proof of evidence on behalf of rule 6 party save our sampford · 2020-08-06 · town, the front of...

PROOF OF EVIDENCE

on behalf of Rule 6 Party

Save Our Sampford

Martin Peter Drew BSc (Hons) Dip TP (Dist)

Planning Appeal Ref APP/Y1138/W/19/3238631 Land at Higher Town, Sampford Peverell

Proof of evidence of MP Drew

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Contents

Section Page

Summary 2

Brief biographical details and structure of this proof 4

Neighbours’ living conditions 5

Ecology 10

Flood risk and drainage 13

Weight to be given to relevant policies 17

Assessment of the proposed benefits of the scheme 22

Conclusion 29

List of Appendices 39


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Summary

1. My evidence complements that of the Council and the professional

witnesses being called by SOS, namely Emma Rouse, who deals with

landscape and heritage, and Mark Baker, who deals with highways.

2. I deal initially with the effect of the proposed development on the living

conditions of the occupiers of Nos 42, 44 and 46 Higher Town with

particular reference to privacy, outlook, sunlight and daylight. There is a

fundamental tension between opening up the area of the appeal site in

close proximity to these dwellings to public access as a result of proposing

a footway/cycleway through this area and dealing with its consequences

for neighbours’ living conditions. The topography is most unusual. It

means that one would either have to accept that there would be a total

loss of privacy for the residents concerned or, if measures such as

landscaping or a means of enclosure were proposed at reserved matters

stage, that there would be a loss of daylight, sunlight and outlook for the

occupiers of Nos 42, 44 and 46.

3. I consider the way that the Appellant has approached the issue of ecology,

specifically the area identified as being suitable for reptiles to the west of

the site. My evidence demonstrates that despite the ecologist having

identified this area as “prime reptile habitat”, it has not been surveyed

even though it will be directly affected by the proposal. This might be

because the land extends beyond the area edged red and/or because the

ecologist was not provided with relevant drawings that show the extent of

the works proposed within the highway. The survey that was undertaken

in 2018 did not take place at the correct time of year, was of insufficient

duration, did not include the whole area upon which works are proposed

and is now out of date. In short, it is not fit for purpose. In the absence

of an appropriate survey the Inspector cannot take account of a material

consideration in the determination of this appeal, which is contrary to

circular advice.

4. I find that the FRA is not fit for purpose because it has not assessed the

entirety of the appeal site and neglects to consider the implications of a

significant new footway/cycleway that is proposed in the northeast corner.

As a result of this and the design of other features being considered as

part of the solution to address surface water drainage on the site, there is

a danger that the proposed scheme would increase flood risk elsewhere,

exacerbate known flooding problems and potentially have significant

effects on landscape, heritage and neighbours’ living conditions.

5. I have identified relevant development plan policies and given reasons for

attributing weight to the relatively few policies that should not be given

full weight in accordance with the statutory test. In recognition of the

relatively advanced stage of preparation I have given moderate weight to

all relevant policies in the Local Plan Review. However, in the alternative


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scenario that the Local Plan Review is adopted prior to the determination

of this appeal, I have tested the proposed development against Policy SP2

and given reasons why the appeal scheme does not comply.

6. My examination of the 7 benefits that have been put forward by the

Appellant demonstrates that the proposed development offers very few

benefits. One of the alleged benefits advanced by the Appellant is not a

material consideration and I have given reasons why I consider that

another alleged benefit cannot reasonably be described as such. Of the

remainder, an Inspector dealing with a similar sized scheme in the next

village attached moderate weight to the delivery of market and affordable

housing and I concur in that view. I have given reasons for attributing

only limited weight to the 3 other benefits that have been advanced.

7. In conclusion I say that the proper application of policies in the National

Planning Policy Framework [the Framework] that protect assets of

particular importance, in this instance designated heritage assets,

provides a clear reason for refusing the proposed development. In the

alternative, the significant number of adverse impacts of granting

planning permission would significantly and demonstrably outweigh the

relatively few benefits that have been advanced by the Appellant, when

assessed against the policies in the Framework taken as a whole. In the

circumstances I submit that this appeal should be dismissed.


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Brief biographical details and structure of this proof

8. My name is Martin Peter Drew. I hold a BSc (Hons) and a diploma with

distinction in town planning. I had a 30-year career in planning during

which I worked for 4 LPAs and 2 planning consultancies. In my last job

with The Planning Inspectorate, where I worked from 2002-2018, I

undertook a range of work including 4 development plan examinations,

various reports to the Secretary of State on major schemes, planning,

listed building, conservation area, advertisement, enforcement and LDC

appeals, and specialist casework such as compulsory purchase and TPO.

9. For the avoidance of doubt, I believe that the appointed Inspector started

with The Planning Inspectorate towards the end of the time that I worked

there and, as such, I do not believe our paths have ever crossed.

10.I resigned from The Planning Inspectorate and the RTPI in 2018 and have

left the planning profession. As a result, I do not offer the conventional

declaration of evidence but confirm that the evidence that I have prepared

and provide for this appeal is my true opinion based on my experience.

11.In this proof of evidence, I shall deal with 5 principal matters. The first is

to consider the effect of the proposed development on neighbours’ living

conditions. The second is to examine how the Appellant has dealt with

the matter of ecology. The third is to consider how the Appellant has

approached the issue of flood risk and drainage. Fourthly, in line with the

Inspector’s request1, I consider the weight to be given to relevant

development plan policies, including an assessment of the proposed

development against draft Policy SP2. Finally, I consider the benefits of

the proposed scheme and give reasons for attributing weight to those

factors. In conclusion, I undertake the planning balance and explain why

I consider that the appeal should be dismissed.

1 Paragraphs 6 and 8 of the case management conference note issued by the Inspector on 21 February 2020.


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Neighbours’ living conditions

12.The issue for assessment under this heading is the effect of the proposed

development on the living conditions of the occupiers of Nos 42, 44 and

46 Higher Town with particular reference to privacy, outlook, sunlight and

daylight. I commend this or a similar form of wording to the Inspector

because in my view this matter should be a main issue in this appeal.

13.The 3 attached dwellings have an unusual arrangement, no doubt as a

consequence of their historic evolution. Whilst No 42 faces onto Higher

Town, the front of No 44 faces onto the shared driveway that serves the

end terraced house at No 46. In the circumstances No 44 has just a front

and rear aspect, with the latter facing towards the appeal site. No 46 has

a more conventional layout, albeit with the attached garden at the side.

14.Dealing with each property in turn, No 42 has windows at ground and first

floor level facing towards the appeal site. Although the first-floor window

just serves a landing area, which is not a habitable room, the ground floor

windows serve a kitchen/dining room. The owners have confirmed that

this is the only dining area in the house and that it is used for family

dining on a daily basis. As such I consider it is a main habitable room and

the Inspector will be able to review this judgment during his inspection.

15.The bottom of the window serving the dining area is approximately 1.2 m

above the level of the path that runs down the side of the house and the

top of that window is around 1.8 m above the path level. The ground

level of the area of the appeal site that lies directly in front of this window,

at a distance of approximately 3 m, is around 1.3 m above the path. The

bottom of the other window, in front of the sink, is approximately 1.4 m

above the level of the path that runs down the side of the house and the

top of that window is around 2.0 m above the path level. The ground

level of the area of the appeal site that lies directly in front of this window,

at a distance of approximately 3 m, is around 1.4 m above the path.

16.The rear elevation of No 44 has windows serving main habitable rooms at

ground and first floor level. At first floor level, apart from the window that

serves the stairs, there are 2 windows that serve single aspect bedrooms.

The bottom of the lowest window is approximately 2.8 m above the level

of the path that runs down the side of the house. The windows at ground

floor level of No 44 serve a lounge and kitchen/diner, which appears to be

a main habitable room for the same reason given in respect of No 42.

The bottom of both ground floor windows is approximately 1.0 m above

the level of the path that runs down the side of the house and the top of

both of these windows is around 1.8 m above that level. The ground level

of the area of the appeal site that lies directly in front of this elevation, at

a distance of between 2.2 m and 2.6 m, is around 1.4 m above the path.


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17.The property at No 46 also has main habitable room windows at ground

and first floor level facing towards the appeal site. The window at ground

floor level in the rear of No 46 serves a kitchen/dining room, which again

appears to be a main habitable room for the same reason given earlier.

The bottom of the ground floor window is approximately 0.9 m above the

level of the path that runs down the side of the house and the top of the

window is around 1.7 m above that level. The first-floor window serves a

bedroom that has a dual aspect; the other window faces the garden. The

ground level of the area of the appeal site that lies directly in front of the

windows, at a distance of around 2.1 m, is around 1.4 m above the path.

18.The general arrangement of windows in the elevation of the terrace that

faces the appeal site is shown in the photograph on page 12 of the DAS.

That photograph shows how the ground floor windows, described above,

are, to a significant and material extent, below the level of the appeal site.

This is evident from a number of photographs that I have taken along this

boundary, both from within the curtilage of Nos 42, 44 and 46, and from

within a number of the rooms described above, which are produced as

Appendix A. However, I consider the difference in ground levels along this

boundary can only be properly appreciated during a site inspection.

19.In the context of this factual matrix it is clear that the proposed scheme,

involving as it does a material change from an agricultural field to green

infrastructure, leads to the prospect of third parties gaining access to

within 3 m of a number of habitable room windows. Although it is not

clear whether the land would be dedicated as public open space, the route

of the proposed footway/cycleway would facilitate members of the public

having access to this part of the appeal site. By virtue of the topography

it is evident that a person who stood at ground level on the appeal site

would have direct and intrusive views into ground and first floor windows.

At present, whilst the farmer might have cause to work in this area of the

field once or twice a year, its use would materially increase following the

implementation of any grant of planning permission, unless controlled.

20.As an example, a 1.7 m high person who stood on the appeal site would

be able to look straight into a first-floor bedroom of No 44 at eye level

from a distance of just over 2 m. This would plainly be unacceptable.

Although I acknowledge that the most recent illustrative plan shows the

proposed footway/cycleway to be slightly recessed below ground level, it

is clear that any retaining wall would not prevent direct views towards the

elevation that I have described above. Moreover, any retaining wall would

not prevent those on foot from gaining access to the wider area of green

infrastructure, which would result in a serious loss of privacy for residents.

21.The illustrative material submitted with the appeal suggests that planting,

such as trees and hedgerows, might be planted along the boundary of the

appeal site with these dwellings. However, any such planting, whether it

was deciduous or evergreen, would have a devastating effect on the living


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conditions of the occupiers of those dwellings. It would seriously reduce

the level of daylight and sunlight that was received in the main habitable

rooms, particularly at ground floor level. To give an example, around half

of the window serving the lounge of No 44 is below the existing ground

level of the appeal site. Even if planting along the boundary could be

restricted to 0.4 m in height, which is not remotely practical, it would

mean that occupiers of this main habitable room would have no outlook

and levels of daylight and sunlight would be seriously compromised.

22.In the circumstances, whilst I acknowledge that the Council has said this

is a matter that would be capable of being addressed at reserved matters

stage, it offers no vision as to how it could be satisfactorily resolved and it

is far from obvious how it could be. In this respect it is material that in

refusing the application the Planning Committee failed to convene a formal

site inspection and refused to go onto private land to assess any issue. In

my view the issue needs to be addressed at this stage because at present

the layout and design of the scheme sets up a fundamental tension

between public access and living conditions that is incapable of resolution.

23.Any grant of outline planning permission is the planning permission within

which the reserved matters fill in the detail. Thus, without safeguards,

the use of the land directly adjoining the elevation at issue would be

changed from an agricultural field to enable some degree of public access.

Just as landscaping would compromise the occupiers’ living conditions, so

would a means of enclosure, such as a wall or fence, in this area of the

site. As I believe I have shown, even low-level ground cover planting of

circa 40 cm in height would cause harm and would not prevent persons

from gaining access to the raised bank in close proximity to the windows.

24.The fact that the new footway would open up the side and rear of these

existing dwellings renders them vulnerable in terms of security. Although

the Police consultation responses have not directly commented on the

layout the following commentary is material: “Perimeter security is one

the basic principles of crime prevention, being the first line of defence

against unwanted trespassers, as such all rear boundary treatments must

be 1.8m high, as a minimum requirement, and be solid and robust to

prevent being breached. Close boarded fencing or walls would be deemed

appropriate. If more surveillance is required or 1.8m would feel too closed

in for smaller gardens then a 1.5m solid structure with a .3m trellis

topping would be acceptable. It is accepted that on some occasions

gradients of land or other permanent solid structures can have an impact

on the need, choice and height of boundary treatments but these should

be assessed on their own merits to ensure the boundary treatment is

appropriate to any potential risk of trespass”2. However, a 1.8 m high

means of enclosure on top of a bank, circa 1.4 m high, would not be

2 Source of quote: Consultation response of Designing Out Crime Officer dated 8 September 2017.


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acceptable and would seriously harm neighbours’ living conditions. The

proposed layout seriously compromises the security of these dwellings.

25.The dismissed appeal [Ref: APP/Y1138/W/17/3166458]3, in respect of the

area on which 4 bungalows have now been built off Paullet, considered the

effect of the proposed dwellings on the gardens of Nos 42 and 44. In that

case the Inspector found that there would be a conflict with policy due to

a loss of privacy and outlook from the gardens of those properties4.

Although I accept the situation is not directly comparable, I maintain that

the harm arising in this case is of a greater magnitude than that which led

to that appeal being dismissed because it relates to the reasonable use of

the main habitable rooms rather than the gardens of those dwellings.

26.I acknowledge that the Appellant has canvassed the possibility that this

area of the appeal site could be transferred in some form, whether formal

ownership or otherwise, to the individual householders. However, this has

not been progressed to the point that it is deliverable in advance of the

appeal decision being issued. It is not a matter that could be achieved by

the imposition of a planning condition because the PPG says: “Conditions

cannot require that land is formally given up (or ceded) to other parties”5.

27.Whilst preparing this proof I have been sent a new illustrative plan that

shows a hedge running back from the footway/cycleway, incorporating a

maintenance access gate, which shows the enclosed area as low level/low

maintenance planting. I acknowledge that this could form the basis of

further negotiations, but the line of the hedge appears to be too close to

No 46 and it is unclear who would be responsible for maintenance and

who would have access for this and other purposes. In my experience the

ongoing maintenance of ‘communal’ landscaped areas can be vested in

management companies that are owned or operated by the residents, but

if the residents are paying for the area to be maintained then they would,

logically, have or expect access. Moreover, as I have noted, any planting

above circa 0.4 m high in some parts of this area would harm outlook.

This potential solution would also fail to address the concerns that I have

raised with regard to security at the side and rear of these dwellings.

28.In the circumstances I maintain that the scheme remains unsatisfactory.

Contrary to paragraph 127 f) of the Framework the scheme would not

provide: “a high standard of amenity for existing … users”. It should be

noted that this quote is under the title for section 12: “Achieving well-

designed places”. As such, there can be no question that relevant

Development Plan design policies are relevant and that this proposal fails

to comply with them. In particular, this underlines that the Appellant’s

claim that DMP Policy DM2 is not engaged in this appeal is misconceived.

3 CD3.11. 4 See paragraphs 11-16 of that appeal decision in the core document bundle. 5 Source of quote: Paragraph: 005 Reference ID: 21a-005-20190723.


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It would also be contrary to paragraph 91 of the Framework, which says:

“decisions should aim to achieve healthy, inclusive and safe places which:

b) are safe and accessible, so that crime and disorder, and the fear of

crime, do not undermine the quality of life”.

29.This leads me to find a clear conflict with DMP Policy DM2 d and e), which

require the creation of safe and accessible places and for new

development not to have an unacceptably adverse effect on the privacy

and amenity of neighbouring properties, taking account of factors

including layout, orientation, fenestration and landscaping, respectively.

I also find a conflict with DMP Policy DM14 b), insofar as it refers to

adequate daylight, sunlight and privacy to principal windows. In reaching

this view I note that paragraph 2.14 of the supporting text which says:

“National policy states that planning should always seek to secure high

quality design and a good standard of amenity for all existing and future

occupants of land and buildings” [my emphasis]. The supporting text

confirms that the policy should be interpreted as relating not merely to

new housing but also existing residents.

30.I also find a conflict with Policy DM1 of the Local Plan Review. It says:

“Designs of new development must be of high quality, based upon and

demonstrating the following principles”. New criterion g) is proposed that

requires: “Adequate levels of daylight, sunlight and privacy to private

amenity spaces and principal windows”. New supporting text 4.5 b says:

“National policy states that planning should always seek to secure high

quality design and a good standard of amenity for all existing and future

occupants of land and buildings. This is particularly important for the

design of the homes that people live in and the spaces that surround

those homes. The aim in Mid Devon is to deliver high quality buildings and

spaces that meet the needs of users, taking account of an aging

population whilst ensuring compatibility with surrounding development

and uses”6. Given the cross reference to national policy there is nothing

here that would lead me to find it should not apply to existing residents.

31.In short, I submit that this should be a main issue in the determination of this appeal and, irrespective of any other matters, should be a reason in itself for the dismissal of this appeal. There is a fundamental tension

between opening up this area of the appeal site to public access as a result of proposing a footway/cycleway through this area and dealing with

its consequences for neighbours’ living conditions. One would either have to accept that there would be a total loss of privacy for the residents concerned or, if measures such as landscaping or a means of enclosure

were proposed at reserved matters stage, that there would be a loss of daylight, sunlight and outlook for the occupiers of Nos 42, 44 and 46.

6 Source of quotes: page 17 of “MDDC Schedule of Proposed Main Modifications – November 2019”.


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Ecology

32.The Phase 1 Ecological Appraisal7, dated January 2018, identified reptile

habitat along the entire highway verge from Battens Cross to the corner

on the link road8. A number of highway works are proposed in this area.

33.Paragraph 7.4 of the Phase 1 Ecological Appraisal said: “A grassy area on

the verge of the western boundary offers suitable habitat for reptiles such

as slow worms and possibly common lizards”. The next sentence wrongly

asserts: “The development will not impact this area”. However, crucially,

the report went on to say: “The habitat has been identified as capable of

supporting protected species, as such this habitat cannot be impacted

until without a protected species survey” [sic, my emphasis]. Thus, on

the basis of the author’s own analysis, a survey is required if the potential

habitat is likely to be impacted and I am in no doubt that it would be.

34.Table 1 of the report said: “No predicted loss as reptile habitat will not be

impacted”. The only explanation for this conclusion is that the author of

the report was not provided with detailed highway plans and focussed on

the junction and main road frontage because of the area edged red on the

illustrative plan9. The detailed highway drawings show extensive works in

the identified reptile habitat, including a new footway and a reduction in

existing ground levels in order to provide visibility10, but it is far from clear

whether the author had sight of them. It should be noted that the

visibility envelope extends beyond the red line area and, whilst I accept

that this is likely to be within the highway verge, this might explain why

the author of the report appears to have reached this false conclusion.

Amongst other things it should be noted that section 12 of the Phase 1

Ecological Appraisal fairly summarises the Circular advice and puts

emphasis on the “and” that precedes “affected by the development”11.

35.The Council accepted a Phase 2 reptile survey12, entitled “Reptile

Presence/ Absence”, in October 2018 but never gave local residents an

opportunity to comment on it. In that context it is entirely reasonable to

raise these concerns now. There are three [3] reasons why the submitted

survey is not fit for purpose at appeal stage:

i) the survey was only undertaken on a very small area of verge near

Battens Cross and did not include the area of verge up to the corner of the link road between Battens Cross and Higher Town. The submitted

highway drawings [Nos 06685-HYD-XX-XX-DR-TP-107 Rev P1 and 06685-HYD-XX-XX-DR-TP-0110 Rev P2] show extensive works

7 CD1.6, bullet 1. 8 See Figure 2 of that report. 9 See Figure 1 of that report. 10 See Appendix_JB_T i to the Rule 6 Party Statement of Case. 11 See Page 42 of that report. 12 CD1.6, bullet 3.


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involving a reduction in ground levels are proposed around this corner which would compromise this potential area of habitat, yet the

Appellant chose not to survey it. I am concerned that the brief given to the company did not include anything other than the illustrative

masterplan, which does not reveal these works. My view is consistent with section 5 of the report which merely refers to: “a pedestrian access point in the southwest corner, which could directly impact

possible reptile populations in this area”. It should be noted that, on its face, the report says that areas: “highly suitable for basking reptiles

[include] patches of bramble and piles of… stone”13. The bank along this stretch of the highway has attributes that make it highly suitable for reptiles but it will be destroyed by the proposed scheme in order to

provide forward visibility for car drivers around this bend and pedestrian visibility back from the Battens Cross junction14. Indeed,

the annotated plan on page 11 of the Phase 2 report calls it: “prime reptile habitat” and says that it “should be left untouched” but, despite this, the fact that it would be excavated and reduced in height to

provide visibility was simply not brought to the author’s attention;

ii) the survey was started on 14 August 2018. The report claims: “All visits to the site were under favourable weather conditions and at the correct time of year, thus ensuring the survey met best practice

guidelines”15. However, the Natural England standing advice is clear that reptile surveys should: “Avoid July to August and November to

February”16. This reveals the author’s claims to be false. Moreover, contrary to the further claim made, the survey was not undertaken for a minimum period of 14 days if one excludes August in line with the

standing advice. It is surprising that the Council failed to pick up on this basic problem and demand that a survey of sufficient duration be

undertaken at the correct time of year; and,

iii) The report on its face says: “the information contained within this

report should only be relied upon for a maximum of twelve months from the date of survey”17. That 12-month period has now expired and there has been no new survey to accompany the appeal. Whilst I

acknowledge that the same section of the report continues by saying: “An updated report will be required after this time, unless the area is

managed and vegetation kept below 100 mm, in which case this will prevent reptiles occupying this area”. However implicit to this caveat is that the survey that was undertaken in 2018 was accurate in not

recording reptiles. For the reasons given above I am clear that it was not because it did not survey “prime reptile habitat” that will clearly be

“affected by the development”.

36.In these circumstances the fact that the survey did not identify the

presence of reptiles was entirely predictable. It was mostly undertaken

13 Quotation from section 4 of report entitled Reptile Presence/Absence, September 2018. 14 Again see Appendix_JB_T i to the Rule 6 Party Statement of Case. 15 Quotation from section 4 of report entitled Reptile Presence/Absence, September 2018. 16 Source: https://www.gov.uk/guidance/reptiles-protection-surveys-and-licences, CD7.17. 17 Quotation from section 3 of report entitled Reptile Presence/Absence, September 2018.

https://www.gov.uk/guidance/reptiles-protection-surveys-and-licences


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at the wrong time of year and failed to include a large part of the most

suitable habitat where significant engineering works are proposed. To

compound these problems, the survey is now, on its face, out of date.

In summary, the survey is not fit for purpose at appeal stage.

37.As such, and notwithstanding the fact that this was not a reason for

refusal, the Inspector should review the need to identify this topic as a

main issue in this appeal. I submit that, irrespective of any findings on

other issues, the appeal should be refused for this reason as the proposal

is contrary to Policy COR2 d) of the adopted Mid Devon Core Strategy

(“Core Strategy”) and paragraphs 170 d) and 175 of the Framework.

38.Footnote 56 to the Framework also refers to Circular 06/2005, which says

the presence of a protected species is a material consideration when a

development proposal is being considered which would be likely to result

in harm to the species or its habitat. It goes on to say that it: “…is

essential that the presence or otherwise of protected species, and the

extent that they may be affected by the proposed development, is

established before the planning permission is granted, otherwise all

relevant material considerations may not have been addressed in making

the decision”18 [my emphasis]. The standing advice19 is in line with

Circular 06/2005 and so it is not possible to address this matter by the

imposition of a planning condition and, despite this issue being clearly set

out in my letter dated 31 December 2019, no new survey has been

commenced in March. The presence of protected species in what has

been acknowledged to be “prime reptile habitat” has not been surveyed

and there can be no question that area will be affected by the proposed

development because ground levels will be reduced to provide visibility.

I submit that the appeal should be dismissed for this reason alone.

18 Source of quote: paragraph 99 of ODPM Circular 06/2005 “GOVERNMENT CIRCULAR: BIODIVERSITY AND GEOLOGICAL CONSERVATION – STATUTORY OBLIGATIONS AND THEIR IMPACT WITHIN THE PLANNING SYSTEM” 19 CD7.16.


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Flood risk and drainage

39.SOS has taken a considered approach to matters of flood risk and

drainage, and whilst we continue to have concerns about the fact that it

has not been shown that soakaways around the site can realistically

accommodate infiltration, we recognise the position of the Lead Local

Flood Authority. In particular we note that, as a fallback position,

greenfield run off rates can be achieved on the eastern side of the site as

a result of a control feature linked to massive underground storage tanks

that are proposed to be installed above Turnpike. We trust the Appellant

and Lead Local Flood Authority’s calculations are correct but, on this

assumption, we accept that Option B is a fallback in the event that the

period of testing demonstrates that soakaways etc are not an option.

40.Notwithstanding the above we are concerned that the footway/cycleway

proposed in the northeast corner of the site, onto Higher Town, has been

excluded from the area of the appeal site that has been assessed in the

site-specific flood risk assessment [FRA]. We can see no good reason for

this omission. One of the key objectives of an FRA is to consider “whether

it would increase flood risk elsewhere”20. The PPG continues: “The

information provided in the flood risk assessment should be credible and

fit for purpose. Site-specific flood risk assessments should always be

proportionate to the degree of flood risk…”21.

41.Even if the Lead Local Flood Authority have overlooked the omission there

is no excuse for the LPA. In this respect the Framework says: “When

determining any planning applications, local planning authorities should

ensure that flood risk is not increased elsewhere”22. There was evidence

placed before the Council prior to its determination of the application that

there was an existing flooding problem on Higher Town. I exhibit a copy

of that correspondence at Appendix B. It should have been obvious that

the footway/cycleway proposed in the northeast corner of the site has, at

the very least, the potential to exacerbate that known flooding problem.

The revised illustrative plan tabled recently does not change that position

as the footway/cycleway would still act as a water chute that would direct

a not insignificant amount of surface water onto Higher Town.

42.It might be claimed that this flooding issue could be addressed as part of

an agreement with the Highway Authority. However, if this were to be

said, local residents are far from convinced. Firstly, the FRA is deficient

and so there has been no assessment of the magnitude of water that

might be generated at the foot of the footway/cycleway proposed in the

northeast corner of the site. The FRA is not fit for purpose in this respect.

Secondly, I attach photographs at Appendix C which show the existing

20 Source of quote: Paragraph: 030 Reference ID: 7-030-20140306, of the PPG. 21 Source of quote: Paragraph: 031 Reference ID: 7-031-20140306, of the PPG. 22 Source of quote: paragraph 163 of the Framework.


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arrangements for discharging water from this part of Higher Town. Whilst

I recognise the obligations of riparian ownership, the right of the Appellant

to channel water into this easement has not been expressly established.

43.Devon County Council has published relevant advice entitled “Sustainable

Drainage Systems Guidance for Devon” and a copy thereof is produced at

Appendix D. Section 6.3 contains a hierarchy and says: “Where not

collected for re-use, surface water runoff should be discharged as high up

the hierarchy of discharge solutions as is practicable: 1. Discharge into the

ground (infiltration); 2. Discharge to a surface water body (with written

permission from the riparian owner; 3. Discharge to a surface water

sewer, highway drain, or other drainage system (with written permission

from South West Water Ltd., Devon County Council Highways, or the

riparian owner, respectively) … Discharge into the ground (infiltration)

must therefore be explored as the primary method of surface water

disposal from all development sites in the first instance” [my emphasis].

44.The simple fact is that because the Appellant has not assessed this part of

the appeal site in the FRA the prospect of discharge into the ground has

not been examined in this area of the site, for example near the base of

the footway/cycleway. The written permission of the riparian owner to

discharge to the stream has not been obtained and the highway drain, if it

were capable of being described as such, discharges onto private land.

Neither the written permission of the Highway Authority or the riparian

owner has been obtained in order to discharge flows from the appeal site.

45.A related area of concern is the fact that legitimate issues raised by the

Lead Local Flood Authority have not been addressed. In its consultation

response dated 19 March 2018, the Lead Local Flood Authority asked for

details of the minimum height of bunds and confirmation from the

Highway Authority that it was happy with any such arrangement. This

appears to be broadly in line with its published advice in “Sustainable

Drainage Systems Guidance for Devon”. However, neither point appears

to have been expressly addressed in the published correspondence.

46.In raising this issue, I acknowledge the terms of the consultation response

dated 16 May 2018 from the Lead Local Flood Authority. However, the

height of the bunds is not just a flooding matter but also has implications

for the broader assessment of the proposal such as the effect on the wider

landscape, designated heritage assets and potentially neighbours’ living

conditions. It should be noted that bunding is shown on both option plans

in 3 locations23, including adjacent to Mayfield, 13B Paullet and opposite

Ascot House. Whilst I accept that the surface SuDS feature might not be

required it is shown on Option B, in addition to the underground tanks.

23 I acknowledge that the key says bund or swale but given the topography I consider that only the former is practical as one could not have a swale at the top of a 4 m high bank above a main road like Turnpike.


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47.During our meeting with the Appellant with regard to landscape matters,

SOS was told that the underground tanks are now exclusively relied upon

rather than a detention pond in this area of the appeal site. Whilst the

Appellant’s position is noted, section 6.3 of the guidance sets out a

hierarchy and so it is not possible to jump to an underground storage

solution at the present time. Section 5.2 makes this clear in saying:

“Underground attenuation systems will therefore only be permitted once

robust evidence has been submitted which demonstrates that it is not

viable to incorporate any above-ground SuDS components into the surface

water drainage management plan”. It is understood that monitoring of

ground water levels and/or permeability is ongoing but the results have

yet to be provided. On this basis it is premature to assert that the above

ground detention pond and the bunds in the southeast corner of the site

are not required. Alternatively, if that is the Appellant’s final position,

there appears to be a breach of the County Council’s guidance, as quoted.

48.This being the case, the effects of the proposed bunds in the southeast

corner on landscape, heritage and living conditions need to be considered.

The bund is shown to start at around 115 m AOD and follow the boundary

down to a spot height of 105 m AOD. Moreover the spot heights in that

area of the site rise to over 112 m AOD and although I appreciate that

any surface feature would be dug into the ground this might suggest that

the bunding might need to be over 7 m high in order to serve any function

of containing overflow from the SuDS24. The spot height near the

boundary with Mayfield is 107 m AOD and at this point this might suggest

a bund some 5 m high, directly adjacent to main habitable room windows.

Even if this might be unduly pessimistic the fact that this has not been

clarified as part of this appeal scheme is a real concern as it could have

significant implications for the landscape and heritage assessments.

49.The position opposite Ascot House remains a live issue in any scenario.

The road level is shown to be approximately 108 m AOD, with a spot

height in the drive of Ascot House recorded as 108.51 m, and the existing

ground level within the site is around 113 m AOD25. However, as will be

evident from even the most cursory site inspection, Ascot House lies at a

lower ground level; I estimate its ground floor level to be approximately

1 m below the adjacent level of the road. The spot heights within the

lower bunded area, nearest Turnpike, show that ground levels rise to

almost 115 m26. The prospect of a bund of around 2 m in height27 in this

position is a concern because the top of the bund could be approximately

8 m above the ground floor level of Ascot House.

24 Calculation based on water level being up to 112 m and the need for the bund to be built up from 105 m. 25 See: EGL: 113.0 m, in bold, on drawing No C-06685-C-006 Rev B. 26 The area within the dashed line that sits behind the bund varies from 111.90 m to 114.83 m. 27 The Appellant suggested it would be 1 m high but if its purpose is to retain water in the dashed area in the event of an extreme flood event then it would need to be much higher. In the SE corner of the LEAP it might need to be nearer 3 m high, i.e. 114.83 m - 111.90 m = 2.93 m.


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50.Moreover, local residents have told me that there is a history of slippage

of earth banks along Turnpike within the last 50 years, and they could be

called to give testimony if this fact is in dispute. In that context the

wisdom of placing water retaining bunds anywhere above existing earth

banks above Turnpike must be challenged. This structural risk has not

been identified or addressed in any of the submitted material, such as the

FRA or the Geo-Environmental desk study. The risk would be made worse

by the accumulation of water within the bunds along this section of the

boundary during wet periods when groundwater levels may also be high

and quite possibly above the level of Turnpike.

51.There is also evidence of an existing flooding problem in the vicinity of

Nos 12 and 14 Turnpike. I exhibit as Appendix E a copy of the

consultation response from the owner of No 14, together with a copy of

the flood map which shows an area of blue in front of those properties.

Given the fact that, by way of example, the existing ground level of the

bund in the corner of the appeal site, next to the front garden of Mayfield

and No 9 Turnpike, is at around 105 m AOD and Turnpike lies some 4 m

below, at 101 m AOD, it is appropriate to question the wisdom of placing

a potentially large water-containing feature above a steep earth bank next

to a public highway. Given the history of earth slippage, not only is there

the danger of landslip onto the highway but there could be catastrophic

consequences for properties and the occupiers thereof further downhill.

52.In summary we say that the FRA is not fit for purpose because it neglects

to consider the implications of a significant new feature that is proposed in

the northeast corner of the appeal site. As a result of this and the design

of other features being considered as part of solutions to address surface

water on the site, there is a danger that the proposed development would

increase flood risk elsewhere and exacerbate known flooding problems.

Moreover, the above analysis has shown that this issue has potentially

significant implications for the broader assessment of the proposal in

terms of landscape, heritage and neighbours’ living conditions. For this

reason, there is a conflict with Core Strategy Policy COR11 c), which

requires development not to increase the risk of flooding of properties

elsewhere.


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Weight to be given to relevant policies

53.The Inspector has identified a main issue in this appeal to be: “The weight

to be given to relevant policies in the adopted and emerging development

plan documents” 28. I deal with that matter here.

54.In terms of adopted development plan policies, those with relevance to

the appeal include: Core Strategy Policies COR1, COR2, COR3, COR5,

COR7, COR8, COR9, COR11, COR12, COR17 and COR18; Policies AL/DE/3

and AL/IN/4 of the Allocations and Infrastructure Development Plan

Document (AIDPD); and Policies DM1, DM2, DM8, DM14, DM27 and DM28

of the adopted Mid Devon Development Management Policies (DMP). This

list is deliberately broad and includes all relevant policies in line with the

explicit way in which the main issue is expressed. It does not follow that I

allege that there is a conflict with all of these adopted development plan

policies. I specify elsewhere in this proof where there is a conflict.

55.The Inspector in a recent appeal in the neighbouring village of Halberton

appeal found: “Given its similarity to Framework paragraph 196, the

conflict with Policy DM27 should receive full weight”29. I concur in that

view and consider that full weight should be given to all relevant

development plan policies save as set out below.

56.First, I note from paragraph 1.20 of the Statement of Common Ground

between the Appellant and the Council that only limited weight should be

given to Core Strategy Policies COR3 and COR17; I agree. Amongst other

things the 30 % target for affordable housing, set out in COR3, is

inconsistent with adopted AIDPD Policy AL/DE/3.

57.With regard to COR18, I agree with the analysis of Mr Sebbinger in his

statement submitted in December 2019, specifically paragraphs 5.9-5.12.

The policy test of “enhancing the character, appearance and biodiversity

of the countryside” remains valid and should be given significant weight.

In reaching this view, whilst I accept that the settlement boundaries are

out of date because they are based on an outdated housing requirement

and so this aspect of the policy should be given limited weight, Policy

COR18 is generally consistent with national policy. It is important to look

at the underlying aim of the policy in attributing weight. In this case the

aims include to maintain the quality of the environment because

paragraph 7.66 of the supporting text identifies the need to: “sustain the

environmental qualities of the countryside”. As such, this aspect of the

policy remains highly material to the Council’s first reason for refusal.

28 Source of quote: paragraph 6 of the case management conference note. 29 Source of quote: paragraph 31 of appeal decision [Ref APP/Y1138/W/19/3235159] dated 29 November 2019.


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58.With regard to COR7, national policy does not promote a sequential

approach to previously-developed land and so this aspect of this policy is

out of date. However, key elements of the policy remain consistent with

the Framework including paragraph 117, which promotes effective use of

land, and paragraph 118 which says give substantial weight to the value

of using suitable brownfield land within settlements for homes. It remains

a relevant development plan policy and should be given significant weight.

59.With regard to COR12, in line with my earlier comments I accept that the

actual numbers of houses attributed to the main towns is out of date.

However, the strategy of focussing development into the main towns

remains valid and has been carried forward into the Local Plan Review.

In these circumstances the policy should be given moderate weight.

60.Turning to the emerging development plan policies, those relevant to the

appeal include: S1, S2, S3, S5, S8, S9, S13, DM1, DM3, DM5, DM12,

DM25, DM26 and SP2. Having regard to paragraph 48 of the Framework I

consider that moderate weight should be given to all these policies. I do

accept that the Local Plan Review is at an advanced stage, but there

remain outstanding objections to a number of aspects of, amongst others,

Policies SP2 and DM25 that in my view reduce the weight to be given to

these policies. In particular I attach as Appendix F a copy of the

representations of Historic England to the latest consultation, which shows

that points of substance remain outstanding from statutory consultees.

61.It should be noted that my attribution of weight is greater than that being

advocated by the Council, which is likely to be based on the observations

of the Inspector in the Willand appeal. He said: “Until all objections have

been resolved and the Inspector’s final report received, the weight that

can be attached to the emerging plan is limited”30. Although I consider

that the Council’s position can be justified on this basis, my attribution of

weight reflects the conventional approach that increased weight should be

given to policies as a Local Plan examination proceeds to its conclusion.

62.I recognise that there is a possibility that the examining Inspector’s report

will be issued and/or the emerging Local Plan will be adopted prior to the

scheduled date of decision for this appeal. Plainly if either of these actions

happen after the Inquiry is closed, but before the decision is issued, I

would expect the opportunity to make further comment, particularly if

there are changes including, by way of example, additional modifications.

Amongst other things it should be noted that submissions have been

made during the most recent consultation with a view to amending the

settlement boundary so as to exclude the Green Infrastructure [GI] on the

policies map. This has a significant bearing on this appeal because

Appendix JB-L to the SOS Statement of Case shows the extent to which

the appeal proposals go beyond the housing allocation on the policies

30 Source of quote: paragraph 12, appeal Ref: APP/Y1138/W/18/3214685.


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map. This is one answer to the Appellant’s assertion that the Council had

no basis to refuse the application on the basis of landscape harm. For the

avoidance of doubt, I consider further comments could be sought by an

exchange in writing rather than causing the Inquiry to be reopened.

63.In the, albeit unlikely, event that the Local Plan is adopted with Policy SP2

prior to the appeal decision being issued I consider it to be prudent to

assess the proposed development against that policy and I do this below.

Testing the proposed scheme against Policy SP2

64.Policy SP2 sets out 7 criteria that need to be satisfied in order to achieve

compliance with the policy and I comment on each, in turn, below.

65.“a) No more than 60 dwellings with 30% affordable housing”: I accept this

first criterion is met by the terms of the draft section 106.

66.“b) No development until the completion of improved access works to the

A361 Landscaping and design which respect the setting and character of

the area, conservation area and listed building”: This criterion is not met.

Leaving aside any broader landscape concerns the 20 m wide cutting

approximately 2.5 m deep, which is proposed through a traditional Devon

hedge bank next to the listed building, would clearly fail to respect the

setting and character of the area and these designated heritage assets.

Whilst I acknowledge that the revised illustrative drawing has now been

submitted it still shows that over 26 m of hedgerow would be removed in

order to construct a new cutting to provide the footway/cycleway. Since

this topic is considered further by our experts I defer to that analysis.

67.“c) Provision of a drainage strategy and Sustainable Urban Drainage

Scheme to deal with all surface water from the development and

arrangements for future maintenance”: Noting the word ‘all’ this criterion

is not met. The development includes the footway/cycleway entrances to

the site. The drainage onto Higher Town has not even been assessed and

the topography determines it could not be served by the proposed SuDS.

68.“d) Mitigation of any wildlife impact including protection of hedgerows”:

This criterion is not met. Various lengths of hedgerow are proposed to be

removed from the perimeter of the site, notably some 26 m to the

northeast. I acknowledge paragraph 3.224a of the supporting text says:

“Some loss of hedgerow would be required to enable access however,

careful design should be considered to minimise this impact including

incorporating new hedgerow into the design of the development”.

However, the multiple access points around the site would, cumulatively,

result in a large amount of hedgerow being removed in order to provide

visibility. No appropriate survey of reptiles has been undertaken on the

bank of the link road above Battens Cross and no allowance appears to

have been made for the extent of works proposed in this area.


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69.“e) Archaeological investigation and appropriate mitigation; and”: I accept

that this criterion can be met by the imposition of the planning condition

recommended by the Historic Environment Team of Devon County Council

in its letter dated 9 December 2019, or a similar form of wording.

70.“f) 2.5 hectares of Green Infrastructure laid out and managed with

landscaping and open space”: This criterion is not met because the key

purpose of identifying the GI on the highest parts of the site was to

reduce the harm to the wider landscape. This is clear from paragraph

3.244a of the supporting text, which says: “The site is elevated and will

require careful landscaping and mitigation measures. Development of the

highest ground should remain as undeveloped green infrastructure”. The

term “undeveloped” must be considered in the context of the definition of

development in section 55 of the Act31 which includes, among other

things, engineering and other operations. There can be no question that

roads, including tall structures such as street lights, are within the

definition of development such that this scheme would contravene

criterion g) when read alongside the supporting text and the policies and

proposals map.

71.In reaching this view I note page 17 of “MDDC Schedule of Proposed Main

Modifications – November 2019”32 says “Modify the Policies Map as shown

on Plan MM45”. It continues: “The area of Green Infrastructure has been

further extended to limit the impact of the setting of the listed building”. I

again refer to Appendix JB-L to the SOS Statement of Case in this respect.

In that context the Appellant’s response to the consultation on the Local

Plan Review is relevant and says: “We acknowledge and support the need

for the increase in the green infrastructure at SP2. We acknowledge that

this has been undertaken to take heritage impacts into account”33. This

secondary aim complements the primary objective underpinning the

extent of the GI on the policies map, which is defined in the Local Plan

Review as: “A map showing the areas or sites to which local plan policies

and proposals apply”. The area of GI shown on the policies map is a

proposal that the appeal scheme fails to comply with in this respect.

72.I acknowledge that the proposed housing layout is illustrative and that the

siting of dwellings could be modified at reserved matters stage, but the

fact remains that one sixth of the proposed dwellings lie beyond the

allocated site. The drainage calculations and the GI plan submitted as

part of the draft section 10634 both point to the proposed layout being

relatively settled. Moreover, because access is not reserved it is clear that

the access road is proposed within the area of GI. I consider that this is

contrary to the objective of identifying the GI for a number of reasons.

31 CD8.7. 32 CD6.30. 33 Source of quote: Appendix F. 34 CD1.12.


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73.GI is defined in the Framework as: “A network of multi-functional green

space, urban and rural, which is capable of delivering a wide range of

environmental and quality of life benefits for local communities”. It is also

defined in paragraph 3.23 of the supporting text to AIDPD Policy AL/IN/4

of the Local Plan Part 2. It says: “The provision of green infrastructure,

meaning open space, wildlife areas and cycling and walking networks is

supported by national policy as part of the creation of sustainable

communities. By considering these issues together, a strategic and local

network of green infrastructure can be provided to promote health, visual,

wildlife and leisure benefits in a holistic manner”. Finally, the Local Plan

Review defines it as: “A network of multi-functional green space with

recreational, visual and ecological value” [my emphasis throughout].

74.Taken together, it is clear that GI is not the place for a 5.5 m wide main

access road, together with street lights and the noise and pollution arising

from private car use generated by 60 houses. I note that, unlike cycling

and walking routes, main access roads are not envisaged within GI and no

evidence has been provided to show that the proposed development

cannot be achieved without fragmenting the GI with the main access road.

Whilst it is acknowledged that serving the site from the southeast has

been ruled out because of the harm to the setting of the Grand Western

Canal Conservation Area, other options have not been considered.

75.In my view developing areas of the GI on the policies map for the main

access road, estate roads and housing is contrary to the objectives that

underpin its identification. In particular the Framework anticipates that GI

will deliver an environmental benefit and adopted development plan policy

says GI will provide, amongst other things, visual benefits. Although I

accept that the proposed layout would deliver 2.5 hectares of GI, it would

not deliver it on the spatial areas shown on the policies map and so this

criterion is not met. In particular the proposal to route the main access

across the highest part of the land would seriously conflict with the

policies map that, in the scenario I am considering, would be adopted.

Far from providing a visual benefit, it would harm visual amenity.

76.My view in this matter is confirmed by reference to DMP Policy DM28,

which says: “Major development proposals must demonstrate that green

infrastructure will be incorporated within the site as follows: … c) Green

corridors and public rights of way to link the site to the wider GI network,

provide walking and cycling opportunities and avoid habitat fragmentation

… Where evidence demonstrates that meeting these criteria in full would

render the development unachievable, the Council will balance the

benefits of the development against the objectives of this policy”. Again,

it draws a clear distinction between walking and cycling and other

methods of travel, such as a main access or an estate road.


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77.This distinction is maintained in the Local Plan Review. Policy DM26 says:

“Major development proposals must demonstrate that green infrastructure

will be incorporated within the site as follows: (c) Green corridors and

public rights of way to link the site to the wider GI network, provide

walking and cycling opportunities and avoid habitat fragmentation”.

However, the effect of placing the main access road through the highest

part of the proposed GI would detract from its value in visual terms and

fragment the habitat that is otherwise being created.

78.The red line area excludes parts of the GI that have been identified on the

policies map, such as the area next to the barn, and so it is not possible

for it to be laid out or managed as an area of landscaping or open space.

The GI is simply not capable of being delivered in the terms that are

envisaged in Policy SP2 and its supporting text when read with Plan

MM45. Comparison is invited between the GI plan attached to the draft

s106 and Plan MM45. My view on this point is confirmed by another main

modification, MM53, that is proposed to the draft Local Plan. It says:

“Development incorporating green infrastructure will be required to submit

management and maintenance details for the proposed green

infrastructure”. As this scheme does not include the whole of the area of

GI envisaged on Plan MM45 it cannot “ensure green infrastructure is

protected and managed beyond the initial construction/ development”35.

79.“g) Improved access to the village for pedestrians and cyclists”: This

criterion is not met. Amongst other things the proposed crossing point

outside Wharf House, when taken with the proposed removal of the virtual

footway that currently exists around the inside of the bend by the canal

bridge, would force pedestrians to cross Turnpike at a point where there is

no need to do so now. This would clearly not represent an improvement

and would be far more dangerous than what currently exists. No off-site

works are proposed for cyclists and it has not been shown how cycleways

proposed within the site, notably in the southeast corner, would achieve

satisfactory gradients without massive engineering works to facilitate zig

zag paths, that have not been assessed as part of the LVIA.

35 Source of quote: page 24 of “MDDC Schedule of Proposed Main Modifications – November 2019”.


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Assessment of the proposed benefits of the scheme

80.The Appellant’s Statement of Case identifies 7 alleged benefits of the

proposed development in paragraphs 10.8.1-10.8.7. This appears to be a

complete list and given the Inspector’s request I would be prejudiced if

further alleged benefits are subsequently advanced beyond those set out

in the Statement of Case. In that context I shall deal with each in turn.

81.The first is “Delivery of market housing to assist in meeting the overall

strategic need”. In this respect I note the Inspector in the Halberton

appeal decision deals with this benefit by saying: “As there is no dispute

that the Council can currently demonstrate a sufficient supply of housing

land, I attach only moderate weight to these benefits”36. I note the

Inspector in the slightly earlier appeal in Willand quantified the housing

supply by saying: “the District has a 7.58 year supply against an annual

need for 357 dwellings per annum, applying the Government’s standard

method and taking account of the Housing Delivery Test results”37.

82.Given the magnitude of the housing land supply I consider it is clear that

Mid Devon currently has a housing land supply well in excess of 5-years.

In this respect I have noted the Council’s current housing land supply

assessment to be 7.43 years38, which is not materially different from the

Willand appeal which, in turn, was accepted by a subsequent Inspector in

the appeal at Bampton39. I note that the Appellant clearly stated on the

appeal form that: “The issue of housing land supply is NOT in contention

and there is no reason for any evidence on this matter to be examined or

presented”. Although I am aware that the Appellant now appears to be

trying to backtrack on this position, the Appellant still does not appear to

dispute that there is a 5-year housing land supply in the District.

83.I have briefly reviewed the ‘Housing Delivery and Supply Note’ agreed

between the main parties, but I am not in a position to comment on the

details of each site. However, what is striking is the difference between

what the Appellant seeks to claim in this note compared to his position in

relation to the Local Plan Review. In the Appellant’s latest consultation

response, which is produced as Appendix F, no significant issue has been

taken with regard to the housing trajectory for any sites40. In my view

the Examining Inspector is in a much better position to judge whether the

trajectory is sound and so the Appellant should have raised any detailed

concerns as part of the consultation rather than in this appeal. In the

context of his statement on the appeal form, the fact that he has not done

so is telling. Against this background, the Inspector should be slow to

36 Source of quote: paragraph 23 of appeal decision [Ref APP/Y1138/W/19/3235159] dated 29 November 2019. 37 Source of quote: paragraph 9 of appeal decision [Ref APP/Y1138/W/18/3214685] dated 29 August 2019. 38 Mr Sebbinger’s Appendix WPL7 to his December 2019 statement. 39 Ref. APP/Y1138/W/19/3232381 dated 11 December 2019; see in particular paragraphs 19 and 27. 40 Other than taking minor issue with the sites at Old Butterleigh Road, Broadlands and Willand.


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entertain the Appellant’s largely unsubstantiated claims with regard to the

housing trajectory on individual sites and its overall effect on the 5-year

supply. In the context of the unambiguous statement on the appeal form

it might be seen to be unreasonable if, having raised this issue during the

life of the appeal, it takes up a significant amount of time at the Inquiry.

84.In these circumstances I concur in the view expressed by the Halberton

Inspector as to the weight to be given to the delivery of up to 42 market

houses. Bearing in mind that the appointed Inspector stands in the shoes

of the Secretary of State, very good reasons would have to be given for

taking a different view in this matter within 6 months of that decision for a

not dissimilar scale of housing in the next, broadly similar sized, village.

Whilst I will not repeat this mantra it applies equally to what I say below.

85.The second is “Delivery of affordable housing”. AIDPD Policy AL/DE/3

says: “Open market housing sites of more than 4 dwellings within the

settlements of Tiverton, Cullompton, Crediton and Bampton, and of more

than 2 dwellings elsewhere should provide affordable housing. A target of

35% affordable housing will be applied to the number of dwellings by

which sites exceed the relevant threshold” [my emphasis]. However, the

proposed development only seeks to deliver “up to 30% affordable

housing (18 dwellings)”41. No viability evidence has been submitted by

the Appellant to demonstrate why this scheme cannot deliver 35 %

affordable housing in line with adopted policy. Although I acknowledge

that the section 106 agreement has been drafted in the alternative, to

allow for the delivery of up to 35 %, it remains appropriate to observe

that the Appellant does not freely offer the higher requirement. Among

other things Tables 2 and 3 of the DAS set out the precise housing mix for

the 18 affordable units that are being offered by the Appellant.

86.In any event the Halberton Inspector found: “the proposal would make a

significant contribution to the provision of affordable housing for which I

understand there to be an unmet need within Halberton. Halberton is

identified in the development plan as a location that could accommodate

some growth and provides some services that could be accessed without

reliance on the private car, as well as good public transport links.

However, whilst I have no particular evidence of how affordable housing

needs may be met elsewhere in the village, there is equally no robust

evidence that it cannot be. … I attach only moderate weight to these

benefits”42.

87.In Sampford Peverell a survey of the need for affordable housing has

recently been published. I produce a copy of the Housing Needs Report

as Appendix G, which quantifies the local need to be for just 6 dwellings.

41 Source of quote: page 26 of the Design and Access Statement replacement version 16.01.18. 42 Source of quote: paragraph 23 of appeal decision [Ref APP/Y1138/W/19/3235159] dated 29 November 2019.


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However, the affordable housing on SP2 would be at least 18 dwellings,

which is more than 3 times the identified need in the Parish. Moreover,

there is a CLT in existence43 that is in the process of identifying a site in

order to meet the quantified need for affordable housing in the Parish.

In the circumstances I concur in the view of the Halberton Inspector as

to the weight to be given to the delivery of up to 21 affordable houses.

88.The third is “Creation of employment during the construction period”.

Again, I defer to the Halberton Inspector as to the level of weight to be

given to this factor insofar as he said: “There would also be some

employment opportunities generated during construction but, as they

would be relatively short-lived, they receive only limited weight”44. No

reason has been offered by the Appellant that would lead me to take a

different view of this material consideration in the adjacent village for a

not dissimilar scale of major housing.

89.The fourth is “Boosting of extra spending power in the local economy”.

The way this factor has been expressed does not entirely make sense, as

it is either boosting or extra rather than both, but I assume that the

Appellant is making reference to the multiplier effect in the local economy

arising from spending by the additional households. I accept that this is a

benefit but attach only limited weight to this material consideration. For

reasons identified elsewhere in this proof the prospective households are

likely to be highly dependent on private cars and vans to gain access to

employment in places like Taunton and Exeter, such that the multiplier

effect is likely to be modest within the District of Mid Devon itself. It is

relevant to note that the draft Local Plan identifies: “high outcommuting,

particularly to Exeter and Taunton [and] High and increasing levels of car

ownership”45. This supports my view that only limited weight should be

given to the multiplier effect in the local economy.

90.The fifth is “Generation of New Homes Bonus and Council Tax receipts”,

but it is clear that these cannot be lawfully taken into account as material

considerations in this appeal. The PPG says: “When should a ‘local finance

consideration’ be taken into account as a material planning consideration?

Section 70(2) of the Town and Country Planning Act 1990 (as

amended) provides that a local planning authority must have regard to a

local finance consideration as far as it is material. Section 70(4) of the

1990 Act (as amended) defines a local finance consideration as a grant or

other financial assistance that has been, that will or that could be

provided to a relevant authority by a Minister of the Crown (such as New

Homes Bonus payments), or sums that a relevant authority has received,

or will or could receive, in payment of the Community Infrastructure Levy.

Whether or not a ‘local finance consideration’ is material to a particular

43 https://www.sampevclt.org/ 44 Source of quote: paragraph 25 of appeal decision [Ref APP/Y1138/W/19/3235159] dated 29 November 2019. 45 Source of quote: paragraph 1.13 of Local Plan Review.

http://www.legislation.gov.uk/ukpga/2011/20/section/143/enacted




https://www.sampevclt.org/


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decision will depend on whether it could help to make the development

acceptable in planning terms. It would not be appropriate to make a

decision based on the potential for the development to raise money for a

local authority or other government body. In deciding an application for

planning permission or appeal where a local financial consideration is

material, decision takers need to ensure that the reasons supporting the

decision clearly state how the consideration has been taken into account

and its connection to the development. New Homes Bonus payments

recognise the efforts made by authorities to bring residential development

forward. Even where anticipated Bonus payments are not a material

consideration in making planning decisions, they can be noted for

information in committee reports on applications for housing. Where this

is done, care will be required not to imply that Bonus payments are

relevant to the decision before the committee”46 [my emphasis].

91.In this case the Council has never said what it intends to use any payment

of new homes bonus for. As there is no indication that the Council intends

to use such monies in a way which is material to the proposal, this local

finance consideration cannot be claimed to be a benefit of the scheme.

Moreover, it follows from the definition of local finance consideration that

Council Tax cannot be so defined but is, instead, a payment that will be

made by householders for services received, such as waste collection.

The distinction that is evident from the PPG is reinforced by a public forum

on the Local Government Association/Planning Advisory Service website,

which is produced at Appendix H. In particular the exchange records: “In

any debate over local finance considerations remember that these are

tightly defined by legislation to include New Homes Bonus and CIL

receipts. They do not include council tax or business rates”. I note that

the Inspector in the Willand appeal appears to have given seen these as

benefits in the planning balance and this might have been challengeable.

92.The sixth is “Commercial viability of local services and facilities is

boosted”. Again, I accept that this is a benefit but there is no evidence

that local services are at the margin of viability and the Appellant has not

attempted to monetise the scale of the benefit. Given the poor pedestrian

links between the appeal site and the village centre, it is likely that

prospective residents are going to be highly dependent on the private car

for most day to day services and facilities, such as shopping, such that

‘local’ businesses, i.e. those in the village, might see little or no benefit.

In the circumstances I attach limited weight to this material consideration.

93.My view in this matter is confirmed by reference to paragraph 7.40 of the

Core Strategy, in the context of Policy COR12. It says: “Previous

experience within the District has shown that allocating market housing in

the villages has not produced additional or supported existing services or

facilities and therefore does not help to deliver sustainable communities”.

46 Source: Paragraph: 011 Reference ID: 21b-011-20140612.


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The Appellant has not provided any evidence to demonstrate that this

statement is no longer valid and so, whilst I accept that there might be a

limited benefit, it would be inappropriate to give this factor much weight.

94.The seventh is “Improvements to pedestrian safety”. For reasons that I

have explained previously47 I am firmly of the view that the proposed

development offers no such benefit. To the contrary, the proposed

crossing point on Turnpike would give rise to a dangerous situation in

which pedestrians heading into the village would be forced to cross the

road from the inside of a blind bend. No improvements to the narrow,

substandard footway along a significant length of Turnpike have been

proposed. The evidence of Mark Baker explains why Higher Town does

not meet the criteria for shared surface streets and in any event no

improvements are proposed to it. Even if the Inspector was minded to

find that the new length of footway on the outside of the bend was an

improvement for pedestrians returning from the village centre, I submit

that this factor should be given extremely limited weight. Any prospective

residents are going to be put off from walking by the dangerous route into

the village and hence use other modes of transport instead of walking.

95.I am aware that the Appellant has tabled a revised drawing [No 06685-

HYD-XX-XX-DR-TP-P-05 Rev P-05] in relation to the proposed crossing on

Turnpike, but the status of this drawing is unclear. The submission of the

new plan was not canvassed with the Inspector in the case management

conference. Although a drawing in respect of the northeast access was

submitted according to an agreed timescale, it was only illustrative. In

contrast, the revised drawing outside Wharf House is a detailed drawing

which has not been subject to any consultation, including neighbours and

Devon County Council, as Highway Authority. In particular, paragraph

1.1.2 of the agreed statement of common ground between the Appellant

and Highway Authority confirms, at the seventh bullet-point, that it is the

drawing at Appendix L to the TA that is “…the relevant plan”. In those

circumstances, I offer no view on this drawing at this very late stage48 and

SOS will be objecting to its submission in the absence of any consultation.

96.In summary it is clear that the proposed development offers very few

benefits. One of the alleged benefits advanced by the Appellant is not

even a material consideration and I have given reasons why I consider

that another alleged benefit cannot reasonably be described as such. In

considering 3 of the other benefits I have deliberately relied on the views

of the Inspector in the Halberton appeal because this effectively gives an

impartial view, distinct from my own, of the weight to be given to those

factors. In my view any departure from that weighting would need to be

47 See my letter to The Planning Inspectorate dated 31 December 2019 for full explanation. 48 The date of the drawing is given as “25/02/19”, but the TA is dated February 2018. Moreover, the second revision to that drawing is dated “26/09/19”, which reveals that the claim the latest revision was produced in February 2019 is false. It was produced for the first time after the Inspector’s case management conference.


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carefully justified in view of the circumstances of that appeal49. Finally, I

have given reasons for attributing only limited weight to the only other

benefits advanced by the Appellant.

49 In terms of date, scale of scheme, geographical proximity etc.


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Conclusion

97.The Framework sets out a presumption in favour of sustainable

development. It says for decision-taking this means: c) approving

development proposals that accord with an up to date development plan

without delay; or d) where there are no relevant development plan

policies, or the policies which are most important for determining the

application are out of date, granting permission unless: i. the application

of policies in this Framework that protect areas or assets of particular

importance provides a clear reason for refusing the development

proposed; or ii. any adverse impacts of doing so would significantly and

demonstrably outweigh the benefits, when assessed against the policies in

this Framework taken as a whole. Footnote 6 to d) i. says the policies

referred to are those in this Framework (rather than those in development

plans) relating to, amongst others, designated heritage assets.

98.For the reasons given in the section entitled “Testing the proposed

scheme against Policy SP2”, in paragraphs 59-74 above, paragraph 11 c)

would not be engaged even in the scenario that the Local Plan Review was

adopted prior to the determination of this appeal. I have given reasons

why the appeal scheme does not comply with criteria b), c), d), f) and g)

of Policy SP2 of the Local Plan Review, having regard to the supporting

text and the policies and proposals map. This is without even testing the

proposed development against other policies, such as heritage. As such

the focus must turn to paragraph 11 d) of the Framework.

99.Footnote 7 to the Framework says that the term out of date includes, for

applications involving the provision of housing, situations where the local

planning authority cannot demonstrate a five-year supply of deliverable

housing sites. In this case there appears to be no dispute that Mid Devon

currently has a housing land supply in excess of 5-years. In this respect I

have noted the Council’s current housing land supply assessment to be

7.43 years’ supply of deliverable housing sites and so paragraph 11 d) of

the Framework is not engaged on the basis of housing land supply.

100. Paragraph 213 of the Framework says existing policies should not be

considered out of date simply because they were adopted or made prior to

the publication of this Framework. Due weight should be given to them,

according to their degree of consistency with this Framework (the closer

the policies in the plan to the policies in the Framework, the greater the

weight that may be given).

101. This matter has been considered by Inspectors in a number of recent

appeal decisions and so my position is informed by their approach. In the

Willand appeal the Inspector said: “The proposal conflicts with CS Policies

COR 12, COR 17 and COR 18. Those policies directly influence the scale

and distribution of housing development and therefore they are out of


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date and attract limited weight”50. The Bampton appeal takes a broadly

similar approach but explicitly identifies what he considers to be the most

important policies, as required by paragraph 11 d) of the Framework.

The Inspector said: “I have found that the most important policies for

determining this appeal relate to the character and appearance of the

area and the supply of housing and employment. The former policies are

consistent with the Framework and attract full weight, but the latter are

out-of-date and have limited weight”51. Whilst the policies at issue in the

Bampton case are different, because that was an identified town in Core

Strategy Policies COR12 and COR16, the approach is directly relevant.

I have also had regard to the Uffculme appeal decision relied upon by

the Appellant but, noting that the Inquiry closed over 4 years ago, the

situation has moved on because there is a 5-year housing land supply.

102. In light of the above whilst countryside policies, including Core Strategy

Policies COR2 and COR18, design policies, such as DMP Policy DM2, and

heritage policies, such as DMP Policy DM2, are some of the most

important for determining this appeal, I accept that the housing supply

policies, notably Core Strategy Policies COR3 and COR17, are out of date.

On this basis I accept that paragraph 11 d) of the Framework applies.

103. However, having regard to the evidence of Emma Rouse, I consider that

paragraph 11 d) i. is engaged and the approach that this entails has been

set out in 3 recent appeal decisions in the District. First, in an appeal at

Bickleigh, the Inspector said: “paragraph 11 (d) (i) advises that where the

application of policies within the Framework provides a clear reason for

refusing a development proposal, the presumption in favour of sustainable

development does not apply. Designated heritage assets are specifically

protected within the associated Footnote 6. The harm to the Conservation

Area and listed buildings is therefore sufficient reason to dismiss the

appeal”52. For completeness the Inspector found: “the proposal would

conflict with Policy COR2 of the Core Strategy and Policies DM2 and DM27

of Mid Devon Local Plan Part 3 (Development Management Policies) 2013

(the DMP) which, together and amongst other things, require that

development preserve and enhance the historical environment. The

proposed development would also not accord with the provisions of the

Framework which seek to protect heritage assets”53. I agree that those

policies are the most important and I also find a conflict with them here.

In line with advice from the PINS Case Officer, a copy of that decision is

produced at Appendix I.

104. Second, in the Halberton appeal, the Inspector said: “As set out in

footnote 6 to Framework paragraph 11, paragraph 196 is a policy to

protect assets of particular importance. Therefore, even though there is

50 Source: paragraph 29, Appeal ref. APP/Y1138/W/18/3214685. 51 Source: paragraph 26, Appeal ref. APP/Y1138/W/19/3232381. 52 Source: paragraph 28, Appeal ref. APP/Y1138/W/19/3234861. 53 Source: paragraph 26, Appeal ref. APP/Y1138/W/19/3234861.


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no dispute that CS Policies COR3, COR17 and COR18 are out of date,

Framework Paragraph 11(d) does not indicate that permission should be

granted. The presumption in favour of sustainable development outlined

at Framework paragraph 11 does not, therefore, apply. The Framework,

read as a whole, does not weigh in favour of the proposal, instead

indicating that permission should be refused”54.

105. Third, in an appeal at Cheriton Fitzpaine, the Inspector said: “it is not

argued that DMP Policies DM2 or DM27, with which the proposal conflicts,

are out of date. Furthermore, footnote 6 of paragraph 11 (d) seeks to

protect assets of particular importance, including designated heritage

assets, and effectively disengages the tilted balance where policies of the

Framework, such as paragraph 196, provide clear reasons for refusing a

proposed development”55. I see no reason why any potential claim that

DMP Policies DM2 or DM27 could be said to be out of date could succeed.

In conclusion it was said: “the public benefits of the proposal would not

outweigh the less than substantial harm to significance of designated

heritage assets or adverse impacts upon the character and appearance

of the area, contrary to the Development Plan and the Framework”56.

106. I conclude that there would be harm to designated heritage assets and

that this should be given great weight in line with paragraph 193 of the

Framework. Paragraph 196 of the Framework says that where a

development proposal will lead to less than substantial harm to the

significance of a designated heritage asset, this harm should be weighed

against the public benefits of the proposal. I have given reasons for

attributing 2 moderate weights and 3 limited weights to the public

benefits that have been advanced by the Appellant and which I consider

to actually represent benefits. In my judgment those benefits do not

outweigh the harm. As the Inspector said in the Halberton decision: “In

light of the weight that I have attributed to the various other matters,

these do not outweigh the great weight that I must attribute to the assets’

conservation. In the context of the Framework read as a whole, this

balance provides a clear reason for refusing the development proposed”57.

107. Moreover, in addition to heritage harm, there are a great number of other

sources of harm that, when considered cumulatively, significantly weigh

against this proposal. Thus, if the Inspector is against my primary

submission that paragraph 11 d) i. of the Framework is engaged and

applies the “or”, and hence paragraph 11 d) ii., I consider that the

adverse impacts of granting planning permission would significantly and

demonstrably outweigh the benefits, when assessed against the policies in

the Framework taken as a whole. In this context I consider it helpful to

refer the Inspector to the visual illustration in Appendix_JB_A of the SOS

54 Source: paragraph 29, appeal ref. APP/Y1138/W/19/3235159. 55 Source: paragraph 22, appeal ref. APP/Y1138/W/19/3241017. 56 Source: paragraph 25, appeal ref. APP/Y1138/W/19/3241017. 57 Source: paragraph 28, appeal ref. APP/Y1138/W/19/3235159.


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Statement of Case58. The sources of harm are set out below, with my

attribution of weight to each. Please note that in the following list some

have been excluded59, others have been recast, I have excluded heritage

harm, which I have considered above, and I have identified additional

sources of harm.

i) Substandard and unsafe pedestrian crossing points are proposed on

Turnpike, the first outside Wharf House and the second outside No 16, and due to physical constraints, comprising walls and hedgerows, and

in respect of the latter, consecrated ground, these cannot be improved. This would be contrary to Core Strategy Policies COR1 e) and COR9, DMP Policies DM1 and DM2 d) and paragraphs 108 b), 109 and 110 a),

b) and c) of the Framework. I attach this harm significant weight;

ii) There are only 2 practical routes for pedestrians between the appeal

site and the services and facilities in the village and neither meet the requisite standards. The footway along Turnpike is too narrow and

does not meet the minimum width set out in ‘Inclusive Mobility’. There is no, or only intermittent, footway along Higher Town and it does not meet the criteria for a shared surface street in ‘Manual for Streets’.

This would be contrary to Core Strategy Policies COR1 e) and COR9, DMP Policies DM1 and DM2 d) and paragraphs 108 b), 109 and 110 a),

b) and c) of the Framework. I attach this harm significant weight;

iii) The required visibility splays and road widths at the northeast access

cannot be achieved and, in respect of the latter, would require the removal of the entire hedge and bank on the northern side of Higher

Town. Even with those works there would be an inadequate ‘Give Way’ space on Higher Town because a car and van cannot pass at that point. This would be contrary to Core Strategy Policies COR1 e) and

COR9, DMP Policy DM2 a), d) and e) and paragraphs 108 b), 110 c) and 130 of the Framework. I attach this harm significant weight;

iv) The required visibility splays at the proposed main vehicular access cannot be achieved and whilst the speed survey might suggest actual

speeds are lower than the current derestricted 60-mph speed limit the y-distance is below that required for a 30-mph road. Moreover, the proposed changes to ground levels around the inside of the bend on

the link road would be likely to result in speeds increasing downhill. As such the proposed site access would be contrary to Core Strategy

Policy COR1 e), DMP Policy DM2 d) and paragraphs 108 b), 109 and 110 c) of the Framework. I attach this harm significant weight;

v) Guidance on cycleways has not been fully applied and even if it could be, for example in the northeast corner of the appeal site, there might be implications for other considerations, for example in terms of

landscape and visual effects. This would be contrary to Core Strategy

58 Note: SOS no longer seeks to argue that paragraph 11 d) i. is engaged on the basis of flood risk. 59 To reflect the revised position of SOS with regard to the second reason for refusal.


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Policy COR9 d), DMP Policy DM2 d) and paragraph 110 c) of the Framework. I attach this harm moderate weight;

vi) It has not been shown how the footway in the northeast of the site will comply with the maximum gradient for pedestrians and wheelchairs.

Again, even if it might be capable of complying, there might be implications for other matters. This would be contrary to Core

Strategy Policy COR9 d), DMP Policy DM2 d) and paragraph 110 c) of the Framework. I attach this harm moderate weight;

vii) The proposal would harm the character and appearance of the area and the wider landscape. Amongst other things, the scheme does not

respect the framework set by the Local Plan Review because it seeks to develop part of the GI identified on the policies and proposals map, with the main access on the highest land, at approximately 128 m

AOD, and circa 10 houses. Significant alterations are proposed in the vicinity of 42 Higher Town that would seriously affect its character and

appearance, leaving aside its listed status. It appears to be common ground that the housing would breach the skyline when viewed from a number of public vantage-points even once trees had matured after

15-years. This would be contrary to Core Strategy Policies COR2 and COR18, DMP Policies DM2 a) and c) and DM7 and paragraphs 130 and

180 of the Framework. I attach this harm significant weight and comment further below by reference to relevant appeal decisions;

viii) The scheme would harm neighbours’ living conditions for the reasons and policy conflict set out elsewhere in this proof. I attach this harm significant weight;

ix) The proposals would render the neighbouring properties vulnerable in terms of security for the reasons and policy conflict set out elsewhere

in this proof. I attach this harm significant weight;

x) The views of local residents and the Parish Council have been ignored

by Officers during the planning process. The Council’s decision-making process in selecting the site can be described, charitably, as opaque

and its handling of the planning application, including the error strewn report that was placed before the Planning Committee, was poor. The

substantial and consistent level of opposition, which is based on sound planning reasons, is a factor that should be given limited weight;

xi) The density would be inefficient use of land, contrary to Core Strategy Policies COR1 d) and COR7, DMP Policy DM2 b) and paragraph 117 of the Framework. I attach this harm and policy conflict limited weight;

xii) The Council’s reasons for selecting the site were given, retrospectively, around 2-years after it was nominated as a proposed allocation at a

secret, private meeting of the PPAG, for which the Council has no minutes and no records. Those reasons relate to the need to provide

for the housing needs of the J27 development and yet the examining Inspector has cut the link to that scheme. In those circumstances, as


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there is no significant source of employment in the village, at least pending J27, there would be a significant level of out-commuting.

Table 3.2 of the Appellant’s Transport Plan [TP] shows that the national average is that 43 % of households travel under 5 km to

work, but in this ward the figure is just 14 %. Paragraph 3.5.2 of the TP confirms that the average commute for this ward is over 25 km, almost double the national average, supporting the view that

prospective residents are likely to travel to the main towns, such as Taunton or Exeter, for work; this is confirmed by the last sentence of

paragraph 3.5.3 of the TP and by reference to paragraph 89 above. Moreover, paragraph 3.4.3 of the TP confirms that 83 % of existing movements by commuters are by car or van, and that this is above the

national average. Paragraph 1.22 of the statement of common ground between the main parties identifies the “increase in the number of cars

created by the proposed development” to be an adverse impact but, aside from highway safety, it is the high dependence that prospective occupiers would have on the private car in this location that is a

concern. Even with the steps set out in the Travel Plan there is no reason to think that prospective residents would be markedly different

from the existing profile and this would be contrary to the whole thrust of national and local policies. I attach this harm moderate weight;

xiii) The required survey of prime reptile habitat has not taken place for the reasons set out elsewhere in this proof. Pertinent national circular

guidance makes clear that the Inspector is required to take account of this material consideration and this omission cannot be addressed by a planning condition. I attach this issue significant weight;

xiv) The northeast access has not been assessed in terms of the prospect of it increasing flood risk elsewhere and there are other problems with

the proposed drainage solution, as set out elsewhere in this proof. I attach this source of harm and policy conflict significant weight;

xv) Although it is conceded that the village has a range of services and facilities, such as pubs, a doctors’ surgery and PO/shop, these are not

within a safe walking distance of the appeal site. This contrasts with the circumstances and findings of the Inspector in the Willand appeal who said: “the services and facilities in Willand are … all … within safe

walking … distance of the appeal site”60. This would be contrary to Core Strategy Policy COR9, DMP Policy DM2 d) and paragraph 103 of

the Framework. I attach this harm significant weight;

xvi) The Inspector in the Willand appeal said: “The proposal would conflict

with the development plan in relation to the scale of housing provision planned in Willand. The Framework makes clear that the planning

system should be genuinely plan-led and therefore this should be treated as harm”61. By reference to paragraph 8 of that decision, which identifies a “conflict with the development plan strategy for the

location of housing”, I consider that this is a reference to the adopted

60 Source: paragraph 15, Appeal ref. APP/Y1138/W/18/3214685. 61 Source: paragraph 34, Appeal ref. APP/Y1138/W/18/3214685.


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development plan. In the context of Core Strategy Policies COR12 and COR17, this position equally applies to Sampford Peverell and I attach

this source of harm moderate weight;

xvii) The proposal would result in the loss of approximately 6 hectares of

Grade 2 agricultural land. This would be contrary to Core Strategy Policy COR7 and paragraph 170 of the Framework, which says:

“decisions should contribute to and enhance the natural and local environment by: b) recognising the intrinsic character and beauty of the countryside, and the wider benefits from natural capital and

ecosystem services – including the economic and other benefits of the best and most versatile agricultural land”. I attach this source of harm

and policy conflict moderate weight; and,

xviii) The draft section 106 agreement makes no provision for the payment

of approximately £80,000 to the Royal Devon and Exeter NHS Foundation Trust. The justification for that sum, by reference to the

requisite tests and development plan policies, is hereby produced as Appendix J. In its absence the proposed development would not meet the demands on public services and infrastructure which, particularly

given recent events, is an additional source of harm and policy conflict to which I attach significant weight.

108. Elaborating on point vii) above, with regard to effects on the landscape,

there are a number of pertinent appeal decisions that have been

dismissed that SOS rely on in the consideration of this matter.

109. The first is an appeal in Copplestone, where the Inspector said: “the

appeal scheme would erode the rural setting of the village and detract

from the sense of place. This would be especially evident when viewed

from the public footpath to the north of the site. From here, the

development would appear as a rather awkward enlargement of the

village extending behind the ‘finger’ of buildings to the east of the A377

junction with Elston Lane, encroaching into the countryside and

diminishing this important rural edge to the settlement. The proposal

would conflict with CS policy COR2”62. In line with advice from the PINS

Case Officer, a copy of that decision is produced at Appendix K.

110. I consider this rationale applies equally here because the line of dwellings

along the opposite side of Turnpike should be described as being a ‘finger’

of development63. Those existing dwellings are beyond the settlement

boundary and would remain so under the policies and proposals in the

Local Plan Review. When viewed by leisure walkers who use the Higher

Town/link road route to get down to the canal from this part of the village,

I consider the effect would be comparable. Using landscape terminology,

there would be a high magnitude of adverse change for high sensitivity

62 Source: paragraph 18, Appeal ref. APP/Y1138/W/17/3167891. 63 See my photograph No 15b, which clearly shows this ‘finger’ in its wider landscaped setting.


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receptors. The decision is also of note for its succinct approach to

discharging the planning balance and for the policy conflict identified.

111. The second appeal64 relates to land at the other end of Sampford Peverell

and in line with advice from the PINS Case Officer, a copy of that decision

is produced at Appendix L.1. Crucially the same planning and landscape

team promoted that site, but their arguments were comprehensively

rejected by the Inspector. The Inspector was clear that the scheme would

be out of character, highly visible, cause significant harm and be contrary

to development plan policy; see paragraph 8 of that appeal decision.

112. I also produce excerpts from the LVIA submitted by AECOM in relation to

that appeal at Appendix L.2. Section 2 of that report, “Methodology”

says: “A Study Area has also been utilised within the report. The size and

extent of this area has been formulated to broadly cover the same extent

as the secondary zone of visual influence”. That approach is reflected in

the plan at Figure 1 [third screenshot at Appendix L.1]. It is troubling that

AECOM have not adopted the same approach in this appeal and instead

struggle to justify the 3 km cut off in section 4.2 of the report by claiming

that “views … beyond this distance would not be readily discernible to the

naked eye. If distant views were achievable, the detail would be subject to

the influence of atmospheric conditions and would occupy such a small

proportion of the field of view to be of negligible visual importance”, whilst

at the same time ignoring a photograph that the author of the report took

from more than 3 km which clearly shows this appeal site on the skyline.

113. My long-held view that the study area, PZVI and SZVI in the submitted

AECOM report is wrong has now been vindicated by the release of the CEC

report of 23 May 2018. To be clear, SOS received this for the first time on

30 March 2019, one day before the deadline for submission of this proof.

It is of concern that the Council has sought to suppress it rather than

publish it on the planning application portal [at the time of writing it is still

not published]. Amongst other things the CEC report says: “We would

consider that the PZVI should be extended in parts to the south to cover

short sections of the Grand Western Canal, from where the site forms a

close by landform of the horizon. The SZVI is misleading in places as it

doesn’t closely follow the Zone of Theoretical Visibility (ZTV) … , failing to

cover some areas of intervisibility …. These potential misunderstandings

could be avoided if the SZVI had been replaced by the ZTV.)”.

114. To bring these points together, CEC are saying that AECOM should use the

ZTV instead of, or otherwise to inform its identification of, the SZVI. The

ZTV includes Black Down Common and Blackborough from which, as my

photographs 14a/b and 15 a/b show, the appeal site is visible with the

naked eye; it is not just theoretically visible, although I would accept that

at circa 10 km views are subject to atmospheric conditions. As I have

64 Ref: APP/J1155/W/17/3184835.


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shown, AECOM used the SZVI to identify the extent of the study area in

its report for the appeal at the other end of the village. Such an approach

is expressly advocated in paragraph 5.2 of the 3rd Edition of the GLVIA.

No good reason has been given why AECOM have adopted a different

approach in this appeal and their claimed justification, as per the earlier

quote, is manifestly disproved by their own photograph. Finally, the CEC

observation that the PZVI should be more extensive accords with my own

view but underestimates its extent. In my view the PZVI should include

much of Shutehanger and Halberton Footpath 27, which gives clear views

of the appeal site on the skyline [see viewpoint 10 in AECOM report and

my photograph 11]; the proposed housing would define the new skyline.

115. In this respect I also refer the Inspector to the analysis of this appeal

decision in my letter dated 6 June 2018. As explained in paragraph 21 of

that letter the appeal site at Higher Town, the clue being in the name, is

around 45 m higher than the site that the Inspector rejected at the other

end of the village. In addition, the development would be almost twice

the height of what was proposed in that case and would comprise

permanent buildings. I consider that it would be perverse for the

Secretary of State to reach a contrary view at the other end of the village

in those circumstances. In their submissions to that appeal AECOM stated

that there would be a total change in existing character in that case and

conceded that would be the same for any site65. It is troubling that no

similar concession has been made in the circumstances of this appeal.

116. The third appeal is that at Bampton. To be clear, this was an allocated

site in a settlement that Core Strategy Policy COR12 identifies to be a

focus for development in the adopted development plan. Despite this the

Inspector held: “The plans indicate that the housing would have a harmful

effect on the character and appearance of the area. Whilst the conflict

with housing and employment policy is of limited weight, the degree of

permanent harm I have identified to the character and appearance of the

area would be significant. Consequently, these adverse impacts would

significantly and demonstrably outweigh the benefits of the scheme”66.

117. I consider this appeal is a good example of paragraph 11 d) ii. being

applied where the adverse impacts outweigh the benefits. It should be

noted that the Inspector found that: “most of the visual effects of the

proposal would be localised”67. In contrast, I submit that the evidence

before the Inquiry, including my photographs, shows that here there

would be permanent harm to the character and appearance of a wide area

and that development, including dwellinghouses and street lights, would

be visible on the skyline from more than 3 km away. Moreover, for the

65 See paragraph 15 of my letter dated 6 June 2018. 66 Source: paragraph 28, Appeal ref. APP/Y1138/W/19/3232381. 67 Source: paragraph 15, Appeal ref. APP/Y1138/W/19/3232381.


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reasons given above, there are numerous sources of harm in the

circumstances of the current appeal, in addition to the harm to landscape.

118. In summary, although I accept that housing supply policies, which are

important for determining the appeal, are out of date, I submit that the

proper application of policies in the Framework that protect assets of

particular importance, in this instance designated heritage assets,

provides a clear reason for refusing the proposed development. There is

no basis for finding that heritage policies, which are equally important for

determining the appeal, are out of date and they should be given full

weight. In the alternative, the significant number of adverse impacts of

granting planning permission would significantly and demonstrably

outweigh the relatively few benefits advanced by the Appellant, when

assessed against the policies in the Framework taken as a whole. In the

circumstances I submit that this appeal should be dismissed.


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List of Appendices

Each of the following appendices will be submitted as a separate PDF

labelled in the form “Appendix X to the proof of evidence of MP Drew”.

Appendix A – Photographs taken from within and in the vicinity of No 42,

No 44 and No 46 Higher Town, specifically as set out below:

A1: View from lounge window of No 44.

A2: View from dining room window of No 44.

A3: View from bedroom 1 of No 44.

A4: View from bedroom 2 of No 44.

A5: View of rear of No 44 taken by me [1.8 m tall male]

from top of bank, albeit not from field side.

A6: View of dining room/bedroom 1 of No 44 taken by me

from top of bank, albeit not from field side.

A7: View from bedroom of No 46.

A8: View from dining room of No 46.

A9: View showing 1.22 m high measure resting on path at

rear of No 46 to show broad height of earth bank.

A10: View from dining room of No 42.

A11: View from path at the rear of No 42 showing bank

level.

Appendix B.1/B.2 – Letters submitted during processing of the planning

application with regard to existing flooding problem on Higher Town

Appendix C.1 – Photograph showing existing drain on this part of Higher

Town during a recent rain event [March 2020]

Appendix C.2 – Photograph showing opening where the easement feeds

into the adjacent field [with clipboard and walking stick for scale]

Appendix C.3 – Photograph showing the end of the pipe that feeds water

into the next field [Appendix JB_W to the SOS Statement of Case shows

the ‘waterfall’ that can pour out of this pipe]

Appendix D – “Sustainable Drainage Systems Guidance for Devon”

Appendix E.1 – Copy of consultation response from the owner of No 14

Appendix E.2 – Copy of the flood map for part of Turnpike near No 14

Appendix F – Representations made by the Appellant and Historic

England in relation to the recent consultation on the Local Plan Review

Appendix G – Parish of Sampford Peverell Housing Needs Report, dated

October 2019


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Appendix H – Excerpt from public forum on the Local Government

Association/Planning Advisory Service website

Appendix I – Appeal decision Ref APP/Y1138/W/19/3234861, dated

3 December 2019

Appendix J – Submission of Royal Devon and Exeter NHS Foundation

Trust setting out the basis for the requested contribution of circa £80,000

by reference to established tests and development plan policy

Appendix K – Appeal decision Ref APP/Y1138/W/17/3167891, dated

16 June 2017

Appendix L.1/L.2 – Appeal decision Ref APP/J1155/W/17/3184835,

dated 27 April 2018, together with excerpts from the LVIA that was

submitted by AECOM for that appeal.

proof of evidence on behalf of rule 6 party save our sampford · 2020-08-06 · town, the front of...

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