Heathfield Road appeal details

Following the news that Hockenhull Developments are appealing to the Secretary of State against the refusal of planning permission to build 26 dwellings off Heathfield Road in Audlem – AudlemOnline news on Tuesday – we thought readers may be interesting reading their grounds for appeal.

It's a lengthy read but of interest to all concerned by this appeal. It also gives an interesting insight into the legal process and the amount of detail that has to be mastered in these appeals:

1. INTRODUCTION

1.1 This document comprises the Statement of Case for the appellants in an appeal against the refusal of Cheshire East Council to grant outline planning permission for the erection of up to 26 dwellings, open space and access works on land at Mill Lane/Heathfield Road, Audlem.

1.2 The application was a resubmission following the refusal of an earlier application in order to address the reasons for refusal given by the Council. The previous application (13/3210N) was refused on 5th November 2013. The revised application (13/5162N) was refused on 10th April 2014). Two reasons for refusal where given as follows:-

1. The proposed residential development is unsustainable because it is located within the open countryside, contrary to policy NE2 (open countryside) of the Borough of Crewe and Nantwich Replacement Local Plan, policy PG5 of the Cheshire East Local Plan Strategy – Submission Version and the principles of the National Planning Policy Framework and create harm to interest of acknowledged importance. The Local Planning Authority can demonstrate a five year supply of housing land supply in accordance with the National Planning Policy Framework. As such the application is also contrary to the Emerging Development Strategy. Consequently, there are no material considerations to indicate that permission should be granted contrary to the Development Plan;

2. The proposal fails to make adequate provision for infrastructure requirements and community facilities, in the form of medical provision, the need for which arises directly as a consequence of the development, contrary to policy BE5 of the Adopted Borough of Crewe and Nantwich Replacement Local Plan. It is therefore socially
unsustainable contrary to the provisions of the National Planning Policy Framework.

1.3 This Statement sets out the appellant's Statement of Case firstly by addressing the two reasons for refusal and secondly by examining other material considerations the appellants will wish to raise at the appeal. The Statement is in four sections as follows:-

COMMENTS ON THE COUNCILS REASONS FOR REFUSAL

i) Reason 1
In this reason for refusal the Council claim to be able to demonstrate a five year supply of land for housing in accordance with the National Planning Policy Framework. As such they claim that the proposal is contrary to the Development Plan and Emerging Plan as it amounts to development in the open countryside. It is acknowledged by the appellants that the site lies within the open countryside in the Adopted Development Plan. However, the appellants dispute that the Council are able to demonstrate a five year supply of deliverable sites for housing.

At the time that the application was submitted (November 2013) the Council's 2012 Strategic Housing Land Availability Assessment indicated that the Council where able to demonstrate a 4.1 year supply of housing. A number of Inspector's Appeal Decisions had also confirmed that the Council did not have a five year housing land supply. This included the appeal decision on land at Sandbach Road North, Alsager (Appendix 1).

This appeal decision sets out in detail the Inspector's assessment of the Council's claims to have a 5 year supply and firmly rejected them. It concluded that the figure was between 4 and 4.2 years supply. It also dealt with how the backlog should be addressed. The Council preferred to spread the backlog over the whole plan period (the Liverpool Method). However the appellants argued that the backlog should be met over the 5 years (the Sedgefield Method).

The Inspector came down firmly on the side of the Sedgefield Method concluding that the need to "boost significantly the supply of housing" in the NPPF would not be best served by being too relaxed about the need to recover the backlog. In relation to whether there should be a 5% or 20% buffer on the basis of past under-delivery the Inspector concluded a 20% buffer should be applied.

On the basis of the Council's latest Strategic Housing Land Availability Assessment it is clear:

2.2 therefore that Inspectors have found the Council's claims to have a 5 year supply to be flawed.

2.3 However, in February 2014 the Council published a Five Year Supply Position Statement which was intended to bring their evidence on housing land supply up to date as of 31st December 2013. This suggested that the Council believed they could demonstrate that they have a 5.87 year housing land supply (if a 5% buffer where applied) or a 5.14 years supply (if a 20% buffer where applied). This 2013 update was reflected in the Committee Report produced to Members by the Case Officer which concluded that the Council had a five year housing land supply. This in turn led to the imposition of reason for refusal number 1.

2.4 The Refusal Notice on the appeal application was issued on 10th April 2014. However, on 11th April 2014 one day after issuing the Refusal Notice on the appeal application, the Council received an appeal decision (APP/R0660/A/13/2196044) in relation to land at Elworth Hall Farm, Dean Close, Sandbach. The appeal decision was issued on 11th April 2014, one day after the decision notice on the appeal application and so the conclusions of the Inspector were not and could not have been taken into account in the Council's Decision on the current appeal application. A copy of the Elworth Hall Farm appeal decision is attached at Appendix 2.

The appeal related to the erection of 96 dwellings. The Inspector identified the first main issue in this appeal as being "whether Cheshire East Council now has a five year housing land supply". The Inspector assessed the Council's housing land supply evidence (including their latest Position Statement on Housing Land Supply issued in February 2014) in paragraphs 16 to 27.

The Inspector questioned a number of the Council's assumptions in relation to the housing land supply and, in particular, the contribution from strategic sites and projections in relation to the rate of development. The Inspector's assessment also included comments from both parties in relation to the National Planning Practice Guidance. The Inspector
stated that it was clear that on the basis of the past under-delivery of housing by Cheshire East Council the 20% buffer in the NPPF should be used.

2.5 The Inspector also commented that "there was a distinct lack of credible hard evidence to justify the (Council's) projections form some of these sites" in relation to the Council's assumptions on the contribution to the 5 year supply of sites without planning permission. The Inspector noted that this accounted for about 40% of the 5 year supply and stated it would be "unwise" to place too much reliance on the potential for delivery a significant amount of the housing requirement from such sources.

2.6 The Inspector's conclusion in paragraph 28 was that:-
"I conclude that the Council has not demonstrated a five year supply of deliverable housing sites. Paragraph 49 of the Framework says in such circumstances relevant policies for the supply of housing should not be considered up to date".

2.7 In the light of this very recent appeal decision which was published immediately after the refusal of the appeal application and which assesses the Council's latest housing land figures we have written to the Council (7th May 2014) requesting clarification as to whether the Council will be defending reason for refusal number 1 at the forthcoming appeal. A copy of our letter to the Council is attached at Appendix 3. We have yet to receive a reply from the Council in relation to this letter and are therefore unsure as to the approach the Council will take to housing land supply in this appeal.

2.8 In the absence of any confirmation from the Council that they concede they do not have a five year housing land supply on the basis of the Elworth Hall Farm appeal decision the appellants will produce evidence to demonstrate that the Council do not have a five year land supply.

2.9 As the conclusions of the February 2014 Position Statement have already been rejected by the Planning Inspectorate the appellants assume the Council will not defend reason for refusal number 1 on the basis of the Elworth Hall Farm case and particularly the criticisms of the assumptions made by the Council in relation to housing land supply. Should any additional evidence be presented by the Council in relation to housing land supply as part of this appeal the appellants reserve the right to fully address that evidence as part of our Proofs of Evidence to the Inquiry. We await the Council's response to our letter dated 7th May 2014 in relation to their position on housing land supply in relation to this appeal.

ii) Reason 2
2.10 This reason for refusal suggests that the proposal makes inadequate provision for infrastructure requirements particularly in the form of medical provision.

2.11 The appellants set out, as part of the original Planning Statement that they did not believe there was any shortfall in capacity which would generate a need for a financial contribution towards health provision in the area. However, in paragraph 1.9 of the Supporting Planning Statement the appellants noted that if the Council where able to demonstrate a shortage of capacity this could be dealt with in a Section 106 Agreement. As part of the application process the appellants requested the Local Planning Authority to provide details of their calculations in relation to the need for health care facility. No responses where received from the Local Planning Authority.

2.12 The Officer's assessment in the Committee Report confirmed that no exact figure had been put forward by the NHS in relation to any contribution. It indicated that an update would be provided to Members prior to considering the application. We are not aware that any figure has been produced by the Council or the NHS in relation to a claimed contribution in relation to this scheme. Neither have the Council produced any justification for the need for a contribution to make the development acceptable. In the absence of any such need a financial contribution towards health care facilities would not be CIL compliant.

2.13 We are not aware of any proposed schemes or even a strategy by the NHS for upgrading the existing health care facilities or providing new facilities.

2.14 The appellant's case in relation to reason for refusal number 2 is that there is no need for an additional health care contribution in order to make the proposed development accepted in planning terms. As such any request for a financial contribution would not be CIL compliant and should therefore not be taken into account. However, if a need is proved this matter can be dealt with by a Section 106 contribution.

The appellants acknowledge that the Council accept that if a need can be demonstrated this second reason for refusal could be dealt with by way of a contribution through a Section 106 Agreement. The appellants will therefore work with the Council during the appeal process to seek to obtain evidence from the Council that such a contribution would be CIL compliant and secondly to agree an appropriate level of contribution.

If this can be achieved and the Council can demonstrate the need for a contribution to make the scheme acceptable in planning terms (and therefore CIL compliant) the appellants will incorporate the contribution into a Unilateral Undertaking. In this regard we have already written to the Council in our letter of 7th May 2014 again asking the Council for their calculations in relation to this matter. We have yet to receive a reply.

3. OTHER MATERIAL CONSIDERATIONS

i) Sustainable Development
3.1 The Council's Local Plan Strategy Submission Document identifies Audlem as a sustainable location for residential development. The site is extremely well located in relation to the local facilities (shops, schools etc) in Audlem. Evidence will be presented to demonstrate that the appeal site represents a sustainable location for residential development.

The Transport Statement submitted with the application assessed the accessibility of the site. This has not been challenged by the Council. It assessed the accessibility of the site by walking, cycling and public transport modes in section 4. It concluded that the site is "well located to encourage travel by sustainable modes" and that "in particular, the site is within easy walking distance of the good range of facilities provided within Audlem" and that there is "a good standard bus service" available within acceptable walking distance. The appeal site therefore represents a sustainable location for residential development.

3.2 Therefore, whilst the appellants acknowledge that the site is outside of the settlement boundary for Audlem in the Local Plan and its development is therefore contrary to policy NE2, the policies in relation to housing are now considered out of date as a result of the inability to demonstrate a five year supply of land for housing. In such circumstances sustainable developments on the edge of existing local service centres will therefore need to come forward to meet housing needs. In this case although the site is within the open countryside it immediately adjoins the existing settlement boundary and is surrounded by development on three sides. It represents a logical rounding off of the settlement.

3.3 The application was submitted with the relevant environmental appraisals including an assessment of ecology, trees and hedgerows. These have all been accepted by the Local Planning Authority and have not been challenged in the reason for refusal.

3.4 The site is therefore a sustainable location for residential development in the current planning context. National Policy establishes a presumption in favour of granting planning permission for sustainable development.

3.5 In the context of the lack of a five year housing land supply, paragraph 14 of the NPPF on sustainable development is relevant and indicates that planning permission should be granted unless the adverse impacts of doing so will significantly or demonstrably outweigh the benefits when assessed against the NPPF as a whole. The Council have raised no issues of specific harm in relation to this proposal other than harm to policies seeking to protect the open countryside from residential development (which are out of date in the context of the five year supply). In such circumstances paragraph 14 of the NPPF clearly indicates that planning permission should be granted.

ii) Highway Safety
3.6 The scheme was amended from the earlier refusal to address the comments made by the Council's Highway Officer. This removed any proposed access from Mill Lane. The proposal now only accesses the site from Heathfield Road which is considered acceptable by the Council's Highway Engineer.

3.7 The appellants acknowledge that third parties have made representations in relation to highway safety and are likely to dispute the conclusions of the Council in this regard. The application was accompanied by a Transport Statement prepared by Singleton Clamp & Partners which fully assessed the suitability of the local road network to accommodate the development proposed. It concluded that "there is no highway related reasons to withhold planning permission for the scheme". If third party submissions are made in relation to
highway matters evidence will need to be produced by the appellants to respond. This evidence will be based on the conclusions of the Transport Statement already submitted as part of the application but will specifically address any new issues raised by third parties as part of the appeal process.

iii) Education Contribution
3.8 The Council have requested an education contribution as part of the application. This is on the basis that the education department estimate that the development would generate the need for 5 primary and 3 secondary school places. The Council confirmed that the primary school has capacity to accommodate these pupils but the catchment secondary school (Brine Leas) is forecast to be oversubscribed. The Council have requested a contribution of £49,028 through a Section 106 Agreement.

Much of the capacity issues at Brine Leas School are due to pupils attending the school from outside of the catchment area due to parental choice. In such cases the Secretary of State has recently agreed with the Inspector in relation to a recovered appeal regarding land at Barford Road, Bloxham (Appendix 4) that "it would be unreasonable for the appellants to have to contribute towards secondary education need when the Warriner School currently makes provision for about 40% of pupils from outside the catchment area.

The appellants have requested but are yet to see evidence from the Council to demonstrate that this contribution can be justified and is necessary to make the development acceptable in planning terms. We have written to the Council requesting this information (a copy of our letter is attached at Appendix 5). If the Council produce no such evidence the request will not be CIL compliant. A draft Section 106 Agreement dealing with the education contribution will be submitted prior to the Inquiry should the Council produce evidence that the contribution is CIL compliant.

4. THE NEED FOR A PUBLIC INQUIRY

4.1 In the appellants view a Public Inquiry is necessary in this case in particular as it will be necessary to provide expert evidence on housing land supply to address reason for refusal number 1. This will need to be formally presented and tested through cross-examination. The appellants will also wish to formerly cross examine the Councils witnesses in relation to housing land supply. This was the approach taken by PINS in relation to appeals dealing with housing land supply in Cheshire East in 2013 was to convert all to Public Inquiry due to the need to cross examine evidential matters on housing land supply.

4.2 The appellants therefore believe a Public Inquiry is the most appropriate method to determine this appeal. However, if the Council, on the basis of the Elworth Hall Farm appeal decide that they do not intend to defend reason for refusal number 1 and concede that they do not have a five year housing land supply the appellants would be happy for the appeal to be dealt with by way of a written representation procedure. However, until the Council confirm that they will not defend reason for refusal number 1 the only appropriate method for the appeal in the appellants view is a Public Inquiry.

5. COSTS

5.1 The electronic appeal form submission is not working correctly. It does not allow the box to be ticked for 'yes' only 'no'. If you tick 'yes' you are unable to complete the form as you cannot then tick either 'to follow' or 'attached below'. We have therefore had to tick 'no'.

5.2 However, we confirm that, at this stage it is the appellant's intention to apply for costs if the Council continue to argue they have a 5 year supply irrespective of recent appeal decisions confirming the contrary. Similarly, if evidence is not produced to demonstrate that the claimed contribution towards education and health care are necessary to make the development acceptable in planning terms, an application for costs will be made on the basis that the Council required the appellant to enter into an Obligation that is not CIL compliant and contrary to the NPPF and paragraph 49 of the NPPG.

6. LIST OF DOCUMENTS

6.1 The appellants will refer to the following documents. However, in the light of the uncertainty over how the Council will run their case we reserve the right to add to this list as necessary to address issues raised by the Council or third parties in their Pre-Inquiry Statements:

• 1. The NPPF and NPPG;
• 2. The application supporting documentation;
• 3. Consultation responses and 3rd party representations made during the
• application;
• 4. Crewe and Nantwich Replacement Local Plan 2011;
• 5. The Emerging Cheshire East Local Plan Strategy and Background
• Documents;
• 6. SPD's produced by Cheshire East Council;
• 7. The latest Strategic Housing Land Availability Study;
• 8. Five Year Supply Position Statement (Feb 2014);
• 9. Council's Annual Monitoring Reports and Housing Data;
• 10. Relevant appeal decisions including those attached but also any new
• relevant decisions issued prior to the Inquiry.

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