Public Inquiry - Stockeld Park/Hallam appeal.
The following closing statement was made by Mr Stephen Whale, counsel for Harrogate Borough Council on 20th Dec:
Introduction and main issues
1. The Inspector is respectfully invited to dismiss the appeal.
2. This closing statement will consider the main issues identified at the opening of the inquiry, and in that order, concluding with the overall planning balance. Thus:
(i) Effect on landscape and visual amenity;
(ii) Highway safety;
(iii) Effect on Kirk Deighton SAC/SSSI;
(iv) Effect on best and most versatile agricultural land;
(v) Weight to be afforded to the eLP; and
(vi) The overall planning balance.
Effect on landscape and visual amenity
3. Better Wetherby (“BW”) takes issue with the extent of the information provided by the Appellants at the outset of the application, and it would have preferred a full LVIA, but, in the final analysis, it accepts that the Inspector now has sufficient information to assess the effect on landscape and visual amenity. There is common ground between the three main parties on the point.
4. Indeed, and happily, there is a great deal of common ground on the landscape and visual amenity issue, between the Council and the Appellants and indeed between these two parties and BW.
5. The Council commends the landscape and visual matters Statement of Common Ground to the Inspector.
6. Table 1 summarises the effects upon landscape elements and features. These effects include moderate adverse effects.
7. Table 2 summarises the effects upon landscape character. This summary table is agreed as between the three main parties. It is common ground that the principal character area or type in this case is Landscape Character Type (“LCT”) 56: Plompton and South Knaresborough Arable Land. The effect on this LCT will be minor adverse/negligible at completion.
8. However, the effect upon landscape character is more adverse at a more localised level. There will be a moderate adverse effect in terms of the site and its immediate context at completion. There will be the same degree of adverse effect at completion on site landscape features, land use and open space. Even at 10 years post-completion, the effect in these two respects will still be moderate/minor adverse even with the proposed mitigation. So, notwithstanding the agreement that the impact of the appeal scheme on landscape character is limited and localised, it is plain that the appeal scheme would give rise to adverse impacts upon landscape character and which weigh against the appeal scheme in the overall planning balance.
9. The same goes for the effect of the appeal scheme in terms of visual amenity.
10. Tables 3-4 summarise the visual effect of the appeal scheme upon residential receptors and settlements. They are agreed as between the two main parties. BW has no comment on these assessments. They record, amongst other effects, a moderate adverse effect at completion on the Bellway development, Ingbarrow Farm and Kingbarrow Farm, with a moderate/minor adverse effect remaining even 10 years post-completion.
11. Table 5 is almost entirely agreed between the three main parties. The only issue is the extent of impact on Bridleway ref. 15.68/10/1 (Ref K) at completion. The Inspector will be able to resolve this issue with the benefit of the written material, the round table session and the site visits. The Council would though point out that BW shares its assessment that the effect at completion will be major/moderate adverse. In any event, all three main parties agree that the effect will be moderate adverse at 10 years post-completion. The Council would also emphasise the agreement that the effect at completion on Bridleway ref. 15.68/7/1 will be major/moderate adverse (up to 480m between Harland Way and the A661), and that this will remain the case even 10 years post-completion. There is also agreement that there will be a moderate adverse effect at completion on the Harland Way, where it is not in cutting at the north-east corner of the appeal site.
12. All three main parties agree Table 6.
13. The bottom line is that the appeal scheme would generate adverse effects in terms of landscape and visual amenity of at least moderate extent both at completion and 10 years post-completion. The reality is that such a conclusion is inescapable and rightly conceded. These adverse effects give rise to harm:
* “…there would be some harm to the landscape.”
* “As with any greenfield site, the appeal proposals will introduce changes to the area and some urbanising effects. The harm would be restricted to a relatively small number of public viewpoints and would be mitigated over time by the effect of landscaping.”
* Intrinsic harm to landscape pattern, landscape character, visual appearance and amenity
* “The submitted [LVA] identifies that harm exists…there is harm arising from the permanent loss of arable fields…This moderate adverse effect [on use and appreciation of the bridleway to the west] is a particular identified harm…the harm identified is sufficient to dismiss the appeal.”
14. It is agreed that the policies most relevant to the landscape and visual impact issue are those cited in reason for refusal 2, namely development plan Policies C2, SG3 and EQ2 together with eLP Policies NE4 and HP5.
15. There are issues as to the consistency of Policy C2 with the NPPF, the weight to be afforded to it and whether or not the appeal scheme is in conflict with it. Mr Dunbavin bluntly asserts that Policy C2 is inconsistent with the NPPF and out of date. Ms Williams’ position is more nuanced. Her position is that a significant element of it is consistent with the NPPF and that moderate weight can be given in the overall balance. As she sensibly put it during her cross-examination, the reference in NPPF paragraph 170 to “recognising” implies some kind of element of preserving or protecting the countryside. If not, why recognise its intrinsic character and beauty? The Inspector is respectfully invited to adopt the Council’s approach.
16. Policy C2 refers to protection of existing landscape character. The appeal scheme does not protect the existing landscape character. It has an adverse impact on it. It harms it. It conflicts with Policy C2.
17. It is common ground between the Appellants and the Council that Policy SG3 is out of date and attracts limited or little weight. That said, it is likewise common ground between these two parties that the appeal proposal is in conflict with Policy SG3. Thus: “…the proposals are contrary to Policy SG3 of the Core Strategy…”
18. There is an issue as to the consistency of Policy EQ2 with the NPPF, and the weight to be afforded to it. The emphasis of the policy is environmental protection. It is plainly not a housing policy, and therefore not out-of-date on that basis. Mr Dunbavin asserts that Policy EQ2 “seeks to ‘protect’ landscape character, whereas Para 170(b) of the Framework only seeks to ‘recognise’ it.” In point of fact, paragraph 170(b) of the NPPF does not expressly refer to “landscape character”. Policy EQ2 in fact refers to the giving of a “level of protection” to the District’s exceptionally high quality natural and built environment “appropriate” to its international, national and local importance. The reference to protecting and where appropriate enhancing landscape character is tempered by the District’s need to plan for new greenfield development. It is also to be remembered that the wording of a local policy does not need to be identical with the NPPF wording in order for it to be consistent, as Mr Dunbavin correctly conceded. The Inspector is thus invited to conclude that Policy EQ2 is consistent with the NPPF, attracting full weight. The Inspector is also invited to conclude that the appeal proposal, which adversely impacts on and harms landscape character, conflicts with it. That is Ms Williams’ conclusion, shared by Mr Gannon.
19. The Appellants have no case on whether or not Policies NE4 and HP5 of the eLP are consistent with the NPPF. Mr Dunbavin has not done the exercise. Ms Williams, by contrast, has done the exercise. She concludes that they are consistent with the NPPF. The Inspector is invited to adopt her conclusion, together with her conclusion (again shared by Mr Gannon) that the appeal scheme is in conflict with these policies. It is to be noted that there were no objections to the latest iterations of these two eLP Policies during the recent eLP modifications exercise ending 26 September 2019.
20. The result in terms of the first main issue is that the appeal development would adversely impact upon landscape and visual amenity, in a way that is harmful, in conflict with development plan and eLP Policies. That is a negative factor to weigh in the overall planning balance.
Highway safety; effect on Kirk Deighton SAC/SSSI
21. The Council has no objection on these issues, subject to satisfactory conditions and the section 106 agreement.
Effect on best and most versatile agricultural land
22. The salient local policy is eLP Policy NE8. There is an issue as to its consistency with the NPPF. Mr Dunbavin’s proposition is that it is inconsistent with NPPF paragraph 170(b). He draws a textual distinction between the two. That does not per se translate into inconsistency. He also states that it was the subject of a number of unresolved objections and that the Local Plan Inspector (“LPI”) raised the issue of its wording. However, as became clear during his cross-examination, these objections and the LPI’s raising of the issue pre-date the Council’s proposed modification of Policy NE8. The simple fact is that not one person objected to that proposed modification during the consultation period ending 26 September 2019, whether the Appellants or anyone else. The LPI has written his report (“the IR”) and provided it to MHCLG. There will be no further examination hearings. On the balance of probabilities, the LPI has concluded that the latest iteration of NE8 is unproblematic.
23. As for conflict or otherwise with Policy NE8, the Appellants’ position was confusing and confused. Mr Dunbavin at first asserted in his Proof that the proposals meet the terms of the policy on the basis that an Agricultural Land Report has been prepared demonstrating that there is only 4ha of Grade 2/3a agricultural land on the appeal site. Then, during his cross-examination, he twice conceded that the appeal proposal conflicts with Policy NE8. A few seconds later, he did a volte face and asserted that there is no conflict. The simple fact is that Policy NE8 refers to “sites of over five hectares”. The site is over 5 hectares. The policy does not refer to agricultural land in grades 1, 2 and 3a of over 5 hectares.
24. The Council’s evidence, by contrast, was consistent and cogent. Planning permission would affect agricultural land. There is no “overriding need for the development”.
25. The Appellants in fact concede that the loss of agricultural land is an adverse impact to weigh in the planning balance, together with a minor loss of income to the farm enterprise.
26. The upshot is a conflict with a policy, NE8, which is consistent with the NPPF. Another negative factor to weigh in the planning balance.
Weight to be afforded to the eLP
27. The next issue is the weight to be afforded to the eLP (plus the conflict with it).
28. The range of the competing positions is “little to less than moderate weight” (Appellants) or “significant weight” (Council).
29. It is as well to address this issue by considering matters chronologically.
30. The Council submitted the eLP for independent examination well over a year ago, on 31 August 2018. The hearing sessions concluded on 14 February 2019. The LPI wrote to the Council on 11 March 2019. His letter has been the subject of different interpretations. On any view, the letter does not indicate any fundamental concerns with the overall quantum of housing or the growth strategy as a whole. The Appellants are driven to speculate that the LPI might have had other concerns, beyond those included in the letter. Quite why the LPI did not refer to these supposed other concerns in his letter, if he had any, is not something the Appellants can explain. The LPI has not subsequently raised any other concerns.
31. On 20 August 2019, Inspector Symmons carried out a site visit in connection with the Ripon appeal. It was a written representations appeal against a refusal dated 25 March 2019. There was thus no oral evidence or testing of oral evidence. That Inspector gave the eLP policies “less than moderate weight” in a decision dated 24 September 2019. Strictly, even that weighting could be said to be higher than the weighting now afforded to the eLP by Mr Dunbavin.
32. The modifications consultation has been and gone, concluding on 26 September 2019. As recorded above, there were no objections at all during that consultation period to the proposed modifications to Policies NE4, NE8 or HP5.
33. On 13 December 2019, Inspector Blicq issued the Ripley Appeal Decisions. The Hearing took place 10 days beforehand. The oral evidence is not known. There is a finding in paragraph 26 that there is nothing to indicate that the LPI requires further amendments to the eLP. Similarly, there is nothing before Inspector Bowker to indicate that the LPI requires further amendments to the eLP. This finding of Inspector Blicq is entirely independent of and unaffected by the error in paragraph 71. Read in a straightforward fashion, as it should be, Inspector Blicq’s finding that the relevant policies in the eLP (which included Policy GS3) attracted “substantial weight” is a finding informed by the preceding reasoning in paragraph 26 (“As such…”) as opposed to a sentence some 45 paragraphs later. Incidentally, Inspector Blicq also found a conflict with Policy GS3 (conceded in this case) and afforded it substantial weight.
34. The LPI has written the IR. It has been submitted to MHCLG. The LPI has informed the Council that there will be no more examination hearings. These three factual points are not disputed. They are agreed to be relevant to the eLP’s weight. Mr Dunbavin accepted in cross-examination that it is unlikely that the LPI will issue a “dread letter” inviting the Council to “go back to square one” in terms of the eLP. He further accepted that there is no evidence to suggest that the Council is likely to withdraw the eLP. Whilst one does not know the precise wording of the eLP Policies to be adopted, as Mr Dunbavin did not tire of saying, the irresistible inference, on the balance of probabilities, is that the LPI has found the eLP to be sound subject to modifications. Its submission from MHCLG to the Council can fairly be described as “imminent,” meaning today or any day now. As Ms Durham and Ms Williams put it, the timeframe for adoption is within 1-2 months from now.
35. The eLP is thus at an advanced stage of preparation for NPPF paragraph 48 purposes.
36. As for the extent to which there are unresolved objections to relevant policies, and to repeat, there were no objections to the proposed modified Policies NE4, NE8 or HP5 during the recent consultation exercise. Mr Dunbavin’s evidence on the point comes down to a bare assertion in one sentence: see paragraph 5.32 of his Proof of Evidence. Ms Durham, by contrast, devotes paragraphs and reasoning to the issue. The LPI has produced his IR and there will be no more examination hearings. The implication is that any prior objections to relevant policies have been resolved.
37. As to consistency between eLP and NPPF policies, Mr Dunbavin has not done the exercise for Policies GS1, DM1, NE4 or HP5. He accepts that Policy GS2 is consistent. He does not assert that Policy GS3 is inconsistent. Indeed, he accepts that, “…in general terms the principle of setting development limits for guiding development is considered to be broadly in accordance with the Framework…” Mr Dunbavin concedes later that the eLP Policies with which the proposal is in conflict (which is an admission of conflict) are “generally in accordance with the Policies of the Framework…” before making a specific point about the consistency of NE8 (addressed above).
38. In NPPF paragraph 48 terms, the position then is as follows:
a) The eLP is at an advanced stage of preparation;
b) Any extant objections to relevant eLP policies have been largely or entirely resolved; and
c) There is a high or entire degree of consistency between relevant policies in the eLP to the NPPF.
39. In those circumstances, it is appropriate to afford significant weight to the eLP.
40. As recorded above, the Appellants concede that there is conflict with the eLP. I turn now to address the issue of the extent of this conflict in a little more detail.
41. The issue as to Policy GS1 can be shortly stated. The Council’s position is that there is a conflict with criterion A. The Appellants’ position is that there is no such conflict. As for Policy GS2, the criteria in issue between the Council and the Appellants are A and possibly B. Mr Dunbavin states that there is no direct conflict with this policy other than it lies outside of but adjacent to the settlement of Wetherby. The other than is an implicit concession of policy conflict. It is common ground that the appeal proposal is in conflict with Policy GS3. Policy DM1, like all the eLP Policies, is the product of years of assessment and process. It includes a very long list of sites allocated for housing development and associated uses. It does not include the appeal site, which has been comprehensively assessed during the eLP process and rejected by the Council as an allocation. The policy justification for DM1 is delivery of the amount of new homes needed over the plan period as identified under Policy GS1. The Appellants’ proposition that there is no conflict with Policy DM1 even though the appeal site is not in the very long list and comprehensively assessed list is a proposition which ought to be rejected.
Overall planning balance
42. The ultimate issue is the overall planning balance.
43. There is conflict with development plan Policy SG3. The Appellants concede as much, albeit the policy attracts limited weight. The Inspector is invited to adopt the Council’s position that there is also conflict with development plan policies SG1 (as a whole) and SG2 (because the appeal site is not in the settlement hierarchy), albeit that these two policies also attract limited weight, as well as its position that there is conflict with development plan Policies C2 and EQ2 (as discussed above).
44. In any event, the Appellants concede that the proposed development is not in accordance with the development plan.
45. There is admitted conflict with the eLP. The eLP, and that conflict, should attract significant weight. Allowing the appeal would give rise to the linked significant adverse impacts of harm to plan-making plus the undermining of the eLP and its housing allocations. There is landscape and visual harm as well as an unjustified loss of agricultural land.
46. There are some benefits associated with the appeal scheme, but the Appellants have plainly exaggerated these and taken into account claimed benefits which are not benefits at all. The long list of supposed economic benefits at paragraph 8.7 of Mr Dunbavin’s Proof of Evidence are in the main financial contributions in the section 106 agreement and hence mitigation rather than benefits. That list includes 40% affordable housing, which is double-counted in the sense that it is also included as one of Mr Dunbavin’s social benefits. The investment in the area he relies upon is unquantified. The claimed environmental benefit on the basis that the appeal site is not within a flood risk zone is not a benefit at all. That will remain the case with or without the appeal scheme. Mr Dunbavin finally conceded in cross-examination that it is not a benefit. His retort that he had thus exaggerated the benefits by a “teeny weeny” amount was a surprising retort at a planning inquiry.
47. The reality is that the Appellants’ benefits case depends upon the provision of more market and affordable housing on an unallocated site. One could debate statistics about the Council’s past performance in this respect. But what cannot be debated is that it has over 5 years of housing land supply (which is accepted to be a significant material consideration in the Council’s favour), that its latest HDT result is 113% and that the eLP meets the entire objectively assessed need for housing (plus flexibility) with appropriate provision to meet the affordable housing need.
48. In the light of the above, the Inspector is invited to adopt the conclusion that the adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits. The conflict with the development plan and the eLP means that granting planning permission would be contrary to NPPF paragraph 15 and the principle that the planning system should be genuinely plan-led. The proposed development is not sustainable development. In the language of NPPF paragraph 38, approval should not be sought.
Conclusion
49. The appeal scheme is not in accordance with the statutory development plan. The eLP attracts significant weight. The appeal scheme is in conflict with it. The Council has more than 5 years of housing land supply. That is a significant material consideration weighing against the proposed development. The adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits, such that the proposed development is not sustainable development. Granting planning permission would be contrary to the principle in NPPF paragraph 15 that the planning system should be genuinely plan-led.
50. The appeal should be dismissed.
STEPHEN WHALE
LANDMARK CHAMBERS, LONDON
The following closing statement was made by Mr Stephen Whale, counsel for Harrogate Borough Council on 20th Dec:
Introduction and main issues
1. The Inspector is respectfully invited to dismiss the appeal.
2. This closing statement will consider the main issues identified at the opening of the inquiry, and in that order, concluding with the overall planning balance. Thus:
(i) Effect on landscape and visual amenity;
(ii) Highway safety;
(iii) Effect on Kirk Deighton SAC/SSSI;
(iv) Effect on best and most versatile agricultural land;
(v) Weight to be afforded to the eLP; and
(vi) The overall planning balance.
Effect on landscape and visual amenity
3. Better Wetherby (“BW”) takes issue with the extent of the information provided by the Appellants at the outset of the application, and it would have preferred a full LVIA, but, in the final analysis, it accepts that the Inspector now has sufficient information to assess the effect on landscape and visual amenity. There is common ground between the three main parties on the point.
4. Indeed, and happily, there is a great deal of common ground on the landscape and visual amenity issue, between the Council and the Appellants and indeed between these two parties and BW.
5. The Council commends the landscape and visual matters Statement of Common Ground to the Inspector.
6. Table 1 summarises the effects upon landscape elements and features. These effects include moderate adverse effects.
7. Table 2 summarises the effects upon landscape character. This summary table is agreed as between the three main parties. It is common ground that the principal character area or type in this case is Landscape Character Type (“LCT”) 56: Plompton and South Knaresborough Arable Land. The effect on this LCT will be minor adverse/negligible at completion.
8. However, the effect upon landscape character is more adverse at a more localised level. There will be a moderate adverse effect in terms of the site and its immediate context at completion. There will be the same degree of adverse effect at completion on site landscape features, land use and open space. Even at 10 years post-completion, the effect in these two respects will still be moderate/minor adverse even with the proposed mitigation. So, notwithstanding the agreement that the impact of the appeal scheme on landscape character is limited and localised, it is plain that the appeal scheme would give rise to adverse impacts upon landscape character and which weigh against the appeal scheme in the overall planning balance.
9. The same goes for the effect of the appeal scheme in terms of visual amenity.
10. Tables 3-4 summarise the visual effect of the appeal scheme upon residential receptors and settlements. They are agreed as between the two main parties. BW has no comment on these assessments. They record, amongst other effects, a moderate adverse effect at completion on the Bellway development, Ingbarrow Farm and Kingbarrow Farm, with a moderate/minor adverse effect remaining even 10 years post-completion.
11. Table 5 is almost entirely agreed between the three main parties. The only issue is the extent of impact on Bridleway ref. 15.68/10/1 (Ref K) at completion. The Inspector will be able to resolve this issue with the benefit of the written material, the round table session and the site visits. The Council would though point out that BW shares its assessment that the effect at completion will be major/moderate adverse. In any event, all three main parties agree that the effect will be moderate adverse at 10 years post-completion. The Council would also emphasise the agreement that the effect at completion on Bridleway ref. 15.68/7/1 will be major/moderate adverse (up to 480m between Harland Way and the A661), and that this will remain the case even 10 years post-completion. There is also agreement that there will be a moderate adverse effect at completion on the Harland Way, where it is not in cutting at the north-east corner of the appeal site.
12. All three main parties agree Table 6.
13. The bottom line is that the appeal scheme would generate adverse effects in terms of landscape and visual amenity of at least moderate extent both at completion and 10 years post-completion. The reality is that such a conclusion is inescapable and rightly conceded. These adverse effects give rise to harm:
* “…there would be some harm to the landscape.”
* “As with any greenfield site, the appeal proposals will introduce changes to the area and some urbanising effects. The harm would be restricted to a relatively small number of public viewpoints and would be mitigated over time by the effect of landscaping.”
* Intrinsic harm to landscape pattern, landscape character, visual appearance and amenity
* “The submitted [LVA] identifies that harm exists…there is harm arising from the permanent loss of arable fields…This moderate adverse effect [on use and appreciation of the bridleway to the west] is a particular identified harm…the harm identified is sufficient to dismiss the appeal.”
14. It is agreed that the policies most relevant to the landscape and visual impact issue are those cited in reason for refusal 2, namely development plan Policies C2, SG3 and EQ2 together with eLP Policies NE4 and HP5.
15. There are issues as to the consistency of Policy C2 with the NPPF, the weight to be afforded to it and whether or not the appeal scheme is in conflict with it. Mr Dunbavin bluntly asserts that Policy C2 is inconsistent with the NPPF and out of date. Ms Williams’ position is more nuanced. Her position is that a significant element of it is consistent with the NPPF and that moderate weight can be given in the overall balance. As she sensibly put it during her cross-examination, the reference in NPPF paragraph 170 to “recognising” implies some kind of element of preserving or protecting the countryside. If not, why recognise its intrinsic character and beauty? The Inspector is respectfully invited to adopt the Council’s approach.
16. Policy C2 refers to protection of existing landscape character. The appeal scheme does not protect the existing landscape character. It has an adverse impact on it. It harms it. It conflicts with Policy C2.
17. It is common ground between the Appellants and the Council that Policy SG3 is out of date and attracts limited or little weight. That said, it is likewise common ground between these two parties that the appeal proposal is in conflict with Policy SG3. Thus: “…the proposals are contrary to Policy SG3 of the Core Strategy…”
18. There is an issue as to the consistency of Policy EQ2 with the NPPF, and the weight to be afforded to it. The emphasis of the policy is environmental protection. It is plainly not a housing policy, and therefore not out-of-date on that basis. Mr Dunbavin asserts that Policy EQ2 “seeks to ‘protect’ landscape character, whereas Para 170(b) of the Framework only seeks to ‘recognise’ it.” In point of fact, paragraph 170(b) of the NPPF does not expressly refer to “landscape character”. Policy EQ2 in fact refers to the giving of a “level of protection” to the District’s exceptionally high quality natural and built environment “appropriate” to its international, national and local importance. The reference to protecting and where appropriate enhancing landscape character is tempered by the District’s need to plan for new greenfield development. It is also to be remembered that the wording of a local policy does not need to be identical with the NPPF wording in order for it to be consistent, as Mr Dunbavin correctly conceded. The Inspector is thus invited to conclude that Policy EQ2 is consistent with the NPPF, attracting full weight. The Inspector is also invited to conclude that the appeal proposal, which adversely impacts on and harms landscape character, conflicts with it. That is Ms Williams’ conclusion, shared by Mr Gannon.
19. The Appellants have no case on whether or not Policies NE4 and HP5 of the eLP are consistent with the NPPF. Mr Dunbavin has not done the exercise. Ms Williams, by contrast, has done the exercise. She concludes that they are consistent with the NPPF. The Inspector is invited to adopt her conclusion, together with her conclusion (again shared by Mr Gannon) that the appeal scheme is in conflict with these policies. It is to be noted that there were no objections to the latest iterations of these two eLP Policies during the recent eLP modifications exercise ending 26 September 2019.
20. The result in terms of the first main issue is that the appeal development would adversely impact upon landscape and visual amenity, in a way that is harmful, in conflict with development plan and eLP Policies. That is a negative factor to weigh in the overall planning balance.
Highway safety; effect on Kirk Deighton SAC/SSSI
21. The Council has no objection on these issues, subject to satisfactory conditions and the section 106 agreement.
Effect on best and most versatile agricultural land
22. The salient local policy is eLP Policy NE8. There is an issue as to its consistency with the NPPF. Mr Dunbavin’s proposition is that it is inconsistent with NPPF paragraph 170(b). He draws a textual distinction between the two. That does not per se translate into inconsistency. He also states that it was the subject of a number of unresolved objections and that the Local Plan Inspector (“LPI”) raised the issue of its wording. However, as became clear during his cross-examination, these objections and the LPI’s raising of the issue pre-date the Council’s proposed modification of Policy NE8. The simple fact is that not one person objected to that proposed modification during the consultation period ending 26 September 2019, whether the Appellants or anyone else. The LPI has written his report (“the IR”) and provided it to MHCLG. There will be no further examination hearings. On the balance of probabilities, the LPI has concluded that the latest iteration of NE8 is unproblematic.
23. As for conflict or otherwise with Policy NE8, the Appellants’ position was confusing and confused. Mr Dunbavin at first asserted in his Proof that the proposals meet the terms of the policy on the basis that an Agricultural Land Report has been prepared demonstrating that there is only 4ha of Grade 2/3a agricultural land on the appeal site. Then, during his cross-examination, he twice conceded that the appeal proposal conflicts with Policy NE8. A few seconds later, he did a volte face and asserted that there is no conflict. The simple fact is that Policy NE8 refers to “sites of over five hectares”. The site is over 5 hectares. The policy does not refer to agricultural land in grades 1, 2 and 3a of over 5 hectares.
24. The Council’s evidence, by contrast, was consistent and cogent. Planning permission would affect agricultural land. There is no “overriding need for the development”.
25. The Appellants in fact concede that the loss of agricultural land is an adverse impact to weigh in the planning balance, together with a minor loss of income to the farm enterprise.
26. The upshot is a conflict with a policy, NE8, which is consistent with the NPPF. Another negative factor to weigh in the planning balance.
Weight to be afforded to the eLP
27. The next issue is the weight to be afforded to the eLP (plus the conflict with it).
28. The range of the competing positions is “little to less than moderate weight” (Appellants) or “significant weight” (Council).
29. It is as well to address this issue by considering matters chronologically.
30. The Council submitted the eLP for independent examination well over a year ago, on 31 August 2018. The hearing sessions concluded on 14 February 2019. The LPI wrote to the Council on 11 March 2019. His letter has been the subject of different interpretations. On any view, the letter does not indicate any fundamental concerns with the overall quantum of housing or the growth strategy as a whole. The Appellants are driven to speculate that the LPI might have had other concerns, beyond those included in the letter. Quite why the LPI did not refer to these supposed other concerns in his letter, if he had any, is not something the Appellants can explain. The LPI has not subsequently raised any other concerns.
31. On 20 August 2019, Inspector Symmons carried out a site visit in connection with the Ripon appeal. It was a written representations appeal against a refusal dated 25 March 2019. There was thus no oral evidence or testing of oral evidence. That Inspector gave the eLP policies “less than moderate weight” in a decision dated 24 September 2019. Strictly, even that weighting could be said to be higher than the weighting now afforded to the eLP by Mr Dunbavin.
32. The modifications consultation has been and gone, concluding on 26 September 2019. As recorded above, there were no objections at all during that consultation period to the proposed modifications to Policies NE4, NE8 or HP5.
33. On 13 December 2019, Inspector Blicq issued the Ripley Appeal Decisions. The Hearing took place 10 days beforehand. The oral evidence is not known. There is a finding in paragraph 26 that there is nothing to indicate that the LPI requires further amendments to the eLP. Similarly, there is nothing before Inspector Bowker to indicate that the LPI requires further amendments to the eLP. This finding of Inspector Blicq is entirely independent of and unaffected by the error in paragraph 71. Read in a straightforward fashion, as it should be, Inspector Blicq’s finding that the relevant policies in the eLP (which included Policy GS3) attracted “substantial weight” is a finding informed by the preceding reasoning in paragraph 26 (“As such…”) as opposed to a sentence some 45 paragraphs later. Incidentally, Inspector Blicq also found a conflict with Policy GS3 (conceded in this case) and afforded it substantial weight.
34. The LPI has written the IR. It has been submitted to MHCLG. The LPI has informed the Council that there will be no more examination hearings. These three factual points are not disputed. They are agreed to be relevant to the eLP’s weight. Mr Dunbavin accepted in cross-examination that it is unlikely that the LPI will issue a “dread letter” inviting the Council to “go back to square one” in terms of the eLP. He further accepted that there is no evidence to suggest that the Council is likely to withdraw the eLP. Whilst one does not know the precise wording of the eLP Policies to be adopted, as Mr Dunbavin did not tire of saying, the irresistible inference, on the balance of probabilities, is that the LPI has found the eLP to be sound subject to modifications. Its submission from MHCLG to the Council can fairly be described as “imminent,” meaning today or any day now. As Ms Durham and Ms Williams put it, the timeframe for adoption is within 1-2 months from now.
35. The eLP is thus at an advanced stage of preparation for NPPF paragraph 48 purposes.
36. As for the extent to which there are unresolved objections to relevant policies, and to repeat, there were no objections to the proposed modified Policies NE4, NE8 or HP5 during the recent consultation exercise. Mr Dunbavin’s evidence on the point comes down to a bare assertion in one sentence: see paragraph 5.32 of his Proof of Evidence. Ms Durham, by contrast, devotes paragraphs and reasoning to the issue. The LPI has produced his IR and there will be no more examination hearings. The implication is that any prior objections to relevant policies have been resolved.
37. As to consistency between eLP and NPPF policies, Mr Dunbavin has not done the exercise for Policies GS1, DM1, NE4 or HP5. He accepts that Policy GS2 is consistent. He does not assert that Policy GS3 is inconsistent. Indeed, he accepts that, “…in general terms the principle of setting development limits for guiding development is considered to be broadly in accordance with the Framework…” Mr Dunbavin concedes later that the eLP Policies with which the proposal is in conflict (which is an admission of conflict) are “generally in accordance with the Policies of the Framework…” before making a specific point about the consistency of NE8 (addressed above).
38. In NPPF paragraph 48 terms, the position then is as follows:
a) The eLP is at an advanced stage of preparation;
b) Any extant objections to relevant eLP policies have been largely or entirely resolved; and
c) There is a high or entire degree of consistency between relevant policies in the eLP to the NPPF.
39. In those circumstances, it is appropriate to afford significant weight to the eLP.
40. As recorded above, the Appellants concede that there is conflict with the eLP. I turn now to address the issue of the extent of this conflict in a little more detail.
41. The issue as to Policy GS1 can be shortly stated. The Council’s position is that there is a conflict with criterion A. The Appellants’ position is that there is no such conflict. As for Policy GS2, the criteria in issue between the Council and the Appellants are A and possibly B. Mr Dunbavin states that there is no direct conflict with this policy other than it lies outside of but adjacent to the settlement of Wetherby. The other than is an implicit concession of policy conflict. It is common ground that the appeal proposal is in conflict with Policy GS3. Policy DM1, like all the eLP Policies, is the product of years of assessment and process. It includes a very long list of sites allocated for housing development and associated uses. It does not include the appeal site, which has been comprehensively assessed during the eLP process and rejected by the Council as an allocation. The policy justification for DM1 is delivery of the amount of new homes needed over the plan period as identified under Policy GS1. The Appellants’ proposition that there is no conflict with Policy DM1 even though the appeal site is not in the very long list and comprehensively assessed list is a proposition which ought to be rejected.
Overall planning balance
42. The ultimate issue is the overall planning balance.
43. There is conflict with development plan Policy SG3. The Appellants concede as much, albeit the policy attracts limited weight. The Inspector is invited to adopt the Council’s position that there is also conflict with development plan policies SG1 (as a whole) and SG2 (because the appeal site is not in the settlement hierarchy), albeit that these two policies also attract limited weight, as well as its position that there is conflict with development plan Policies C2 and EQ2 (as discussed above).
44. In any event, the Appellants concede that the proposed development is not in accordance with the development plan.
45. There is admitted conflict with the eLP. The eLP, and that conflict, should attract significant weight. Allowing the appeal would give rise to the linked significant adverse impacts of harm to plan-making plus the undermining of the eLP and its housing allocations. There is landscape and visual harm as well as an unjustified loss of agricultural land.
46. There are some benefits associated with the appeal scheme, but the Appellants have plainly exaggerated these and taken into account claimed benefits which are not benefits at all. The long list of supposed economic benefits at paragraph 8.7 of Mr Dunbavin’s Proof of Evidence are in the main financial contributions in the section 106 agreement and hence mitigation rather than benefits. That list includes 40% affordable housing, which is double-counted in the sense that it is also included as one of Mr Dunbavin’s social benefits. The investment in the area he relies upon is unquantified. The claimed environmental benefit on the basis that the appeal site is not within a flood risk zone is not a benefit at all. That will remain the case with or without the appeal scheme. Mr Dunbavin finally conceded in cross-examination that it is not a benefit. His retort that he had thus exaggerated the benefits by a “teeny weeny” amount was a surprising retort at a planning inquiry.
47. The reality is that the Appellants’ benefits case depends upon the provision of more market and affordable housing on an unallocated site. One could debate statistics about the Council’s past performance in this respect. But what cannot be debated is that it has over 5 years of housing land supply (which is accepted to be a significant material consideration in the Council’s favour), that its latest HDT result is 113% and that the eLP meets the entire objectively assessed need for housing (plus flexibility) with appropriate provision to meet the affordable housing need.
48. In the light of the above, the Inspector is invited to adopt the conclusion that the adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits. The conflict with the development plan and the eLP means that granting planning permission would be contrary to NPPF paragraph 15 and the principle that the planning system should be genuinely plan-led. The proposed development is not sustainable development. In the language of NPPF paragraph 38, approval should not be sought.
Conclusion
49. The appeal scheme is not in accordance with the statutory development plan. The eLP attracts significant weight. The appeal scheme is in conflict with it. The Council has more than 5 years of housing land supply. That is a significant material consideration weighing against the proposed development. The adverse impacts of granting planning permission would significantly and demonstrably outweigh the benefits, such that the proposed development is not sustainable development. Granting planning permission would be contrary to the principle in NPPF paragraph 15 that the planning system should be genuinely plan-led.
50. The appeal should be dismissed.
STEPHEN WHALE
LANDMARK CHAMBERS, LONDON
