Council has assessed potential housing site options within the plan

area.

4.55 A total of 14 potential development sites have been identified within Auckley. In order to

demonstrate the suitability of the Mosham Road site, the remaining 13 sites within the

settlement have also been considered and a summary of the results is provided in the table

below.

Table 1 – Assessment of alternative sites within Auckley/Hayfield Green

Reference Constraints

007 Rejected site:

Flood risk area (Zone 2 and 3)

Fails the flood risk sequential test

Pollution to surface water bodies

Location issues- access to bus/train network, capacity of local schools

049 Rejected site:

Deliverable units (36) are above the settlements need requirement

Location issues- access to bus and train network, capacity of local

schools

174 Rejected site:

Flood Zone 2 and within an EA flood warning area


201 Rejected site:


Location issues- access to bus and train network, capacity of local

schools and access to existing centre

223 Proposed site however there are location issues with limited access to the

train station and the proximity to the existing centre.



35

299 Rejected site:


Highways issues

Location issues- access to bus/train network and access to services such

as GPs and schools


330 Rejected site:



422 Rejected site:


Location issues- access to train network, capacity of local schools

No defensible boundary

464 Rejected site:

Flood Zone 3

Health & Safety risks

Biodiversity concerns- overlays a local wildlife site



832 Rejected site:


Location issues- access to bus train network, capacity of local schools

Heritage impacts

940 Proposed conditional housing site:

Development of 940 units is subject to the delivery of jobs at the

airport with the exception of 280 dwellings

Local policy constraints

Highway access issues

Heritage issues

Groundwater source protection concerns

Location issues – proximity to existing centre, train station, GPs and

schools.



36

Biodiversity issues

Major archaeological concerns


1010 Rejected site:



1013 Rejected site:


No defensible boundary


4.56 Of the above sites, those identified in red and orange are considered to be more constrained

and/or less sustainable than the Mosham Road site for the reasons identified.

4.57 Site 223 is coded green. It is located immediately to the south of the Mosham Road site

beyond the railway line and has been partially developed previously for employment uses.

The southern platform of the proposed new railway station would be located within this site if

delivered and will occupy a significant proportion of the remaining available land. It is

considered that any unused land could be bought forward for employment uses to reflect the

existing uses at the entrance to the site.

4.58 Site 940, is proposed conditionally for housing in accordance with Policy 7 of the Publication

Local Plan. However, there are a number of constraints relating to this site, as mentioned in

the table above. The key constraint relates to the development being conditioned and reliant

upon the delivery of jobs at the airport. There is no accurate method by which to calculate

when the site may be delivered and the provision of housing within this location will not

support the vitality or viability of existing settlements to the same degree as site 446, given

the separation of the site from the established villages.

Conclusions

4.59 Site 446 provides the opportunity to deliver additional, sustainably located housing adjacent

to the existing settlement of Auckley.

4.60 The site has no overriding environmental constraints and would have significant positive



37

effect through the removal of contaminated land. The site is available and deliverable in the

short term and represents the most sustainably located site for housing within the Auckley –

Hayfield Green area.

4.61 Based on the above information, the site is capable of delivering housing and employment

development in the short term, if allocated for Mixed Use within the emerging Local Plan.

This approach would ensure the soundness of the Local Plan and support delivery of the

DSA Masterplan and the proposed railway station.



38

5.0 CONCLUSIONS

5.1 This representation is submitted on behalf of SYHA Enterprises Ltd and A.A Lund in response

to consultation on the draft Doncaster Local Plan (Reg 19) 2019. This representation relates

specifically to the promotion of Site 446: Mosham Road, Auckley for Mixed Use allocation.

5.2 Site 446 is retained within the Countryside Policy Area within the draft Local Plan. DLP

objects strongly to this designation and to policies 3, 6, 7 and 8 for the reasons set

out within this representation.

5.3 The site has been extensively promoted for redevelopment throughout the Local Plan

preparation period. The housing led development of the site is supported in principle by

Blaxton and Auckley Parish Councils, and by Peel Investments, as promoters of the DSA

Masterplan.

5.4 Within this context, Section 3 of this representation provides detailed analysis of the spatial

strategy set out within the draft Local plan, in order to demonstrate that the overall housing

requirement is above that currently planned for and should be distributed in a more flexible

manner, in order to ensure that the economic growth objectives of the plan are full supported,

as well as meeting local housing need. The recommendations set out herein are proposed

to ensure the soundness of the plan and ensure the most sustainable approach is taken to

support the level of location of housing and employment growth sought within the Borough.

5.5 The wide ranging benefits of allocating Site 446 are set out in Section 4 of this representation

and it is considered that this site can be comprehensively developed to deliver housing-led

uses together with transport infrastructure relating to the proposed railway station, which will

complement the growth of the Airport and its hinterland.

5.6 The sites inclusion for housing within the DSA masterplan reflects its under-utilised

brownfield status and the sites suitability for development as a cleared level site with good

accessibility, being in flood zone 1, with no environmental constraints.

5.7 The development of the sites will contribute towards facilitating the development of a new

airport railway station, providing sustainable transport connections not only to the airport but

also to settlements within the wider area. The site already benefits from a good public

transport service serving Auckley village and is not therefore reliant on a critical mass of new



39

development to secure new public transport links in order to ensure sustainability.

5.8 In respect of the consideration of other sites within Auckley for development, the site has

been demonstrated to perform strongly against other sites identified within the Site Selection

Methodology document. The site is also demonstrated to be a suitable, achievable and

deliverable in order to accommodate further housing growth.

5.9 Therefore, it is recommended that the site should be allocated for housing in order to

provide market and affordable housing, as well as other uses, in the short-medium

term, within a sustainable location, which can make a viable contribution to the vitality

and sustainability of the village in accordance with the aspirations of the Framework.

5.10 The landowners has a confirmed interest to purchase the land for development from SYHA

Enterprises, who are committed to bringing the site forward for development in the short term.

5.11 The Local Plan as drafted is unsound because it does not meet the full housing requirement

for the Local Plan period, as set out within this representation and is not therefore consistent

with the Framework Paragraph 22, which requires strategic policies to cover a minimum 15

year period.

5.12 The resulting housing provision to meet future need is therefore considered unsound. It

cannot be regarded as positively prepared, and is not justified by the evidence base for the

Plan; nor can it be treated as consistent with national policy and support for the plan-led

approach.

5.13 In order to address the overall failure of the plan to designate sufficient land for development,

and to take the significant strategic opportunity presented by the proximity of the Auckley site

to the airport and the location of the proposed railway station on the southern boundary of

the site, we make a number of recommendations herein, including that Site 446 be removed

from the current Open Countryside designation and re-allocated as a Housing site in

order to contribute to the overall supply of such land within the Borough and assist

in the regeneration of the locality.



40

Appendix 1

Representation by Walker Morris

PREPARED BY WALKER MORRIS LLP

1

Land East of Hurst Lane, Auckley, Doncaster ("the Site")

1 Introduction

1.1 These representations have been prepared on behalf of A.A. Lund in response to the Doncaster Local

Plan Publication Version consultation (Regulation 19).

1.2 These representations can be read alongside those prepared by Clare Plant MRTPI AssocRICS of

DLP Planning Ltd and John Goodall MRTPI also of DLP Planning Ltd. The objections raised in those

representations are not repeated here, (but should be treated as so repeated) which also represent

our client's position on the Publication Version of the Doncaster Local Plan.

1.3 Our client owns the land east of Hurst Lane, Auckley (SEA site ref: 446) and has been engaged in

promoting the site for mixed use development for a number of years. The Publication Local Plan

proposals map indicates that the land will be identified as 'Countryside', where policy 26 in the

Publication Local Plan restricts most forms of development. Our client objects to the proposed

inclusion of this land as 'Countryside' and endorses the objections made by Clare Plant and John

Goodall in their representations.

2 The Statutory Framework

2.1 The Planning and Compulsory Purchase Act 2004

2.2 The statutory framework for the preparation of Local Plans is set out in Section 19(1B) – (1E) of the

Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). Sections 19(1B) – (1E) requires each

local planning authority to identify the strategic priorities for the development and use of land in the

authority's area and to set these policies out in a development plan document.

2.3 In preparing a local development document, the local planning authority must have regard to national

policies and advice; any other local development document prepared for the area; the resources likely

to be available for implementing the proposals in the area and such other matters as the Secretary of

State prescribes (Section 19(2) of the 2004 Act).

2.4 For the purposes of preparing a local plan, the national policies and advice are contained in the

National Planning Policy Framework (February 2019) and the Planning Practice Guidance notes.

2.5 Such other matters as the SoS prescribes include The Town and Country Planning (Local Planning)

(England) Regulations 2012.

2.6 Section 19(5) of the 2004 Act requires the local planning authority to carry out an appraisal of the

sustainability of the proposals in each development plan document and to prepare a report of the

findings of the appraisal. A Sustainability Appraisal has been prepared by Wood Environment &

Infrastructure Solutions UK Limited on behalf of Doncaster Council and is considered in further detail

below.

Local Plan Representation – Regulation 19


2

2.7 The Town and Country Planning (Local Planning) (England) Regulations 2012 ("the Regulations")

2.8 In addition to the matters which a local planning authority should have regard to when preparing its

development plan, as prescribed in Section 19(2)(a)-(2)(i) of the 2004 Act, the Regulations set out

additional matters. These are contained in regulation 10 and include:

2.8.1 policies developed by a local transport authority in accordance with section 108 of the

Transport Act 2000(1);

2.8.2 the objectives of preventing major accidents and limiting the consequences of such

accidents by pursuing those objectives through the controls described in Article 12 of Council

Directive 96/82/EC;

2.8.3 the need—

(a) (i) in the long term, to maintain appropriate distances between establishments and

residential areas, buildings and areas of public use, major transport routes as far as

possible, recreational areas and areas of particular natural sensitivity or interest, and

(b) (ii) in the case of existing establishments, for additional technical measures in

accordance with Article 5 of Council Directive 96/82/EC on the control of major

accident hazards involving dangerous substances so as not to increase the risks to

people;

2.9 The National Planning Policy Framework ("the Framework")

2.10 The Framework is a material consideration in the determination of planning applications and "must be

taken into in account in preparing the development plan". The Framework constitutes the 'national

policies' referred to in Section 19(2)(a) of the 2004 Act, which the local planning authority "must have

regard to".

2.11 Chapter 3 of the Framework ("Plan-making") provides the tests for the preparation and examination of

soundness of development plans. There are 4 tests of soundness which a draft local plan will be

examined against. These tests are set out in full below:

(a) Positively prepared – providing a strategy which, as a minimum, seeks to meet the

area’s objectively assessed needs19; and is informed by agreements with other

authorities, so that unmet need from neighbouring areas is accommodated where it is

practical to do so and is consistent with achieving sustainable development;

(b) Justified – an appropriate strategy, taking into account the reasonable alternatives,

and based on proportionate evidence;

(c) Effective – deliverable over the plan period, and based on effective joint working on

cross-boundary strategic matters that have been dealt with rather than deferred, as

evidenced by the statement of common ground; and

(d) Consistent with national policy – enabling the delivery of sustainable development

in accordance with the policies in this Framework.

2.12 The Doncaster Local Plan Publication draft has been assessed by both Walker Morris LLP and DLP

against these tests of soundness. The objections to the Local Plan, by Walker Morris LLP and DLP,

highlight the Plan's failure to comply with the various tests of soundness in the Framework.


3

3 Previously Developed Land

3.1 The Site was previously in use as a sand and gravel quarry from the 1940s to the 1960s. The use of

the quarry was discontinued in the 1960s and since then no activity or remediation has taken place.

3.2 Appearance

3.3 The quarry retains its artificial land features, where the excavation of the quarry is visible, in uniform

parcels separated by raised paths/old roads formed by bunds. The top soil has been removed and

very little ruderal vegetation is able to grow. The absence of any remediation since the discontinuance

of the quarry render the Site unsuitable for agriculture.

3.4 The uneven topography is itself an alien feature in the landscape, which is unlike any of the

surrounding flat fields. The Site is plainly dissimilar to the surrounding landscape. The Site has not

"blended into the landscape"1

3.5 The Site is well enclosed by boundary mature hedgerows and trees. There are limited views into the

site from the roads (Hurst Lane and Mosham Road).

3.6 Conditions

3.7 We understand the quarry did not go through the Review of Old Minerals Permissions (ROMP) and no

conditions regarding the remediation were ever attached to permissions for the Site (or if so are no

longer enforceable).

3.8 In the absence of any conditions or other development management procedure making provision for

the site's restoration, the Site is 'previously developed land' as defined in the Glossary, Annexe 2 of

the Framework.

3.9 Sustainability Appraisal / Strategic Environmental Assessment

3.10 The relevance and significance of whether the land is classified as previously developed land is

evident in the Sustainability Appraisal, prepared by Wood Environment and Infrastructure Solutions

UK Limited. The Site (ref: 446) is identified in the Appraisal section as being Greenfield, rather than

Brownfield. In the assessment matrix, the Site is scored '0' for being "located on greenfield land that

has not previously been developed". The commentary for the Site also states this is on Grade 3

agricultural land, but that it is not possible to ascertain whether this is best and most versatile land.

The land is not in agricultural use and almost all of the topsoil has been stripped form the land. The

Site is Previously Developed Land. As such the Sustainability Appraisal cannot be relied upon to give

an accurate assessment of the Site's suitability and sustainability, while these errors remain

uncorrected.

3.11 Assessment of Previously Developed Land Definition

3.12 There is an interesting history to the definition of PDL. The 7th March 2000 version of PPG3 contained

a longer definition than appears in the current version of the Framework which appeared to have two

tests. That formulation of language was considered by Mr Justice Sullivan in Dodds and Hands v

Secretary of State for the Environment, Transport and the Regions [2002] EWHC 84 (Appendix A)

Admin which found the "clear reason" that could outweigh the reuse of the site was a separate distinct

test. Subsequently, the June 2011 version of PPS3 dropped the second limb of the test but kept the

same language in respect of the provisions relating to "blended into the Landscape in the process of

1 See previously developed land definition, page 70 National Planning Policy Framework.


4

time (to the extent that it can reasonably be considered as part of the natural surroundings)". The 2012

version of the Framework dropped the words in brackets from its predecessor definition. The 2018

version of the Framework dropped the words "in the process of time". The 2019 version maintains that

wording, thus the present definition is "and land that was previously developed but where the remains

of the permanent structure or fixed surface structure have blended into the landscape".

3.13 The approach to the interpretation of PDL has been considered by the Courts on a number of

occasions. This was recently considered in the Court of Appeal in Dartford Borough Council v

Secretary of State for Communities and Local Government and others (2017) EWCA Civ 141

(Appendix B). Essentially the language is to be given its ordinary common sense meaning in context.

There is no need to look at previous iterations of policy in order to understand the meaning of the

language used in its current context.

3.14 The relevant context is that the current Framework provides significant emphasis and importance to

the reuse of Previously Developed Land, especially in urban areas. Paragraph 118 (c) requires

substantial weight to be given to the value of using suitable brownfield land within settlements;

paragraph 68 confirms the importance of using brownfield registers to identify housing land; paragraph

84 encourages the use of PDL for employment uses; even in the greenbelt paragraph 145(g)

facilitates the complete redevelopment of PDL.

3.15 Although the language surrounding the concept of "blended into the landscape" has been reduced

there is absolutely no reason to suppose that the trimming down of the language has altered its

meaning or the policy. The fact that the phrase "to the extent that it can be reasonably considered as

part of the natural surroundings" has been deleted does not alter its meaning. The words "blended into

the landscape" must mean that a relevant site has blended into something to which it is adjacent ie,

the surrounding landscape. This point has been before the Courts in R (Bristol City Council v First

Secretary of State (i) and Edward Ware Urban Renewal Limited (ii) 2004 EWHC 1934 (Admin)

(Appendix C). In that case an Inspector had referred to the fact that the subject site was within an

urban area and that "there are no natural surroundings". It was suggested by the Claimants

(paragraph 16) that this was a misapplication of National Policy (then in Annexe C PPG3) and was

irrational. Mr Justice Sullivan dismisses the argument (see paragraphs 18 and 19) confirming that the

test is "not to be applied in a mechanistic way". In concluding that there were no "natural

surroundings" the Inspector had not been purporting to lay down some principle of general application

but this was a factor that could be taken into account. The Court dismissed the challenge.

3.16 The phrase "permanent structure" is deliberately not confined to buildings. Thus, an artificial dome of a

landfill or excavated quarry bottom and bunds would constitute such a structure in and of themselves,

the latter remain readily apparent on the Site.

3.17 The Dodd and Hands case dealt with railway sidings. In Mrs Olive Mrs Edwards v Rhondda Cynon

Taff County Borough Council [2014] UKUT 0435 (Appendix D) the Court considered whether a

disused railway cutting would qualify under the PDL definition. In both cases it is clear that 'structures'

which create an artificial land form are plainly considered to qualify. A Secretary of State decision and

Inspector's report (Appendix E and F) dealt with a former mineral site and the artificial structures of

what remained qualified under the definition of PDL. Paragraphs 13.5 to 13.7 set out the Inspector's

views on the nature of the site and whether it constituted PDL. In that case, there was a significant

amount of mounding, rubble and tracks on the site. Photographs showed extremely uneven land and

lines of tracks. That site had a very unnatural and artificial landform as a result of its previous use. The

mounding of the tracks were visible and had not blended into the landscape and bore no resemblance

to any part of its surroundings.


5

3.18 The first relevant exclusion in the PDL definition is that the site is: "land that has been developed for

mineral extraction or waste disposal by landfill, where provision for the restoration has been made

through development management procedures." However, it appears that no conditions were imposed

to ensure the remediation of the site and no ROMP took place here. The absence of any conditions or

review of minerals permissions indicates there has been no development management procedures to

restore this Site. This exclusion in the PDL definition does not therefore apply to the Site.

3.19 Given the substantial amount of time since the cessation of quarrying activities to the present day, any

residual or unidentified restoration requirements in a relevant planning permission, would be

unenforceable.

3.20 The question then remains as to whether the site can be judged to have blended into the landscape.

All of the cases referred to above provide discussion on this topic and do provide some helpful

insights, but each case must be judged on its own merits. Ultimately, this is a matter of judgment for

the decision maker. The bunds and excavations can clearly be seen on the Site which appear as an

artificial and alien landform in the surrounding landscape. The vegetation which has grown is tall

ruderal species, but with the majority of the site uncovered earth. The on-site views indicate a clearly

artificial landscape which is distinct from surrounding fields and quarries and could not be said to have

blended into the landscape.

3.21 The Sustainability Appraisal makes an erroneous reference to this Site being 'Greenfield' and to its

agricultural land classification. The Sustainability Appraisal's assessment of this Site is not consistent

with the Framework and is unsound for this reason.

4 Priority for Brownfield Land

4.1 There is a policy presumption in favour of considering brownfield land in preference to other sites.

4.2 The National Planning Policy Framework

4.3 Paragraph 117 of the Framework endorses a 'brownfield first' approach to promoting land to meet the

need for homes "in a way that makes as much use as possible of previously developed or 'brownfield

land'".

4.4 Paragraph 118.c) of the Framework is requires planning policies to give substantial weight to the value

of using suitable brownfield land within settlements for homes and other identified needs and support

appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land.

Paragraph 118.c) also promotes and supports the development of under-utilised land and buildings,

especially where it would help to meet identified needs for housing where land supply is constrained

and available sites could be used more effectively.

4.5 In Doncaster, where Green Belt land is being released for housing, paragraph 137 of the Framework

is notable and significant to the consideration of previously developed land. Paragraph 137 requires

local panning authorities to have examined fully all reasonable alternatives to meeting its identified

need, before exceptional circumstances exist to justify the release of Green Belt land.

4.6 Doncaster Local Plan Publication Draft

4.7 The presumption in favour of considering brownfield land first is also a policy requirement and

objective in the subject Doncaster Local Plan Publication draft. Paragraph 3.5 lists a series of

objectives in order to achieve the Local Plan's objectives. These include:


6

4.7.1 encourage the re-use of sites and buildings, especially well located and underused

brownfield land (e.g. redundant/unused land and empty properties and underused

floorspace) to help revitalise areas of low demand and stimulate growth;

4.8 The 'Plan, Monitor and Manage' definition in the Glossary of the Local Plan reinforces the priority to

use brownfield sites first, stating:

4.8.1 Approach to housing delivery replacing predict and provide, housing sites are released (i.e.

granted planning permission) only as and when they are needed so as to avoid an

oversupply of land and so that development can be tied to planned infrastructure

improvements and meet sustainability objectives such as ensuring brownfield sites are

developed before greenfield sites

4.9 This representation raises no specific objections to the aims and objectives of the Local Plan or its

preference to using brownfield land first. The objection focuses on the misapplication of the

Framework's and Publication Local Plan's policies to brownfield sites. The Site is previously developed

and its re-use for housing or an alternative use is encouraged in the Local Plan and Framework. The

site scoring in the Sustainability Appraisal, which ultimately feeds into the prospective allocation of

land in the Local Plan, is flawed and does not give priority to previously developed sites such as this.

4.10 It is notable that the Local Plan Publication draft proposes the release of land from the Green Belt to

meet its identified housing need, while brownfield sites adjacent to villages such as this are

prospectively retained as Countryside.

4.11 The allocations in the Local Plan Publication draft are contingent on accurate scoring in the

Sustainability Appraisal. Whilst the Local Plan policies seek to give priority to brownfield land first, this

objective is not carried through in the Sustainability Appraisal or the identification of land for housing.

Consequently the evidence on which the Local Plan allocations are based is inaccurate and the Local

Plan is unsound and inconsistent with national policy. The omissions in the Sustainability Appraisal

also fail to consider reasonable alternatives to Green Belt release, and release of greenfield land,

while brownfield land is available. The Local Plan is therefore unsound and fails to meet the 'Justified'

test in the Framework.

5 Sustainability

5.1 The omissions in the Sustainability Appraisal are not limited to the Site's definition as Greenfield land

in agricultural use. At part 3B) Accessibility to Local Services, the Site is marked '0' for access, within

400m-800m to a neighbourhood shopping parade. The neighbourhood shopping parade in Auckley

lies some 550m to the north of the Site. The score of '0' is defined in the Sustainability Appraisal as

'Neutral – Proposal is unlikely to create any significant effects (positive or negative) at present or in the

future'. The score of '0' for a site which plainly meets the 400m-800m requirement is difficult to

reconcile. It is assumed this is another error within the report and the Site should score a '+' 'Positive

effects – The proposal will have a positive effect on the SA Objective when compared to the current

and future baseline conditions. Minor adverse effects may result but the overall effect will be positive.'

5.2 Similarly, the Sustainability Appraisal scores the Site '0' on proximity to a primary school (within 400m-

800m). However, the Site lies within 600m of Hayfield Lane Primary School and 600m of Auckley

Junior and Infant School. This clear omission is unexplained and is assumed to be an error.

5.3 The Local Planning Authority's site selection process is reliant on the scoring in the Sustainability

Appraisal. Where clear errors of scoring do occur, such as the case here, these errors feed into the


7

allocations process. The errors in scoring therefore lead to a skewed site selection process which omit

sites as being unsustainable when in fact they meet the assessment criteria.

5.4 The evidence base and Local Plan is therefore unjustified as it fails to consider reasonable

alternatives.

6 Housing Requirement and Distribution of Growth

6.1 The representations prepared by Jon Goodall and Clare Plant of DLP Planning Ltd are fully endorsed

by our clients and summarised below.

6.2 National Policy and the Council's Proposed Employment-led Housing Requirement

6.3 The Council's objectives to provide more housing than the Standard Method indicates is supported.

However, the economic growth anticipated has been arbitrarily constrained by the use of a shorter

assessment period than the overall Plan Period. The Framework requires strategic policies to look

ahead over a 15 year period. The approach in the Local Plan fails to consider reasonable alternatives,

including calculating employment-led housing requirement in line with a 15 year outlook. Whilst it is

agreed the employment-led housing requirement approach is supported as an exception to the

Standard Method, this should not be artificially constrained by using a shorter period for assessment,

6.4 'Deliverable' housing sites

6.5 Paragraphs 2.9 to 2.11 of Mr Goodall's representation highlight the absence of 'clear evidence'

required by the Framework to demonstrate housing sites are deliverable within 5 years. The

representation notes that the local planning authority's evidence (HELAA 2018) was prepared prior to

the publication of the revised National Planning Policy Framework in July 2018. The July 2018

Framework contained the revisions to the definition of 'Deliverable' in the Glossary, which placed the

onus on the Council to produce 'clear evidence' that a site (i.e. an allocation, outline planning

permission or permission in principle site) would be delivered within 5 years.

6.6 Paragraph 74 of the Framework requires the local planning authority to establish a five year supply of

deliverable housing sites in its local plan.

6.7 The evidence base includes the Doncaster 5-Year Deliverable Housing Land Supply Statement.

However, the requirement figure in the Statement is based on the Standard Method and does not seek

to demonstrate whether the identified sites are deliverable against the Local Plan requirement.

6.8 The evidence presented in the Housing Land Supply Statement do not include responses from

developers, site owners or agents.

6.9 The absence of clear evidence to demonstrate a deliverable housing supply against the prospective

housing requirement is a substantial failing of soundness. This fails to consider reasonable

alternatives to prospective allocations which may be undeliverable and is inconsistent with the

Framework and Planning Practice Guidance.

6.10 Overall quantum of housing required

6.11 Paragraphs 3.3 to 3.4 of Mr Goodall's representation puts forward an alternative housing requirement

figure based on the demand for labour supply over the full plan period to 2035. The housing

requirement figure proposed by Mr Goodall is 1,073 dwellings per annum.


8

6.12 Should Mr Goodall's requirement figure and approach to calculation be considered sound, the

Sustainability Appraisal, spatial strategy and the scale of housing allocations would require

reassessment. We support the justification provided in Mr Goodall's representation.

6.13 The overall quantum of housing allocations and the Council's spatial strategy are considered unsound

as they do not aim to meet the area's objectively assessed need.

6.14 Distribution of Growth

6.15 At paragraphs 3.10 to 3.26 of Clare Plant's representation sets out the objection to the distribution of

growth in the authority area. The recommendation here is to re-apportion the housing provision to

those settlements which are sustainable, desirable and close to economic growth. The approach in the

Local Plan Publication draft is overly reliant on sites within the Main Urban Area of Doncaster. The

unique nature of the Auckley/Hayfield settlement, with its proximity to the airport, should not be limited

by an inflexible distribution to the Service Towns/Villages, in particular those which are not limited by

Green Belt and are close to large employment centres.

6.16 Policy 7 of the Local Plan Publication draft does not support any contribution to housing growth at the

Service Towns and Villages in close proximity to large employment centres.

6.17 Paragraphs 3.51 to 3.52 of Clare Plant's representation also deal in detail with anticipated jobs growth

at Doncaster Sheffield Airport. The Council have underestimated the jobs growth at the airport. The

DSA Masterplan expects growth to 4,295 full time equivalent jobs by 2026, while the Council's jobs

growth forecast is 2,545 to the end of the Plan Period in 2035. Clearly the DSA expects significantly

more growth than the Council.

6.18 The distribution of growth in the Local Plan Publication draft is inflexible and could fetter sustainable

development in the borough. The distribution approach is therefore unsound and inconsistent with the

policies in the Framework.

6.19 Housing allocations

6.20 Paragraphs 3.27 to 3.35 of Clare Plant's representation support the allocation of the Site for housing

and object to the retained 'Countryside' designation. These views are endorsed here and above.

6.21 For the reasons set out in Clare Plant's representation at paragraph 3.27 to 3.35, and above, the site

assessment in the Sustainability Appraisal is unsound. The Sustainability Appraisal fails to properly

assess the site as brownfield land. Consequently the evidence on which the Local Plan allocations are

based is inaccurate and the Local Plan is unsound and inconsistent with national policy.

7 Conclusions

7.1 The Doncaster Local Plan Publication draft, as prepared, contains significant deficiencies, in relation

to the Site; the strategic policies and the distribution of growth.

7.2 The objections prepared by Walker Morris LLP and DLP Planning Ltd highlight these deficiencies;

explain why the Local Plan is unsound and, where necessary, explain how this can be overcome.

7.3 This representation provides a legal interpretation of the definition of 'previously developed land' and

concludes that the Site has not blended into the landscape and is not subject to any development

management procedures to restore the land. The Site is therefore previously developed land and its

redevelopment should be a priority, in accordance with the Framework and draft Local Plan policies.

SMITH BERNAL

CO/3513/2001, Neutral Citation Number: [2002] EWHC 84 Admin

IN THE HIGH COURT OF JUSTICE

IN THE QUEEN'S BENCH DIVISION

(THE ADMINISTRATIVE COURT)

Royal Courts of Justice

The Strand

London WC2

Tuesday 22nd January, 2002

B e f o r e:

MR JUSTICE SULLIVAN

- - - - - - -

DODD AND HANDS

- v -

SECRETARY OF STATE FOR THE ENVIRONMENT

TRANSPORT AND THE REGIONS

- - - - - - - - -

(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

190 Fleet Street, London EC4A 2AG

Telephone No:

Fax No:

Official Shorthand Writers to the Court)

MR H RICHARDS (instructed by WALL JAMES & DAVIES SOLICITORS, STOURBRIDGE,

WEST MIDLANDS DY8 1QW) appeared on behalf of the Claimant.

MR P COPPEL (instructed by THE TREASURY SOLICITOR, LONDON) appeared on behalf of the

1ST Defendant.

THE 2ND DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED.

J U D G M E N T

(As approved by the Court)

Crown Copyright

SMITH BERNAL

1. This is an application under section 288 of the Town and Country Planning Act 1990 to quash

a decision made by a planning inspector contained in a decision letter dated 1st August 2001.

In that decision letter the Inspector dismissed the claimants' appeal against the decision of the

Wychavon District Council, the second respondent, to refuse to grant planning permission for

four houses on the site of the old station goods yard at Anchor Lane, Harvington, Evesham,

Worcestershire.

2. The claimants are the owners of the site. The railway ceased to function as such in the 1960s.

The claimants sought outline planning permission to erect four houses on the site which they

described as a “derelict goods yard”.

3. In a letter dated 1st February 2001 accompanying the application, solicitors on their behalf

contended that the local plan had become “out of step on the matter of the re-use of previously

developed land by the issue of PPG3”. The letter said:

“The housing proposed in this application is on the site of former goods yard

for Harvington Railway Station, and does not extend beyond it anywhere.”

4. The letter referred to the definition of previously developed land in Annex C to PPG3 and

contended that the application site fell within that definition.

5. The Council did not agree. Planning permission was refused for two reasons. The first

contended that the proposed development was outside the defined development boundary in

the Wychavon District Local Plan. The claimants do not quarrel with that reason for refusal.

6. They do, however, take issue with the second reason for refusal which was as follows:

“The application site consists of a former railway station site which ceased to

function as such upon the closure of the railway in the 1960's. Little in the way

of physical remains exists of this former use. There is a station platform and

another brick structure adjacent to Station House. These structures occupy a

relatively small portion of the application site and, until recently cleared of

some of the vegetation covering it, the former platform was largely overgrown

in common with other parts of the site. The overall impression of the site is one

where over time evidence of the former use has largely disappeared and

blended into the landscape. In addition, inadequate evidence has been

submitted to properly justify the claim that the site has no alternative use(s), or

that it has not had alternative use or uses since the cessation of its use as a

railway station. The site proposed for housing does not, therefore, fall within

the definition of previously developed land contained within Planning Policy

Guidance Note No. 3...”

7. The claimants appealed to the Secretary of State and their appeal was decided by written

representations. The Inspector made a site visit on 18th July 2001. In their submissions the

claimants said, inter alia:

“The Appellants accept that this development does not meet the Development

Plan criteria, but in this case material considerations in the form of PPG3

override the strict terms of the Development Plan which pre-dates PPG3.”

8. In paragraph 4.1 of their submissions the appellant's arguments were set out:

SMITH BERNAL

“4.1 We accept that following policy guidance in the WDLP on its own

without having regard to the material consideration of PPG3 means there has

to be a refusal. The question (we suggest) however is whether or not the

definition of “previously developed land” as set out in the Annex PPG3,

applies.

4.2 There is no argument by the LPA that the appeal site is the site of the

former railway line, station platform and goods yards at Harvington. The

principle disagreement with the LPA is as to whether or not the site has

“blended into the landscape” in such a way as is referred to in PPG3 so as to

take it outside the definition of “previously developed land”. On this precise

point the Appellants and the LPA disagree.

4.3 The railway lines either side of the platform were taken up when the

railway was closed (at a date which we cannot confirm), but the railway

platform is still in situ. Although a lot but not all of ballast would appear to

have been removed at the same time as the rails, the ground where the railway

sidings at the rear of the platform and the railway line in front of it were sited,

is not capable of either being cultivated or for that matter of providing anything

other than the poorest of support for vegetation. None of the appeal site has

been cultivated as a garden (contrary to the assertion of a local resident) and

owing to the nature of the surface and its impossibility for use as a garden, the

site has simply been left vacant. The LPA are perfectly correct when they say

that there was growth of some vegetation over parts of the site, but this was

cleared in no more than a day or so for the Appellants and nothing in any way

indicated during that period that the site provided good or reasonable growing

conditions for even unkempt vegetation. The expression “blended into the

landscape” is used in PPG3 and of course that is a matter of personal judgment,

but looking at the site presently, it is clear that it has not and is not physically

blended into the landscape - it is true that high hedges partially screened the

site, but such screening around the edges of the site does not blend itself into

the landscape, and it is clear from looking at it now that it is not presently

blended into the landscape at all. We take the view that this site therefore

complies with the PPG3 definition of “previously developed land”. (That view

disagreed with by the LPA, but on this ground only, namely that it has as a fact

blended into the landscape).”

9. The claimants' representations went on to explain that paragraph 30 of PPG3, which includes

a sequential approach, was not applicable because that approach applied when local planning

authorities were identifying sites to be allocated in local plans and did not apply to planning

applications.

10. The planning authority referred in its written submissions to paragraph 30 of PPG3 and

expressed concern inter alia, that the site had come forward on an ad hoc basis and had not

come forward as part of a sequential approach. But the Council said that on the main issue,

that is to say whether the site fell within the definition of previously developed land, its view

was set out in the second reason for refusal. It made three points in that context, the second of

which was:

“...it is the Council's view that the site has physically degenerated to a large

degree and that it has blended back into the landscape over the course of time.

The recent removal of many years' vegetative growth to highlight the limited

remains of railway infrastructure does not justify the site's proposed

SMITH BERNAL

transformation to residential use.

Third, the Council is very concerned that an undesirable precedent may be set

if permission for residential development is granted...”

11. Before turning to the Inspector's decision letter it is convenient to refer to the relevant passages

in PPG3 which was published in March 2000. Paragraph 21 explains:

“The Government is committed to promoting more sustainable patterns of

development, by:

* concentrating most additional housing development within urban areas;

* making more efficient use of land by maximising the re-use of

previously-developed land...”

12. Paragraph 23 says:

“The national target is that by 2008, 60% of additional housing should be

provided on previously-developed land and through conversions of existing

buildings.”

13. The final sentence of paragraph 23 refers one to the definition of previously-developed land in

Annex C to the guidance.

14. Under the heading “Identifying Areas and Sites” paragraphs 28 - 31 of the guidance advise

local planning authorities that:

“...development plans should provide clear guidance as to the location of new

development so that it meets housing requirements in the most sustainable

way”.

15. Paragraph 30 says:

“...local planning authorities should follow a search sequence, starting with the

re-use of previously-developed land and buildings within urban areas”,

when identifying sites to be allocated for housing in local plans and UDPs. A number of

criteria are set out in paragraph 31.

16. Paragraphs 37 onwards deal with determining planning applications. The point is made that:

“It is important that plans are kept up to date and properly reflect national

policy guidance. Local planning authorities should revise their plans to take

account of the guidance set out in this PPG: they should seek to do so as

quickly as possible by incorporating revised policies and proposals either in

replacement plans or by alteration of existing housing policies.

38. In consideration planning applications for housing developments in the

interim, before development plans can be reviewed, local authorities should

have regard to the policy contained in this PPG as material considerations

which may supersede the policies in their plan.”

17. The definition of previously-developed land in Annex C is as follows:

SMITH BERNAL

“There are various definitions of previously-developed land in use. For the

purposes of this guidance, such land is defined as follows:

Previously-developed land is that which is or was occupied by a permanent

structure, (excluding agricultural or forestry buildings), and associated fixed

surface infrastructure. The definition covers the curtilage of the development.

Previously-developed land may occur in both built-up and rural settings. The

definition includes defence buildings and land used for mineral extraction and

waste disposal where provision for restoration has not been made through

development control procedures.

The definition excludes land and buildings that are currently in use for

agricultural or forestry purposes, and land in built-up areas which has not been

developed previously (e.g. parks, recreational grounds, and allotments - even

though these areas may contain certain urban features such as paths, pavilions

and other buildings). Also excluded is land that was previously developed but

where the remains of any structure or activity have blended into the landscape

in the process of time (to the extent that it can reasonably be considered as part

of the natural surroundings), and where there is a clear reason that could

outweigh the re-use of the site - such as its contribution to nature conservation

- or it has subsequently been put to an amenity use and cannot be regarded as

requiring redevelopment.”

18. Against that policy background, the Inspector identified two main issues:

“...whether the proposal would harm the aims of local policies to protect the

countryside by containing development within defined settlement boundaries

and if so whether the previous use of the land should outweigh any such

objection.”

19. The Inspector concluded in respect of the first main issue that the proposal abutted but was

outside the settlement boundary defined in the local plan and that none of the exceptions

which permitted housing development in certain circumstances outside a settlement boundary

applied to the present case.

20. In paragraph 8 of her decision letter she said:

“The site forms a narrow “tail” at the south eastern extremity of Harvington

with the new A46 by-pass just to its east. The site is at the end of an

intermittent ribbon of dwellings the more easterly of which have the

appearance of a past association with the railway, which closed in the 1960s.

That part of Anchor Lane seemed to me different in character and somewhat

detached from the main part of the village, partly perhaps because there is only

one house on the south side of the lane...The site is not an obvious natural

extension to Harvington, which otherwise may have met the Structure Plan

Policy H18 exception. I conclude that the proposal is contrary to Development

Plan policy, with which my decision should accord unless material

considerations indicate otherwise.”

21. Then turning to the second issue she said:

“9. The Structure Plan pre-dates by 17 years and the Local Plan by 2 years the

advice in PPG3 about the efficient use of land in urban areas, the re-use of

SMITH BERNAL

previously developed sites and the general considerations that should inform

the selection of suitable housing sites. The appellants consider the

Development Plan out of date because of that. The land was previously

developed and that consideration should outweigh those policies.

10. The station platform still remains though about a third of it is within the

private area of the Station House. I saw that the area of the goods yard is poorly

drained. Most of the ballast was long ago removed and I saw no evidence of

any remaining. Nonetheless the condition of the site is compatible with some

form of hard surface remaining beneath the poor grass and weeds that cover

much of it. Apart from the one narrow platform and glimpses of a hardtop

surface, there is now no evidence of the previous use.

11. I am mindful that paragraph 30 of PPG3, which refers to selection of

potential allocation sites in Local Plans, refers to 'previously developed land

within urban areas'. Harvington is a large village but it is clearly not regarded

as “urban” in the same way as Droitwich, Pershore and Evesham in the Local

Plan. It is unlikely to have the range of jobs, services and public transport

options that national guidance in PPG3 and 13 advise is necessary to give a site

priority for housing development.

12. A fence encloses the land but otherwise it is open and surrounded by trees

and hedges. Despite the fence, its appearance and character is little different to

other open land and it provides a clear boundary to contain the settlement.

There is no requirement in Annex C of PPG3 that a site as blended into the

“natural” landscape as referred to in the ground of appeal, for it to be excluded

from the definition of previously developed. I agree with the Local Planning

Authority that for “Annex C” purposes the land has blended into the landscape

and does not meet the definition of “previously developed”. As the Council

also say, allowing the appeal would encourage proposals on other land that

contributes to the open character of the countryside around settlements but

which has had another use in the past. Cumulative and serious harm to rural

character would result.”

22. In the remaining paragraphs the Inspector considered and rejected the Council's proposition

that there had been an intervening use and the claimants' submission that there might be a

storage use on the land and that housing would be preferable to such an alternative use.

23. On behalf of the claimants, Mr Richards' primary submission is that the Inspector erred in her

approach in paragraph 12 of the decision letter to the definition of previously-developed land.

He submits that there is no dispute that the former railway goods yard falls within the first part

of the definition of previously-developed land, that is to say it is land which is or was occupied

by a permanent structure and associated fixed surface infrastructure.

24. Turning to the question of whether the site is within the exclusions, there is no suggestion that

it is within any of the descriptions of land and buildings contained in the first exclusionary

sentence. So far as the second sentence is concerned, he submits that both limbs of the

exclusion must be met, that is to say to be excluded from the definition of

previously-developed land, the Inspector had to conclude not merely that the remains of any

structure or activity had blended into the landscape in the process of time to the extent that

they could reasonably be considered as part of the natural surroundings, she also had to

conclude that there was a clear reason that could outweigh the re-use of the site, such as its

contribution to nature conservation.

SMITH BERNAL

25. Thus to be excluded a site must meet a two-fold test, its blending into the natural surroundings

must be coupled with some other clear and site-specific reason as to why re-use would be

inappropriate.

26. He submitted that the Inspector had failed to have regard to the second limb of the dual test

and had, therefore, misunderstood and misapplied the policies contained in PPG3.

27. Secondly, he submitted that she had erred in identifying precedent as a material consideration.

If the site was within the definition of previously-developed land then no question of adverse

precedent could arise.

28. Finally, he submitted that she erred in taking account of paragraph 30 of PPG3 since that

related to the identification of sites in local plans and not the consideration of applications for

planning permission.

29. In my judgment, the first of those issues is the critical matter. If the Inspector correctly

concluded that the site did not fall within the definition of previously-developed land in

Annex C to PPG3 then there was no issue but that the appeal had to be dismissed in view of

the provisions of section 54A of the Act. The claimants realistically acknowledged in their

submissions that this was the position. Thus, even if the Inspector had misdirected herself as

to the advice set out in paragraph 30 of PPG3, that would have been of no consequence if she

was correct that the site was not previously-developed land; on the other hand, if she erred in

the latter respect, then plainly there would be a fundamental flaw in the decision letter which

would have to be quashed regardless of her other conclusions.

30. All the Inspector was doing in paragraph 11 of the decision letter was responding to the rival

submissions; the Council was submitting that paragraph 30 was applicable and the sequential

approach had not been followed, the claimants were arguing that the sequential approach did

not need to be followed because this was an application for planning permission and the

Council was not seeking to identify sites to be allocated in a Local Plan.

31. In response to those rival submissions, the Inspector concluded that paragraph 30 was of little

assistance because it related to the re-use of previously-developed land and buildings within

urban areas identified by an urban housing capacity study and Harvington, whilst it was a large

village, was not really to be regarded as an urban area. So in that sense the rival contentions

about the applicability of paragraph 30 of PPG3 were simply placed on one side.

32. So far as the precedent point is concerned, if the site is properly to be regarded as

previously-developed land then clearly the decision letter would have to be reconsidered in the

light of that conclusion; on the other hand, if the site is not properly to be regarded as

previously-developed land, there is no doubt that the Inspector was entitled to accept the

Council's concerns about the precedent effect and the cumulative and serious harm to rural

character that would result.

33. I turn, therefore, to Mr Richards' principal submission. On behalf of the Secretary of State, Mr

Coppel acknowledges that there are two possible interpretations of the second exclusionary

sentence in the definition set out in Annex C. The competing interpretations are more clearly

seen if one restructures the definition in the following manner:

“Also excluded is land that was previously-developed but:

(a) where the remains of any structure or activity have blended into the

landscape in the process of time (to the extent that it can reasonably be

SMITH BERNAL

considered as part of the natural surroundings), and

(b) where there is a clear reason that could outweigh the re-use of the site - such

as its contribution to nature conservation - or it has subsequently been put to an

amenity use and cannot be regarded as requiring redevelopment.”

34. The question is whether both (a) and (b) must be satisfied in order for the exclusion to apply

or whether either (a) or (b) will suffice for the exclusion to apply. He submits that, as a matter

of syntax, (a) and (b) are better viewed as two separate sets of circumstances, satisfaction of

either of them being sufficient for the exclusion to apply. He points to the repetition of the

word “where” which he submits signifies the introduction of a second set of circumstances to

which the exclusion in respect of land that was previously developed is to apply. Had the

draftsman intended that (a) and (b) were to be cumulative, the word “where”, as well as the

comma before “and” would not have been included.

35. Mr Richards pointed to what he submitted were the three groups of exclusions. The first

related to land and buildings currently in use for agricultural or forestry purposes; the second

to land in built-up areas which has not been developed previously and allotments; the third to

land that was “Also excluded...”. So far as the second exclusionary sentence is concerned, he

submitted that it contained two subcategories divided by the words “or”. Thus land was

excluded, if it had been previously developed but the remains had blended into the landscape

and there was a clear reason that would outweigh the re-use of the site, or if it had been

subsequently put to an amenity use and could not be regarded as requiring redevelopment.

36. As a matter of syntax, I prefer Mr Coppel's approach to the interpretation of the exclusion. If

the draftsman had intended that both requirement (a) and (b) should be complied with there

would have been no comma before the word “and”, and the second “where” would have been

omitted. But I would prefer not to base my judgment upon a pedantic analysis of the wording

in Annex C. The Court is not here concerned with the interpretation of some complex

commercial agreement or with the niceties of a taxing statute. It is concerned with a policy

document which is intended to provide practical guidance for local planning authorities and

developers. Thus considerations of common sense and planning policy should loom large in

any approach to the proper interpretation of the definitions in Annex C.

37. It is readily understandable why sites where the remains of any structure or activity have

blended into the landscape in the process of time to such an extent that the site can reasonably

be considered as part of the natural surroundings should have been excluded from the

definition of previously-developed land. It makes no sense to require a further “clear” reason

why such a site ought not to be re-used. Mr Richards made the point, quite properly, that PPG3

is concerned to use brown field rather than green field sites, but once the remains of any

structure or activity have blended into the landscape and have become part of the natural

surroundings it is difficult to see why such a site should, for planning policy purposes, be

treated any differently from a green field site.

38. Looking at exclusion (b), if there is a “clear reason that could outweigh the re-use of the site”,

such as the contribution of the site to nature conservation, it is difficult to see why that should

not suffice to exclude the land from the definition of previously-developed land; or to see why

it should also be necessary to establish that the site has blended into the landscape. To take an

example not very far from the circumstances of the present case: there are a number of disused

railway lines where the remains of structures have not blended into the landscape but where

the disused line does make a significant contribution to nature conservation. On Mr Richards'

argument that would not be sufficient to exclude such land from the definition of

previously-developed land. So in policy terms PPG3 would encourage its re-use. But such an

SMITH BERNAL

approach that would not be consistent with other policy advice relating to nature conservation.

39. In simple terms, if there is a clear reason that could outweigh the re-use of the site, that is

sufficient to exclude it from the definition of previously-developed land. No sensible reason

has been advanced as to why both (a) and (b) must be found to exist before land is excluded

from the definition.

40. For these reasons, I am quite satisfied that as a matter of syntax, but much more importantly

as a matter of common sense and, in the light of the planning policy considerations that I have

mentioned, the construction which Mr Richards seeks to place upon the exclusion, is not

well-founded.

41. For the sake of completeness, I should mention that Mr Coppel also submitted in his skeleton

argument that the Inspector had fairly dealt with the arguments as they had been presented to

her in the written representations. I have set out the relevant extracts. She had been told by the

claimants that the critical issue was whether or not the site had blended into the landscape. She

saw the site, concluded that she preferred the Council's submissions on that point and,

therefore, Mr Coppel submitted, she could not fairly be criticised for failing to consider the

“double-barreled” test now argued for by Mr Richards.

42. Having looked at the rival submissions that that too is a fair point, but that matter does not

strictly speaking arise because I am quite satisfied for the reasons set out above that the

exclusion is not double-barreled, a shot from either of the barrels will suffice to exclude the

land from the definition of previously developed. It follows that this application must be

refused.

MR COPPEL: My Lord, I ask for my costs. A summary has been prepared and served upon the

claimant.

MR JUSTICE SULLIVAN: Can you resists in principle or detail?

MR RICHARDS: My instructions are to resist neither, my Lord.

MR JUSTICE SULLIVAN: Thank you very much. Then the formal order is that the application is

dismissed. The claimants are to pay the Secretary of State's costs. They are to be summarily assessed

in the sum of £3,050. Anything else?

MR RICHARDS: No, my Lord.

MR JUSTICE SULLIVAN: Thank you both very much.

MR COPPEL: Thank you.

Neutral Citation Number: [2017] EWCA Civ 141

Case No: C1/2016/1664IN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE HIGH COURT, QUEENS BENCH DIVISIONMr Charles George QC(sitting as a Deputy High Court Judge)CO/4129/2015

Royal Courts of JusticeStrand, London, WC2A 2LL

Date: 14 March 2017Before :

LADY JUSTICE GLOSTER(VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION)

andLORD JUSTICE LEWISON- - - - - - - - - - - - - - - - - - - - -

Between :

DARTFORD BOROUGH COUNCIL Appellant- and -

THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT AND ORS

Respondent

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

MR A BOWES (instructed by Sharpe Pritchard LLP) for the AppellantMR C BANNER (instructed by the Government Legal Department) for the Respondent

Hearing date : 9 March 2017- - - - - - - - - - - - - - - - - - - - -

Approved Judgment

Judgment Approved by the court for handing down. Dartford BC v SSCLG

Lord Justice Lewison:

1. The sole issue on this appeal was the meaning of “previously developed land” (often called “brownfield land”) as defined by the glossary forming part of the National Planning Policy Framework.

2. That definition reads as follows:

“Previously developed land: Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or has been occupied by agricultural or forestry buildings; land that has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures; land in built-up areas such as private residential gardens, parks, recreation grounds and allotments; and land that was previously-developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time.”

3. The context in which the issue arises is that on 23 July 2015 a planning inspector allowed an appeal against the refusal by Dartford BC to grant planning permission for a change of use of land to a private gypsy and traveller caravan site comprising one mobile home and one touring caravan. The site in question was within the residential curtilage of Shirehall Farm. Shirehall Farm is within the Green Belt, and is not in a built-up area.

4. The inspector decided that the site qualified as previously developed land because:

i) It was within the curtilage of a permanent structure (namely Shirehall Farm) and

ii) It was not excluded as “land in built-up areas such as private residential gardens, parks, recreation grounds and allotments”.

5. Dartford does not challenge the first of those reasons: the challenge is to the second. The argument is that all private residential gardens are excluded from the definition of previously developed land, whether or not they are in a built-up area. Any other interpretation, so it is said, would give rise to conflicting policies within the NPPF. At the conclusion of the hearing we announced that the appeal would be dismissed with reasons to follow. These are my reasons for joining in that decision.

6. The approach to the interpretation of the NPPF is the same as the approach to the interpretation of a development plan document: R (Timmins) v Gedling BC [2015] EWCA Civ 19, [2015] PTSR 837 at [24]; Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2016] EWCA Civ 168, [2016] PTSR 1315 at [24]. The correct approach to the interpretation of a development plan document was laid down by the Supreme Court in Tesco Stores Ltd v Dundee CC [2012] UKSC 13,


[2012] PTSR 983. In that case Lord Reed said at [18] that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.” He went on to make an important point at [19]:

“That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse… Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”

7. It is particularly that feature, namely that broad statements of policy may be irreconcilable, that differentiates a development plan document from a contract which one would expect to be internally consistent. Like a development plan document, the NPPF is also full of broad statements of policy; and it would be crying for the moon to start the process of interpretation with the idea that there is no tension between statements of policy pulling in different directions.

8. The starting point is, of course, the words themselves read as a matter of ordinary English. The critical words are:

“land in built-up areas such as private residential gardens, parks, recreation grounds and allotments”

9. In my judgment the words “such as” state clearly that what follows are examples of something. Examples of what? They can only be examples of the more general expression that precedes them, namely “land in built-up areas”. As a matter of ordinary English I cannot see that any other meaning can be given to this sentence. “Land in built-up areas” cannot mean land not in built-up areas. It is argued that this interpretation means that other parts of the NPPF are in conflict with each other. Even if that were true it is not the business of an interpreter to go searching for possible ambiguities or conflicts in order to detract from the obvious meaning of the words to be interpreted.

10. The alleged conflict within the NPPF upon which Mr Bowes relied was the juxtaposition of two of the core planning principles in paragraph 17 of the NPPF, and a conflict between paragraphs 14, 55 and 111. I start with paragraph 17. This provides that twelve core principles should underpin both plan making and decision taking. Two of those principles are:


“take account of the different roles and character of different areas, promoting the vitality of our main urban areas, protecting the Green Belts around them, recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it;” and

“encourage the effective use of land by reusing land that has been previously developed (brownfield land), provided that it is not of high environmental value;”

11. There is in truth no conflict between these two core principles, as is demonstrated by the more detailed policies about the Green Belt. Paragraph 87 of the NPPF states that:

“As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.”

12. Paragraph 89 goes on to say that a local planning authority should regard the construction of new buildings as inappropriate in the Green Belt. But that general policy is immediately qualified by exclusions, one of which is:

“limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.” (Emphasis added)

13. Accordingly, the NPPF accommodates the definition of previously developed land within the general policy about development in the Green Belt. If a new building is a partial redevelopment of a previously developed site it is not to be regarded as inappropriate redevelopment in the Green Belt, provided that it has no greater impact on the openness of the Green Belt than the existing development. The proviso also means that the encouragement of development on brownfield land is not, at least in the Green Belt, unqualified. So any possible tension is resolved.

14. Nor do I see any conflict between the definition and paragraphs 55 or 111 of the NPPF. Paragraph 55 states that:

“Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances…”

15. However, the definition of previously developed land, in the context of the present case, takes as its starting point that the proposed development is within the curtilage of an existing permanent structure. It follows that a new dwelling within that curtilage will not be an “isolated” home. There will already be a permanent structure on the site. Paragraph 111 states:

“Planning policies and decisions should encourage the effective use of land by re-using land that has been previously developed


(brownfield land), provided that it is not of high environmental value.”

16. This paragraph expressly adopts the expression “previously developed land” and I cannot see that there is any conflict in so doing.

17. Mr Bowes also relied on statements made by the Minister when introducing changes to previous versions of planning policy contained in PPS3. Before commenting on that argument it is worth recalling why Lord Reed said that development plan documents were to be objectively interpreted. His explanation also at [18] was:

“The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities.”

18. The same is true of the NPPF. In the Foreword to the NPPF the responsible Minister stated:

“By replacing over a thousand pages of national policy with around fifty, written simply and clearly, we are allowing people and communities back into planning.”

19. In Timmins at [24] Richards LJ said that the NPPF was “on the face of it a stand-alone document which should be interpreted in its own terms and is in certain respects more than a simple carry-across of the language in the guidance it replaced.” In Turner v Secretary of State for Communities and Local Government [2016] EWCA Civ 466 at [21] Sales LJ said:

“The NPPF was introduced in 2012 as a new, self-contained statement of national planning policy to replace the various policy guidance documents that had proliferated previously. The NPPF did not simply repeat what was in those documents. It set out national planning policy afresh in terms which are at various points materially different from what went before.”

20. However, in both Timmins and Turner the court accepted that, at least in the case of the Green Belt, previous policy guidance remained relevant. I do not, however, consider that previous policy guidance should be invoked in order to create ambiguities in the NPPF where the language of that document is clear. Nor do I consider that that was the process that the court sanctioned in Redhill Aerodrome Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 1386, [2015] PTSR 274. The question in that case was whether “any other harm” should be given a restrictive meaning limited to what was described “Green Belt harm” as opposed to “non-Green Belt harm”. In the result the court interpreted the words by giving them their ordinary meaning. “Any other harm” meant “any other harm”; not “some other harm”. The reference to previous guidance was deployed in order to rebut an argument that there had been a policy shift which justified a more restrictive and unnatural interpretation.


21. Mr Bowes drew our attention to the decision of this court in Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773, [2011] 1 WLR 564. That case concerned the Immigration Rules which, unlike ministerial statements of planning policy, must be placed before Parliament. The question was whether the word “false” meant “dishonest” or merely “incorrect”. At [70] Rix LJ said:

“… in a situation where a word, such as here “false”, has two distinct, and distinctively important, meanings, there is a genuine ambiguity which makes it legitimate, in construing Rules which are expressions of the executive’s policy, to consider what the executive has said, publicly, about its rules. Clearly, what a minister says in Parliament, expressed as an assurance, and especially on the occasion of a debate arising out of the tabling of amended rules, is of particular, and may be of decisive, importance…”

22. I do not consider that he derives any help from that case. That was a case in which there was an ambiguity on the face of the rules. Here there is no ambiguity on the face of the NPPF. The Minister’s statement relied on was not a statement about the NPPF, so it is not covered by Rix LJ’s observations. Nor was there any ambiguity in PPS 3 itself. Mr Bowes does not in fact rely on previous policy guidance: so his reliance is not within what was contemplated by Timmins or Turner. The alleged ambiguity only arises if the Minister’s statement in Parliament is literally interpreted without regard to the text of the revised policy that he was introducing. I do not regard that as a legitimate approach to the interpretation of the NPPF.

23. In my judgment it would be quite wrong to expect the public, for whose benefit the NPPF is published, or indeed a would-be developer, to have to undertake the investigation of previous iterations of government planning policy in order to understand the NPPF, let alone ministerial statements introducing previous iterations of policy. Indeed that would defeat one of the main purposes of promulgating the NPPF in the first place. If I may repeat something I have said before:

“The public nature of these documents is of critical importance. The public is in principle entitled to rely on the public document as it stands, without having to investigate its provenance and evolution.” (R (TW Logistics Ltd) v Tendring DC [2013] EWCA Civ 9, [2013] 2 P & CR 9 at [15])

24. For these reasons I did not consider that statements made by ministers about previous iterations of policy could detract from the clear words of the definition of previously developed land.

25. I note that when Lindblom LJ granted permission to appeal he did not do so on the ground that the appeal had a real prospect of success, but because there was some other compelling reason for the appeal to be heard. I agree with his view on the merits of the appeal, which is why I agreed to its dismissal.

Lady Justice Gloster, Vice-President of the Court of Appeal, Civil Division:


26. I agree with the reasons given by Lord Justice Lewison for the dismissal of this appeal.

SMITH BERNAL WORDWAVE

CO/1415/2004

Neutral Citation Number: [2004] EWHC 1934 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

Monday, 19 July 2004

B E F O R E:

MR JUSTICE SULLIVAN

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THE QUEEN ON THE APPLICATION OF BRISTOL CITY COUNCIL

(CLAIMANT)

-v-

FIRST SECRETARY OF STATE (FIRST DEFENDANT)

EDWARD WARE URBAN RENEWAL LIMITED (SECOND DEFENDANT)

PETHERTON LIMITED (THIRD DEFENDANT)

- - - - - - -

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: Fax No:

(Official Shorthand Writers to the Court)

- - - - - - -

MR P BROWN (instructed by Bevan Ashford, Bristol BS1 4TT) appeared on behalf of the

CLAIMANT

MR T WARD (instructed by Treasury Solicitors) appeared on behalf of the FIRST DEFENDANT

MR R PHILLIPS QC (instructed by Osborne Clarke, Bristol BS1 6EG) appeared on behalf of the

SECOND AND THRID DEFENDANTS

- - - - - - -

J U D G M E N T

(As Approved by the Court)

- - - - - - -

Crown copyright©


1. MR JUSTICE SULLIVAN: This is an application under Section 288 of the Town and Country

Planning Act 1990 (the Act), to quash a decision of an Inspector appointed by the first

defendant, granting planning permission to the second defendant for residential development

on land at the junction of Cumberland Place and Granby Hill, Clifton, Bristol (the site).

2. There were three appeals before the Inspector, appeals A and B were concerned with proposals

to develop the site for 9 and 10 dwellings respectively. In addition, car parking and

some public open space would be provided within the site.

3. Appeal C related to a separate parcel of land adjoining the site. Planning permission was sought

for its use as public open space. The claimant had no objection to this use, and the Inspector

allowed appeal C. The claimant does not challenge this aspect of the Inspector's decision.

4. The combined site of the three appeals forms an L-shape about a thousand square metres in

extent, with the bottom of the L on the northern side of Cumberland Place and the long side of

the L on the eastern side of Granby Hill. The Inspector described the surroundings as "intensely

urban". Residential development descends down the hillside from Clifton to Hotwells. The site

is down towards the river at Hotwells. Granby Hill is quite steep.

5. The three appeals were made against the claimant's failure to give notice of its decisions on the

applications within the prescribed time. Subsequently, the claimant resolved that it would have

refused planning permission for the two residential applications for the following reasons:

"(1) the development would involve the loss of an area of open space, which is of

substantial amenity importance and value to the local community and therefore

contrary to policy NE1 of the Bristol Local Plan and Policy NE1 of the First

deposit Proposed Alterations to the Bristol Local Plan; and

"(2) the height, massing and overall external appearance of the proposed building

fails to respond appropriately to the topography of the site and relates poorly to

the surrounding built form. It represents an unacceptable urban design solution

that will appear incongruous within the defined townscape of the immediate

locality and would therefore fail to preserve the character and appearance of this

part of the Clifton Conservation Area ... "

6. Reason 2 had been recommended by the claimant's officers. The officers' report had considered

whether planning permission should be refused on open space grounds and concluded that a

refusal on such grounds would not be justified. Members disagreed, hence the inclusion of

reason 1 for refusal.

7. Policy NE1 in the Local Plan is in the following terms:

"(I) The distribution and variety of open spaces throughout the city will be

maintained and, where possible, enhanced.

(II) Sites which are important for nature conservation, recreation, historic

landscape interest, landscape quality, visual amenity, community or outdoor

leisure-related use, or providing setting or relief to the built environment, defined

on the Proposals Map, will be protected as open space.

"(III) Development involving an unacceptable loss of important open space

(designated in section II and defined on the Proposals Map), or which would have

a significant adverse effect on the interest, use, amenity, character or accessibility


of such open space, will not be permitted.

"(IV) Where sites are not defined as open space on the Proposals Map, and are

not subject to any other designation or proposal, account will be taken of the need

to protect open space interests and uses in determining planning applications.

Particular attention will be paid to the amenity and nature conservation value of

undefined open space sites."

8. The site had been occupied by residential properties which had been demolished at some time

between 1940 and 1960, probably as a consequence of bomb damage during world war two.

The site remained derelict until about 1970. Following this, local residents had arranged for it

to be graded with a bulldozer, topsoil was spread and grass was sown. Local residents then used

the site for casual recreation. That use had not gone unchallenged. An application had been

made to register the site as a Town Green. Following an enquiry by an Inspector appointed by

the claimant, that Inspector had reported recommending that the site should not be registered as

a Town Green. At the time of the inquiry into the planning appeals between 13th and 16th

January 2004, the claimant had not reached any decision on the Town Green Inspector's report.

9. Against this background of a dispute as to the public's right to use the site for recreational

purposes, the Inspector asked this question in paragraph 6:

"What are these appeals about? It seems there has been something of a 'tug of

war' over the site. Local residents who previously enjoyed using it as an amenity

area have sought to ratify such use. There were legal proceedings. Later an

application for Town Green status led to a public inquiry. Following the

Inspector's report the City Council's ultimate decision is yet to be made. I have

noted all the history. It provides insight. But I do not consider it has crucial

relevance to my task. The Town Green application will take its course.

Meanwhile I have to consider the proposals on their present planning merits."

10. He continued in paragraph 7:

"The Council contends that the development would involve the loss of an area of

open space which is of substantial amenity importance and value to the local

community. It relies on relevant planning policies. Local residents recall their

enjoyment of the site. They proclaim their fervent desire for its use as a publicly

accessible amenity to be revived. This brings me to the heart of the matter. The

first main issue is whether the proposals would result in the loss of an open space

that should, having regard to planning policy, be retained."

11. The second main issue identified by the Inspector related to the design of the proposed

buildings (reason for refusal number 2). The Inspector resolved that issue in the second

defendant's favour, and the claimant does not challenge that aspect of the Inspector's decision in

relation to appeals (A) and (B). Moreover, no criticism is made of the way in which the

Inspector dealt with the policies referred to in reason 1 of the reasons for refusal. He said that

the site was not defined as an important site under policy NE1 (II), and fell to be considered

under NE1 (IV). In paragraph 15, the Inspector noted that a new version of the Bristol Local

Plan was at an early stage of preparation. In that plan, it was proposed that the site should be

defined as under policy NE1 (II) as an important open space. There had been objection to that

policy and the Inspector recorded:

"The Council agrees that only limited weight can now be given to the draft policy

and this new definition."


12. Against this factual and development plan policy background, the Inspector set out the reasons

for his decision in favour of the second defendant on the first main issue in paragraphs 20 to 30

of his decision letter:

"20. On the first issue, the Council argues that the site became a de facto open

space and an important local amenity. Its loss to make way for development is

therefore resisted. The Council considers the site should have protection under

Local Plan policy NE1 (IV) because of its amenity value. Local residents are of

like mind. They recall the years during which they made use of the site. They

cherish it as a community asset. They emphasise its natural qualities. They want

me to take heed of the benefits and visual characteristics of the site as it was, not

see it as it is now.

"21. From all I have heard and seen, I have no difficulty visualising the previous

appearance of the site. I comprehend how local residents enjoyed it. The

colonised it unconventionally and so it became a facility different to the other

neat green spaces woven into the built framework of Clifton. I admire the zeal of

those who call it Granby Green, who have turned it into a cause -- perhaps even a

crusade -- and who have evidently found support within the local community.

The evidence is that its nature conservation value was slight, but I do not doubt

that the site did have amenity value conferred on it.

"22. However, I cannot shut my eyes to present reality. This is not now an

amenity open space. It has reverted to vacant land, declining into dereliction.

Access by local residents is prevented. The appellant makes plain that control of

the site will no longer be ceded, and in future ownership will continue to be

asserted with determination. The ugly security fence will stay. Despite the

Council's suggestions to the contrary -- questioning whether it is permitted

development, mentioning the possibility of discontinuance action -- I have heard

nothing to persuade me there is any likelihood of it being removed.

"23. I agree that no credit should be given when the closure of recognised

amenity land is a deliberate ploy to subvert a policy that might otherwise bar

development. But in my opinion that is not the case here. The site's unauthorised

amenity use lasted for a while. It was opportunistic, and went unchallenged.

Eventually it was stopped, as an assertion of the land owner's rights. To my mind

this use was a phase in the history of the street block. Is it likely to be revived if I

dismiss the appeals? Certainly not in the near future. The Council hints at the

possibility of compulsory purchase, but says this would not arise until after the

outcome of the Town Green application and the inquiry into the new draft Local

Plan. And I foresee resolute resistance to that possibility.

"24. How then should the site be characterised now? By reference to the

definition in Annex C of Planning POlicy Guidance Note 3: Housing (PPG3), the

Council maintains it is not previously-developed land, that is to say land with a

presumption in favour of development. I disagree. The buildings have gone, but

their earlier existence is unmistakable. The landform reveals their previous

imposition, as does the gap in the street block. Moreover, to my mind it is an

academic question as to whether the remains have blended into the landscape to

the extent that the site can be considered part of the natural surroundings. I

consider this an archetypal brownfield site, an obvious candidate for

development.


"25. Referring again to the words of Annex C, is there a clear reason that could

outweigh the redevelopment of the site, such as its amenity use? In the same vein,

is there any justification for the Council's reliance on Local Plan policy NE1

(IV)? It criticises the appellant for not having undertaken an assessment to show

this land is surplus to amenity requirements, a precautionary step called for in

PPG17: Planning for Open Space, Sport and Recreation. Local residents

emphasise the convenience of the site, the high proportion of people living nearby

in accommodation without gardens and the distance of alternatives.

"26. The Council has not done an assessment either, making its policy NE (II)

definition of the site in the new draft Local Plan seem rather arbitrary. Be that as

it may, the appellant has produced a plan and snapshot descriptions of green

spaces within the radius of a 10-minute walk. I saw that many are private spaces,

formally related to buildings. I do not think it is logical to expect the appellant to

show this land is surplus to amenity requirements. Though residents took the

opportunity to make use of it, there is no following presumption that it was ever a

requirement. Publicly accessible, informal play areas are not at all typical, due to

Clifton's historic origins.

"27. Moreover, it should not be forgotten that in addition to the building there

would be a new formal public open space on the corner of the site. This could be

extended along Cumberland Place by the addition of site C, depending on the

Council's goodwill as landowner. The Council says this would not be a

satisfactory replacement for what went before. Others are more derogatory. But

it might be said that something is better than nothing. In my view it would be a

well-sited and substantial asset. I consider its provision would be very much in

tune with Local Plan policy NE12 and its preamble.

"28. Ultimately I return to the words of Local Plan policy NE1. The preamble

mentions the importance that open land can acquire because it is especially

valued by people. Local residents made use of this site, and clearly they retain

considerable affection for it. It had amenity value.

"29. But now I see a site that has no amenity value, and a highly doubtful

prospect of being returned to amenity use. On the other hand, it obviously lends

itself to development. This would largely replace the original buildings, and help

fill this toothless gap in the street block. In all the circumstances, I do not

consider a valid case has been made for the site's protection under Local Plan

policy NE1 (IV).

"30. On the first issue, taking account of planning policy, I conclude that the

proposals would not result in the loss of an open space that should be retained. I

am in no doubt that a suitable residential scheme could benefit the townscape in

this part of the Clifton conservation area."

13. On behalf of the claimant, Mr Brown challenged the Inspector's decision on two grounds. He

submitted that the Inspector erred firstly in his approach to PPG17 and secondly in his approach

to the definition of previously-developed land in Annex C to PPG3.

14. Taking the latter criticism first, Annex C defines previously-developed land as follows, for the

purposes of PPG3:

"Previously-developed land is that which is or was occupied by a permanent


structure (excluding agricultural or forestry buildings) and associated fixed

surface infrastructure. The definition covers the curtilage of the development.

Previously-developed land may occur in both built up and rural settings ...

"The definition excludes land and buildings that are currently in use for

agricultural or forestry purposes, and land in built-up areas which has not been

developed previously, (eg parks, recreation grounds, and allotments -- even

though these areas may contain certain urban features such as paths, pavilions and

other buildings). Also excluded is land that was previously developed but where

the remains of any structure or activity have blended into the landscape in the

process of time (to the extent that it can reasonably be considered as part of the

natural surroundings), and where there is a clear reason that could outweigh the

re-use of the site -- such as its contribution to nature conservation -- or it has

subsequently been put to an amenity use and cannot be regarded as requiring

redevelopment."

15. The issue was not whether the site fell within the definition of previously-developed land in the

first paragraph in Annex C -- plainly it did, since it had been occupied by permanent structures

-- but whether it was excluded from that definition because if fell within one of the categories

described in the second paragraph.

16. Mr Brown submitted that in concluding in paragraph 24 of the decision letter that it was an

"academic question" whether the remains of the buildings had blended into the landscape to the

extent that the site could be considered part of the natural surroundings because "there are no

natural surroundings", the Inspector had either misapplied the guidance of Annex C or reached

an irrational conclusion. Annex C contemplated that sites may be treated as "greenfield" sites

even though they were in urban areas. On the Inspector's approach, no piece of land in an urban

area could revert to a "greenfield" site because there would be no "natural surroundings".

17. He submitted that it was perverse of the Inspector to say that a previously-developed urban site

could only blend into the landscape in such a way as to lose its previously-developed status if it

was adjacent to some other area of greenfield land. That was the practical consequence of the

Inspector's approach in paragraph 24 of the decision letter.

18. I do not accept those submissions. Annex C is not to be applied in a mechanistic way. Deciding

whether a particular site is "an archetypal brownfield site" will necessarily involve a degree of

planning judgment. The Inspector made a site visit on 16th January. As a result of that visit, he

concluded that the evidence of the earlier existence of the buildings on the site was

"unmistakable". The landform revealed their previous existence, as did the gap in the street

block. The remains had not therefore blended into the landscape so that it could reasonably be

considered part of the natural surroundings.

19. In concluding that there were no "natural surroundings" in any event the Inspector was not

purporting to lay down some principle of general application relating to all urban areas, he was

considering a particular "toothless gap" in a street block in what he described as a "intensely

urban" area. There may well be what can fairly be described as "natural surroundings" within

other built-up areas that are less intensely urban. Applying his planning judgment, the

Inspector concluded in essence that it simply made no sense to describe this particular site as

having:

"Blended into the landscape ... to the extent that it can reasonably be considered

as part of the natural surroundings."


20. Having inspected the site, the Inspector was entitled so to conclude.

21. The Inspector then considered whether there was any clear reason that could outweigh the

re-use of the site. The only issue under that head was the Council's reliance on Local Plan

policy NE1 (iv). That leads me on to Mr Brown's first and principal ground of challenge. In

advancing the Council's first ground of refusal in his closing submissions, the claimant's

advocate relied on paragraph 10 of PPG17. Paragraph 10 is in the following terms:

"Existing open space, sports and recreational buildings and land should not be

built on unless an assessment has been undertaken which has clearly shown the

open space or buildings and land to be surplus to requirements. For open space,

'surplus to requirements' should include consideration of all the functions that

open space can perform. Not all open space, sport and recreational land and

buildings are of equal merit and some may be available for alternative uses. In

the absence of a robust and up-to-date assessment by a local authority, an

applicant for planning permission may seek to demonstrate through an

independent assessment that the land or buildings are surplus to requirements.

Developers will need to consult the local community and demonstrate that their

proposals are widely supported by them ... "

22. The Annex to PPG17 contains a number of definitions. Open space is defined in the following

terms:

"1. Open space is defined in the Town and Country Planning Act 1990 as land

laid out as a public garden or used for the purposes of public recreation, or land

which is a disused burial ground. However, in applying the policies in this

Guidance, open space should be taken to mean all open space of public value,

including not just land but also areas of water such as rivers, canals, lakes and

reservoirs which offer important opportunities for sport and recreation and can

also act as a visual amenity.

"2. The following typology illustrates the broad range of open space that may be

of public value:

"(ii) natural and semi-natural urban greenspaces -- including woodlands, urban

forestry, scrub, grasslands (eg downlands, commons and meadows), wetlands,

open and running water, wastelands and derelict open land and rock areas (eg

cliffs, quarries and pits);

"(v) amenity greenspace (most commonly, but not exclusively in housing areas)

-- including informal recreation spaces, greenspaces in and around housing,

domestic gardens and village greens ..."

23. Reference was also made to paragraphs 11 and 14 of PPG17. Paragraph 11 is concerned with

the recognition of open space, sports and recreational facilities of high quality or particular

value to a local community in appropriate policies in development plans. The Inspector had

noted that the site in the present case was not so protected in the statutory Local Plan.

24. The second sentence of paragraph 14 states:

"Even where land does fall within the definition of previously-developed, its

existing and potential value for recreation and other purposes should be properly

assessed before development is considered."


25. It is clear that the Inspector did consider not merely the existing use of the site but also its

potential for recreation. In paragraph 23 he asked himself the question whether the amenity use

of the land was likely to be revived if he dismissed the appeals, and answered:

26. "Certainly not in the near future."

27. He returned to that issue in paragraph 29, saying:

"But now I see a site that has no amenity value and a highly doubtful prospect of

being returned to amenity use."

28. Mr Brown's criticism therefore focuses upon the manner in which the Inspector dealt with the

policy advice contained in paragraph 10 of PPG17. He submitted that the Inspector either

failed to take the policy into account or misinterpreted it or reached a perverse conclusion or

gave inadequate reasons for concluding that the policy did not apply.

29. In my judgment, none of these criticisms is justified. The Inspector plainly had regard to the

advice in paragraph 10 of PPG17. He expressly referred to the submission made on behalf of

the claimant that the second defendant had not conducted an assessment of the kind described in

paragraph 10. It is to be noted that the failure to conduct such an assessment had not formed

any part of the first ground for refusal and it would appear that this was simply a submission

made on behalf of the claimant at the inquiry. Nevertheless, it is plain that the Inspector

considered that submission.

30. In addition, in the concluding sentence of paragraph 25, the Inspector referred, not for the first

time, to the views of the local residents. Thus the Inspector was well aware that there had not

been an assessment of the kind described in paragraph 10, and also he knew that the proposals

were not "widely supported" by the local residents. That, of course, did not mean that planning

permission had to be refused.

31. The policy advice in PPG17 is of general application. It was therefore necessary for the

Inspector to use his planning judgment in applying the policy advice to the particular

circumstances of the case before him. Having done so, he did not consider that the lack of an

assessment as described in paragraph 10 of PPG17 was fatal to appeals A and B. He firstly

made the point that the claimant had not carried out any assessment. This was therefore not a

case where a local planning authority was arguing upon the basis of its own assessment that

there was a requirement to retain the site for open space purposes. At best, it was being

submitted on behalf of the claimant that planning permission should be refused because the

second defendant had not done its own assessment to demonstrate that the land was surplus.

The Inspector noted that the second defendant had produced a plan and snapshot descriptions of

green space within the radius of a 10-minute walk, so there was some information as to the

availability of open space locally.

32. It had been accepted by the second defendant's planning witness that this snapshot was not an

assessment of the kind described in paragraph 10. At the inquiry the snapshot had been

criticised by the claimant on that account. So the Inspector had to consider what force there was

in this criticism given the particular circumstances of this site.

33. He had already made the point that this was not the closure by a land owner of a piece of

"recognised amenity land". The background to the appeal before him was that the public's right

to use the site for amenity purposes was in dispute. The Town Green Inspector had

recommended that the site should not be registered as a Town Green. Against this background,


the Inspector had to form his own judgment as to the prospects of the site being returned to

amenity use if appeals A and B were dismissed.

34. He was entitled to conclude that it did not follow from the fact that the public had for some

years used the site that it was "required" for amenity or open space purposes. Again in so

concluding, the Inspector was not purporting to lay down some proposition of broad

application, he was simply considering the particular circumstances of this site in a part of

Bristol where he also noted that "publicly accessible informal play areas are not at all typical".

35. The Inspector made the further comment that the proposed public open space within appeals A

and B, if linked to the public open space proposed in appeal C (on Council-owned land) would

be "a well sited and substantial asset".

36. For these reasons, he, in effect, did not see any force in the Council's criticism of the second

defendant's failure to carry out a paragraph 10 assessment in the circumstances of this particular

case.

37. Although paragraph 10 of PPG17 has been given prominence in the submissions made by Mr

Brown in this application, it has to be remembered that the fact that a paragraph 10 assessment

had not been carried out was merely part of the overall picture under the first main issue. The

principal test was that set out in the statutory development plan, policy NE1 (IV). It was for that

reason that the Inspector returned to that policy issue in paragraph 29. Taking into account all

of the circumstances, including the fact that there had been no paragraph 10 assessment, he

concluded that a valid case had not been made out for the site's protection under policy NE1

(IV).

38. The submissions in the skeleton arguments tended to range far and wide and to concentrate on

matters of definition, whether the site was "an existing open space" for the purposes of

paragraph 10, and whether it could be said to be an open space "of public value" in terms of the

definition of open space in the annex to PPG17. Mr Brown referred me to a number of other

appeal decisions to which the claimant's advocate had also referred the Inspector. He submitted

that the Inspector's approach would allow the proverbial coach and horses to be driven through

paragraph 10 by enabling land owners, by the simple expedient of fencing their land and

denying the public access, to oust the policy advice in PPG17.

39. I disagree. It is plain from the decision letter that this appeal turned very much on its own

particular facts. As the Inspector noted when seeking to define the main issues, there had been

something of a "tug of war" over this site. The right to use it for the purposes of public

recreation was very much in dispute. Whilst the Inspector accepted that the site had had

amenity value in the past, when he saw it on the site inspection it had ceased to have any

amenity value, and he considered that it could properly be described as "a toothless gap in the

street block".

40. The Inspector very sensibly did not get bogged down in a legalistic debate about the definitions

in PPG17. Instead, he specifically considered the complaint advanced on behalf of the Council;

that the second defendant had not carried out a paragraph 10 type assessment. He considered

whether that criticism had any real force on the particular facts before him, and concluded (for

the reasons given in paragraphs 25 and 26) that it did not.

41. In my judgment, the Inspector's pragmatic approach is not merely intelligible, it cannot possibly

be said to be unreasonable as a matter of judgment. As I have said, whether or not an

assessment was necessary was but one element of the first main issue as defined by the

Inspector. The Inspector rejected the Council's first ground of refusal. He was entitled to do so.


42. For these reasons, this application must be refused.

© CROWN COPYRIGHT 2014 1

UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2014] UKUT 0435 (LC) UTLC Case Number: ACQ/58/2013

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007 COMPENSATION - Planning permission - Compulsory acquisition of land for village by-pass scheme – development potential – APPEAL under s.18 of the Land Compensation Act 1961 against a negative certificate issued pursuant to an application for a Certificate of Appropriate Alternative Development under s.17 of the Act – Appeal allowed IN THE MATTER OF AN APPEAL UNDER SECTION 18 of the LAND COMPENSATION ACT 1961 BETWEEN MRS OLIVE EDWARDS Claimant/Appellant and RHONDDA CYNON TAFF Acquiring COUNTY BOROUGH COUNCIL Authority/Respondent

re: Land east of Ty Isaf Farm, Tonteg, Pontypridd CF38 1ST

Before: P R Francis FRICS

Sitting at: Pontypridd Magistrates Court, Union Street, Pontypridd CF37 1SD on 29 May 2014

Graham Walters, instructed by Harmers Ltd, Planning Consultants of Swansea, under the licensed access scheme for the appellant Gwydion Hughes, instructed by Legal & Democratic Services, Rhondda Cynon Taff CBC for the respondent acquiring authority

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The following cases are referred to in this decision: Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307 R. (On the application of Dacorum BC) v Secretary of State for Communities and Local Government [2009] EWCA Civ 1494 Harringay Meat Traders Ltd v Secretary of State, LB Hackney and GLA [2012] EWHC 1744 (Admin)

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DECISION

Introduction

1. Mrs Olive Edwards (who henceforth I shall describe as the appellant), is the widow of the former owner of two small parcels of agricultural land lying immediately to the east and west of a disused railway cutting located directly opposite their property, Ty Isaf Farm, Cheriton Grove, Tonteg, Pontypridd CF38 1ST. The two parcels (part of freehold title number CYM337170) were compulsorily acquired by Rhondda Cynon Taff County Borough Council (the acquiring Authority and the respondent to this appeal) in 2007 in connection with the construction of a highway scheme known locally as the Church Village Bypass. The railway cutting (freehold title number WA757115) was already in the ownership of the council at the date of the making of the CPO, it having been acquired from British Railways Board by the council’s predecessor, Mid Glamorgan County Council, by means of a conveyance dated 2 May 1995. However, the appellant and her husband had farmed the former railway cutting in conjunction with the two parcels in their ownership under the terms of an Agreement dated 13 April 1959, but in this regard it was agreed that the question of whether or not the appellant has a compensatable interest therein was not a matter before me in this appeal.

2. In respect of negotiations (as claimant) for compensation under rule (2) of section 5 of the Land Compensation Act 1961 (the 1961 Act) the appellant, through her agents, Harmers Ltd, submitted an application for a Certificate of Appropriate Alternative Development (CAAD) to the council under s.17 of the 1961 Act on 18 May 2012 for “Tipping/Land Reclamation” for the whole of the site (some 3 acres in total) incorporating the two parcels and the cutting. The council, following the planning authority’s consideration of a Delegated Report prepared by one of its officers, issued a negative certificate under section 17(4)(b) of the 1961 Act dated 17 April 2013 which stated that:

“Planning permission would not have been granted for any development of the land in question other than the development which is proposed to be carried out by the authority by whom the interest is proposed to be acquired.”

The reasons were set out thus:

“Planning permission would not have been granted for the proposed landfill/land reclamation on the land as it represents unjustified development in the countryside detrimental to the character and appearance of the area. The development would therefore have been considered contrary to Policies en1, en2, and u12 of the Rhondda Cynon Taf (Taff Ely) Local Plan and Policy EV1 of the Mid Glamorgan (Rhondda Cynon Taff County Borough) Replacement Structure Plan.”

3. This is an appeal against that decision.

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4. Mr Graham Walters of counsel appeared for the appellant and called Mr Laurence Anthony Forse MA (Cantab) MSc MRICS MRTPI, a director of Harmers Ltd, Town & Country Planning and Development Consultants from Llanishen, Cardiff who gave expert evidence.

5. Mr Gwydion Hughes of counsel appeared for the respondent authority and expert evidence was given by Mrs Donna Marie Bowhay MRTPI, a Senior Planner with Rhondda Cynon Taff CBC (the council).

Facts

6. The parties helpfully produced a brief statement of agreed facts and issues from which, together with the evidence and my inspection of the appeal site on the day prior to the hearing, I find the following facts.

7. The appeal land comprised 1.24 ha (3.06 acres) of land lying to the south-east of Ty Isaf Farm, Tonteg, and to the east of Cheriton Grove. In the centre of the land, running north-south was a disused railway cutting which, at the southern end, ran beneath a bridge carrying an unnamed lane which led off Cheriton Grove, together with Public Footpath 44. The land lay wholly outside the settlement boundary of Church Village/Tonteg as defined within the Rhondda Cynon Taf (Taff Ely) Local Plan (the Local Plan) and the Replacement Structure Plan and sloped generally downwards from west to east, with the deep cutting having steep grassed sides. The northern boundary of the land, prior to the construction of the bypass, was adjacent to an area of woodland, and the eastern boundary was onto agricultural land. Access was through a field gate.

8. The CPO relating to the proposed construction of the Church Village bypass was made on 9 December 2005 and confirmed by the Welsh Ministers on 7 August 2007. Notice of the making of the CPO was given on 15 December 2005, that being now agreed as the relevant date for the purposes of this appeal (s.22(2) of the 1961 Act). Planning permission for the bypass was obtained by the council on 6 July 2006. The appellant’s land was vested in the council in 2007, and the date of entry (relevant only for compensation purposes) was 10 July 2008.

The relevant Planning Policies

9. It was agreed that the following planning policies were germane to this appeal.

The Rhondda Cynon Taf (Taff Ely) Local Plan 1991 – 2006 (Adopted June 2003)

“Policy en1 – development in the countryside

1. Development in areas of countryside, which includes all land outside the defined settlement boundaries, will only be permitted if it is required in the interests of agriculture,

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forestry, recreational activity compatible with countryside locations and environmentally acceptable, allocated special employment sites, the minerals or utility industries, renewable energy development, waste management schemes, strategic transportation infrastructure, cemeteries, or as part of a rural building conversion or land reclamation scheme.

Policy en2 – criteria for development in the countryside

Developments in the countryside will only be permitted under the exceptions of policy en1 if they would not unacceptably adversely affect the character, visual amenity or nature conservation value of a site, or unacceptably adversely affect the quality or quantity of surface waters or groundwater sources.

Policy u12 – waste

Proposals for waste recycling and disposal will be permitted provided that there would be:

1. No unacceptable effect upon the appearance of the landscape;

2. No loss of access to the countryside;

3. No unacceptable effect on agriculture, and, wherever possible, a beneficial effect on agriculture ultimately;

4. No detriment to surface or underground water quality or quantity;

5. No unacceptable detriment to sites of acknowledged wildlife or archaeological interest;

6. Satisfactory vehicular access;

7. A programme for phased working, restoration and landscaping of disposal sites;

8. Satisfactory proposals for beneficial use and for monitoring and treatment of disposal sites after implementation of approved restoration and landscaping;

9. No unacceptable detriment to air quality;

10. No unacceptable detriment to the amenities of adjoining land uses; and

11. No sterilisation of minerals or other assets.”

Mid Glamorgan (Rhondda Cynon Taff County Borough) Replacement Structure Plan1991 – 2006 (Adopted January 1999)

“Policy EV1

Development in the countryside will not be permitted except for that in the interests of agriculture and forestry, countryside leisure, the provision of housing for special needs, the conversion of rural buildings, conversions/redevelopment of sites used for institutional purposes, minerals, land reclamation, transportation or utility services.”

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NATIONAL GUIDANCE – PLANNING POLICY WALES (March 2002)

Chapter 2 – “Planning for Sustainability”

“Paragraph 2.7 Preference for the re-use of land

2.7.1 Previously developed (or brownfield) land (see figure 2.1) should, wherever possible, be used in preference to Greenfield sites, particularly those of high agricultural or ecological value. The Assembly Government recognises that not all previously developed land is suitable for development. This may be, for example, because of its location, the presence of protected species or valuable habitats or industrial heritage, or because it is highly contaminated. For sites like these it may be appropriate to secure remediation for nature conservation, amenity value or to reduce risks to human health.”

Figure 2.1 Definition of previously developed land

Previously developed land is that which is or was occupied by a permanent structure (excluding agricultural or forestry buildings) and associated fixed surface infrastructure …

Excluded from the definition are:

- land and buildings currently in use for agricultural or forestry purposes

- land in built up areas which has not been developed previously…

- land where the remains of any structure or activity have blended into the landscape over time so that they can reasonably be considered part of the natural surroundings

- Previously developed land the nature conservation value of which could outweigh the re-use of the site, and

- Previously developed land subsequently put to amenity use”.

10. In addition, the respondent considered the following policies from PPW to be relevant:

Chapter 12 “Infrastructure and Services”

Section 12.5: “Planning to reduce and manage waste

12.5.1 Local Planning Authorities are obliged by the EC Framework Directive for Waste to make provision for establishing an integrated and adequate network of waste disposal installations. They are also required, in conjunction with the Environment Agency which issues waste management licences and pollution control permits (see Chapter 13), to ensure that waste is recovered and disposed of without harming the environment …

12.5.2 The UK Government’s general policy towards waste management is based on a hierarchy of reduction, re-use and material recovery ….A sustainable approach to waste management will require greater emphasis on reduction, re-use and recovery and less reliance on disposal without recovery ….. “

Section 12.7: “Development Control and Waste Planning

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12.7.1 Decisions on planning applications should have regard to the waste management objectives of the national waste strategy. The environmental impact of proposals for waste management facilities must be adequately assessed, supported by independent surveys where appropriate, to determine whether a planning application is acceptable and, if the adverse impacts on amenity cannot be mitigated, planning permission should be refused…”

Accompanying Technical Advice Note 21 – Waste (“TAN21”)

“Chapter 10 Construction and Demolition Waste

“10.3 There is widespread concern that the re-use of material on exempt sites is of questionable environmental benefit and has diverted material away from more beneficial purposes, such as providing cover material at landfill sites or for back-filling derelict excavations. Regional Technical Groups should monitor the extent of landfill operations at exempt sites, in conjunction with the Environment Agency, to determine whether the Assembly should consider changes to planning or waste management controls.

10.5 Wherever possible, provision should be made in UDPs for sites for recycling facilities to enable storage, processing and processing of materials, and thus encourage more beneficial use of inert material, as promoted in Minerals Planning Policy Wales 2000 (National Assembly for Wales). Research has been undertaken to assess the impact of recycling operations of construction and demolition waste and to provide advice on the most suitable locations for these operations. It is considered that the following have the potential to be environmentally acceptable locations:

* Active (and some disused) quarries;

* Landfill sites;

* Industrial Estates where heavy or general industry is located;

* Ports/dockland;

* Transport nodes.

UDPs should assess the environmental capacity of these types of locations to facilitate inert recycling operations to become established.

10.6 Planning applications for the landfill of inert waste material should be considered carefully by local planning authorities to ensure that there are no practicable recycling opportunities, or that such landfill would result in significant improvement to ground conditions to enable more beneficial use of the land. Planning applications for the creation of forestry and farm roads and hardstandings using waste should also be considered carefully. Those proposals not genuinely needed for agriculture should be refused.”

Location of Waste Management Facilities

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“C.36 There are numerous factors that may influence the type of location of new waste management facilities. New sites might for instance be located, if appropriate, within or adjacent to:

• industrial areas, especially those containing other heavy or specialised industrial uses;

• active or worked out quarries - …

• degraded, contaminated or derelict land – well located, planned, designed and operated waste management facilities may provide good opportunities for remediating and enhancing sites which are damaged or otherwise of poor quality, or bringing derelict or degraded land back into productive use

• existing or redundant sites or buildings – which could be used, or adapted, to house materials recycling facilities, or composting operations

• sites previously or currently occupied by other types of waste management facilities

C.37 All locations also need to be considered in terms of BPEO (See Annex H). If planning applications come forward for other sites not previously identified as having potential for waste management operations, these should also be determined in accordance with policies of the relevant development plan and framework strategies, unless other material considerations indicate otherwise.”

The Statutory Provisions

11. Section 17 of the 1961 Act provides:

“17 Certification of appropriate alternative development.

(1) Where an interest in land is proposed to be acquired by an authority possessing compulsory purchase powers, either of the parties directly concerned may, subject to subsection (2) of this section, apply to the local planning authority for a certificate under this section.

(2) If the authority proposing to acquire the interest have served a notice to treat in respect thereof, or an agreement has been made for the sale thereof to that authority, and a reference has been made to the Upper Tribunal to determine the amount of the compensation payable in respect of that interest, no application for a certificate under this section shall be made by either of the parties directly concerned after the date of that reference except either—

(a) with the consent in writing of the other of those parties, or

(b) with the leave of the Upper Tribunal.

(3) An application for a certificate under this section—

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(a) shall state whether or not there are, in the applicant’s opinion, any classes of development which, either immediately or at a future time, would be appropriate for the land in question if it were not proposed to be acquired by any authority possessing compulsory purchase powers and, if so, shall specify the classes of development and the times at which they would be so appropriate;

(b) shall state the applicant’s grounds for holding that opinion; and

(c) shall be accompanied by a statement specifying the date on which a copy of the application has been or will be served on the other party directly concerned.

(4) Where an application is made to the local planning authority for a certificate under this section in respect of an interest in land, the local planning authority shall, not earlier than twenty-one days after the date specified in the statement mentioned in paragraph (c) of subsection (3) of this section, issue to the applicant a certificate stating either of the following to be the opinion of the local planning authority regarding the grant of planning permission in respect of the land in question, if it were not proposed to be acquired by an authority possessing compulsory purchase powers, that is to say—

(a) that planning permission would have been granted for development of one or more classes specified in the certificate (whether specified in the application or not) and for any development for which the land is to be acquired, but would not have been granted for any other development; or

(b) that planning permission would have been granted for any development for which the land is to be acquired, but would not have been granted for any other development,

and for the purposes of this subsection development is development for which the land is to be acquired if the land is to be acquired for purposes which involve the carrying out of proposals of the acquiring authority for that development.

(5) Where, in the opinion of the local planning authority, planning permission would have been granted as mentioned in paragraph (a) of subsection (4) of this section, but would only have been granted subject to conditions, or at a future time, or both subject to conditions and at a future time, the certificate shall specify those conditions, or that future time, or both, as the case may be, in addition to the other matters required to be contained in the certificate.

(6) – (11) …”

12. Appeals against certificates under s.17 were formerly made to the Minister under s.18 of the 1961 Act. However, sections 14 – 18 of the 1961 Act were amended by section 232 of the Localism Act 2011, those amendments coming into effect on 6 April 2012. The amendments were subject to complex transitional provisions set out in The Localism Act 2011 (Commencement No. 4 and Transitional, Transitory and Saving Provisions) Order 2012. By Article 18 of the Order, the main amendments do not apply where a CPO was confirmed by the Minister before 6 April 2012, but the substitution of section 18 of the 1961 Act by the following provision does apply:

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“(2) In paragraph (1) and article 21 “the main amendments made by section 232 of, and Part 34 of Schedule 25 to, the Act” means the amendments made by these provisions other than-

(a) …

(b) the substitution of section 18 of the 1961 Act (appeal to Upper Tribunal against certificate under section 17);

(c) …

(d) …”

13. Section 18 of the 1961 Act now provides:

“18 Appeal to Upper Tribunal against certificate under section 17

(1) Where the local planning authority have issued a certificate under section 17 in respect of an interest in land—

(a) the person for the time being entitled to that interest, or

(b) any authority possessing compulsory purchase powers by whom that interest is proposed to be, or is, acquired,

may appeal to the Upper Tribunal against that certificate.

(2) On any appeal under this section against a certificate, the Upper Tribunal—

(a) must consider the matters to which the certificate relates as if the application for a certificate under section 17 had been made to the Upper Tribunal in the first place, and

(b) must—

(i) confirm the certificate, or

(ii) vary it, or

(iii) cancel it and issue a different certificate in its place,

as the Upper Tribunal may consider appropriate.

(3) Where an application is made for a certificate under section 17, and at the expiry of the time prescribed by a development order for the issue of the certificate (or, if an extended period is at any time agreed upon in writing by the parties and the local planning authority, at the end of that period) no certificate has been issued by the local planning authority in accordance with that section, the preceding provisions of this section apply as if the local planning authority has issued such a certificate containing a statement under section 17(1)(b).”

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The important effect of s.18 in its new form is that since 6 April 2012, appeals against certificates under section 17 of the 1961 Act now lie to the Upper Tribunal (Lands Chamber).

Issue

14. The issue for me to decide is whether a CAAD for a scheme of tipping/land reclamation should be granted under section 17 of the 1961 Act. In that regard, the principal points of dispute between the parties, and the key determining factors, concern the relevance of, and the weight to be given to, the National Planning Policy Guidance over and above the Policies within the Local Plan and Replacement Structure Plan; whether, pursuant to the Guidance, the land should or should not be defined as “previously developed land”; the relevance or otherwise of the planning permission granted on the land for the new highway and whether or not the proposed scheme would have been justified development in the countryside, particularly in respect of the visual and landscape impact of the proposal.

The appellant’s case

15. Mr Forse has 38 years experience as a chartered surveyor and town planner, and has been in private practice for 24 years, having commenced his career with Local Authorities, including a spell as Assistant Borough Planning Officer for Bridgend and surrounding areas.

16. He said the nub of the matter before me was that a scheme of tipping to fill over a former railway cutting and feather-fill off to contours on adjacent areas to approximately re-create what would have been the original landform was an acceptable form of development under the relevant development plan policies. It was the appellant’s view, he said, that the council should have dealt with the proposals on their merits. Instead its decision was made on the misplaced assumption that the retention of a disused railway cutting and scrub growth was preferable to reclaiming the land for agricultural purposes. Further, they completely ignored the fact that the appellant is entitled to assume that planning permission would be forthcoming for the highway scheme for which the CPO had been made under the relevant statutory provisions.

17. In his evidence, he advised that the supporting statement to the application for a CAAD made on 18 May 2012 had stated:

“It is considered that this area of previously developed land could have been utilised to undertake tipping thereby restoring the land to its former levels. This would have enabled the land to then be subsequently used for agricultural purposes in conjunction with the adjacent areas of agricultural land to the east and south-east owned by the applicant.

Such use of the application site would make good use of previously developed land, whilst ultimately bringing it back to a sustainable agricultural use, such an objective being generally in line with the intentions of Planning Policy Wales (2002).

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For those reasons, there is a reasonable prospect that planning permission would have been granted for tipping/reclaiming the site”.

18. Mr Forse said that during the course of the application, meetings and discussions were held with the planners, and advice was sought from Richard Harris BSc (Hons) MRICS of Brinsons Fairfax, Chartered Surveyors. As a result, and following the obtaining of detailed engineering calculations, contoured plans and cross-sections of the site, further information was provided in a letter to the council on 22 November 2012. The plans showed the details of the resultant landform following tipping operations which had been calculated by engineers at 33,137 cu m (which converted by a factor of 2 to produce an estimated total tonnage of 66,274).

19. At 15 loads per day of inert waste and subsoil, this would take some 10 months following which the site would receive an upper layer of approximately two feet of topsoil. It was proposed that the north and south (bridge) ends of the cutting would be “feathered off” to the existing ground levels. The southern end would, therefore, leave the area beneath the bridge open to access. Further information along with submissions in justification, were made in a letter of 22 February 2013.

20. Achieving consent for tipping, and the restoration of the land to the levels they were preceding the construction of the railway cutting, would, Mr Forse said, create a gently sloping unobstructed nine acre field (with the inclusion of further land within the appellant’s ownership and farmed by them). Such a configuration would be far more productive than a steep sided and overgrown old railway cutting that could only really be effectively used for the keeping of horses.

21. The Policies contained within the Local Plan were, he said, the most appropriate to consider in detail as they were the ones that local planning officers deal with on a daily basis. The National Policy (PPW) was much more general and advisory. Considering the three Local Plan Policies that were agreed to be relevant, Mr Forse said that it appeared from the council’s Delegated Report prepared by it in connection with the s.17 application, and their reasons for refusal, that they were attempting to obliquely introduce into the relevant policy a requirement that a specific agricultural justification needed to be established. However, no such justification is required under ‘Policy en1’ of the Local Plan – it just says “if required in the interests of agriculture”. The proposed after use once the tipping and reclamation had been completed would dramatically improve the usefulness of the land for agricultural purposes, and the proposal is therefore clearly supported by that policy. He went on to say that irrespective of the question of whether the land could be considered to be “previously developed land” within the planning context, the fact remained that it could not be properly used for agricultural purposes as it was.

22. There was also no rationale for the conclusion in the council’s Delegated Report that read:

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“It is therefore considered that in terms of the principle of the proposed development it is considered that the extent of tipping should be regarded as excessive landfill and unjustified development in the countryside.”

The reclamation scheme has been carefully designed to pick up on existing contours on either side of the former railway cutting, in effect reinstating the landform that would have existed prior to the railway being built. Given the considerable benefits that reinstatement to agricultural use would bring, there is therefore no substance in the claim that the amount of proposed infilling was excessive. It appeared, Mr Forse said, that the council had completely ignored Mr Harris’s advice (which had been provided to them during the application process) relating to the significant benefits that would accrue from careful re-grading of the land.

23. As to ‘Policy en2’ relating to the criteria for development in the countryside and the impact of the proposals in terms of the effects upon character, visual amenity and nature conservation, Mr Forse said the council’s suggestion that they would involve the removal of mature vegetation and habitats which have amenity value within the former railway cutting was simply misplaced. This was particularly so given that planning consent for the highway scheme has to be assumed under the 1961 Act. The vegetation that existed within and to the slopes of the cutting was not mature – it was rough scrubland due to the felling of most of the trees that had been there during the miners strike in the 1980s. Further, the suggestion that the proposals would cause “a more bland and regular form compared to the greater visual interest of the former land” is equally unsustainable given the highway assumptions, and in any event the proposals would, as a potentially productive field, not look the least bit out of place given the area in which it is located, and the rural surroundings generally. Thus, there would be no adverse effects upon character, visual amenity or nature conservation.

24. The requirements under ‘Policy u12 – Waste’ are such that the proposals should be deemed perfectly acceptable. There would be a beneficial affect on agriculture, rather than anything unacceptable in those terms, and there would be no unacceptable affect upon the appearance of the land.

25. In respect of ‘Policy EV1’ in the Replacement Structure Plan, Mr Forse said that the proposed improvements to the land for agricultural purposes would clearly be acceptable under this policy. Further, the proposal also falls generally within the National Guidance set out in PPW.

26. Mr Forse also included within his report a number of photomontages that were designed to simulate how the land would appear once the reclamation was complete. These, he said, indicated that the notional scheme would have no adverse visual impact, and would readily fit in with the surrounding landscape. The scheme of tipping for agricultural improvement should have been acceptable under the terms of the relevant planning policies prevailing at the agreed date, and thus there is no reason why a positive certificate should not be issued. It was his view that the proposal should have been considered on its merits, and not, as he suspected, with a view to reducing the amount of compensation ultimately payable. Any concerns that the council may have had about the proposed scheme and particularly any issues about the resultant profiling of the land could, and would, be adequately covered by conditions 3 and 6

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of the draft proposed conditions (set out in the Delegated Report) to be applied if the Upper Tribunal were to grant a positive certificate.

27. Whilst it was acknowledged that the council’s Delegated Report had been wide ranging in its consideration of the matter, Mr Forse said it was notable that there had been no objections from either the Highways and Transportation Section or the Environmental Health Department, and the lack of any strong objections should have put them in a position to issue a positive certificate. Indeed two of the residents of Cheriton Grove, whose properties directly overlooked the appellant’s land and disused railway cutting, submitted letters to the council indicating strong support for such a scheme of reclamation. He said the Council’s own policies permit schemes of agricultural improvements involving tipping, but they appeared to have gone out of their way to manufacture reasons why it was not permissible in this case. Further, the council appeared to have overlooked the fact that the regenerating trees and shrubs in the cutting enjoyed no statutory protection, and that in any event, under the required highway planning assumptions, the trees and the cutting itself would have been totally obliterated.

28. In cross-examination, Mr Forse said that although he had referred to the appeal land as “previously developed land” in the supporting statement to the CAAD application, that was a generally descriptive comment and he was not relying upon the specific definitions of what “previously developed land” is as set out in Figure 2.1 of Chapter 2 of the PPW. Whether or not the appeal land falls specifically within the definitions set out in PPW was, he said, arguable, but he had never sought to set out his case on that basis. The guidance set out in PPW was of general application, and the point was that it did not over-ride the provisions set out in the Local Plan and Replacement Structure Plan, as Mr Walters would be submitting in the light of R. (On the application of Dacorum BC) v Secretary of State for Communities and Local Government [2009] EWCA Civ 1494. He did not accept the respondent’s argument that the PPW was the more up to date and comprehensive guidance in relation to waste planning, and said that the extracts provided by them were not relevant to the determination. He also stressed that, in any event, the situation here was not “development” as such. It was the reclamation of former agricultural land for re-instatement to that original use. Thus he would have expected the land to come forward under any of the local or national policies.

29. Although he accepted that the land was not really derelict and was not contaminated, it was clearly evident that it was an old railway line that could no longer be utilised for any productive or useful purpose. As to what were described as suitable potential locations in the Technical Advice Note on waste that accompanied PPW (referred to as “TAN 21”), Mr Forse accepted that they are markedly different to the location of the appellant’s land, but said that note was aimed more at recycling facilities. This was not a potential recycling site, but was for very short term landfill purposes.

30. It was put to Mr Forse that the proposal was not driven in the interests of agriculture, but by the potentially significant value that would achieved from the tipping of over 66,000 tonnes of inert waste. He accepted that the spin off from that was self evident, but in planning terms it was the reversion to a productive agricultural use that was important. In that regard, he

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accepted that at the relevant date Ty Isaf was not a viable agricultural unit in the planning sense, but reiterated that it had been farmed by the family for very many years.

The case for the council

31. Mrs Bowhay is a Chartered Town Planner and is currently a Senior Planning Officer with the council. She has over 25 years town & country planning experience in south Wales. In her report, she said the council’s principal reasons behind its view that it was correct to issue a negative certificate were that the proposal would have represented unjustified development in the countryside, and would have been detrimental to the character and appearance of the area. In any event, she said, it was the council’s view that the primary purpose of the proposed development was to obtain the significant increase in value that the opportunity to dispose of 66,000 tonnes of inert waste on the land would provide.

32. The appeal land would not, Mrs Bowhay said, have been regarded as ‘previously developed land’ as defined by para 2.7 and figure 2.1 of PPW. This was principally because the remains of the previous railway activity had blended into the landscape sufficiently to be considered to have become part of the natural surroundings. Further, it appeared to have been used at the relevant date for either agricultural or amenity purposes – such purposes being specifically excluded from the definition of previously developed land under the provisions.

33. The land was neither derelict nor contaminated and was not in need of reclamation and therefore did not come within the Derelict and Contaminated Land Policies (D1 to D7) in the Replacement Structure Plan. Paragraph 8.2.2 of that Plan sets out the types of land which may be considered derelict, and which would have been considered in need of reclamation by the Welsh Development Agency in its land reclamation programme which funded both private and public schemes. Although that programme related mainly to major sites, Mrs Bowhay said it applied equally to small ones. It was certainly not a site which was unsightly or detrimental to the environment, and there would have been no concerns as to safety.

34. For these reasons the proposal would have been unjustified development in the countryside, contrary to Policies EV1 of the Replacement Structure Plan and also en62 of the Local Plan. It would also have been contrary to the provisions of National Planning Policies in relation to waste management issues (paragraphs 12.5.2 and 12.7.1 of PPW) and the advice given in TAN21 at paragraphs C.36 and C.37 together with paragraphs 10.5 and 10.6 of Chapter 10 [see paragraph 10 above]. The land certainly did not fall within the definitions set out in paragraph 10.5, and there were no other material considerations to justify the granting of planning permission.

35. It was also, Mrs Bowhay said, the council’s view that the land acquired had not been considered to form part of a viable agricultural business, and therefore there was no justification in bringing what was effectively a small area of land back into agricultural use on completion of the proposed tipping operations. If a development was to be justified in the interests of agriculture, it had to be demonstrated that there was an overall need for it, and that

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could certainly not be shown here. In conclusion, she said that the proposed development would have been in direct conflict with both National and Local Planning Policies and the general assumption against unnecessary new development in the countryside.

36. As to the visual and landscape impact, the proposed tipping operations would have had an unacceptably adverse impact upon the character, appearance and visual amenity of the land itself and the immediate area. The land comprised gently sloping pasture land and a steep sided cutting that contained a variety of habitats including broad leaved woodland, individual trees, mature scrub and bushes with no evidence of neglect and nothing unsightly in its appearance. The land was in close proximity to, and visible from, a number of residential properties and an adjacent footpath, and apart from the short-term disturbance from the tipping operations, the reclaimed land when restored and re-graded would have an unnatural and bland “manufactured” appearance rather than the interest of the irregular surfaces which fitted in well with the natural topography.

37. There were other material considerations which would have militated against the grant of planning permission, such as highway safety, residential amenity, ecology and nature conservation, although it was accepted that they were not key determining factors and no objections had been received from consultees in respect of any of these matters. As such, this indicated that any concerns under those heads could have been dealt with through planning conditions – those proposed should the Upper Tribunal be minded to grant a positive certificate being included in the Delegated Report.

38. In cross-examination, Mrs Bowhay acknowledged that the proposed end-use of the land for agricultural purposes could be distinguished from the landfill operations, but nevertheless she was of the view that whilst the finished, re-graded site would not be contrary to residential amenity, it would still be unacceptable on strict policy terms. The tipping operations would, of course, have an affect upon residential amenity and the character and appearance of the area, and again this would be contrary to policy.

39. Mrs Bowhay was challenged about the consultation process undertaken in relation to the preparation of the Delegated Report, and what in particular the Environment Agency for Wales had been told about the application, because in the report it was stated that the EA said “the proposed development would have been likely to have required a bespoke Environmental Permit…” However, they were not introduced until 2007 and at the relevant date in December 2005, the requirement was for a Waste Management Licence which had different criteria as to agricultural exemptions. She said that as far as she was aware, the EA was advised that it was a section 17 application, and that the relevant date was 15 December 2005, so she could not square the reasoning for that statement having been made. She was not aware of the implications in terms of exemption criteria.

40. Taken to the reference in the Delegated Report to paragraph 10.3 of TAN21 which states that “there is widespread concern that the re-use of material on exempt sites is of questionable environmental benefits”, Mrs Bowhay was asked if it was, indeed, an exempt site because there was specific reference to it in the Delegated Report. She said she had not considered that but,

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even if it was exempt, that did not mean it does not need to obtain planning consent. There was certainly no evidence from the claimant to suggest that it was.

41. Taken to paragraph 10.40 of Policy u12 in the Taff Ely Local Plan, which stated that “…the practice of landfill disposal should continue and additional space should be sought.”, Mrs Bowhay pointed out that paragraph 10.44 states that the “purpose of the Policy is to ensure that planning permission is given only to sustainable schemes…” However, she said that whilst Policy u12 was relevant in December 2005, and that the council remained dependent upon the availability of landfill sites at that time, those policies rapidly became out of date and that at the time the council had access to landfill sites within its catchment area. She said that in her view PPW was more up to date than the Local Plan.

42. Asked about her view that an application needed to demonstrate an overriding need for the proposed development, Mrs Bowhay said that whilst Policy EV1 of the Replacement Structure Plan did not specifically refer to overriding need, it had to be read in conjunction with the supporting text – see paragraph 6.2.4.

43. As to the requirement for the application to be justified in the interests of agriculture under Local Plan policies, Mrs Bowhay accepted that no evidence had been produced by the council to contradict the conclusions that Mr Harris of Brinsons Chartered Surveyors had come to in their letter to her of 21 February 2013, and accepted that there would be some benefit in agricultural terms once the tipping and the re-grading had been completed. She accepted that in respect of Local Plan Policy u12 – Waste, it was only item 1 in the Schedule that stated there should be “No unacceptable effect upon the appearance of the landscape” that was being relied upon, and that item 3 which reads “No unacceptable affect on agriculture, and, wherever possible, a beneficial effect on agriculture ultimately” actually supports the proposal. She accepted that her reliance upon item 1 was purely opinion and that she could produce no specific evidence in support.

Submissions

44. For the respondent, Mr Hughes pointed out that, under s.18(2)(a) of the 1961 Act (as amended), the Upper Tribunal is required to approach this appeal as if the application had been made to it in the first place. Thus, it was submitted, it is necessary for the Upper Tribunal to approach the issues raised in the application for the certificate afresh, to consider the steps mandated by s.18(2)(b)(i) to (iii) and to confirm, vary or cancel the Certificate as it deems appropriate. The Upper Tribunal is thus not confined by the grounds on which the respondent council determined the application under s.17.

45. In connection with the appellant’s argument as to the relevance of the planning permission for the Church Village bypass scheme in relation to the application under section 17(1) of the 1961 Act, the assertion that the council should not have ignored the fact that planning permission had been granted for the bypass scheme was not accepted.

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46. It was submitted that the approach the respondent was obliged to take when making its decision, and that which the Tribunal has to take, was addressed by Lord Hope of Craighead in Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 2 AC 307, at 319-325. His conclusions could be summarised as:

“The assumption which the planning authority must make relates to the situation at the relevant date. The scheme for which the land is proposed to be acquired, together with the underlying proposal which may appear in any of the planning documents, must be assumed on that date to have been cancelled. No assumption has to be made as to (what) may or may not have happened in the past.”

47. That the respondent would be willing to grant planning permission for the bypass scheme is therefore a given, as whichever of the two certificates it was obliged to issue under s.17(4) of the 1961 Act states that permission would have been granted for any development for which the land is required.

48. However, Mr Hughes said that that is not the end of the matter. The extent to which the appellant can argue that because the council was willing to grant permission for the bypass scheme on 15 December 2005 it would have been prepared to grant consent for the appellant’s proposal is severely limited.

49. It was common ground between the parties and trite law, that the approach as to whether permission would have been granted for the appellant’s proposal is mandated by s.38(6) of the Planning and Compulsory Purchase Act 2004 (the 2004 Act) which provides:

“If regard is to be had to the development plan for the purpose of any determination to be made under the planning acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.”

In this case, the bypass scheme was expressly contemplated by the relevant development plan, and in general terms fostered by it. As set out in the Delegated Report, Policy t1.1 of the Local Plan (adopted June 2003) “safeguards land for the Church Village Bypass” and Policy T2 of the Replacement Structure Plan (adopted January 1999) refers to “proposed implementation of the Church Village Bypass as a Phase 1 (programmed)scheme.” Indeed, the scheme had been included in the Mid Glamorgan County Council Structure Plan as far back as 1978.

50. Conversely, the appellant’s proposed scheme was not contemplated in any of the relevant development plans. It was a small scale proposal that had to be determined by reference to general policies contained in the development plan, and to any material considerations which would have included national planning policy. It followed therefore that merely because the application of the policies in the development plan resulted in planning permission being granted for the bypass scheme, it cannot be assumed that planning permission could be assumed for the appellant’s proposal.

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51. It was submitted that the National Planning Policy is a “material consideration” as contemplated by s.38(6) of the 2004 Act, and as such it was something that the body determining the application was entitled to take into account. Indeed, that it was a material consideration had been accepted by Mr Walters [as confirmed at paragraph 2 of his closing submissions]. However, the appellant’s reliance upon a passage in R. (On the application of Dacorum BC) v Secretary of State for Communities and Local Government [2009] EWCA Civ 1494 needed to be seen in context. Sir David Keane said, at paragraph 17:

“17 As for the proposition that, as a matter of law, plain words in an adopted Local Plan are to be overridden or set aside by wording in a planning policy guidance note, I have to say that I regard that as not only misconceived but quite astonishing. Unlike a PPG, a Local Plan will have gone through the statutory processes, including public consultation and normally a public inquiry, and a report by an independent inspector, before being formally and ultimately adopted. It has statutory force, being explicitly referred to in the legislation. The Secretary of State will have had the opportunity to change it if he regards it as failing to conform to national policy (see sections 43, 44 and 45 of the 1990 Act).

18 PPG2, by contrast, is not a document which has any statutory force, albeit that it will be a material consideration. Such guidance notes do not expressly feature in the relevant Acts, will not have been through a public inquiry process, and simply cannot take precedence over clear language in the statutory development plan. They may, of course, assist if the statutory development plan uses words which are not precisely defined, and that was the situation in the Heath and Hampstead case…”

In that case, a planning inspector had used words in a PPG to effectively circumvent clear policy contained in a Local Plan (to restrict development in the green belt).

52. Here, it was not being contended by the respondent that the national guidance in PPW or TAN21 should in some way circumvent the policies contained in the Local and Replacement Structure Plans. However, the content of the relevant sections of PPW and TAN21 are material considerations in considering the merits of the appellant’s proposal. Thus, it was submitted that the determination should be made in accordance with national policy, particularly as it would have been the more comprehensive policy on the topic of waste management proposals.

53. It was submitted that in any event the policies in the Local and Replacement Structure Plans as referred to by Mrs Bowhay were sufficient grounds for refusal. The appellant’s proposal would not come within either of the two exceptions referred to in Policy en1 in the Local Plan (development in the interests of agriculture or development associated with waste management schemes). It could not be said to be in the interests of agriculture as this very small farm (about 13 acres) consisted of low-grade land which was not being operated, and could not operate, as a viable agricultural unit. Any agricultural benefit that might accrue from the filling and re-grading of the old railway cutting would be ancillary or incidental to the major economic benefits that would accrue from the exercise of tipping 66,000 tonnes of inert waste. There were no overriding reasons to support the proposal to overcome the presumption against development in the countryside.

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54. It would also not come within the exceptions in Policy en2 if it would unacceptably adversely affect the character, visual amenity or nature conservation value of the site. Use for waste management purposes would certainly adversely affect the character and amenity value of the land. Whilst it was accepted that some of the relevant policies in TAN21 relate to recycling sites, the majority, it was submitted, were of more general application. Specifically, paragraph 10.6 states that landfill proposals not genuinely needed for agriculture should be refused, and paragraph C36 clearly contemplates waste management sites being located in very different types of location – a fact accepted by Mr Forse.

55. The land cannot be described as a reclamation scheme as it was not identified as derelict land in the Replacement Structure Plan, and what constitutes reclamation also needs to be considered in the context of PPW.

56. For the appellant, Mr Walters submitted in his skeleton argument that in considering the appellant’s proposal, it has to be assumed that planning permission for the council’s highway scheme would be granted and that, per Fletcher Estates, it is to be assumed that at the relevant date of 15 December 2005 that scheme and its underlying proposals were assumed to have been cancelled. It was suggested that the respondent had misunderstood and misapplied this doctrine. It does not mean, as the council seemed to be saying, that the fact planning permission would have been granted for the bypass could be ignored. What it means is that, at the relevant date, the permission no longer exists. This, he said, was a different scenario to the “no-scheme world” situation in compensation.

57. In his closing submissions, Mr Walters submitted that the appellant is not saying that because the road scheme was deemed acceptable in planning and environmental terms, the appellant’s proposal must also be acceptable. It was accepted that planning applications are each dealt with on their merits and the individual facts and circumstances have to be weighed. However, there cannot be inconsistency; on the same material issue the same material facts must be relied upon. So, in considering the appellant’s proposal, the impact on the landscape and its overall effects need to be compared to those that would have been caused by the highway scheme if it had gone ahead. Because the council had erred in its understanding of the statutory requirements, it had produced a decision that was unfair and inconsistent. The landscape impact of the highway scheme is clearly far greater than the impact that the appellant’s much more limited proposals would cause. According to the council, the need to preserve the existing landscape was sufficient to justify a negative certificate, but by assuming that planning permission for the highway scheme would have been granted, the far greater impact on the landscape was deemed acceptable.

58. It was accepted in closing that the decision must be made in accordance with the development plans, unless material considerations indicate otherwise, and that national guidance is a material consideration. However, it was pointed out that the PPW policies were not referred to in the negative certificate, and reference to them as a reason for refusal appears to have been added now into the evidence before me. Whilst the national policy was quite properly referred to in the Delegated Report, it was not cited as a reason for refusal and should not therefore be promoted as such now.

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59. The council is not entitled to rely upon new reasons additional to those considered at the application stage, especially as the operation of the site and other considerations were expressly considered to be capable of resolution by condition and thus did not justify refusal. It was apposite that the council’s Land Reclamation Division and Environmental Health Departments raised no objections, and neither did Highways. There was also no objection from the (then) Environment Agency for Wales.

60. As to the Local and Replacement Structure Plan Policies, it was submitted that the simple test of whether the development should be permitted in the interests of agriculture was that it would produce additional, workable, agricultural land. The evidence from Mr Harris relating to how the re-grading of the land would be achieved, made available to the council and reproduced at pages 51 and 52 of the appellant’s bundle, was accepted in cross-examination, and not contradicted. There is no additional test of need and the question of viability was not a planning consideration and therefore not relevant.

61. The development is waste management within Local Plan Policy en1 and u12 is the policy covering waste disposal. It was accepted by Mrs Bowhay in cross-examination that criterion 3 in u12 was met, but it was submitted that the council’s case that criterion 1 was not met was wrong. The Delegated Report showed that there was no residential or consultee objection to the proposed scheme (subject to conditions), and there was no evidence produced to prove any potential operational impact during the tipping activities. Further, the anticipated detrimental impact referred to was admitted by Mrs Bowhay to just be her own opinion, and was not supported by any facts or reasoning.

62. It was submitted that the development plan policies were clear and do not require reference to national guidance to resolve any uncertainty. The suggestion that the Local Plan was out of date, and was effectively superseded by PPW was incorrect – the Local Plan was adopted after publication of the relevant national guidance and no evidence was produced to indicate a material change introduced by those national policy documents.

63. In summary, Mr Walters submitted that the council simply has no evidence to support the refusal of planning permission, and a positive certificate should be issued.

Legal framework

64. As noted in opening by Mr Hughes, in determining for the purposes of section 17(4) of the 1961 Act whether planning permission would have been granted for the appellant’s proposal, it is necessary for me to pursue the approach that the local planning authority would have been obliged to follow on the relevant date. This is by virtue of section 70 of the Town and Country Planning Act 1990 (TCPA), and section 38(6) of the Planning and Compulsory Purchase Act 2004 (PCPA) (which is applied to determinations under section 17 of the Land Compensation Act 1961 by section 37(d) of the PCPA). That approach was confirmed to be correct in Harringay Meat Traders Ltd v Secretary of State , LB Hackney and GLA [2012] EWHC 1744 (Admin).

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65. Thus, pursuant to s.18(2) of the 1961 Act I am bound to approach the issues entirely afresh, as if the application had been made to the Upper Tribunal in the first place, and in that regard I agree with Mr Hughes’s statement that “the Upper Tribunal is not confined by the grounds upon which the council determined the [s.17] application”.

66. The relevant date for the consideration of the applicable planning policies has now been agreed at 15 December 2005, the date of publication of the CPO – per the judgment in Fletcher Estates.

Discussion

67. The matters for my consideration in determining this appeal are as set out in paragraph 14 above. I deal firstly with the question of the relevance or otherwise of the planning permission for the council’s Church Village Bypass scheme and the parties’ submissions in that regard. It is common ground that, at the relevant date, it is to be assumed that the acquiring authority’s scheme has been cancelled. However, Mr Walters seemed to infer that the respondent council took that to mean that it was also to be assumed it had never existed, and as such any argument over the relative impact upon the landscape and the overall affects of the appellant’s proposal in comparison with the CPO scheme were not relevant matters for consideration. Mr Walters did say in closing that it was not being argued that just because the road scheme must be assumed to have obtained planning permission, then the appellant’s proposal must be acceptable due to its more limited impact, but that the point he was making was that there cannot be inconsistency. On the same material issue, the same facts must be relied upon. Whether it was in the development plan or not, the CPO scheme was considered acceptable in planning terms, so a proposal that had a lesser impact, for instance in regard to the need to preserve the existing landscape, should also be deemed acceptable. No reasoned justification, he said, was given by the respondent for this apparent distinction.

68. In closing, Mr Hughes, rightly in my view, reminded us of section 38(6) of the PCPA 2004 and the requirement for any determination to be made in accordance with the development plan “unless material considerations indicate otherwise.” He was not saying that the assumed existence of planning consent for the highway scheme should be ignored because the scheme was assumed to have been cancelled, but that the primary issue against which a decision should be made was whether the proposed use was within the development plan. The CPO scheme clearly was, and the appellant’s proposed development was not.

69. I agree with the respondent’s approach. Taken to the extreme, the weakness in the appellant’s argument in this regard, despite what Mr Walters said in closing, can readily be seen. Throughout England and Wales there have been, and will continue to be, major infrastructure schemes such as HS1, Crossrail and now the HS2 railway lines, and the Olympic Park and Legacy Development in London which have had or will have a very significant impact on the environment. For parties whose land has been affected by such schemes to be able to argue that because their proposals (whatever they may be) would have a lesser impact, then they should be entitled to a Certificate of Appropriate Alternative Development, just does not stand up to scrutiny, whatever the facts that are being relied upon are. I therefore fully

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accept Mr Hughes statement that “merely because the application of the policies in the development plan resulted in planning permission being granted for the bypass scheme, it cannot be assumed that planning permission could be assumed for the appellant’s proposal.” The considerations required for determining whether planning permission should be granted for a much needed and long awaited highway scheme, and whether it should be granted for the appellant’s proposal are entirely different. The appellant’s proposal must be considered upon its merits, in accordance with the relevant policies in the development plan and any applicable national guidance.

70. In regard to national guidance (PPW), it was agreed that it was a “material consideration” as contemplated by section 38(6) of the 2004 Act, but the weight to be applied to it was in issue. The appellant relied upon the strongly expressed views of Sir David Keane in R (on the application of Dacorum BC) v Secretary of State for Communities and Local Government [2009] EWCA Civ 1494, in submissions made at the start of the hearing, that national policy cannot override the statutory Development Plans. The appellant argued that if any of the wording in the Local or Replacement Structure Plans was unclear and support was needed from the national guidance, the council should have said so. Reliance in this appeal upon policies that were not given as reasons for refusal in the s.17 application was not appropriate or permissible. The respondent agreed that PPW and TAN21 could not be used to circumvent the statutory Development Plans, but as they are material considerations, the determination should be made in accordance with those requirements as it was the more comprehensive policy on waste management proposals.

71. I cannot agree with the appellant’s submissions on this. As is clearly set out in s.18(2) of the 1961 Act, the Upper Tribunal is to look at the matter afresh, as if the application had been made to it in the first place. Thus it can of course consider all relevant planning policies and guidance whether or not they were referred to in the Local Planning Authority’s determination of the s.17 application. Whilst, in the light of Dacorum, it must be the case that more weight will be given to the statutory Development Plans (which I also accept in this instance were more up to date than the national guidance), that does not mean in my judgement that PPW and TAN21 can be ignored – especially in circumstances where the provisions of the relevant local or statutory policies may be unclear.

72. The right approach therefore is, in my view, to consider the Local and Replacement Structure Plan Policies first, and to have PPW and TAN21 in mind if and where necessary in any areas where the may be a conflict or the application of the policy might be unclear. I also bear in mind what Mr Hughes said about PPW and TAN21 being more comprehensive guidance on waste management policy, and Mr Walters’ counter argument that those policies were more aligned to more major and recycling orientated proposals.

73. Looking firstly, therefore, at the Local and Replacement Structure Plan policies, and Policy en1 – Development in the Countryside, I agree with Mr Forse’s arguments that the policy does not demand a specific agricultural justification, and that the proposal would, ultimately, be in the interests of agriculture. Similarly, the proposal clearly could fall within the description of a waste management scheme. I note that in the Delegated Report under the

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heading ‘Residential and Recreational Amenity’ it said the Public Health and Protection Division have raised no objections, subject to a number of conditions, and concluded:

“It is therefore considered that subject to conditions restricting the hours of operation on the site, the submission of a scheme requiring dust suppression measures, and the details of any artificial lighting, the proposed tipping would not have been unduly detrimental to residential or recreational amenity.”

Thus, Policy en1 is not, in my view, on its own a ground for refusal even though there may be a question over whether the proposal could come within the description of a land reclamation scheme (due to the parameters relating to derelict land set out in PPW). However, in that regard, I note that there was no objection to the proposal from the council’s Land Reclamation Division.

74. Turning to the criteria for development in the countryside under Policy en2, I am satisfied that, subject to compliance with the draft conditions that were set out in the Delegated Report, there would be no unacceptably adverse affect upon the character, visual amenity or nature conservation value of the site, and there was no evidence to suggest that there was likely to be any adverse affect upon quality or quantity of surface water or groundwater sources.

75. It was agreed that under Policy u12 – Waste, only criterion 1 and 3 were in issue. I am satisfied that if the land was ultimately re-graded as set out in the report prepared by Mr Harris, and made available to the council, and its contours were finished in accordance with the plans prepared by Davis Surveys Ltd and provided to me within the trial bundle, then there would be no unacceptable impact upon the landscape. Although, from the Google images and photographs provided, I do not think that the appearance of the land was in any way unacceptable because it was a disused railway cutting, a carefully graded and sown field would be no worse and possibly somewhat better in terms of visual impact from the nearby roads, footpaths and residential properties. I do not agree with Mrs Bowhay’s suggestion that the re-graded land would have an unnatural and bland or manufactured appearance. Certainly I agree with Mr Forse that that there would be no unacceptable affect on agriculture and that, to a limited degree at least, there would be an ultimate benefit.

76. I note (paragraph 40 above) that Mrs Bowhay said the council continued to be dependent upon the availability of landfill sites in December 2005. Paragraph 10.43 of the explanatory text to Policy u12 in the Local Plan (published 2003) said:

“The present situation is that there is no site identified for future landfill within the plan area. Therefore, waste will continue to be disposed of outside the area, by either private companies or by other local authorities’ waste disposal companies.”

December 2005 was the relevant date for the purposes of this exercise, and her comment that the policies subsequently became out of date is therefore not something for my consideration.

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77. Mrs Bowhay also referred to paragraph 10.44, and the requirement for planning permission only to be granted to sustainable schemes. The relevant part of the paragraph reads:

“The purpose of the policy is to ensure that planning permission is only given to sustainable schemes, not those that simply store up problems for the future. There is an important requirement for monitoring and aftercare of landfill sites, to encourage good practice during operations and to ensure early response is made to any problems such as subsidence, leachate pollution, gas migration and landscaping failures.”

I am entirely satisfied that the appellant’s proposals would be sustainable within the terms of the requirement.

78. Policy EV 1 in the Replacement Structure Plan, dealing with restrictions on development in the countryside, lists as exceptions developments that are (amongst others) in the interests of agriculture and land reclamation. Mrs Bowhay said that any application for development in the countryside had to demonstrate an overriding need, and whilst she accepted in cross-examination that the wording of the policy itself did not say that, the supporting text in paragraph 6.2.4 did. It reads:

“The remainder of the Environment section introduces a series of policies by which other developments proposed for a countryside location can be assessed in addition to the general restriction of EV1. These policies may strengthen the basic restriction on development in the countryside, where it leads to detrimental effects on other important features. In order to overturn this and any specific restriction referred to in any of the relevant policies, it will be necessary to establish that there is an overriding need for a development at that location compared to the needs for site protection.”

My understanding of that paragraph is that overriding need has to be established in proposals that would lead to “unacceptable detrimental affects,” and I do not think that applies to this proposal.

79. Within the statement of agreed facts and issues signed by the parties to this appeal, it was stated that, subject to my conclusions on the relevance of the national policies upon which the council sought to rely, the key determinant of the acceptability of the appellant’s proposal would be “dependent upon an assessment of whether or not such a proposed development would have been justified development in the countryside with regard to the visual and landscape impact of the proposals especially with regard to whether or not it would ‘not unacceptably adversely affect the character or visual amenity of an area” (en2) or “have no unacceptable affect on the appearance of the landscape.”(u12)” In his conclusions, Mr Forse said, at paragraph A4.1 of the addendum to his statement of case that:

“On the basis of the additional photomontages, these confirm that there was no reason to reject the agricultural land reclamation scheme on the basis of adverse visual impact. The proposals would readily assimilate into the countryside and would not have any detrimental impact on the character and appearance of the area as the council claim.”

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80. It will be seen from my conclusions above that I agree with that summary, and that the proposed development, although not specifically included within the Development Plan, would be acceptable in planning terms under those policies. It was the three policies with which I have dealt above that were relied upon by the council in issuing its negative certificate, but as I have said, that should not, and does not, preclude me from considering the national guidance which the parties have in any event agreed to be a material consideration.

81. However, as I said in paragraph 72 above, reliance upon the national guidance comes into play if there appears to be a conflict in the local policies, or if any of them are unclear in terms of determining this matter. I do not think they are, and following the judgment in Dacorum I am satisfied that despite being a material consideration, there is nothing in any of the policies that Mrs Bowhay in particular has highlighted that circumvent the clear guidance set out in the three local policies to which I have referred.

82. Nevertheless, if I were to be found wrong on that conclusion, I would make the following points. Firstly, the question of whether or not the appeal site could accurately be described as “previously developed land”. I have to confess, this is a very difficult question to answer. On the one hand, the site of the former railway cutting clearly fell within this category. However, Mrs Bowhay pointed out that, under Figure 2.1 – ‘Definition of previously developed land’, in Chapter 2 of the PPW listed as an exclusion “land where the remains of any structure or activity have blended into the landscape over time so that they can reasonably be considered part of the natural surroundings”. I note (see paragraph 28 above) that Mr Forse says this point is arguable, but that whilst he had described it as previously developed land in the application, he was not relying upon the specific definition per Figure 2.1 and said he was using it purely as a generally descriptive comment. Having considered the aerial photographs of the land as it was, I agree that the point is arguable. Whilst it is clear that the existence of trees, shrubbery and other natural foliage appears to have allowed the land to blend in with the landscape, the fact remains that there remained a deep cutting which served to break up the otherwise gently sloping nature of the land on each side. On balance therefore, I do not think it would fall within that exclusion.

83. As to the other national guidance policies relied upon by Mrs Bowhay, I agree with Mr Forse that they were aimed more at recycling and major waste management facilities, which would be expected to remain operational for considerable periods of time. In this case, I am mindful that the waste management aspect would only last in the region of 12 months, before the land was reinstated to its, original (pre-railway) form.

84. Under paragraph 10.6 of Chapter 10 of TAN 21 to PPW dealing with demolition and construction waste, it says: “Planning applications for the landfill of inert waste material should be considered carefully by local planning authorities to ensure that there are no practicable recycling opportunities, or that such landfill would result in significant improvement to ground conditions to enable more beneficial use of the land…. Those proposals not genuinely needed for agriculture should be refused.” There is no doubt in my mind that the proposal would have resulted in a more beneficial agricultural use of the land.

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85. For the reasons given above, I allow the appeal, cancel the negative certificate issued by the Local Planning Authority pursuant to section 17(4)(b) of the 1961 Act, and issue a positive certificate (Attached at Appendix A). It is also accompanied by a site plan (Appendix B).

86. In respect of conditions, for the purposes of this appeal I am mindful of the fact that the purpose of the CAAD system is to provide valuers (and ultimately the Upper Tribunal) with a context within which to value. The certificate is not a detailed planning consent, and the circumstances of any particular development scenario will vary. The National Assembly considers in paragraph 8 of Appendix L to CPO Circular NAFWC 14/2004 (Revised Circular on Compulsory Purchase Orders 06/2004 (Compulsory Purchase and the Crichel Down Rules) which says;

“The (Secretary of State) considers it important as far as possible that the [CAAD] system should be operated on broad and common sense lines; it should be borne in mind that a certificate is not a planning permission but a statement to be used in ascertaining the fair market value of the land.”

I do not consider it necessary to provide a set of specific conditions and parameters to define further the particular form of the development. Suffice to say that the draft conditions provided within the Delegated Report are considered to be broadly in line with what a ‘real’ planning consent would include.

87. For the avoidance of doubt, this decision relates solely to the appeal made under section 18 of the Land Compensation Act 1961, and should not be taken to imply any consideration of, or conclusion on, the question of compensation that may be due to the appellant under the provisions of section 5 of the 1961 Act, on either part or the whole of the land to which this appeal relates.

88. Section 17 of the 1961 Act is a purely hypothetical exercise created solely to assist in the assessment of compensation for the compulsory acquisition of land, and a CAAD is an indication of what development would have been allowed if it had not been acquired compulsorily. Having now determined this issue in respect of Mrs Edwards’s land, the question of value at the relevant date can be determined with the assistance, if necessary, of this CAAD.

89. This decision is final. The question of costs will now be considered, and a letter setting out the procedure for making submissions, together with details of the appeal procedures, accompanies this decision.

DATED 14 October 2014

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P R Francis FRICS

[2014] UKUT 0435 (LC) UTLC Case Number: ACQ/58/2013

APPENDIX A

LAND COMPENSATION ACT 1961 (As Amended)

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CERTIFICATE OF APPROPRIATE ALTERNATIVE DEVELOPMENT

LAND TO THE EAST OF TY ISAF FARM, CHERITON GROVE, TONTEG,

PONTYPRIDD CF38 1ST

PURSUANT TO the Tribunal’s powers under section 18 of the Land Compensation Act 1961 (as amended) it is hereby CERTIFIED in relation to the said land that for the REASONS set out in its decision dated 14 October 2014:

Planning permission would have been granted for a tipping/land reclamation scheme in accordance with the application made by Harmers Ltd on behalf of Mrs Olive Edwards to Rhondda Cynon Taf County Borough Council dated 18 May 2012 (ref:12/0576/02) and for any development for which the land is to be acquired, but would not have been granted for any other development.

DATED: 14 October 2014

Signed: P R Francis FRICS Member, Upper Tribunal (Lands Chamber)

Department for Communities and Local Government Julian Pitt, Decision Officer Planning Central Casework Division Zone 1/H1 Eland House Bressenden Place London SW1E 5DU

Tel Fax Email:

29 May 2008 Richard Woodford How Planning 40 Peter Street MANCHESTER M2 5GP

Our Ref: APP/M3455/A/07/2054057

Dear Sir, TOWN AND COUNTRY PLANNING ACT 1990 (SECTION 78) APPEAL BY BARRATT HOMES (CHESTER DIVISION) LTD LAND AT SCOTIA ROAD, TUNSTALL, STOKE ON TRENT, ST6 4HG APPLICATION Ref: SOT/46377 1. I am directed by the Secretary of State to say that consideration has been given to the report of the Inspector, Christine Thorby MRTPI IHBC, who held a public local inquiry from 5th to 8th February 2008 into your client’s appeal against the decision of Stoke on Trent City Council to refuse planning permission for land at Scotia Road, Tunstall, Stoke on Trent, ST6 4HG. The appeal relates to application SOT/46377, dated 10 October 2006, for the erection of 278 residential units with open space and road infrastructure. 2. On 5 October 2007 the appeal was recovered for the Secretary of State’s own determination, in pursuance of section 79 of, and paragraph 3 to Schedule 6 to, the Town and Country Planning Act 1990, because it raises policy issues relating to residential development of 150 or more dwellings, which would significantly impact on the Government’s objective to secure a better balance between housing demand and supply, and create high quality, sustainable, mixed and inclusive communities. Inspector's Recommendations and Summary of the Decision 3. The Inspector recommended that the appeal be allowed and planning permission granted, subject to conditions. For the reasons given below, the Secretary of State disagrees with the Inspector's recommendation, and dismisses the appeal, thereby refusing planning permission. A copy of the Inspector’s report (IR) is enclosed. All paragraph references, unless otherwise stated, are to that report.

Procedural Matters 4. The Secretary of State has had regard to the fact that following submission of the application, but prior to determination of the application by Stoke on Trent City Council (SCC), the number of units was amended to 278 (IR1.2) and she has considered the appeal on that basis. The Secretary of State has also had regard to the corrected wording of SCC reason for refusal one (IR1.4) and has considered the appeal on the basis of the corrected wording. The Secretary of State is satisfied that no interests are prejudiced by this approach. 5. Following refusal of the application but prior to the Inquiry, the Highways Agency withdrew their objection. SCC indicated that they were satisfied that the proposed development would not have an adverse impact on either the local or trunk road network and, therefore, they would not defend reason for refusal three (IR1.6). 6. The appellant also submitted a Flood Risk Assessment, a drainage plan and a Unilateral Undertaking prior to the inquiry, to address the deficiencies in reasons for refusal four and five (IR1.7). However, the Secretary of State notes that SCC maintained their objection to these matters and has considered the appeal on that basis. Policy Considerations 7. In deciding the appeal, 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. 8. In this case, the Development Plan comprises the West Midlands Regional Spatial Strategy (RSS), originally published as Regional Planning Guidance for the West Midlands 2004; saved policies in the Staffordshire and Stoke on Trent Structure Plan 1996 – 2011, adopted 2001 and amended in 2002 (SP); and saved policies in the Stoke on Trent City Plan 2001, adopted 1993 (LP). The Secretary of State agrees with the Inspector that the most relevant policies are those set out in IR3.3 to 3.8. She notes that the SP and LP policies and site allocations referred to in IR3.9 have expired and has therefore given them no weight. 9. Particularly relevant RSS policies are UR1 and CF1 (IR3.4 – 3.5). The RSS is being reviewed and the Preferred Option was published for consultation in December 2007 (IR3.10 – 3.11). The Secretary of State has therefore accorded some weight to the West Midlands Spatial Strategy – Phase Two Revision (RWMRSS), including the strategy for Stoke on Trent which recognises the key role of the North Staffordshire Housing Market Renewal Pathfinder (RENEW) to revitalise the housing market (IR3.12 and IR footnote 2). 10. The Local Development Framework (LDF) documents listed in IR3.14 are at an early stage in plan making, and so the Secretary of State has accorded them limited weight. 11. Other material considerations which the Secretary of State has taken into account include Planning Policy Statement 1 (PPS1): Delivering Sustainable

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Development; Planning Policy Statement 3 (PPS3): Housing; Planning Policy Guidance Note 13 (PPG13): Transport; Circular 11/95: The Use of Conditions in Planning Permission; and Circular 5/2005: Planning Obligations. Main Issues 12. The Secretary of State has had regard to the Inspector’s assessment of the main issues in this case (IR13.1) and considers these to be:

- Accordance with the Development Plan; - Whether the appeal site constitutes previously developed land; - The safety and quality of the environment to be provided;

- The mix and balance of the community to be provided; - Housing supply and demand; - Effect of the proposal on the Housing Market Renewal Pathfinder; - Whether the proposal would increase the risk of flooding in the area; - Unilateral Undertaking - particularly whether satisfactory arrangements have

been made towards meeting the public open space, community and infrastructure needs of future residents; and

- Conditions

Accordance with the Development Plan 13. The Secretary of State considers that the proposal would accord with RSS and saved Structure and Local Plan policies dealing with the use of previously developed land, safety and quality of the environment, and achieving a mixed and balanced community (IR3.6 - 3.8). However, overall, she considers that the proposal conflicts with the Development Plan because the site is not allocated for housing (IR2.1) and because she regards the proposal as in conflict with RSS Policies UR1 (IR3.4), CF1 and CF3 (IR3.5), for the reasons at paragraphs 19 to 24 in this letter. Whether the appeal site constitutes previously developed land 14. For the reasons set out in IR13.5 to IR13.6, the Secretary of State agrees with the Inspector (IR13.6) that on balance, there is a high probability that existing, visible land features and some tracks were related to previous quarrying use. Like the Inspector, the Secretary of State considers that although aerial photographs give the impression of an even, green site, the appeal site has a very unnatural and artificial landform as a result of its previous use (IR13.7). For the reasons set out in IR13.7, the Secretary of State agrees with the Inspector that the appeal site could not reasonably be considered to be part of the natural surroundings and constitutes previously developed land.

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The safety and quality of the environment to be provided 15. The Secretary of State has considered the local residents’ concern about crime. She agrees with the Inspector that, for the reasons set out in IR13.13, the proposal would not pose a risk to safety in the area. 16. For the reasons set out in IR13.14 and 13.15, the Secretary of State agrees with the Inspector that the proposal would improve the environment and provide a reasonably good quality, safe environment, in accordance with national and local plan policies (IR13.15). The mix and balance of the community to be provided 17. For the reasons set out in IR13.17 to 13.19, the Secretary of State agrees with the Inspector that the affordable housing provision would comply with national and local plan policy which seeks a mixed and balanced community (IR13.19). Housing supply and demand 18. Stoke on Trent City Council is meeting their overall housing targets as set out in RSS policy CF3 (IR13.20). Although the RWMRSS proposes an increase in housing targets, there are a number of committed sites within Stoke on Trent that would still ensure around a five year supply of housing even if the RWMRSS proposed increase were to be confirmed (IR13.21 - IR13.22). For the reasons set out in IR13.20 to IR13.22, the Secretary of State agrees with the Inspector that there is no quantifiable need for the development to meet RSS or emerging RWMRSS housing targets (IR13.23). Notwithstanding the issue of affordable housing, in the circumstances of this case she places considerable weight on the adequacy of the housing land supply. Effect of the proposal on Housing Market Renewal 19. The Secretary of State has considered the policy context with regard to the Housing Market Renewal Pathfinder programme set out in IR13.24 to IR13.25. She notes that the appeal site is located outside any of the designated target areas and that the proposal would develop a major area of land, introducing a significant number of dwellings into an untargeted area (IR13.26). The Secretary of State has taken account of the fact that the site is in close proximity to the Burslem AMI and Tunstall GRA. She agrees with the Inspector that development would pose a risk of population displacement from the targeted areas, particularly the IUC and AMI, and that it would compete for development of sites within the Burslem AMI, and that these risks could potentially undermine RENEW’s targeted approach to the Pathfinder area (IR13.26 – 27, 13.30 and 13.42). 20. The Secretary of State notes that Burslem has a significant number of derelict sites in and around the Town Centre as a result of a decline in the pottery industry, and that an important part of RENEW’s strategy for the Burslem AMI is targeting these areas for housing development (IR13.30). For the reasons set out in IR8.14 to IR8.20, she agrees with Stoke on Trent City Council that full commitment to the Housing Market Renewal programme is required to ensure that housing renewal is not derailed and that the move to sustainable neighbourhoods is safeguarded. She

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accepts that the precise effect of the proposal on competition with targeted sites would be difficult to assess (IR13.33). However, she considers that there is a risk that the appeal proposal, if allowed, could undermine targeted redevelopment priorities within the Burslem AMI. She attaches considerable weight to this risk. 21. The Secretary of State has considered the Inspector’s views in IR13.28 to 13.29 on the accessibility of the appeal site and the possibility that new residents there would contribute to the economy of Burslem and Tunstall Town Centre. She accepts that the new residents would be likely to make some contribution towards the overall aims of the Pathfinder programme, but is not as confident as the Inspector about the significance of the indirect economic and social benefits, and does not attach as much weight to these benefits as the Inspector does at IR13.29, 13.33 and IR13.43 – 13.44. 22. The Secretary of State notes that rates of building within the AMI are very slow and that there is a question of whether the identified potential sites in the AMI are all deliverable and developable (IR13.31). These considerations add to her concern that allowing the appeal could undermine the regeneration of problematic priority sites. 23. The Secretary of State agrees that limited weight can be afforded to any assured, long term housing oversupply, and that there is an urgent need to provide more affordable housing (IR13.32). However, in the short term there is around a five year supply of housing on committed land (IR13.22) and she considers that both market and affordable housing should be concentrated on targeted priority sites. 24. With regard to precedent (IR13.34), the Secretary of State accepts that the precise circumstances of the sites identified at IR8.20 are not known, but considers that there is a risk that the appeal proposal, if permitted, could set an unhelpful precedent, creating a further risk to targeting investment and development to priority areas. Whether the proposal would increase the risk of flooding in the area 25. For the reasons set out in IR13.35 to IR13.36, the Secretary of State agrees with the Inspector that as the site is in an area of low flood risk, a surface water drainage scheme identifying appropriate drainage methods could be secured by conditions (IR13.36). In these circumstances, she also agrees that the proposal would not pose a flood risk from surface water run-off and, subject to drainage conditions, could comply with PPS25 (IR13.36). Unilateral Undertaking 26. The Secretary of State has taken into account the signed and dated Unilateral Undertaking under Section 106 of the Town and Country Planning Act 1990 and the Inspector's comments on this in IR12.1 to IR12.6. She agrees with the Inspector in IR12.6 that contributions towards public art, travel packs and surface water management do not comply with the tests set out in Circular 05/2005 and so she has given these no weight. The Secretary of State considers that all other provisions of the Undertaking comply with the policy tests in Annex B to Circular 05/2005 and are necessary and relevant to the development. For the reasons later in IR13.37, she

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agrees with the Inspector that the proposal would provide necessary and appropriate public open space, education and transport infrastructure in accordance with the relevant policies. However, the Secretary of State does not consider that these provisions would overcome her reasons for dismissing the appeal.

Conditions

27. The Secretary of State has taken into account the proposed conditions in Annex A to the Inspectors report and the Inspector’s comments on these in IR11.1 to IR11.10. The Secretary of State considers that the proposed conditions are reasonable and necessary, and meet the tests of Circular 11/95, but would not overcome her reasons for dismissing the appeal. Overall Conclusions 28. For the reasons given above, the Secretary of State concludes that the proposed development has some substantial merits. It would reuse a previously developed site, provide an attractive and safe living environment and improve the appearance of the area. A good mix of housing would be provided and the 56 affordable units offered would contribute to meeting the shortfall of affordable units in the area. 29. However, the Secretary of State considers that the proposed development would not be in overall accordance with the Development Plan because the site is not allocated for housing and because the proposal would, in her view, conflict with RSS policy to promote a targeted approach to regeneration in the area. 30. The appeal site is a major site that falls outside RENEW’s designated target areas, and Stoke already has a five year housing land supply. The Secretary of State is not as confident as the Inspector about the significance of the indirect economic and social benefits of the proposal, and does not attach as much weight to this consideration as the Inspector does. The Secretary of State considers that the proposal would compete with the development of targeted, priority regeneration sites within the Burslem AMI, although she agrees the precise effect of the proposal on targeted sites is difficult to assess. She considers that there is a risk that the appeal proposal, if allowed, could undermine targeted redevelopment within priority areas, and she attaches considerable weight to this concern. 31. Having carefully considered the arguments for and against the appeal proposal, the Secretary of State concludes that there are no material considerations to cause her to decide other than in accordance with the Development Plan. Formal Decision 32. Accordingly, for the reasons given above, the Secretary of State hereby dismisses your client’s appeal and refuses planning permission for the erection of 278 residential units with open space and road infrastructure on land at Scotia Road, Tunstall, Stoke on Trent, ST6 4HG, in accordance with application number SOT/46377, dated 10 October 2006.

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Right to Challenge the Decision 33. A separate note is attached setting out the circumstances in which the validity of the Secretary of State's decision may be challenged by making an application to the High Court within six weeks from the date of this letter. 34. A copy of this letter has been sent to Stoke on Trent City Council and all other parties who appeared at the inquiry. Yours faithfully, Julian Pitt Authorised by the Secretary of State to sign in that behalf

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Appendix 2

Representation by SPRU

For and on behalf of SYHA Enterprises Ltd and A.A Lund

Soundness Assessment of the Proposed Jobs-Led Housing Requirement and Implications for the Proposed Spatial Strategy

Objection to Policy 3 and the Sustainability Appraisal

Doncaster Local Plan 2015-2035 Publication Version

Prepared by Strategic Planning Research Unit

DLP Planning Ltd Sheffield

September 2019

Doncaster Local Plan 2015-2035 Submission Version On behalf of SYHA Enterprises Ltd and A.A Lund

2 09.30.JG.YK5788-3P Auckley SPRU Jobs-Led Requirement Soundness Assessment Final Proof Read

Prepared by: Jon Goodall (Associate Director, SPRU) and Roland G Bolton (Senior Director)

Approved by:

Roland G Bolton (Senior Director)

Date:

September 2019

Strategic Planning Research Unit V1 Velocity Building Broad Quay House (6th Floor) 4 Abbey Court Ground Floor Prince Street Fraser Road Tenter Street Bristol Priory Business Park Sheffield BS1 4DJ Bedford S1 4BY MK44 3WH Tel: Tel: Tel:

DLP Consulting Group disclaims any responsibility to the client and others in respect of matters outside the scope of this report. This report has been prepared with reasonable skill, care and diligence. This report is

confidential to the client and DLP Planning Ltd accepts no responsibility of whatsoever nature to third parties to whom this report or any part thereof is made known. Any such party relies upon the report at their own

risk.



CONTENTS PAGE

0.0 Executive Summary ...................................................................................................... 4

a) Objection to Policy 3 .................................................................................................... 4

b) Objection to the Sustainability Appraisal.................................................................... 5

1.0 Objection to Policy 3: The appropriate employment-led housing requirement........ 6

2.0 Objection to Policy 3: The consideration of Past Rates of Delivery, the Residual method of calculating the Plan Requirement, and the failure to make allocations for the last 2 years of the plan period. ............................................................................................ 11

a) The background to past rates of delivery – the extant Core Strategy ..................... 11

b) The residual calculation of the future plan requirement .......................................... 12

c) Failure to make allocations for the past two years of the plan ................................ 13

3.0 Reasonable Alternatives and the Sustainability Appraisal ...................................... 15

4.0 Implications for The Spatial Strategy and Housing Distribution ............................. 16

5.0 Conclusions ................................................................................................................ 19



0.0 EXECUTIVE SUMMARY

0.1 This report sets out in detail our client’s objection to Policy, 3 and the Sustainability Appraisal for failure to consider reasonable alternatives.

0.2 The basis of these objections are as follows:

a) Objection to Policy 3

0.3 This objection relates to the time period of the plan provided for upon adoption. While the plan states that it is to cover the period 2015 to 2035 it fails to make adequate provision for the post adoption period 2020 to 2035 because:

a. Table 5 illustrates that allocations are only to be made for the period 2018 to 2033. This means the proposed allocations cover just 13 years from the adoption of the plan expected in December 2020. This is contrary to paragraph 22 of the Framework that states strategic policies should look ahead over a minimum 15 year period from adoption. Paragraph 20 of the framework states that strategic policies include making sufficient provision for housing.

b. The approach adopted reduces the overall level of housing requirement to be provided for following adoption by using a “residual” calculation to reduce the future planned requirement on the basis of higher rates of completions prior to the adoption of the plan. There is no support in either the Framework or the PPG to “discount” future levels of requirement based on past levels of “over provision”. Such overprovision may only be used to offset any shortfalls against requirements from previous years (PPG Paragraph: 032 Reference ID: 68-032-20190722)

c. The employment led housing requirement of 912 dpa is based upon a projection for the period 2016 to 2016 i.e. just the first 6 years after the adoption of the plan rather than the requirement for the plan period as a whole. this is contrary to the Framework paragraph 20 which requires provision be made for 15 years from the adoption of the plan.

0.4 It is correct that the plan should provide for a figure above the minimum required by the application of the standard method. There is a growth strategy in place for the area which is already being delivered and as such a higher level of growth than the standard method is justified (PPG Paragraph: 010 Reference ID: 2a-010-20190220).

0.5 From the date of adoption, the plan will make provision for 882 dpa but this is not considered to be an appropriate level of housing requirement for the following reasons:

a. The justification for the 882 dpa as a response to the planned levels of economic growth is flawed as it:

i. Discounts previous high levels of completions prior to adoption from the future annual requirement which is contrary to the PPG (see above)

ii. Fails to respond to the evidence of employment growth for the whole plan period: The employment led housing requirement of 882 dpa is based upon a requirement figure of 912 dpa for the period 2016 to 2026 as such it covers just the first 6 years of the plan period after adoption. The requirement for the plan period (2015 to 2032) and the correct interpretation of the council’s evidence base is that there is a requirement for 1,073.

iii. Fails to provide for specific allocations in accordance with the spatial strategy and distribution of development to support economic growth for the final years of the plan period.



b. Past Completion Rates: Recent rates suggest a much higher demand for housing. recent levels of completions are over 1,000 dpa and reflect the growing market demand and local economy. These rates of completions are significantly above (almost double) the outcome of the standard method which suggests 550 dpa (2019 – 2029 using the 2014 DCLG projections and the most uptodate evidence on affordability). The PPG requires Authorities to take such evidence into account when considering whether it is appropriate to plan for a higher level of need than the standard model suggests (Paragraph: 010 Reference ID: 2a-010-20190220).

b) Objection to the Sustainability Appraisal

0.6 The Sustainability Appraisal fails to consider reasonable alternatives. The SA considers the impact of the following:

a. The planned housing allocations to meet the need to 2033 not 2035,

b. The planned provision of 889 dpa for the period 2018 to 2033 and not the higher requirement based on meeting future economic growth which would be 1,073 dpa for the period 2015-2032.

0.7 The reasonable alternatives that the SA has failed to consider are as follows:

a. The impact of making housing allocations to meet the need to 2035,

b. The impact of making housing allocations to accommodate 1,073 dpa for the period 2015-2032 (or any higher alternative figure to support the demand for job-led growth to 2035).



1.0 OBJECTION TO POLICY 3: THE APPROPRIATE EMPLOYMENT-LED HOUSING REQUIREMENT

1.1 We consider that there is strong evidence to support the approach for this plan to make provision for more housing above that required to meet the Government’s minimum requirement as defined by the Government’s Standard Method. However, the Council’s own evidence base does not support the housing requirement proposed in Policy 3 (Level and Distribution of Growth), which applies arbitrary constraints to seeking to support the full demand for economic growth over the full plan period to 2035.

1.2 The Council’s Economic Forecasts and Housing Needs Assessment Update (EFHNA) (June 2018) accepts that the existing Strategic Economic Plan for the Sheffield City Region is out of date, with evidence dating back to 2013 (see paragraph 2.20). Paragraph 2.22 acknowledges a range of emerging targets and indicators to support growth in the Sheffield City Region as part of a review of the Strategy. These provide a longer-term vision for growth in the city-region as a whole to 2040. This represents an appropriate basis to consider the needs for economic development as part of a positively prepared Plan.

1.3 It should be noted that a number of individual projects and initiatives across the Sheffield City Region also reflect an appropriately long-term vision for the area, including those affecting Doncaster directly. For example, the Doncaster Sheffield Airport Masterplan indicates goals for growth in passenger and job numbers over a 2018-2037 period, with longer-term objectives to 2050. It is expected that the Masterplan for the Airport will generate 73,000 net additional jobs.

1.4 It is within this context that Paragraphs 4.29 and 4.30 of the EFHNA update must be assessed in terms of the recommendations on an employment-led component of the housing requirement. Paragraph 4.29 states:

“In relation to the job-led scenario driven by SCR targets, we have already calculated the additional population needed to meet demand (para 2.40). To convert that population into housing, we have used the assumptions of SNHP 2014 regarding household formation rates and the size of the institutional (non-household) population. The resulting housing numbers are:

For the plan period 2015-32, 1,073 dpa

For 2016-26, the assessment period used in the new standard method, 912 dpa.”

1.5 Paragraph 4.30 indicates that the difference between the two figures is as much as 114dpa. The basis for that calculation is unclear, as this difference between the two bullets is in-fact 161 dwellings per annum. The decision to recommend a reduced requirement for jobs-led component based on an artificially constrained period for the assessment (2016-2026) that conflates the approach to the standard method to assess housing need is not justified and not consistent with national policy. This is likely to significantly restrict the ability to meet the forecast demand for employment growth over the plan period.

1.6 Paragraph 22 of the NPPF2019 clearly states that strategic policies should look ahead over a minimum 15 year period. Chapter 6 of the NPPF seeks to ensure that policies and decisions support a strong, competitive economy and support the conditions in which businesses can thrive. This is particularly important to drive innovation and to support areas to capitalize on their performance and potential including improving productivity.

1.7 The Council’s approach, including the evidence on the EFHNA, is, in principle, consistent with paragraph 60 of the NPPF2019. Circumstances in Doncaster justify taking account of market signals and current and future demographic trends to indicate future levels of housing need that exceed the results of the government’s standard method. These circumstances apply given the economic potential of the area and by extension ensuring a sufficient supply



of labour to sustainably support demand for economic growth and job creation. These factors exist alongside the Council considering uplifts to ensure that future needs for affordable housing are met (NPPG ID: 2a-024-20190220).

1.8 Given the date of publication, the EFHNA (June 2018) at paragraph 4.46 refers to draft practice guidance available at the time and states that the higher number in the range of requirements proposed (i.e. 912dpa) will be considered sound unless there are compelling reasons to indicate otherwise. Paragraph ID: 2a-010-20190220 in the published Planning Practice Guidance states:

““The government is committed to ensuring that more homes are built and supports ambitious authorities who want to plan for growth. The standard method for assessing local housing need provides a minimum starting point in determining the number of homes needed in an area. It does not attempt to predict the impact that future government policies, changing economic circumstances or other factors might have on demographic behaviour. Therefore, there will be circumstances where it is appropriate to consider whether actual housing need is higher than the standard method indicates.

This will need to be assessed prior to, and separate from, considering how much of the overall need can be accommodated (and then translated into a housing requirement figure for the strategic policies in the plan). Circumstances where this may be appropriate include, but are not limited to situations where increases in housing need are likely to exceed past trends because of:

growth strategies for the area that are likely to be deliverable, for example where funding is in place to promote and facilitate additional growth (e.g. Housing Deals);

strategic infrastructure improvements that are likely to drive an increase in the homes needed locally; or

an authority agreeing to take on unmet need from neighbouring authorities, as set out in a statement of common ground;

There may, occasionally, also be situations where previous levels of housing delivery in an area, or previous assessments of need (such as a recently-produced Strategic Housing Market Assessment) are significantly greater than the outcome from the standard method. Authorities will need to take this into account when considering whether it is appropriate to plan for a higher level of need than the standard model suggests.”

1.9 The relevant guidance therefore clearly indicates that higher levels of housing requirement based upon the above evidence are an important consideration for the Local Planning Authority and Inspector appointed to examine the Local Plan. The Planning Practice Guidance provides a clear indication of the importance of assessing market signals in the context of ensuring that strategic policies meet the future business needs of an area. This involves taking account of alternative economic scenarios and considering longer-term economic cycles. An adequate assessment should reflect a range on inputs and consultation with relevant organisations, particularly in terms of understanding current and future assessments of labour supply. The objectives for job growth in the Sheffield City Region are clearly set out over a longer-term horizon than the 2016-2026 period relied upon in the EFHNA recommendations to justify the reduced housing requirement of 912 dpa. The more



appropriate projection is the one for the majority of the plan period 2015 to 2032 of 1,073 dpa.

1.10 Paragraph 4.30 of the EFHNA explains the difference between the need for an increased housing requirement to provide the population to support forecast labour demand over the different 2016-2026 or 2015-2032 assessment periods as follows:

“The main reason for the difference is that, as we also mentioned earlier, in the job-led scenario job numbers grow faster every year than the baseline – in which population grows in line with the official projections. Consequently, the longer the forecast period the greater is the difference between the scenario and the baseline, whether in terms of jobs, population or household numbers.”

1.11 It is therefore clear that if the dwelling requirement for the 2015-2032 period of 1,073 dpa is not supported via strategic policies and allocations then there will be a growing disparity between the resident population and the ability to provide a local labour force to support the long-term growth objectives of the Sheffield City Region. This issue is compounded by the fact that the Pre-Submission Local Plan actually only makes provision for the residual requirement (i.e. 882dpa) from 2018/19 to 2032/33 not even for the shorter term forecast requirement of 912 dpa.

1.12 It is also necessary to highlight that pursuing a requirement based on the shortened assessment period (2016 to 20126) fails to take account of how recent levels of housing delivery and job creation relate to the wider evidence base for economic development. National Planning Practice Guidance states that this will require an assessment of trends across the sub-region, particularly where assessments of need cross local authority boundaries. This is clearly relevant to the Sheffield City Region.

1.13 One particular weakness of the EFHNA 2018 is that it does not consider these factors in relation to existing trends. The EFHNA does in several places acknowledge the relationship with net commuting across the sub-region, and that Doncaster is a net exporter of commuters. Paragraph 2.8(vii) sets out the results of the Experian model to indicate a net outflow of -7,300 commuters at the 2015 base-date. The EFHNA does not acknowledge that this level of commuting represents a significant uplift in out-commuting of some 1,000 persons since the the 2011 Census, as indicated in Figure 1 below:



Figure 1. Travel to Work Flows to/from Doncaster (Census 2011)

Source: Office for National Statistics

1.14 The EFHNA (2018) indicates that the Experian forecast expects net out-commuting to fall as a result of increased job creation and a tightening labour market. However, at Paragraph 2.28 also notes that for the purpose of preparing a jobs-led forecast of future housing needs in Doncaster:

“The job-led scenario assumes that the rest of Sheffield City Region, like Doncaster, receives additional migration to meet policy-led job demand. This assumption impacts on the results for Doncaster, because if other places in the city region did not have enough population to meet demand they would attract more net commuting from Doncaster.”

1.15 The Council’s evidence base does not outline any effect of the existing impact of any such trends across the sub-region, despite the clear evidence of increased out-commuting since 2011. The precise implications for labour supply and economic development in Doncaster will be a result of various other factors including the impact of an ageing population and performance in different sectors. Pursuing a lower residual target (below the 912 dpa) beyond 2018 will not provide the necessary growth in labour supply to meet demand and support



local job creation. It is considered that in order to meet the economic strategy for the area that the plan should make provision for at least 1,073 dpa for the 15 years from the date of adoption (i.e. for the period 2020 to 2035).



2.0 OBJECTION TO POLICY 3: THE CONSIDERATION OF PAST RATES OF DELIVERY, THE RESIDUAL METHOD OF CALCULATING THE PLAN REQUIREMENT, AND THE FAILURE TO MAKE ALLOCATIONS FOR THE LAST 2 YEARS OF THE PLAN PERIOD.

a) The background to past rates of delivery – the extant Core Strategy

2.1 Policy CS10 of the adopted Doncaster Core Strategy sets what is described as an ‘ambitious’ housing target of 1230 net additional homes per year. Acknowledging the different characteristics of sites identified and deferral of additional allocations to subsequent development plan documents (that have not been prepared) the Core Strategy relies on an ‘interim requirement’. This effectively means that the deliverable housing requirement was applied based on average annual completions rates for the first part of the plan period and disregard any shortfall against the Core Strategy requirement arising prior to 2011. The Core Strategy therefore states that supply from existing commitments and UDP allocations without planning permission are regarded as sufficient to deliver the interim requirement (which is effectively a figure constrained by industry capacity and macroeconomic circumstances).

2.2 The background to housing delivery is important for the context of preparing the new Local Plan and particularly assessing the soundness of the proposed housing requirement. Table 5 of the Regulation 19 Plan indicates that supply in the first three years of the plan period (2015/16 to 2017/18) has substantially exceeded the proposed housing requirement. The Council proposes to treat the requirement for the remaining years of the plan period as a ‘residual’ total whereby the outstanding total is based on the total 20 year requirement (i.e. 920 x 20 = 18,400) less total completions recorded 2015-2018. This effectively seeks to take account of ‘oversupply’ against the Council’s proposed requirement in the early part of the plan period.

2.3 There are a number of issues with this in terms of national policy and guidance for the calculation of housing land supply, but in this context, we seek to emphasise that this approach to managing needs over the plan period demonstrates that the housing requirement is not justified and therefore unsound.

2.4 The recent performance of housing delivery contrasts starkly with the longer-term record of housing completions, as confirmed by the Council’s 2017/18 Authority Monitoring Report. This is summarised in Table 1 below:

Table 1. 10 Year Housing Completions in Doncaster

Housing Completions

Housing Target Supply vs. Target

2008/09 598 1230 -632

2009/10 309 1230 -921

2010/11 529 1230 -701

2011/12 457 1230 -773

2012/13 316 1230 -914

2013/14 654 1230 -576

2014/15 933 1230 -297

2015/16 1089 920 169

2016/17 1067 920 147

2017/18 1208 920 288

2018/19 Tbc 920

Source: Doncaster Borough Council Authority Monitoring Reports

2.5 It can be demonstrated that until 2014/15 completions lagged substantially below the Core Strategy housing target, as broadly anticipated under Policy CS10. Housing delivery has



improved since 2015/16, albeit the Core Strategy target has not yet been achieved in any monitoring year. However, the uplift in completions is consistent with the aspirations for regeneration and economic development contained in the longer-term phasing of the Core Strategy. As part of preparing the new Local Plan this level of aspiration has been abandoned in place of the lower figure for housing need of 920 dwellings per annum, which the Council seeks to emphasise has been exceeded in the early part of the plan period. This is illustrated in Table 2 below.

Table 2. Calculation of the Council’s Suggested Performance versus Proposed Local Plan 2015-2035 Housing Target

Cumulative Completions

Cumulative Target (920 * 3)

Cumulative Completions vs. Target

2015/16 to 2017/18 3,364 2,760 +604

Source: Doncaster Borough Council Authority Monitoring Reports

b) The residual calculation of the future plan requirement

2.6 This approach to calculating provision required over the plan period means that the Pre-Submission Local Plan seeks to provide only around 96% of the annualised assessment of need over the period 2018/19 to 2034/35. The ‘residual’ calculation adopted in Policy 3 is replicated in Table 3 below:

Table 3. Calculation of the ‘Residual’ Requirement 2018-2035

Component of Calculation Calculation of Residual Requirement

A Requirement 2015/16 to 2034/35 18,400

B Annualised Requirement 920 (A / 20)

C Completions 2015/16 to 2017/18 34001

D Residual Requirement 2018-2035 15,000 (A – C)

E Residual Annualised Requirement 882 (D / 17)

2.7 The resulting provision for future needs is therefore considered unsound. It cannot be regarded as positively prepared, and is not justified by the evidence base for the Plan; nor can it be treated as consistent with national policy and support for the plan-led approach. Although performance in terms of housing delivery has improved since 2015/16 this is largely in the context of an out-of-date Core Strategy and the absence of site allocations that it was expected would be provided for in subsequent development plan documents. The result is a high level of delivery provided from speculative applications and housing completions on ‘windfall sites’. Table 6.1g of the Council’s most recent Authority Monitoring Report confirms that between 2014/15 and 2017/18 over 73% of completions have occurred on windfall sites.

2.8 As a result of this approach to addressing the residual requirement for the plan period the Council’s approach generates a significantly reduced requirement for further site allocations. This leads to an over-reliance on existing components of supply, including extant planning permissions with significant barriers to development or previous allocations from the Unitary Development Plan rolled-forward into new allocations policies. Given the ‘residual’ approach to calculating the 2018-2035 requirement these sites are able to meet a greater proportion of the Council’s assessed need but will not necessarily contribute to a significant boost in housing supply.

1 Figure provided by Doncaster Local Plan Pre-Submission Version Table 5



2.9 The Council’s own evidence base demonstrates how future potential supply is considered against the reduced residual requirement. The Council’s ‘Five Year Statement 2017’ (August 2017) (paragraph 5.7) provides the same basis for calculating the five-year requirement for housing, taking account of past ‘oversupply’ since 2015. It should be noted that the inclusion of oversupply to reduce the annualised five year requirement is contrary to current national policy and guidance. The Council’s last published evidence of supply against the proposed Local Plan requirement substantially pre-dates revisions to the NPPF and NPPG. We reserve the right to present further analysis of the Council’s assessment of deliverable supply against the annualised five year housing requirement during the course of the Local Plan Examination.

2.10 The 2017 Statement is useful in explaining how the residual requirement compares with identified sources of supply in the Council’s Housing and Economic Land Availability Assessment. Paragraph 6.4 (ii) explains that this:

“Identifies the deliverable supply from sites classified as “suitable but with no constraints” (labelled “suitable non-permissions” in Table A above) or only “suitable with local policy constraints” as 5,613. This includes sites designated in the UDP as Housing Allocations or as Countryside Policy Area, community facilities, open space or employment land that is now being pursued for housing development.”

2.11 The Council’s evidence suggests that such sites may be developed in years 0-5 of the assessment period, albeit this source of capacity fails to satisfy the definition of ‘deliverable’ in the revised NPPF without further clear evidence of housing completions beginning on site within five years. More importantly, this means supply against requirements is over reliant on long-standing sites with a reduced requirement for new allocations. The Council has since issued a HELAA 2018 Update (July 2019) this does not provide any substantive revision of the criteria for concluding that sites are deliverable/developable or the proportion that have long-standing barriers to development (including as part of being previously identified in the UDP). The Council’s Five Year Deliverable Housing Land Supply Statement 2018-2023 only addresses supply against the government’s standard method and does not assist in understanding how supply against the proposed Local Plan requirement has been assessed.

2.12 The approach adopted reduces the overall level of housing requirement by using a “residual” calculation to reduce the future planned requirement on the basis of higher rates of completions prior to the adoption of the plan. There is no support in either the Framework or the PPG to “discount” future levels of planned requirement based on past levels of “over provision”. Such overprovision may only be used to offset any shortfalls against requirements from previous years (PPG Paragraph: 032 Reference ID: 68-032-20190722)

c) Failure to make allocations for the final two years of the plan

2.13 Another issue with the Council’s approach, which compounds the use of a ‘residual’ requirement, is the fact that the proposed spatial strategy to determine the scale and distribution of housing is only based on seeking to ensure sufficient allocations to achieve this for a period 2018-2033. Paragraph 1.4.7 of the Council’s Housing Background and Strategy Paper states:

“For the years 2033 – 35, there will be no settlement specific requirement, but enough land to meet the two year requirement of 1,764 will be shown. This will be formed oversupply from permissions and allocations (when an area will deliver more units than specified in the above table). This includes oversupply in Dunscroft, Dunsville, Hatfield and Stainforth; Armthorpe; Rossington; Carcroft – Skellow; Edlington; Askern; Auckley – Hayfield Green; and Finningley.”



2.14 Although this assessment of total provision may mean that housing needs can be met beyond 2033 this approach is potentially ‘blind’ to any barriers to delivery and the requirements of individual settlements. This component of the strategy is not positively prepared and lacks the key elements of flexibility and contingency required by national policy. These issues will be compounded in any individual settlement where there is a failure to bring forward completions on any of the sites identified to provide needs up to 2033 only.

2.15 Table 5 in the draft plan illustrates that allocations are only to be made for the period 2018 to 2033. This means the proposed allocations cover just 13 years from the adoption of the plan expected in December 2020. This is contrary to paragraph 22 of the Framework that states strategic policies should look ahead over a minimum 15 year period from adoption. Paragraph 20 of the Framework states that strategic policies include making sufficient provision for housing. This approach is therefore contrary to the Framework



3.0 REASONABLE ALTERNATIVES AND THE SUSTAINABILITY APPRAISAL

3.1 These soundness concerns with the approach to identifying the housing requirement have clear implications for the Council’s chosen spatial strategy and the scale and extent of housing allocations identified.

3.2 Paragraph 5.3.1 of the Council’s August 2019 Sustainability Appraisal lists the range of growth options tested and confirms that 920 dwellings per annum is the highest number tested. Paragraph 5.3.3 goes on to explained:

“All options would meet local needs, but Option 1 goes further by contributing to the Sheffield City Region Strategic Economic Plan and the broader aspirations of the northern powerhouse area, through employment-led housing growth and a higher target for employment land that provides for flexibility over the plan period;”

3.3 It is nonetheless the case that 920dpa does not in-fact reflect a figure to support the forecast demand for labour supply over the full plan period to 2035. The Council’s EFHNA 2018 provides a clear basis to test a further reasonable alternative of 1,073dpa. This would represent a more ambitious level of growth associated with planning positively for a full 15 year plan period from adoption. The associated requirement can be calculated as follows:

Jobs-led scenario 2015 – 2035 = 1,073 * 20 = 21,460 dwellings

3.4 This would represent an increase of +3,060 dwellings (21,460 vs 18,400) compared to the requirement indicated in Policy 3 of the Pre-Submission Local Plan. The Sustainability Appraisal also seeks to provide justification for the selected option with reference to the Council’s previous Housing Need Assessment (2015) indicating a requirement of 920 dwellings per annum. However, there is no clear relationship between these sources. In-particular the 2015 Assessment was prepared substantially before the introduction of the government’s standard method to assess housing need so does not follow the same approach as the EFHNA 2018 in calculating local housing need plus an economic-led component. The 920dpa figure in the 2015 Assessment has not itself been subject to independent examination, albeit it was successfully challenged in earlier planning appeals determined under the NPPF20122.

3.5 Secondly, the 2015 Housing Needs Assessment is based on a different set of official subnational population and household projections. Finally, section 2.4 of the 2015 Housing Needs Assessment appears to indicate that 920dpa was identified as a requirement for the full 2015-2032 period. The more appropriate comparison in terms of the relevant timeframes is the 1,073dpa identified in the EFHNA to meet requirements in the Sheffield City Region for a minimum period of 15 years. This is the approach necessary to ensure that the Local Plan is consistent with national policy.

2 See Land off Westminster Drive, Dunsville - APP/F4410/W/16/3158500



4.0 IMPLICATIONS FOR THE SPATIAL STRATEGY AND HOUSING DISTRIBUTION

4.1 We consider that the resulting implications in terms of the ability of the Pre-Submission Local Plan to make sufficient provision for future housing requirements can be addressed within the Council’s current approach to managing housing distribution and site selection.

4.2 There are a number of gaps and omissions in the Council’s evidence base at the point of publishing the Pre-Submission Local Plan for consultation. This includes Topic Papers to address the distribution of growth to individual settlements (see Paragraph 4.42) and illustrate how land supply will be managed in future (see Paragraph 16.21). This illustrates a number of outstanding issues in terms of soundness, particularly regarding the reasons for selecting and rejecting different options for levels of growth and individual potential site allocations. The Pre-Submission Local Plan also lacks detail on how the Local Plan will maintain a sufficient supply of deliverable sites to meet the annualised five year requirement plus whether identified sites will ensure the Plan meets the housing needs of different groups (including affordable housing). The latter point is particularly relevant to any proposed allocations or existing commitments with barriers to delivery or viability.

4.3 The Council’s Housing Background and Strategy Paper provides the starting point to illustrate that the Council acknowledges a greater capacity for potentially suitable growth at individual settlements, particularly those Main Towns at tier 2 of the hierarchy. We do not in principle object to a pro-rata apportionment of the ‘baseline’ requirement indicated by the government’s standard method. The Council’s strategy seeks to apportion the additional economic-led component of the requirement based on a split between the Main Urban Area and Main Towns. There is a clear acknowledgement that each Main Town may be appropriate to accommodate up to 10% of the economic component (see page 16 of the Strategy Paper). This provides a range of potentially appropriate levels of growth, albeit for each Main Town the level of proposed allocations is typically significantly below the upper end of the range that has been indicated.

4.4 We therefore recommend that that calculation for these components of the Council’s proposed spatial strategy are re-run based on assessment of the appropriate jobs-led requirement for the full plan period. This would be a relatively simple calculation, outlined as follows (assuming the calculation of Local Housing Need outlined in the Council’s own evidence base). We have based the comparison on the period 2015-2032 covered by the Council’s evidence, but in practice requirements should be calculated for 2015 to 2035 to ensure the plan makes provision in accordance with the proposed spatial strategy for a full 15 year plan period upon adoption. This is replicated in the Table 4 below (separate page):



Table 4. Proposed Spatial Distribution Based on Full Employment-Led Housing Needs (1,073dpa) (2015/16-2031/32)

Calculation and Distribution of ‘Standard Method’ Calculation and Distribution of Economic Component Standard Method +

Economic Component

Baseline LHN (Annual) (Standard Method) 585

Economic Component (Annual) (1073 - 585) 488 Full OAN 1073

2015-2032 Total 9945 2015-2032 Total (i.e. 488 * 17) 8296 2015-2032 18241

plus Defined Villages 'standard method' Baseline (716 units 2015-2032) 9012

Distribution of LHN

% of Total Population

Apportionment of Baseline

Distribution of Economic-Led Element Range 60% 70%

Lower Range

Upper Range

Main Urban Area (Tier 1) 42.71 4248 Main Urban Area (Tier 1) 60-70 5407 6308 9655 10556

Main Towns (Tier 2) Main Towns (Tier 2) Range 0% 10% Lower Range

Upper Range

Dunscroft, Dunsville, Hatfield and Stainforth 6.52 648

Dunscroft, Dunsville, Hatfield and Stainforth 0-10 0 901 648 1550

Thorne and Moorends 5.77 574 Thorne and Moorends 0-10 0 901 574 1475

Mexborough 5.41 538 Mexborough 0-10 0 901 538 1439

Conisbrough and Denaby 5.25 522 Conisbrough and Denaby 0-10 0 901 522 1423

Artmthorpe 4.74 471 Artmthorpe 0-10 0 901 471 1373

Rossington 4.34 432 Rossington 0-10 0 901 432 1333

Adwick and Woodlands 2.86 284 Adwick and Woodlands 0-10 0 901 284 1186

Total Tier 3 Service Towns and Villages 15.2 1512

Total Tier 3 including Auckley – Hayfield Green 0 N/A N/A 1512 1512

Defined Villages 716 Defined Villages 0 N/A N/A 0 0

Total 2015-2032 9945



4.5 The recalculated distribution identified in Table 4, seeking to meet the full assessment of economic-led needs to 2031/32 in accordance with the Council’s own EFHNA evidence, indicates a potential scale and distribution of growth that compares closely to the Council’s existing proposals. The absolute uplift to the proposed distribution at each Main Town (Tier 2) is modest. In-fact, we emphasise that sound solutions to the spatial strategy exist even when seeking to address the specific requirement for allocations for a full 20 year plan period (and 15 year period from adoption) that are excluded from the Council’s approach. This would provide greater certainty as well as flexibility and contingency for individual settlements in the borough.

4.6 We would emphasise that in absolute terms the difference in the potential levels of growth distributed to the Main Urban Area under the scenario to meet the full assessment of employment-led needs is more significant. This gives a range of 9655 to 10556, compared to 7145-7710 in the Council’s Background Paper. This may indicate a requirement for a closer assessment of the deliverability and developability of potential sites over the plan period and, if necessary, making provision for allocations at the lower end of the range. This could be compensated by growth elsewhere in the settlement hierarchy.

4.7 A key implication of the revised calculation in Table 4 above is that it highlights that Tier 3 Settlements (Service Towns and Villages including Auckley – Hayfield Green) make no additional contribution to the proposed distribution of economic growth. In accordance with the Council’s own basis for scale and distribution of growth this means there is no increase in the potentially suitable level of allocations at these settlements even when the higher requirement to provide for full potential jobs growth is applied. The main representations for our client’s site at Land East of Hurst Lane, Auckley highlight specific objections to proposed Policy 7 in the Pre-Submission Local Plan. These illustrate the failure to set out an effective or positively prepared response to support sustainable patterns of growth based on the potential for economic development at Doncaster Sheffield Airport.

4.8 As identified in Paragraph 2.12 of this Annex, the Council claims an ‘oversupply’ of allocations in Auckley – Hayfield Green. However, this is based only on the distribution of the baseline component provided by the outputs of the government’s standard method (125 units in the case of Auckley – Hayfield Green). This conclusion is clearly unjustified, as it takes no account of the potential for the sustainable distribution of growth in this location associated with the economic component of housing needs. Sustainable settlements including Auckley – Hayfield Green offer a clear opportunity to complement the potential for economic development at the airport and provide flexibility to the spatial strategy. This would further reduce delivery pressures in the Main Urban Area associated with meeting housing needs in full for the period to 2035.

Proposed Modification to the Spatial Strategy – identify Auckley - Hayfield Green within the proposed distribution of the economic-led component of housing need, indicating a potentially suitable range of 0-10% of the total requirement based on full needs



5.0 CONCLUSIONS

5.1 For the reasons outlined there are substantial soundness failings with the Pre-Submission Doncaster Local Plan resulting from a failure to test an appropriate reasonable alternative based on meeting the strategic priorities for economic development over a full 15-year plan period. These issues are compounded based on treating the housing requirement from 2018-2033 as a ‘residual total’ to account for perceived oversupply in the period 2015-2018, which has not been adequately justified.

5.2 The Council’s approach fails to accurately reflect the strategic priorities and future economic potential of the Sheffield City Region. Further assessment of the proposed requirement should also be undertaken to reflect the requirements of the revised Strategic Economic Plan (once published) and to consider recent trends in jobs growth and housing delivery across the sub-region. This may lead to a reassessment of current and future demographic trends in relation to future labour supply.

5.3 It furthermore applies arbitrary constraints to the requirement for additional development, which will lead to an overreliance on extant planning commitments and historic allocations in previous iterations of the development plan. The implications of this in terms of prospects for maintaining a five year supply of deliverable sites and meeting the housing needs of different groups have not been fully assessed.

5.4 These issues are capable of remedy within the Council’s broad emerging approach to manage the distribution of growth across the spatial strategy. This acknowledges that significantly greater levels of potentially suitable growth could be provided at different tiers of the settlement hierarchy. This includes the Main Towns at tier 2, where accommodating up to 10% of the economic-led component of the housing requirement is broadly endorsed.

5.5 However, these representations also strongly object to the exclusion of Auckley – Hayfield Green from the proposed distribution of the economic component of housing needs, particularly given the potential to support growth at Doncaster Sheffield Airport. This aspect of the broad approach to distribution should be treated flexibly. It is appropriate to fully assess the ability of sustainable locations to accommodate growth based on meeting requirements under the full assessment of jobs-led growth (1,073dpa) for the full plan period to 2035. In doing so, it is considered appropriate that the Pre-Submission Local Plan is modified to support additional allocations including Land East of Hurst Lane, Auckley as set out in the main representations prepared on behalf of our client.





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Appendix 3

Letters from Auckley and Blaxton Parish Councils

BLAXTON PARISH COUNCIL

Clerk to the Parish Council

2 Holly Road

Auckley

Doncaster

DN9 3ER

-

27th October 2010 Mr. J Lomas BA (Hons) MRTPI Director DLP Planning 11 Paradise Square Sheffield S1 2DE Dear Mr Lomas Re: Redevelopment Options for Auckley Quarry Thank you for your letter dated 23/10/10 requesting a response from Blaxton Parish Council as to its preferred option of the 3 sets of plans provided. The members of Blaxton Parish Council who attended the meeting were grateful for your information and its apparent clarity. We, like a great many people in the area, are keen to see the existing site cleaned up and would be keen to see some useful purpose being served by the quarry site. Without prejudice, I think that most of us would agree that the second option seemed the most advantageous to the area. A decision of course would depend on the content of any actual plans submitted to DMBC for their consideration and we would of course be most keen to examine them in detail.

Yours sincerely Sharon Jones Clerk to Blaxton Parish Council



43

Appendix 4

Letter from Peel Investments



44

Documents

COMMENTS (REPRESENTATION) FORM · 2020. 3. 18. · Doncaster Local Plan Publication Draft 2019 (For Official Use Only) Ref: COMMENTS (REPRESENTATION) FORM Please respond by 6pm Monday