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10 April 2017

From Love Braunton Community Group

LOVE BRAUNTON REPRESENTATION REGARDING APPEAL APP/X1118/W/16/3161459

This representation is structured as follows:

• Section 1 – Introduction. Page 2.

• Section 2 - Summary of Objections to the Proposal. Pages 3 to 16.

• Section 3 - Countering the Appellants Case. Pages 17 to 19.

• Section 4 – Outline of the case to dismiss this appeal. Page 20 to 22.

• List of Appendices. Page 231.

David Relph

Chair, Love Braunton

                                                                                                                         1  Please note that Appendix 18 is being submitted separately by Mark Baker Consulting Ltd, whom we have commissioned to produce a written statement on Highways/Transport issues. This submission includes photographs at Appendix DR/MB/A.

 

Name and Address of correspondent

David Relph Milland Lower Park Road Braunton EX33 2LQ

Planning Inspectorate Reference

APP/1118/W/16/3161459

Address of Appeal Site Land South East of South Park, Braunton Position • We support the dismissal of the appeal and oppose the proposal

in question. • We fully support the LPA reasons for refusal as set out in the

Officers Report to the December meeting of the North Devon Planning Committee.

• We also believe there are further determining issues in this case which need to be examined including other reasons for refusal of the scheme, in particular the impact of the proposed scheme in traffic terms.

• We also consider that a hearing would be a more appropriate procedure for this appeal than written representations (and have already written to the Planning Inspectorate in this regard.

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SECTION 1 - INTRODUCTION

1.1 This representation is submitted for and on behalf of Love Braunton Community Group. The representation has been prepared by David Relph, Chair of Love Braunton, with assistance from third parties.

1.2 We support the dismissal of the appeal and oppose the proposal in question. We fully support the reasons for refusal as set out in the Officers Report to the December meeting of the North Devon Planning Committee. These are repeated below for clarity.

Minded to REFUSE had NDC has jurisdiction, for the following reasons: 1. The application proposes major residential development on land that is not allocated for development in either the adopted or the emerging development plan. Whilst potentially increasing the supply of land for housing, the proposed development would be contrary to Policy ENV1 of the North Devon Local Plan as it will not enhance or protect landscape character or ecological value and, in the absence of satisfactory ecological mitigation and amended layout, would be contrary to Policy ENV8 and Policy ENV11 of the North Devon Local Plan and Core Principles 7 and 11 of the National Planning Policy Framework, 2. The Council is not satisfied on the basis of the submitted evidence that the percentage or mix of affordable housing is appropriate when judged against the requirements of Policy HSG7 of the adopted North Devon Local Plan and associated Code of Practice and Core Principle 6 of the National Planning Policy Framework.

1.3 In addition, we also believe there are further reasons for objection to the proposal that also merit refusal, in particular the impact in terms of traffic. This wider range of considerations is presented in this submission.

1.4 Additionally, it is our position that a number of issues are in dispute and should be examined in public as part of an inquiry or hearing. These include but are not limited to:

• The housing supply position in North Devon.

• The basic suitability of the design of the site in landscape and ecological terms and effectiveness of plans to mitigate ecological impact.

• The extent to which the landscape in which the site is located is valued by local residents.

• The potentially serious adverse impact of the scheme on terms of traffic.

• Air Quality impacts in Wrafton Road and the centre of Braunton.

1.5 This representation refers to numerous Appendices, which have also been submitted.

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SECTION 2 – SUMMARY OF OBJECTIONS TO THE PROPOSAL

2.1.1 Since application 61139, which this appeal relates to, has been consulted on, a wide range of objections have been made to the proposal. The full range of objections is summarised in this section. Please note that the range of issues is considerably broader – certainly in the public’s mind – than the limited issues presented by the Appellant or (on the basis of their likely representation) by North Devon District Council.

2.1.2 We believe that the full range of issues presented here are relevant and should be weighed by the decision maker.

Planning Policy

2.2.1 We have commissioned a third party (MWA Chartered Town Planners) to prepare a document summarising key issues of planning policy. This document is submitted as Appendix 1. Appendix 1 is further supported by Appendices 2 to 16.

2.2.2 The key points set out in Appendix 1 may be summarised as:

• The appeal site lies outside the defined settlement boundary for Braunton. Boundaries serve a sound planning purpose, help promote sustainable patterns of development, and can carry significant weight even where a 5YHLS cannot be demonstrated.

• North Devon Council have set out in April 2016 how they can demonstrate a 5YHLS.

• In November 2016, the Inspector conducting an examination into the emerging Local Plan (eJLP), advised the Councils (North Devon and Torridge) that they must be able to demonstrate a supply of specific deliverable sites to provide 5 years from the adoption of the pan. She did not state that this had not been demonstrated but in accordance with finding the plan sound, clarified that she must be assured that this requirement has been met. Work to demonstrate this will be completed by July 2017.

• In the event though, that a decision maker finds that North Devon cannot demonstrate a 5YHLS, the weight to be given to ‘out of date’ plans is for the decision maker to judge, on the basis of relevant considerations such as the extent of any shortfall, how long any deficit is likely to persist. Decision makers may decide to give weight to restrictive policies that justify refusal of permission despite not being considered up to date because of the absence of demonstrated 5YHLS.

• The extent of any shortfall as advanced by the Appellant is disputed and is a matter which requires consideration as part of a hearing or inquiry.

• The appeal scheme would be capable of being built within 5 years and would therefore contribute to addressing any potential shortfall – but this is not a site specific benefit and would arise in the event that building took place on more suitable and less sensitive sites in landscape and ecological terms.

• Sufficient land either has planning permission already or is allocated in the eJLP to meet the need of Braunton.

• Braunton has already seen an uplift in housing delivery from 185 in the 2006 plan to 390 in the eJLP. The current trajectory of completions in Braunton is good – under construction or committed schemes total 122 which is 31% of the overall requirement to 2031.

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• The additional housing that this appeal site would deliver would add to the housing stock without any commensurate growth in the social, cultural, economic or employment opportunities in the locality.

• The appeal site would reinforce the role of Braunton as a dormitory or commuter settlement with the population largely reliant on accessing jobs, shops, support service, recreation and leisure facilities elsewhere.

• The proposal in question involves unnecessary and inappropriate incursion into the countryside which does not accord with the adopted or emerging Local plans.

• There are no site specific benefits that could not be delivered by building elsewhere.

• New housing would contribute to boosting the supply of housing but this benefit needs to be weighed against the significant adverse impacts, particularly in terms of environmental factors (planning balance is also dealt with in paragraph 2.4.1 to 2.4.7 of this representation).

• The scheme does not accord with the development plan and no material considerations indicate that a decision should be taken other than in accordance with the Plan.

2.2.3 In addition to the points set out in Appendix 1, we would like to highlight the following with regard to planning policy:

• As the site is outside the identified development boundary, granting permission would set a troubling precedent and would seem to undermine in the publics mind the value of Plan making and the meaningfulness of the public consultation that goes along with this process.

• The saved Local Plan (2006) is current and ‘remains the Development Plan for the local planning authority’2

• There is a high level of consistency with regard to South Park and development in Braunton between the 2006 and 2016 plan. The reasons for rejection in 2006 were that it lay outside the development boundary. The reasons for rejection in the 2016 Plan were because of sustainability issues.

o The site was excluded by the Inspector in his report in 20073 where he concluded that ‘the strategy of constraint for Braunton rules out green field extensions of this type’ and that ‘there is no need to go outside the development boundary onto another green field site'.

o In respect of the 2016 Local Plan the site was rejected for 4 reasons of unsustainability as listed by the Planning Policy Officer on page 19 of the Site Visit Report. None of these issues have been resolved. Furthermore, when the site was rejected in the development of the 2016 Plan it was as a proposal for 42, not 55, homes.

o It should also be reiterated that the 2006 and 2016 plans deal very consistently with the issue of the defined development boundary – it was used as the basis for rejection of the South Park site in 2006 and it remains in place in the 2016 submitted Plan.

                                                                                                                         2 See page 20 of Planning Committee Site Visit Report. 3 North Devon Local Plan 1996-2011: Inspector’s Report dated 24.12.07: http://www.northdevon.gov.uk/media/266894/section-4-inspectors-report.pdf  

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• The site is outside the saved up to date Local Plan and is also not part of the identified land resource on which the North Devon 5 Year Housing Land Supply is based.

Passing the sustainability test

2.3.1 As set out in paragraph 6 of the National Planning Policy Framework (NPPF), the purpose of the planning system is to contribute to the achievement of sustainable development. The policies in paragraphs 18 to 219, taken as a whole, constitute the Government’s view of what sustainable development in England means in practice for the planning system. Paragraph 7 goes on to set out he three dimensions to sustainable development: economic, social and environmental.

• Under NPPF 186, the decision maker has a duty to foster the delivery of development that can be shown to be sustainable – and by implication to prevent any development that is not.

• The application – and appeal - is not compliant, inconsistent with or ignores many relevant paragraphs in the NPPF 18-219. In doing so, the application substantially fails to pass any reasonable test consistent with the Government’s understanding of sustainable development and what it means for the planning system in England. This consideration should be given considerable weight.

• The Appellant is contending that this application is sustainable development by simply stating that it is so.

• The Appellant has claimed that the application not only passes the test for Sustainable Development (Planning Statement) but it was agreed that it did so at the pre-Application stage (Statement of Community Involvement). The Planning Officer will be aware of our repeated attempts to clarify with the Appellant what test of Sustainable Development was applied and agreed to have been passed. We have received no response to this request other than continued assertions that a test has been passed.

• Appendix 17 is lifted from an objection submitted in July 2016. This appendix tests the Appellants proposals against the relevant paragraphs of NPPF 18 to 219. If Sustainable Development is described in these paragraphs, then how else can one test a proposal if not by using these paragraphs?

• Despite numerous opportunities and requests, the Appellant has consistently failed to describe the test they claim their proposal has passed – so as far as we are aware, Appendix 17 represents that only test of Sustainable Development that has been conducted during this whole process. No other evidence has been offered to contest or contradict this view.

• If an application cannot be demonstrated to be sustainable, how can it then be considered on the basis of a presumption in favour of sustainable development? As set out in the case of William Davis Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin), Lang J:

o The presumption in favour of sustainable development applies only to development which has been found to be sustainable.

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The balance of benefit and adverse impact

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2.4.1 Even if decision makers were to adopt the higher ‘significantly and demonstrably’ test to the decision making in this case, when one adopts the sustainable development framework set out at NPPF 7 (describing the economic, social and environmental components of sustainable development) it can be reasonably concluded that the adverse impacts of this application significantly and demonstrably outweigh any benefits.

2.4.2 This section should be read with pages 7 and 8 of Appendix 1.

2.4.3 Two relevant quotes from the NPPF:

o NPPF 152: Local planning authorities should seek opportunities to achieve each of the economic, social and environmental dimensions of sustainable development, and net gains across all three.

o NPPF 186: Local planning authorities should approach decision-taking in a positive way to foster the delivery of sustainable development.

2.4.4 Potential (Claimed) Benefits

• The Appellant claims two benefits – the economic benefit of job creation, and the social benefit of the supply of Affordable Housing, addressing an acknowledged need for these homes in North Devon. There is no stated environmental benefit, less an increase in net biodiversity due to an offsite enhancement.

• In terms of job creation, it should be acknowledged that jobs will be sustained or created (in the short term) by this development. However, the figures claimed by the Appellant may be challenged – they have made a very generous interpretation of the figures in the Laying the Foundations document (original Planning Statement) and they have not recognised the short-term nature of many of these jobs.

• They make no case for the creation of local employment on a sustainable basis – once the building is done it is not clear there is any longer term benefit in terms of employment and the local economy. The Appellant makes the implicit assumption that people who live in the development will be employed, but again this can be challenged, mainly because the demographic projections in Braunton are very clear that there will be progressively fewer, not more, people of working age. Additionally, there is no acknowledgement of the rates of out-commuting which would further undermine any long term employment benefit.

• The claim that the Appellant is somehow addressing a social need in terms of the provision of Affordable Homes can also be undermined by the clear desire on their part to provide as few as possible. If this is the reason (no other social benefits are stated) then why only build 20?

• Any claimed benefit derived from the provision of below (current saved) policy level affordable housing should receive greatly reduced weight –particularly as the Appellant has refused to conduct a Viability Assessment.

• Also note that the houses will retail at between 250-450K. Average salary in North Devon is under 20K – the houses proposed by the Appellant are only affordable using a % of market rate argument, and will still be likely to be beyond the reach of those whom affordable housing is designed to help.

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• Additionally, the Appellant has only ever made general references to the affordable housing need – and never actually referred to the stated need in Braunton. This is easy to find out as the Parish Council hold a register. The failure to base any potential benefits on the actual local need should undermine the weight given to any benefits the Appellant is claiming.

Adverse Impacts

2.4.5 Adverse Economic Impacts

• A high quality environment is likely to be a key reason why people come to visit North Devon. Development outside the development boundary will set a precedent that can only undermine this, and cannot be justified in this context.

• There is the clear potential for additional traffic to further add to Braunton’s reputation as the bottleneck of North Devon. This has the related potential to damage local tourism and the trade of local retailers and those in the service industry. This damage is likely to occur not just around Braunton – any worsening of the traffic situation in Braunton may also affect people’s willingness to visit the coastline from Croyde all the way to Ilfracombe. This consideration should be given significant weight.

• There is also a risk to a local employment site – Travis Perkins the builders merchants sits next to Knowl Water and has been flooded by it a number of times, most recently in 2016. Travis Perkins insurers have refused to pay – development upstream will compound this.

• The cost of any air quality impact (Wrafton Road has two schools on it) will be borne by the public sector and the community. The community cost is social, but the public sector cost is economic – it is worth noting that the one of the costliest single item purchases in Devon for GP surgeries is inhalers.

2.4.6 Adverse Social Impacts

• There is a demonstrable lack of infrastructure development to accompany building. This position has been deteriorating not improving – Braunton recently lost both its last bank and standalone Post Office.

• There are a number of adverse impacts associated with the failure to fully comply with the Manual for Streets, specifically:

o Section B 4.4 Walkable Neighbourhood: There is no suitable pavement on the most direct pedestrian route, and an unrealistic expectation to walk through nearby developments which is contrary to many of the principles of Section B 4.6.

o Section B 5.7 Designing Streets as Social Spaces: The design does not aim for appropriately located high quality open space which encourages social integration – the open space is marginal not central.

• North Devon already has a higher Vacancy Rate than the UK average and developments like this will only exacerbate what is recognised locally as a real problem. This site may encourage the purchase of second homes – which are very unpopular with local residents and will only further undermine the Appellant’s stated intent to provide socially beneficial housing.

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• Any increase in traffic is unlikely to improve the situation with regard to poor air quality in Braunton. The lack of focus on Air Quality undermines the Appellants claim in their Travel Statement that they aim to ‘improve health’. This claim cannot be justified.

2.4.7 Adverse Environmental Impacts

Firstly, the perception that damage to the natural environment on ‘the wrong side of Braunton’ matters less than that on the side of the Great Field needs to be challenged. This site has been incorrectly classified – it is within the Transition Zone of the UNESCO Biosphere but this has not been referenced. There has been clearly expressed public concern for the fragmentation of the natural environment. The adverse environmental impacts of this application include:

· SuDs scheme is the bare minimum.

• The clear and evidenced impact on the local bat population and in particular on the SSSI maternity roost of Great Horseshoe Bats less than 2Km from this site.

• Dark sky site will be permanently removed.

• Biodiversity benefits can be contested.

• The impact on badger setts identified in the ecological survey and well known by local residents.

• The increase in flood risk in Knowl Water. Knowl Water is a part of a designated nitrate sensitive zone because it feeds into the Taw Torridge SSSI – this SSSI must be taken into consideration as well as the Caen Roost.

• The risk associated with poor water quality that may be caused by the current runoff attenuation plan. NPPF 103 is clear in this regard:

When determining planning applications, local planning authorities should ensure flood risk is not increased elsewhere.

• The failure of the application to contribute to – or even acknowledge the importance of – securing radical reductions in greenhouse gas emissions. This is an opportunity cost that he community will bear in the future – the more carbon adding developments that are added, the greater the reduction requirement will be in the future. These environmental harms should be given significant weight.

• NPPF 93 (my emphasis):

Planning plays a key role in helping shape places to secure radical reductions in greenhouse gas emissions, minimising vulnerability and providing resilience to the impacts of climate change, and supporting the delivery of renewable and low carbon energy and associated infrastructure. This is central to the economic, social and environmental dimensions of sustainable development.

• The application cannot be said to be compliant with this. Accordingly, because these issues are ‘central’, this undermines any claim that it represents sustainable development. None of the known climate change risks in Braunton are addressed by this application.

• Adverse impact on hedgerows from the use of close board fencing (still being used on the

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Northern boundary of the site). This is despite the fact that close board fencing was specifically ruled out in the original Landscape and Visual Assessment because of the damage this would do to local hedgerows. It took a member of the public to point this out to Officers and Natural England – their recommendation that close board fencing be 5-10m offset from the hedgerow has never been incorporated in the design.

• Adverse impact associated with the failure of the design to incorporate the following issues (as set out by the Countryside and Landscape Officer).

o Arboricultural Impacts – the design does not provide sufficient separation distances between existing trees and hedges and the proposed dwellings.

o Ecological Impacts – the biodiversity losses have not been adequately addressed and opportunities for enhancement have not been taken.

o Landscape Impacts – mitigation and enhancement recommendations do not appear to have been followed through to the final site layout and design stage.

2.4.8 Significant weight should be given to the clear adverse impacts from this proposal across all three of these dimensions – and the environmental dimension in particular. Under NPPF 152, the Decision Maker is required to seek opportunities to achieve each of the economic, social and environmental dimensions of sustainable development, and net gains across all three.

The ‘additionality test’

2.5.1 The Application fails to set out why this development is required in addition to the 390 houses already planned for Braunton and Wrafton in the emerged Local Plan.

• The Braunton and Wrafton Town Plan sets out clearly the proposed way in which Braunton and Wrafton's housing supply will be met – and there is no mention of the South Park site. This plan makes provision for 390 new homes by 2031. We think it reasonable to demand that the application set out why 55 more homes are needed in addition to the 390 already included in the 2016 Local Plan. The Appellant fails to do this.

• The existing lack of services in Braunton is not considered by the Appellent.

• Decision makers may also wish to consider the issue of whether houses are required in addition to those set out in the Local Plan given the announcement regarding Chivenor. Additionally, the building of additional houses cannot be justified now that it is known that Chivenor base will become available by no later than 2027 – freeing up significant amounts of new housing opportunity within the life if the current Local Plan. It contains significant amounts of brownfield site.

Affordable Housing Requirement:

2.6.1 When considering application 61139 at their meeting in December 2014, the North Devon Planning Committee supported a recommendation to refuse the application. The second reason was as follows:

2.6.2 The Council is not satisfied on the basis of the submitted evidence that the percentage or mix of affordable housing is appropriate when judged against the requirements of Policy HSG7 of the adopted North Devon Local Plan and associated Code of Practice and Core Principle 6 of the

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National Planning Policy Framework.

2.6.3 We support this conclusion. We would also like to add the following with regard to the issues of Affordable Housing.

• There have been inconsistencies over the last 12 months regarding understanding of what policy has to say about the percentage requirement for Affordable Homes on the site.

• As this proposed site is outside the development boundary the saved policies only allow consideration under an ‘exceptional’ approach. This mandates 100% affordable housing with only sufficient open market to make it viable as qualified by a Viability Assessment.

• The percentage of affordable homes has still not been resolved in regard to this application – although our understanding is that LA are minded to give weight to the AH requirement set out in the emerging Local Plan, that is to say 30%. If this is the case then we would request that decision makers apply weight to other elements of the Plan in a consistent way.

• If you choose to be guided by one element then you should be guided by others too – applying this approach consistently leads to the position of refusing the application because it is so manifestly outside the broad framework of the Local Plan, in terms of the development boundary, the housing supply and previous rejections as part of the development of the Plan.

• Even if the application is compliant with the 30% requirement in the new Local plan, as it is so clearly outside the framework of the plan itself, complying with the 30% requirement is not a consideration that can be afforded any weight.

• If a Viability Assessment is not forthcoming that sets out and justifies the Appellants current proposals, this should carry significant weight in favour of rejection.

Traffic Issues:

2.7.1 Traffic is a key issue that has been dismissed by both the Appellant and a number of consultees during consideration of this application. We understand that North Devon Council will not be including traffic in the list of issues in their appeal representation. We disagree with this position and have commissioned a third party report to highlight the traffic concerns that exist with this site.

2.7.2 This report (referred to in this submission as Appendix 18) has been submitted to the Planning Inspectorate by Mark Baker Consulting Limited and we request its findings are considered, particularly the key finding that he proposed scheme will have a severe impact in the following regards

• The cumulative impact at the A361 / B3231 traffic signals and adjacent A361 / Heanton Road junction,

• The cumulative impact along Wrafton Road due to the additional vehicles generated by the proposal conflicting with other vehicles on the section of Wrafton Road that is effectively single lane working due to the presence of parked cars, and

• The impact on the section of Lower Park Road between Barn Field Close, and South Park that is also a shared surface.

2.7.3 This finding brings into question the findings of consultees during the process of consideration of application 61139. Our position is that there appears to be a clear potential

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requirement to test what are contested views regarding traffic at either a hearing or an inquiry.

2.7.4 In addition to the points made in the report referenced above, we would like to make the following points about traffic and highways issues.

• The majority of residents’ objections include serious concerns about traffic and are from the people who actually use the roads around the proposed site. Their perspective and local knowledge as residents should be accorded significant weight.

• I and others have written separately to the Highways Officer at Devon County Council submitting additional survey evidence that undermines the Appellants survey. These surveys do not appear to have been considered despite the fact that they present a clear challenge to the credibility of the Appellants survey.

• When challenged, the Development Management Officer responsible for Highways in North Devon has been unable or unwilling to answer residents’ specific and detailed questions or explain why he believes the Appellant’s Transport Statement is robust when it has serious omissions and questionable data.

• Until all residents’ views and evidence with regard to traffic are taken seriously this will remain a contentious element of the application and will be under intense ongoing public scrutiny.

• The key concerns set out by residents are:

Timing of the Survey

• Best practice is for two traffic surveys to be conducted in cases like this – one in the spring and one in the autumn, in order to take a balanced view across the year. The Appellant has done only one survey, during the school holidays in August. The decision maker cannot know the highways impact of this development as a result of this defective survey.

Omission of Wrafton Road from the Survey

• It is well known locally that Wrafton Road is the main route to the proposed development - not surveying this route is a serious omission, but one which the consultee and Planning Officer seem content to accept. Wrafton Road is important – it is the main route into the proposed site and any local consultation will confirm this.

Lack of Credibility in the survey numbers – evidence from residents repeat of the Appellants surveys

• Residents have demonstrated that the traffic flows in the Appellant's survey can be challenged, and by orders of magnitude and not just a few percentage points. The County Highways Officer has been dismissive of the importance of these alternative surveys.

The apparent inconsistency in the way that this application has been dealt with compared to others locally. Specifically, the approach to traffic issues in the case of the South park proposal looks at odds with the following recent planning applications.

• For application 58133 - 3 houses in Knowle, it was judged that the development

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would generate ‘an additional 20-24 additional highway movements if the development was approved.' On this basis the South Park site would generate between 366 and 440 additional Highways movements, far in excess of the number quoted in the Appellants Transport Statement. County Traffic officers objected to the Knowle proposal.

• For application 62524 - 41 dwellings, Barnstaple 'A detailed assessment of the cum, which again was recommends for refusal, the Traffic Officers at Devon County Council requested a detailed assessment of the cumulative transport impact. None was requested for the South Park proposal, despite Brauntons well publicised traffic problems and the potential impact of planned development in Ilfracombe.

Potential Predetermination:

2.8.1 Related to the issue of traffic, under FOI we have obtained details of a pre-planning meeting that took place between the Planning Department and the Appellant on 3rd November 2015. The Development Management Officer for Traffic was present and gave the Appellant what amounts to a pre-determined agreement of ‘No Objection’ on the basis of traffic issues.

2.8.2 It is unacceptable that the officer in question seems to have reached a definitive view on the application before it was even submitted. I am referring specifically to Mr Paul Young’s minuted statement at a meeting on the 3rd of November with the Appellant at Lynton House Barnstaple that with regard to traffic issues ‘DCC won’t raise an objection’. Reaching – and communicating to the Appellant at this stage – such an apparently definitive position is unacceptable, and also closes down the possibility of considering the views and evidence of local residents, surely a ‘relevant issue’ in this case.

2.8.3 Such a statement also amounts to pre-determination, contrary to public law principles governing decisions taken by public bodies. As stated by Sedley J in R v Secretary of State for the Environment and another, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304:

…that the decision of a body, albeit composed of disinterested individuals, will be struck down if its outcome has been predetermined whether by the adoption of an inflexible policy or by the effective surrender of the body's independent judgment.

2.8.4 Consequently, relying on the pre-determined position taken by Mr Young will open any subsequent decision to approve the proposal that relies on Mr Young’s statement without further investigation, open to challenge through judicial review.

2.8.5 We have raised this issue on numerous occasions during the consultation process but have yet to receive any response to our requests to explain this apparent pre-determination.

Damage to local protected species

2.9.1 Despite the submission of a number of documents related to ecology, we remain concerned about the implications of approving a proposal that will damage the habitat of protected species.

2.9.2 Our concerns relate to:

• Importance of preserving foraging habitats for bats near the water line (as referred to in the consideration of application 62524).

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• In December the Local Authority Landscape and Countryside Officer has recommended the application be refused without redesign of the scheme.

• The disappearance in the latest design of a dark corridor designed to facilitate bat transit.

• We welcome the decision to remove close board fencing from the eastern and western boundaries of the scheme. However, unless a condition is imposed to ensure this measure is also applied to the northern boundary, the lighting plan (and use of close board fencing to the north of the site) – which relies on close board fencing to reduce light spill – is fundamentally at odds with the requirement to ensure continued access to the hedgerows used by local bats. In other words, the mitigation plan in its current form still cannot avoid harm to the local protected species. It cannot, therefore, be supported.

• A fundamental review of the design of the site might address these issues, but the Appellant has shown no desire to do this. Accordingly, their efforts to provide mitigation to the local species still cannot be regarded as adequate – and therefore should be afforded limited weight.

• NPPF paragraph 118 is relevant here. It states very clearly (my emphasis):

When determining planning applications, local planning authorities should aim to conserve and enhance biodiversity by applying the following principles:

• if significant harm resulting from a development cannot be avoided (through locating on an alternative site with less harmful impacts), adequately mitigated, or, as a last resort, compensated for, then planning permission should be refused;

• proposed development on land within or outside a Site of Special Scientific Interest likely to have an adverse effect on a Site of Special Scientific Interest (either individually or in combination with other developments) should not normally be permitted. Where an adverse effect on the site’s notified special interest features is likely, an exception should only be made where the benefits of the development, at this site, clearly outweigh both the impacts that it is likely to have on the features of the site that make it of special scientific interest and any broader impacts on the national network of Sites of Special Scientific Interest;

2.9.3 The proposal is inconsistent with the guidance set out above. Indeed, was one to follow NPPF 118 it is clear that this application should be refused. To quote the Local Authority landscape officer:

I have seen no justification as to why development of this site cannot be achieved (albeit an alternative layout to that which has been applied for would be required) without avoiding harm, or to justify why there are exceptional reasons that mean avoiding harm is not possible in this instance.

2.9.4 Further, the North Devon Planning Committee supported a recommendation (made in the Officers report to their December 2016 meeting) to refuse the application as follows:

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The application proposes major residential development on land that is not allocated for development in either the adopted or the emerging development plan. Whilst potentially increasing the supply of land for housing, the proposed development would be contrary to Policy ENV1 of the North Devon Local Plan as it will not enhance or protect landscape character or ecological value and, in the absence of satisfactory ecological mitigation and amended layout, would be contrary to Policy nENV8 and Policy ENV11 of the North Devon Local Plan and Core Principles 7 and 11 of the National Planning Policy Framework,

2.9.5 This makes it clear that two things are required to address the ecological issues – satisfactory mitigation and an amended layout. The Appellant is arguing that they have addressed the first of these, but this can still be challenged in detail (close board fencing still planned for the Northern Boundary for example) but they cannot demonstrate the second. Accordingly, we fully support North Devon Council in this regard – the scheme is not acceptable in ecological terms until the layout issue is addressed.

Possibility of an offence being committed.

2.10.1 If the issues raised above are not addressed before a decision is made, I am concerned that granting planning permission to application 61139 could lead to an offence being committed as there is a clear risk that the proposed development could lead to the disturbance of bats present at this site.

• I would also like to remind you and other relevant decision makers of North Devon Council’s duties as set out in Section 40 of the Natural Environment and Rural Communities (NERC) Act 2006, which states:

o Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.

• Under Section 41 of the Act, bats are listed by DEFRA as a priority species for the conservation of biodiversity.

• 2009, Woolley v Cheshire East Borough Council [2009] EWHC 1227 (Admin), where planning consent for actions that would affect bats, was granted without mitigation in place resulted in Cheshire East Borough Council being taken to Judicial Review. A local resident challenged the LPA’s decision and the High Court judgement quashed the planning consent. The decision of the House of Lords in Berkeley v SSE [2001] 2 AC 603, dealing with obligations under EC law, means that if a permission is found to have been unlawful in any way, then it should be quashed provided that the outcome, if there had been no unlawfulness, may or might have been different.

Additional reasons of objecting to the scheme

2.11.1 There are a number of additional reasons not brought out above for refusal of planning consent and dismissal of the appeal – we request that they are considered by any decision maker

2.11.2 The site is in landscape that is locally valued, to the extant that NPPF 109 is relevant.

• The site in question is part of a valley feature running east from the Taw/Torridge estuary into the rural hinterland of Braunton Parish. This feature – and the separation between Braunton

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and Wrafton that it provides – is recognised in the eJLP as a key environmental and landscape component of the Braunton and Wrafton Plan.

• The site is apart of a section of countryside with a uniquely special character of double sided, thick boundary hedges separating the countryside to the east of the site and the fields adjoining the site to the south. This special landscape – accessed routinely via public footpaths – will be destroyed by the proposed development.

• At present, there is a clear boundary to the limit of development, beyond which the special character of the countryside should be protected. There is a clear public expectation that the landscape beyond the development boundary should be protected.

• The valley is an important transit route for wildlife – local residents own records will confirm this.

• The extent to which the landscape is valued is something which could be easily tested at a hearing.

2.11.3 There is a concern that the design is not consistent with or appropriate to the character of existing local housing and takes no proper account of the landscape and natural setting of the site.

• The Appellant is claiming that the lack of a clear local vernacular means that their design is as suitable as any, but there is a clear feeling – expressed in representations – that the scheme represents an essentially urban design imposed on the edge of a rural setting.

• Related to this design issue, and evidenced by the extent to which the Appellant has had to consistently update and retrofit measures to mitigate the ecological impact of the scheme, the design has taken no real account of local circumstances and setting, either in terms of landscape or ecology. It is a design that has been imposed on the site, not arisen from it.

• This fundamental issue of design was also raised by the Local Authority Countryside and Landscape Officer had raised the following issue in correspondence (email 11 November 16):

Fundamentally my concerns with the proposal relates to initial site layout and design having been carried out without due consideration to the landscape and ecological constraints and opportunities which has consequently resulted in a proposal that compromises good landscape and ecological design principles.

• This issue was then cited in the Officers Report of the December Planning Committee, which set out that

These concerns suggest that a redesigned layout is required in order to overcome the objections which may in turn result in a reduction in housing numbers.

• No such redesign has been done.

• Further, any development will adversely effect what is a very special (unique in the area) low-density housing to the north of the site. The higher density of the proposed site contrasts markedly with the housing here. This point goes beyond the impact on visual amenity of residents along Lower Park Road.

2.11.4 The Effect on local Air Quality has not been properly considered and has the potential to be serious and adverse.

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• Our commissioned piece of work (see paras 2.7.1 to 2.7.4) on traffic issues indicates that here is a clear potential for adverse impact on air quality in both Wrafton Road (on which there are 2 schools) and at he traffic junction in the centre of Braunton.

• These are technical matters which have not been properly examined because if the way in which traffic has been dismissed as an issue during consideration of application 61139.

• Air Quality issues should be examined in public as part of a hearing.

• The local air quality action plan in this case is the latest Braunton Air Quality Action Plan, produced to ‘fulfil the requirements of the Local Air Quality Management (LAQM) process as set out in Part IV of the Environment Act (1995), the Air Quality Strategy for England, Scotland, Wales and Northern Ireland 2007 and the relevant Policy and Technical Guidance documents’.

2.11.5 The Inspector may also wish to note that a Neighbourhood Plan is being developed for Braunton Parish that will include the land on which this proposal is sited. Work to develop the Neighbourhood Plan is has reached the initial public consultation stage.

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SECTION 3 – COUNTERING THE APPELLANTS CASE 3.1. The core of the Appellants case is contained in section 7 of their Statement of case, which sets out 9 propositions. These are repeated below – the bullet points set out our counter position.

3.1.1 Proposition 1 – The Development Plan is out of date and should be given limited weight.

• The saved Local Plan (2006) is current and ‘remains the Development Plan for the local planning authority’4

• The weight to be given to ‘out of date’ plans is for the decision maker to judge, on the basis of relevant considerations such as the extent of any shortfall, how long any deficit is likely to persist. Decision makers may decide to give weight to restrictive policies that justify refusal of permission despite not being considered up to date because of the absence of demonstrated 5YHLS.

3.1.2 Proposition 2 – The Emerging Plan is only capable of being afforded limited weight.

• This I not true - there is scope for whatever weight a decision maker deems to be appropriate to be applied to the plan based on the a range of considerations set out in NPPF 216, which states:

From  the  day  of  publication5,  decision-­‐takers  may  also  give  weight  to  relevant  policies  in  

emerging  plans  according  to:    

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)  

the  degree  of  consistency  of  the  relevant  policies  in  the  emerging  plan  to  the  policies  

in  this  Framework  (the  closer  the  policies  in  the  emerging  plan  to  the  policies  in  the  Framework,  the  greater  the  weight  that  may  be  given).  

3.1.3 Proposition 3 – an adequate 5YHLS cannot be demonstrated.

• This may be contested. North Devon Council have set out in April 2016 how they can demonstrate a 5YHLS.

• In November 2016, the Inspector conducting an examination into the emerging Local Plan (eJLP), advised the Councils (North Devon and Torridge) that they must be able to demonstrate a supply of specific deliverable sites to provide 5 years from the adoption of the pan. She did not state that this had not been demonstrated but in accordance with finding the plan sound, clarified that she must be assured that this requirement has been met. Work to demonstrate this will be completed by July 2017.

                                                                                                                         4 See page 20 of Planning Committee Site Visit Report. 5  My  footnote  -­‐  This  refers  to  the  date  of  publication  of  the  NPPF.  

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3.1.4 Proposition 4 – the presumption in favour of sustainable development is fully engaged and highly significant.

• Merely asserting that the application has passed a test of sustainable development does not make it so. The Appellant has failed to confirm what test has been passed. When one compares the application against paragraphs 18 to 219 of the NPPF, which when taken as a whole, constitute the Government’s view of what sustainable development in England means in practice for the planning system, the application cannot be viewed as representing sustainable development.

• As set out in the case of William Davis Ltd v Secretary of State for Communities and Local Government [2013] EWHC 3058 (Admin), Lang J:

o The presumption in favour of sustainable development applies only to development which has been found to be sustainable.

3.1.5 Proposition 5 – there is a significant need for affordable housing

• This is acknowledged, but the Appellants claim to base their proposal on delivering these benefits can be undermined by the following:

o They have failed to refer to the actual local need (in Braunton) at any stage in the application process.

o They have consistently attempted to build as few AH as possible.

o The AH will still in all likelihood be beyond the availability of local residents.

o The Appellant has consistently refused to conduct a Viability Assessment.

3.1.6 Proposition 6 – this proposal will be for a sustainable development

• See my earlier comments at 3.1.4.

3.1.7 Proposition 7 – there are no outstanding technical matters and very limited adverse impacts will arise from the appeal proposals.

• This was written in October 2016 and was not true at that time. If there were no outstanding technical matters, why have the Appellants subsequently revised the ecological mitigation plans?

• With regard to adverse impacts, the Appellant clearly has an interest in understating these. In particular, the absence of any recognition of the traffic impact is a serious omission.

3.1.8 Proposition 8 – The proposal will have economic, social and environmental benefits that support the grant of permission.

• At this stage, the Appellant had offered no claimed environmental benefits, so they cannot claim benefits across all three of the elements of sustainable development.

• The economic and social benefits are overstated – see paras 2.4.4 above.

3.1.9 Proposition 9 – the balancing exercise as set out in paragraph 14 of the NPPF is in favour of the grant of planning permission.

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• Not so – a clear case can be made that the adverse impacts significantly and demonstrably outweigh the benefits of this scheme. See paras 2.4.1 to 2.4.7.

3.2 The Appellant then submitted an Addendum to their Statement of case. This added analysis of two issues, dealt with in turn here:

3.2.1 The Inspectors report on the emerging Local Plan.

• The Appellant is presenting the potential requirement to identify additional sites for housing as part of the argument to approve this scheme. The site in question is on the SHLAA but it cannot be discounted that he site has been dealt with very consistently – and rejected for sustainability treasons – during the work on both the 2006 and 2016 Local Plans.

• Further, any sites that may be brought forward have to be developable. At the December meeting of the Planning Committee, the Appellants agent raised the issue of the Inspectors findings with the Chief Planning Officer, who stated that, irrespective of the position with regard to 5YHLS, there were a number of site specific problems with the site in question that meant it was not considered developable at the present time.

• Further, work to review the SHLAA and exception sites will be conducted by July 2017. Particularly as the site in question is outside the development boundary it might be regarded as premature to bring forward this site (which would de facto be the impact of allowing the appeal) before it has been considered against he range of other SHLAA options, all of which offer the same generic benefits claimed by the Appellant.

3.2.2 The Council’s putative reasons for refusal.

• The Appellant has set out how they plan to address the issues that they anticipate will be raised by North Devon Council as reasons for refusal.

• In terms of design and ecological impact, our concerns set out in para 2.9.2 are relevant and present a counter argument to that of the Appellant.

• In terms of Affordable Housing, our position is set out in para 2.6.3 and 3.1.5, both of which present arguments to counter the Appellants position in this regard.

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SECTION 4 – OUTLINE OF THE CASE FOR DISMISSAL

4.1 We support the dismissal of the appeal and oppose the proposal in question. We fully support the reasons for refusal as set out in the Officers Report to the December meeting of the North Devon Planning Committee. These are repeated below for clarity.

Minded to REFUSE had NDC has jurisdiction, for the following reasons: 1. The application proposes major residential development on land that is not allocated for development in either the adopted or the emerging development plan. Whilst potentially increasing the supply of land for housing, the proposed development would be contrary to Policy ENV1 of the North Devon Local Plan as it will not enhance or protect landscape character or ecological value and, in the absence of satisfactory ecological mitigation and amended layout, would be contrary to Policy ENV8 and Policy ENV11 of the North Devon Local Plan and Core Principles 7 and 11 of the National Planning Policy Framework, 2. The Council is not satisfied on the basis of the submitted evidence that the percentage or mix of affordable housing is appropriate when judged against the requirements of Policy HSG7 of the adopted North Devon Local Plan and associated Code of Practice and Core Principle 6 of the National Planning Policy Framework.

4.2 In addition, we also believe there are further reasons for objection to the proposal that also merit refusal, in particular the impact in terms of traffic. This wider range of considerations has been presented in Section 2 this submission, and includes the following:

• The statutory framework for the making of decisions, i.e., the Local Development Plan, remains in pace and that the weight to be attached to all relevant policies is for the decision maker.

• This appeal site has the potential to seriously distort both the existing development plan and the emerging one in a number of ways that add up to a scheme that cannot satisfy any test of sustainable development.

• The appeal site lies outside the defined settlement boundary for Braunton. Boundaries serve a sound planning purpose, help promote sustainable patterns of development, and can carry significant weight even where a 5YHLS cannot be demonstrated.

• It has simply not been demonstrated that there is a significant need for additional housing already set out in the local plans for Braunton.

• Any benefits claimed by the Appellant based on improving the supply of housing are not site specific and marginal and should be given significantly reduced weight.

• The site is outside the saved up to date Local Plan and is also not part of the identified land resource on which the North Devon 5 Year Housing Land Supply is currently predicated.

• Housing trajectory is not a problem in Braunton. 122 plus the houses under construction

at the Wrafton site near Chivenor mean that Braunton is already close to achieving the 185 completions that were the plan in 2006. The current trajectory of completions in

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Braunton is good – under construction or committed schemes total 122 which is 31% of the overall requirement by 2031. If there is a trajectory issue at district or Local plan level then it isn’t reflected at town/village level.

• This case as only been strengthened by confirmation that Chivenor will come on line for ne housing in 2027 within the lifetime of the current 2016-2031 plan. With this asset becoming available, additional housing outside the plan and the development boundary cannot be justified.

• Decision makers have a duty under NPPF 186 to approach decision-taking in a positive way to foster the delivery of sustainable development – and by implication reject any development that can be shown so clearly not to be sustainable. • For any presumption in favour of sustainable development to be engaged, a proposal

must be shown to be sustainable. This application remains one that cannot pass the test of sustainable development as set out in paragraphs 18 to 219 of the NPPF, and whose approval may be unlawful, either for reasons of predetermination or the unmitigated damage that would occur to the habitat of a protected species.

• Even in the event that NPPF 14 is engaged, the adverse impacts of this proposal significantly

and demonstrably outweigh the benefits. Significant weight should be given to the clear adverse impacts from this proposal across all three of these dimensions – and the environmental dimension in particular. Under NPPF 152, the Decision Maker is required to seek opportunities to achieve each of the economic, social and environmental dimensions of sustainable development, and net gains across all three.

• Further, the potentially severe adverse impact of the development in traffic and Air Quality

terms are determining issues that have not been satisfactorily dealt with in the planning process to date, and need to be considered when reviewing this appeal. In both cases, there are impacts that merit refusal of permission and at the very least must be weighed in the planning balance between adverse impact and claimed benefit.

• Residents are immensely concerned that approving this application may set a precedent that

could open the way to subsequent unnecessary development outside the development boundaries across North Devon and opportunistic developments that do not fit with the Local Plan. Why set a precedent in this case in the absence of any site-specific benefits and when the generic benefits are so clearly outweighed by adverse impact?

• The Appellant’s attitude to Affordable Housing seems clear enough – to deliver as little as

possible. They have also refused to complete a Viability Assessment - this should significantly undermine any social benefits claimed.

4.3 The Appellants Case can be challenged at each stage – this is summarised in Section 3 of this submission.

4.4 Additionally, and alongside the issue of the high level of public interest in this proposal, it is our position that a number of issues are in dispute and should be examined in public as part of an inquiry or hearing. These include but are not limited to:

• The housing supply position in North Devon.

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• The basic suitability of the design of the site in landscape and ecological terms and effectiveness of plans to mitigate ecological impact.

• The extent to which the landscape in which the site is located is valued by local residents.

• The potentially serious adverse impact of the scheme on terms of traffic.

• Air Quality impacts in Wrafton Road and the centre of Braunton.

4.5 We also wish the Inspector to note public representations relating to the level of public confidence in the transparency and probity of the processes to review this application, and the extent to which residents interests and views have been properly incorporated into this process.

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Appendices:

1. Appendix 1 – Planning policy Issues. 2. Appendix 2 – Cheshire Appeals. 3. Appendix 3 – Wychavon Judgement. 4. Appendix 4 – Bloor Homes Judgement. 5. Appendix 5 – North Devon Housing Land Supply Statement April 2016. 6. Appendix 6 – Inspectors Note to Councils November 2016. 7. Appendix 7 – Crane Judgement. 8. Appendix 8 – Suffolk Coastal. 9. Appendix 9 – Phides Estates (Overseas) Judgement. 10. Appendix 10 – Malpas Cheshire recommendation. 11. Appendix 11 – Wellingborough Decision 12. Appendix 12 – Martock Decision 13. Appendix 13 - Middleton St George Decision. 14. Appendix 14 - Wellinborough Judgement. 15. Appendix 15 – Oundle Decision. 16. Appendix 16 – Brandon Lewis Letter. 17. Appendix 17 – Testing the proposal against NPPF 18 to 219. 18. Appendix 18 - Written Statement on Highways/Transport Issues.