Development Management West Area Coordinator
Taunton Deane Borough Council
The Deane House
By email: firstname.lastname@example.org
28 April 2016
Dear Mr Bale
Application 23/16/0009 –Creedwell Orchard, Milverton
I have received your notification letter dated 18 April referring to "a resubmission of the previous application 23/14/0014".
In summary, this application, while different from the previous application in referring (in the drawings) to an element of affordable housing, should still be refused. It is in conflict with the Development Plan, both in principle and in detail. In addition to the grounds of refusal put forward on the last application, the Council should now make very clear that this application is not in accord with the principle of development in the Council's adopted Core Strategy and in the emerging Site Allocations and Development Management Policies Plan (SADMP).
There is also recognised harm to the Conservation Area, and the Council is under a statutory duty to pay special regard to this harm.
As the planning committee have already decided, little weight should be attached to the extant 1975 permission.
Furthermore the Applicant's tactics in resubmitting this application in this way, and the Applicant's commitment to providing any affordable housing as part of this scheme, must now be very seriously questioned.
Principle of Development
The Officer Report makes clear that the statutory duty of the Council (under Section 38(6) of the PCPA 2004) is to determine this application in accordance with the Development Plan unless material considerations indicate otherwise. The planning balance to be weighed up is therefore between compliance with the Development Plan and other material considerations.
Again, as the Officer Report makes clear
"The site lies outside the settlement limit for Milverton. The proposal is therefore contrary to policy CO8 of the Taunton Deane Core Strategy. However Milverton is identified in the plan as a Minor Rural Centre. Policy SP1 indicates that the Minor Rural Centres should deliver at least 250 additional dwellings, with allocation to be made through the Site Allocations and Development Management Policies Plan (SADMP). At the present time, the SADMP has not been adopted and is, therefore, technically absent in defining where these allocations would be or what the overall quantum of development for Milverton would be. That said, the SADMP has now been approved by the Council and submitted for examination. That plan proposes that Milverton has an allocation of around 20 on a site at Butts Way, giving an indication of the appropriate level of development for Milverton, albeit that the allocation was, proposed on an assumption that there may also, ultimately, be some development on the current application site."
The Officer Report then goes on to consider the position under the National Planning Policy Framework (NPPF) where the plan is absent silent or out of date.
"Where the plan is absent, silent or out of date, paragraph 14 of the NPPF indicated that the presumption in favour of sustainable development should be engaged and that planning permission should be granted unless the adverse impacts of doing so significantly and demonstrably outweigh the benefits. Last year's appeal decision at Overlands, North Curry clearly indicates that in a situation such as this, an argument that the development would exceed the likely scale of development for a settlement is unlikely in itself to significantly and demonstrably outweigh the benefits sufficient to warrant refusal in accordance with the Framework, so your officers do not recommend refusal for this reason."
However because the Development Plan is up to date, paragraph 14 of the NPPF is not engaged and it is quite open, and indeed correct, for officers to recommend refusal on grounds that the site lies outside the settlement for Milverton, contrary to policy CP8 and SP1 of the TDCS. This is for three reasons. Firstly, the plan cannot in any circumstances be said to be "absent, silent or out of date". Second, the appeal decision at Overlands, North Curry, (put forward as a reason not to reject the application as being contrary to the Development Plan in principle) is wholly distinguishable from the present case. Thirdly, the proposal conflicts in any event with the adopted Core Strategy.
SADMP – weight to be attached
The SADMP was submitted to the Secretary of State on 13 July 2015 and the examination of the SADMP commenced in December 2015. In accordance with paragraph 216 of the NPPF account can be taken of emerging policies. The weight to be attached to such policies will depend on the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given); the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections the greater the weight that may be given); and the degree of consistency of the relevant policies in the emerging plan to the policies in the NPPF (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given).
In the draft SADMP proposals map there is no allocation of housing on the Creedwell Orchard site at all, and it is shown to be completely outside the Milverton settlement limit. The only housing allocation for Milverton is of around 20 on a site at Butts Way, giving an indication of the appropriate level of development for Milverton.
No duly made representations have been made on the SADMP with regard to the non-allocation of Creedwell Orchard for housing and there are therefore no unresolved objections. It would therefore be extraordinary for the Council to suggest that the SADMP now carries little weight, given the stage which it has now reached; the absence of any objections in respect of allocations in Milverton; and the Council's clear position that the SADMP accords with the NPPF. To describe the Development Plan as being somehow absent or silent, or relevant policies as being out of date, would in these circumstances be absurd.
Overlands, North Curry – clearly distinguishable
The Officer Report suggests that
"Last year's appeal decision at Overlands, North Curry clearly indicates that in a situation such as this, an argument that the development would significantly exceed the likely scale of development for a settlement is unlikely in itself to significantly and demonstrably outweigh the benefits sufficient to warrant refusal in accordance with the Framework, so your officers do not recommend refusal for this reason."
Firstly, if the Development Plan is up to date it is not a case of weighing harm against benefits under paragraph 14 of the NPPF. The application must accord with the Development Plan unless material considerations indicate otherwise.
In any event the Overlands proposal is entirely distinguishable from the current application on Creedwell Orchard.
In the case of the Overlands proposal (30 dwellings, including 8 affordable dwellings), while the appeal site was (like Creedwell Orchard) outside the settlement limits, and North Curry is (like Milverton) identified as one of the five Minor Rural Centres identified in the TDCS, that is the end of the similarities between the two sites.
In the case of the Overlands site
(a) the debate/argument was solely about scale of development on that site
(b) the site had been identified as one of two preferred sites for housing in North Curry, both of which would need to be developed to meet the need for 40 dwellings
(c) the Council considered that potential difficulties limiting the amount of development accommodated on it could be overcome, and that a development of up to 20 dwellings could be achieved
(d) there was still an ongoing consultation process on the SADMP within North Curry as to whether 75% of the required housing for the plan period should be on one site
(e) allocation of the appeal site for housing, or at least part of it, was generally supported by respondents to the consultation carried out as part of the Parish Plan.
None of these considerations apply to Creedwell Orchard. The debate in Milverton is not just about scale of development, but its location. The Creedwell Orchard site is not identified as a preferred site in the SADMP and all Milverton's proposed new housing is allocated at Butts Way. There is no local debate over whether there should be any allocation on Creedwell Orchard at all, as evidenced by the level of objection to the previous planning application. Nor is there any indication of local support for allocating Creedwell Orchard for housing. Indeed there have been no representations on the SADMP, even from the Applicant, suggesting that Creedwell Orchard should be shown as allocated for housing.
Core Strategy – now adopted
Furthermore the Core Strategy is now adopted. Policy SP1 states, in respect of Minor Rural Centres (which include Milverton)
"New housing development at these locations will include an appropriate balance of market and affordable housing together with some live-work units and will be small scale allocations, sites within the development boundary (primarily on previously developed land) and sites fulfilling affordable housing exceptions criteria outside of development boundaries. For these settlements a total allocation of at least 250 new net additional dwellings will be made through the Site Allocations and Development DPD." (my emphasis)
Quite clearly the present proposal conflicts with policy SP1 of the Core Strategy in terms of both its scale and its location outside the Milverton development boundary. As with the previous application it also conflicts with the Core Strategy in many other respects as referred to in the grounds of refusal (Milverton Conservation Area – TDCS Policy CP8; highways and travel – TDCS Policy CP6; children's play space – TDLP Policy C4; archaeology – TDCS Policy CP8; and sustainability – TDCS Policy SD1).
There can therefore be no grounds whatever to suggest, as the Officer Report does at one point, that "the development of the site in general terms would be acceptable in general policy terms". How can this possibly be the case where the Core Strategy policy SP1 requires new housing development in Minor Rural Centres to be small scale and within development boundaries, and the, now well advanced, SADMP makes no housing allocation on Creedwell Orchard at all (and no duly made representation has been made on the SADMP to contest that)?
Harm to the Conservation Area – the Council's statutory duty
Apart from the issue of non-compliance with the Development Plan there is also a separate statutory duty (under sections 66(1) and 72(1) of the P(LBCA) Act 1990) on the Council to have special regard to the desirability of preserving or enhancing the character or appearance of Conservation Areas in considering whether to grant planning permission and to consider whether any benefits of the proposals outweigh the strong presumption against granting planning permission where the setting of a listed building or Conservation Area will be affected.
As far as the previous application is concerned, one reason for refusal stated
"The development would have a harmful impact upon the character and appearance of the Milverton Conservation Area as the location and scale of the development would undermine the connection that the village enjoys with the surrounding rural landscape, contrary to policy CP8 of the Taunton Deane Core Strategy. The harm would not be outweighed by other public benefits of the proposal when assessed in accordance with the National Planning Policy Framework (NPPF)."
The important case of R (on the Application of the Forge Field Society) v Sevenoaks District Council (12 June 2014 – transcript already sent in connection with the previous application) related to two decisions by Sevenoaks District Council to grant planning permission for an affordable housing development in the village of Penshurst within the Penshurst Conservation Area and the High Weald area of outstanding natural beauty.
Mr Justice Lindblom found that the Chief Planning Officer had failed to consider whether the benefit of the proposals in providing affordable housing outweighed the strong presumption against granting planning permission where the setting of a listed building or a Conservation Area will be affected.
The Judge said (paragraph 49)
"[As] the Court of Appeal emphasised in Barnwell, [that] a finding of harm to the setting of a listed building or to a Conservation Area gives rise to a strong presumption against planning permission being granted. The presumption is a statutory one. It is not irrebuttable. It can be outweighed by material considerations powerful enough to do so. But an authority can only properly strike the balance between harm to a heritage asset on the one hand and planning benefits on the other if it is conscious of the statutory presumption in favour of preservation and if it demonstrably applies that presumption to the proposal it is considering".
In the case of Creedwell Orchard the Council has on many occasions in the past struck a balance between harm to the Conservation Area and planning benefits on the other. On every occasion it has found that the harm clearly outweighs the benefits.
In this connection you have already received, in connection with the previous application, numerous representations about the likely impact of the current proposal on the Milverton Conservation Area and on listed buildings. This includes the submission from Save Milverton Action Group dated 24 April section D (the Milverton Conservation Area and Village). That section reviews the relevant legislation and guidance and in particular the repeated historic occasions when the Council has cited the adverse effect on the Milverton Conservation Area and Village as reasons for refusing an application to renew the 1975 outline planning consent in 1978 ("adverse effect on the visual and other amenities of the Milverton Conservation Area"); an application for 42 residential units in 1991 ("it will detract from [the Outstanding Heritage Settlement's] character and setting"); and defending the non-allocated status of the site at the local plan inquiry in 2001 ("an immensely detrimental impact on the environmental quality and landscape setting of the adjoining Conservation Area and this Outstanding Heritage Settlement", concluded by the Local Plan Inspector to be "unacceptable"). Further, the need to control infill in Milverton set out in the Taunton Deane Conservation Area (proposal document); and the heritage policies in the Core Strategy.
Most recently, as pointed out above, the reasons for refusal of the previous application have included, once again, harmful impact upon the character and appearance of the Milverton Conservation Area.
Considerable importance and weight should therefore continue to be attached in the planning balance in respect of this harm.
Extant permission – weight to be attached
The Council has already drawn its conclusions on the weight to attach to the 1975 permission.
As the officer report states:
"The proposed development is unacceptable and it is not considered that the presence of the extant permission or the developer's "threat" to carry out this development is such a weighty material consideration to warrant granting permission for an otherwise unacceptable development."
Applicant's Planning Statement – statements requiring correction
Once again this makes sweeping statements which require to be corrected.
"[This planning application] addresses the principle (sic) reason for refusal by offering a full 25% affordable homes provision".
It does not. It simply amends the application drawings. There is not even mention of a Section 106 Agreement, let alone a draft Section 106 Agreement with the application.
"TDBC issued the Certificate of Lawful Use on May 2007. This established Notaro have the legal right to build 72 new homes on the application site".
It does not. The 1975 permission, to which the Certificate refers, relates to a different area of land, a different housing layout and different land ownerships. The Council has already decided in any event that it carried little weight in determining the previous planning application.
"If approved this application will generate a significant CIL contribution in improving local infrastructure and will deliver much needed affordable homes".
Whilst this may be a material consideration, the payment of CIL cannot outweigh the conflict of this application with the Development Plan. It simply goes towards meeting the infrastructure needs of the development.
"This application is in reality just a minor amendment."
It is not. It is a new application. If it was a minor amendment it should have been made before determination of the previous application.
Applicant tactics – the drip feed/attritional approach
To resubmit this application in the way that has been done, with the supposed inclusion of a 25% affordable housing element is tantamount to abuse of the planning system. This drip feed approach by the applicant is clearly a tactic to attempt to exploit objector (and officer) fatigue after the application has already been considered in detail by the Planning Committee in October 2015.
At that stage, the Applicant had the opportunity to include a 25% affordable housing element and indeed, at one stage, offered to do so. The Applicant then promptly retracted that offer and chose to let the application go to Committee without any affordable housing element at all.
Members of the public should not now be required, yet again, to submit their objections to the last application – those objections should all still stand in the case of this application, save in the case of the very few which specifically objected to the lack of an affordable housing element.
Purely numerically, there were 180 letters of objection to the last application from 138 individuals. Out of the 154 bullets of points raised in those letters, as set out in the Officer Report on the previous application, only one refers to the absence of affordable housing.
Affordable housing - credibility of this offer
This current application now purports to include 18 affordable units of housing (albeit without any apparent commitment (by Section 106/Unilateral Undertaking) to build them as such – merely an indication of where they would be located within the scheme). The seriousness of the Applicant's intent to include this element of affordable housing in the final scheme must however be questioned. It is highly likely that, if granted, the Applicant (or more likely a subsequent purchaser) would immediately seek to release any such obligation on the grounds that it was not viable.
In the previous application the Applicant had ample opportunity to amend the application to include affordable housing, but declined to do so. As the Officer Report points out
"In recent months the Applicant has made two amendments to the scheme. The first was to introduce a proposal to provide affordable housing, the second was to retract it. The proposal to introduce affordable housing was a response to a suggestion from your officers that the application was likely to be recommended for refusal (for this very reason)… Subsequently when faced with a further prospect of a refusal, a further deferral of consideration was requested by the Applicant to consider the matter of affordable housing again."
If the Applicant had ever had a genuine intention of including affordable housing, it should have amended the previous application prior to determination. Instead it chose, after long consideration, to allow the application to be determined without any affordable housing element. It's current volte face can only be seen as a last ditch attempt to secure planning permission before getting down to the serious business of massaging the scheme back to one free of affordable housing, arguing lack of viability.
The scheme is clearly unworkable with an affordable housing element. Again as the officer Report states
"The suggestion is that a contribution is paid to enable the Council to buy land for affordable housing off-site and they propose a contribution of £153,000. This is based on the developer's assessment of likely land values for affordable housing for 18 dwellings, being 25% of 70. Even if the Council were minded to accept a monetary contribution a scheme for 70 dwellings would usually generate a requirement for a payment of £1,064,067, so the suggested contribution falls woefully short. Fundamentally, however, it is not considered acceptable as a matter of principle to take an off-site contribution in lieu of onsite provision on a development of this scale."
The Applicant's own statements also lend support to the suggestion that the scheme is unviable with a 25% affordable housing element. In their letter of 29 September 2015 S Notaro Limited stated
"We explained a planning permission with 25% affordable homes plus CIL would be less viable than the extant planning permission".
In their Supplemental Planning Statement (19 May 2014) they stated
"Clearly providing 18 affordable homes out of the 70 homes proposed is substantially less viable than the extant permission. Commercially we would be better placed building out the extant scheme".
"It is irrational to think we would build something of greater cost but with rewards based on 52 homes not 72".
"We consider it would be unreasonable for TDBC to demand affordable homes on this site, and commercially given existing use value it is not possible" (my emphasis).
Other grounds of refusal – continuing relevance
Even assuming any serious intention to include 18 affordable units in the final scheme could be ascribed to the applicants, this does not overcome the other objections to the proposal put forward in the refusal notice dated 16 October 2015. The Council chose to refuse the previous application, not only on grounds of lack of onsite affordable housing, but also on grounds of
· Harmful impact upon the character and appearance of the Milverton Conservation Area contrary to policy CP8 of the Taunton Deane Core Strategy
· Failure to provide an acceptable travel plan, contrary to policy CP6 of the TDCS, policy A2 of the draft SADMP and guidance in the NPPF
· Insufficient provision of children's play space, contrary to retained policy C4 of the TDLP or policy C2 of the draft SADMP
· Insufficient information to assess likely impact upon potential archaeological interests on the site, contrary to policy CP8 of the TDCS and guidance in the NPPF
· Very limited benefits to outweigh these significant and demonstrable harms, hence not sustainable development in accordance with policy SD1 of the TDCS and paragraph 14 of the NPPF.
The Applicant has done nothing whatever in the latest application to address these "significant and demonstrable harms", whether in the form of providing an acceptable travel plan; providing sufficient provision of children's play space; providing sufficient information to assess likely impact on potential archaeological interests; or, particularly, addressing the harmful impact on the Milverton Conservation Area.
For the reasons set out below all these objections remain valid and (because the Development Plan is up to date and paragraph 14 of the NPPF is not therefore engaged) there can now be no suggestion that they are outweighed by the so called benefits of an affordable housing element.
Overall therefore this application must, like the last application, inevitably be refused, on grounds similar to the reasons for refusal attached to the last application (possibly modifying the reference to lack of onsite affordable housing) but with the important additional ground for refusal of conflict with the Development Plan - not only the Policy SP1 of the Taunton Deane Core Strategy, but also with the Proposals Map in the emerging SADMP, to which, because of its advanced state of preparation, considerable weight should now be attached. Considerable weight should also continue to be attached to the identified harm to the Conservation Area. The extant permission is, as agreed on the last application, a material consideration of little weight.