WATERSIDE PARK, LAND SOUTH OF A20/M20 LINK ROAD ROUNDABOUT, ASHFORD ROAD,

HOLLINGBOURNE ME17 1PGAPPEAL BY GALLAGHER PROPERTIES Ltd., AUTOMOTIVE DISTRIBUTORS Ltd., and SCARAB SWEEPERS LIMITEDCLOSING SUBMISSIONS ON BEHALF OF KENT COUNTY

COUNCIL, KENT DOWNS AONB EXECUTIVE, and NATURAL ENGLAND

Introduction1. Before examining the points in dispute in these appeals, it is important to consider the

context for consideration of the issues arising in this case.

2. The Appellants put forward two proposals to develop a site in the open countryside by

creating an industrial and warehouse estate.

3. There is no dispute that the proposals are in conflict with ENV28 in the Maidstone Borough

Wide Local Plan, and that they do not accord with the development plan1.

4. On the Appellants’ own evidence, it is acknowledged that there will be “ …. some inevitable

and in-principle harm (to the landscape)2 as a result of the introduction of large scale new

buildings into the countryside …”3. The Appellants also acknowledge that there will be

adverse visual impact.

5. The starting point for consideration of these appeals is therefore that, as indicated by the

development plan, they should be refused.

6. The Appellants seek to overcome the very clear conflict with the development plan by

relying on need to provide employment floorspace, and on the economic benefits of the

proposals.

7. Kent County Council, the Kent Downs AONB Executive and Natural England (who I will refer

to as the Joint Parties) do no dispute that there is a general need for employment floorspace

in Maidstone Borough Council’s area, and do not dispute that provision of industrial and

warehouse space on the appeal site would bring with it economic benefits.

1 As agreed by Buckwell in XX by S Whale2 My insertion3 Etchells PoE 6.4,.1

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8. However, an important issue in this case is the weight to be given to ‘need’, whether general

need, or the needs of a particular business, Scarab. If a need exists, but is capable of being

met elsewhere, the weight to be given to it is reduced.

9. It is clear from the evidence that neither the general need for employment floorspace, or the

specific need of Scarab, is of sufficient weight to outweigh landscape and visual harm and/or

to indicate that the decision should be made otherwise than in accordance with the

development plan. It is clear that, in accordance with the provisions of section 38(6) of the

Planning and Compulsory Purchase Act 2004 planning permission should be refused.

10. Unless otherwise indicated these submissions apply both to Appeal A and to Appeal B.

The inspector’s main issues11. Following the pre inquiry meeting4, and, when you opened the inquiry you identified the

following main issues

The effect of the proposed development on:

(i) the landscape character and visual amenity of the surrounding area, including the setting of the

Kent Downs AONB and

(ii) the setting of nearby heritage assets

You also indicated that other issues, including the need for the development, were also in

issue.

12. As I explained in opening, given their various remits, the Joint Parties do not advance a case

on the second main issue; therefore I will not address heritage issues in these submissions.

Landscape and visual impact

Methodology

13. There is little or no dispute as to the methodology to be employed when assessing landscape

and visual effects. All three landscape witnesses have employed the methodology

recommended by the Landscape Institute and set out in the Guidelines for Landscape and

Visual Impact Assessment Third Edition (“GLVIA 3”)5.

4 Notes of Pre Inquiry Meeting paragraph 4.15 The relevant extracts can be found at Russell-Vick Appendix B or in the additional extracts provided during the course of the inquiry

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14. Despite applying the same methodology the three landscape witnesses have reached

different conclusions. You will have to assess the evidence given by each witness and form

your own view. In making that assessment I ask you to give careful consideration to the

approach taken by each landscape witness and to how it assists you in making the

determination.

15. GLVIA 3 makes recommendations about the approach to be taken when establishing the

baseline. Baseline studies for visual effects should establish the area in which the

development may be visible6. GLVIA 3 states that there are two main approaches to

mapping visibility, the manual approach and the digital approach (creating a terrain model).

Mr Etchells said7 that the two methods referred to in GLVIA 38 are the only two approaches.

16. In the landscape and visual impact assessment chapter of the environmental statement

(“ES”) which he prepared, Mr Etchells used the manual method. As stated in GLVIA 39, and as

accepted by Mr Etchells, the manual method has limitations as the surveyor cannot stand at

the highest point of the proposed buildings – that is a particular issue when considering the

potential visibility of the proposed buildings on the eastern part of the appeal site.

17. The ‘visual envelope’ which was prepared by Mr Etchells10 is stated to be the approximate

extent of the visual envelope. The digital zone of theoretical visibility (“ZTV”)11 which was

subsequently produced by Mr Etchells in response to a request made by Mr Russell-Vick,

demonstrates that the visual envelope is much wider than that indicated in the ES figure

13.2, and in particular includes extensive areas on the North Downs. It may be argued by

the Appellants that the failure to provide a ZTV as part of the initial analysis is of no

consequence, or to the extent that it was of consequence, any defect has now been

remedied. However, when considering the approach taken by Mr Etchells, and when

assessing the conclusions that he has reached, it is important to take account of the fact that

his initial analysis did not establish the area in which the development may be visible (as

required by GLVIA 312) and therefore he had to rely upon his judgement as to the extent of

viewpoints from which it may be possible to view the appeal site.

18. Landscape and visual impact assessment relies upon ‘linking judgments’ between sensitivity

of the receptor and magnitude of effects (or as Mr Etchells prefers, magnitude of change).

6 GLVIA 3 paragraph 6.37 Etchells XX8 GLVIA 3 paragraph 6.79 GLVIA 3 paragraph 6.710 ES figure 13.2 and Etchells PoE Figure 411 Etchells Figures 5.1 and 5.212 GLVIA 3 paragraph 6.3

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Mr Etchells has set out his methodology13 but has not distinguished between effects that are

likely to influence the eventual decision and those of lesser concern – that is one of the

potential ‘pitfalls’ identified as such in GLVIA 314.

19. By contrast, Mr Russell-Vick has followed the GLVIA 3 guidance and has expressed his

conclusions, as to whether effects are significant or not; an approach which I submit is or

more assistance to you in forming your conclusions.

Existing conditions/baseline

20. Existing landscape character is described in the various assessments that have been carried

out including the Landscape of Assessment of Kent 2004 and the Maidstone Landscape

Character Assessment 201215.

21. The 2004 Kent assessment was carried at about the time that CTRL was under construction

or was a new feature16. At that time the transport corridor is likely to have had a stronger

influence on the landscape character than it does today.

22. There is no dispute that the appeal site lies within the setting of the Kent Downs AONB.

23. The importance of views from the south facing scarp of the North Downs is identified in the

AONB Management Plan. As indicated in the management plan17, and as agreed by Mr

Etchells18, the views to and from the scarp of the North Downs were instrumental in the

reasons for its designation, and impacts on those views are to be given considerable weight

in decisions.

Landscape Effects

24. There is no dispute that there will be an adverse local landscape effect as a result of the

extensive work proposed to the appeal site itself19.

25. The local landscape character is described in the 2012 Maidstone assessment. It falls within

the Ashbank Fields area20. The area is described as being a sensitive location in that the

landscape provides the setting to the Kent Downs AONB. The action recommended is that

the landscape be restored and improved21. As noted by the KIG inspector (and endorsed by

13 Etchells Appendix C14 GLVIA 3 paragraph 3.3515 CD 2516 Russell-Vick XiC the CTRL was under construction in September 200317 Russell-Vick Ap. H page 2418 Etchells XX19 Etchells PoE 6.4.120 CD25 pages 409-41021 CD25 page 410

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the Secretary of State)22, and as agreed by Mr Etchells, none of the landscape character

assessments indicate that development is desirable. The proposals will neither restore nor

improve the landscape; they can be regarded as incompatible with the objectives set out in

the 2012 Maidstone assessment.

26. The site lies outside the AONB and therefore there will be no physical change to the

landscape of the AONB, but there will be a change to perceptual qualities23. The views from

the scarp are of particular importance to the AONB, and the proposed development which

will be readily apparent in those views, leading to a diminution in character, resulting in a

significant adverse effect on landscape character24.

Visual Impact

27. There is agreement between the landscape witnesses that those enjoying public rights of

way, including the North Downs Way National Trail, and open access land on the North

Downs, and those enjoying the Leeds Castle grounds are to be regarded as high sensitivity

receptors, falling into the categories identified at paragraph 6.33 of GLVIA 3.

28. Given the high sensitivity of the receptors, the magnitude of change will not have to be

great, in order to lead to the conclusion that the effect is significant.

29. Although it is necessary, given the wide area from which the proposed buildings will be

visible, to consider the visual effects from a wide range of different viewpoints, I will

concentrate, in these submissions, on a limited number of them.

30. Before turning to the specific viewpoints it is important to note that Mr Etchells25 expressed

the opinion that the appeal site lies within the setting of the AONB, and that the proposals

will have a harmful effect on the setting – the dispute turns in the main on magnitude of

change/effect, and whether it can be regarded as significant.

31. North Downs Way

a. There is a dispute between Mr Etchells and Mr Russell-Vick on the length of the

North Downs Way National Trail from which it will be possible to see the proposed

development. Whatever the precise length from which views can be obtained there

can be no doubt that:

i. The views from the scarp, whether from the North Downs Way, open access

land, or specific viewpoints such as The Shepherd are highly valued.

22 CD34 paragraph 18.30, and CD35 DL 2023 Russell-Vick PoE 5.2024 Russell-Vick PoE 5.2025 Etchells XX

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ii. Walkers on the North Downs Way will be able to see the development on

the appeal site.

iii. If the view south from the scarp is in part obscured by vegetation, the view

that can be gained without obstruction by vegetation may be said to be

more highly prized.

b. Mr Etchells agrees that the appeal proposals would be a discordant element in the

view from viewpoint 3326 but contends that it will not be readily discernible and

therefore the visual effect will be insignificant or negligible.

c. Mr Russell-Vick considers that there will be medium adverse magnitude of impact

on high sensitivity receptors giving rise to the conclusion that the detrimental effect

will be significant27.

d. It will be for you to consider which landscape expert’s evidence you prefer.

However, given Mr Etchells’ agreement that the proposals would be a discordant

element in the view, would be discernible, and taking account of the incongruity and

scale of the proposals as illustrated in the photomontages, his description of the

effect as ‘insignificant’ or ‘negligible’ should be rejected and Mr Russell-Vick’s

analysis and conclusion should be preferred.

32. The Pilgrims Way

a. There can be no doubt that the sensitivity of receptors can properly be described as

high.

b. The issue in dispute is the magnitude of effect/change.

c. The roofs of buildings would be seen over intervening vegetation at a distance of

about 2.2km.

d. Given that there are only small detracting elements in the otherwise rural views, the

opinion expressed by Mr Russell-Vick28, that the magnitude of effect is medium

adverse should be endorsed.

33. Views from the south

a. The photomontage relating to viewpoint 50 demonstrates that the proposed

buildings, seen with the AONB in the background, would be wholly out of scale and

character with other built elements29 (such as the oast house seen in the view).

26 See photomontage at CD5427 Russell-Vick PoE page 2728 Russell-Vick PoE page 2829 Russell-Vick PoE page 30

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b. There can be little doubt that Mr Russell-Vick’s analysis that the magnitude of effect

would be very large adverse30 is correct.

34. Leeds Castle registered park and garden

a. As explained by Mr Russell-Vick viewpoint 38 is the only elevated view of the castle

and is a unique view, being the viewpoint from which the viewer is able to see the

castle in its wider landscape context31.

b. Mr Etchells acknowledges that the appeal proposals will be readily discernible in the

view32 and that the view will be affected to a moderate adverse degree33.

c. The sensitivity of the view is agreed by all to be high. The impact on the view is

illustrated in the photomontage. The scale of the buildings which are proposed, and

in particular the former ADL building will be clearly apparent in this view. As a result

the view of the castle in its rural setting will be adversely affected. Mr Russell-Vick’s

analysis and his opinion that the adverse affect will be significant should be accepted

and endorsed.

Conclusions

35. There can be no doubt that the sensitivity of receptors such as the public rights of way

(including the National Trail) and open access land in the AONB, and the registered park or

garden, fall into the highest category of sensitivity. There can also be no doubt that the

appearance of the appeal proposals in any of the views will have an adverse effect.

Therefore the real point at issue is magnitude of change/effect. That resolution of the

dispute on that point turns on the judgement of the experts.

36. There are a number of matters which may assist you in resolving that dispute:

a. Mr Etchells approach is not entirely consistent. He identifies a moderate adverse

affect on views from Leeds Castle grounds (viewpoint 38)34 and insignificant effects

in views from the North Downs Way35 (viewpoint 33 in particular). One of the main

reasons he gave for the difference in judgement was the difference in distance in the

view. Mr Etchells’ figures for distance are 1.8km for the Leeds Castle view and 2.5km

to 4km for the view from the North Downs Way. It may be thought that the

difference in distance (1.8km to 2.5km)36, particularly when the view from the North

30 Russell-Vick PoE page 3031 Russell-Vick XX 32 Etchells XX33 Etchells PoE page 3934 Etchells PoE page 3935 Etchells PoE page 3936 Russell-Vick distance from viewpoint 33 – 2.8km, distance from viewpoint 38 2.25km (Appendix G)

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Downs is looking down at the roofs and side elevations of the proposed buildings,

does not justify that distinction.

b. Mr Russell-Vick’s approach is not only to be commended for its objective approach,

but also for the measured and clearly justified judgements which inform his

conclusions. Given that Mr Russell-Vick has followed the rigorous methodology set

out in the GLVIA 3 guidance, and has avoided the potential pitfalls identified in that

guidance, particular weight should be placed upon his conclusion that the proposed

development is unacceptable in landscape and visual terms37.

37. Mr Russell-Vick’s assessment is to be preferred. The conclusion to be drawn is that there will

be significant adverse and unacceptable landscape and visual effects.

The Planning Balance

The Statutory Framework for decision-making

38. As with any planning application, there is a duty to have regard to the development plan38,

and to make the determination in accordance with the development plan unless material

considerations indicate otherwise39.

The Development Plan

39. The proposal is to site a large industrial estate on an unallocated site in the open countryside

and there is agreement between all parties that the proposals are contrary to saved policy

ENV 28 in the Maidstone Borough-Wide Local Plan 2000.

40. The development plan has to be considered as a whole. Policy ENV 28 may be considered to

be a fundamental policy- it is the policy which protects the countryside. There is no

disagreement that the proposed development in contrary to the development plan when

considered as a whole. As a result, in the cases of both appeals A and B, permission is to be

37 Russell-Vick PoE 6.9, confirmed in XX38 Section 70(2) Town and Country Planning Act 1990 (“TCPA 1990”) : (2) In dealing with such an application the authority shall have regard [to—] 1

(a) the provisions of the development plan, so far as material to the application,(b) any local finance considerations, so far as material to the application, and(c) any other material considerations.39 Section 38(6) Planning and Compulsory Purchase Act 2004 (“PCPA 2004”):(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.

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refused unless the conflict with the development plan is outweighed by other material

considerations.

Other Statutory Duties

41. Section 85 of the Countryside and Rights of Way Act 2000 (“CROW Act”) provides:

(1) In exercising or performing any functions in relation to, or so as to affect, land in an area of

outstanding natural beauty, a relevant authority shall have regard to the purpose of conserving and

enhancing the natural beauty of the area of outstanding natural beauty.

42. The duty imposed by section 85 applies to the determination of a planning application on

site lying outside the AONB if the effect of permitting the development would be to affect

the AONB.

43. Although the development lies outside the AONB the development falls within it setting and

has adverse visual and landscape effects on the AONB. There is a particular adverse visual

effect on views out from the scarp of the North Downs. As a result the development will

adversely affect the AONB. To grant planning permission would allow a development to

proceed which would neither conserve nor enhance the natural beauty of the AONB; it

would harm it.

44. Parliament has imposed a particular duty on those, such as a planning authority, and in this

case the inspector acting on behalf of the Secretary of State, and in order to give effect to

Parliament’s intentions considerable weight should be placed on the fact that the proposed

development, if allowed to proceed, would neither conserve nor enhance the AONB. The

development would not further the objectives set out in section 85, it would undermine

them.

Other Material Considerations

Emerging Local Policy

45. The emerging local plan has been long considered by the Borough Council.

46. Mr Buckwell seeks to attack policy SP5 on the ground that it is inconsistent with the NPPF.

His attack is on SP5(5) not SP5(1). He agrees that a policy in the general terms set out at

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SP5(1), which restricts development in the countryside to certain limited categories, is not

inconsistent with the NPPF.

47. As acknowledged by Mr Carpenter the inclusion of the word ‘rigorous’ in SP5(5) may not

survive examination. However there is agreement that there is no ‘in principle’ objection to

the inclusion of a policy which seeks to protect the setting of an AONB if it can be justified40.

48. SP5 may have some way to go before it is adopted, however the principle of including a

countryside protection policy and a policy which protects the setting of the AONB is not in

dispute.

Need and benefits

49. The Appellants seek to rely upon need, both general and the particular need of Scarab, to

overcome the acknowledged harm that would occur if the industrial estate were to be

developed.

50. The dispute between the Joint Parties and the Appellant turns not on whether there it is

desirable for Scarab to find new premises, or on whether there is a general need arising in

Maidstone Borough, but on the question of the weight to be placed upon any need for the

appeal proposals.

General Need

51. On the issue of general need you have before you the analysis performed by GVA for

Maidstone BC and Mrs Evans’ alternative figures set out in her proof of evidence.

52. The GVA employment land requirement figures are arrived at based upon their economic

forecasts41. The economic growth forecast is ‘translated’ into an estimate of employment

floorspace42, with a resulting employment land requirement43.

53. On the GVA figures the ‘balance’ of employment land requirement for the period to 2031 is

negative, and within that overall analysis, the ‘balance of requirement’ for industrial land is -

3.9ha44. However, GVA go on to advise that there is a qualitative need.

54. Mrs Evans considers that, based upon her criticisms of the GVA report, the appropriate

‘balance of requirement’ figure for industrial land should be 9.1ha45 which should be

adjusted to take account of the most recent information to arrive at a figure of 11.3 ha. Mrs

40 Buckwell XX41 CD3042 CD30 paragraph 6.143 CD30 Table 2444 CD40 Table 2945 Evans XiC

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Evans also questions whether the supply of employment land referred to by GVA is able to

accommodate the predicted need46.

55. You will have to determine whether GVA’s figures or Mrs Evans’ figures are more reliable.

56. There is little or no empirical evidence of need for a building of the size of the former ADL

building47. The only empirical evidence relied upon by Mr Alderton is the Locate in Kent

data48. That data shows requirements for space in excess of 100,001 square feet. There is no

indication as to whether such a requirement is in the 200-250,000 square feet category.

57. The data produced by Mr Alderton shows that, in January 2015, there were three businesses

seeking industrial space in the excess of 100,001 square feet category in the whole of Kent

and Medway49. All three of those businesses sought such space in Maidstone50. 2 of the

three also sought such space in Medway51 and one of the three sought such space in

Tonbridge and Malling52. Those figures demonstrate that although those seeking industrial

space in Kent and Medway in the over 100,001 square feet category, may express an

interest in the Maidstone area, their area of search is not confined to Maidstone. It also

demonstrates that there are a limited number of businesses seeking space in the excess of

100,001 category – there were three such businesses in January 2015.

58. The following conclusions can be drawn:

a. Even on Mrs Evans’ figures the appeal proposals would satisfy all (Appeal A) or

almost all (Appeal B)53 the ‘balance of requirement’ for industrial land for the period

to 2031.

b. There is no empirical evidence to demonstrate a need for a building the size of the

former ADL building, for which detailed planning permission is sought (whether in

Appeal A or Appeal B).

Alternative Sites

59. If there are alternative sites outside Maidstone Borough which can satisfy Scarab’s need for

new premises (and the needs of a potential occupier of the former ADL building) the weight

to be given to such need is much diminished.

46 Evans PoE 5.6747 Appeal A 23,533 sq m plus 4,145 sq m of offices. Appeal B 21,990 sq m and 2,995 sq m of offices.48 Alderton Appendix 249 Alderton Appendix 2 page 650 Alderton Appendix 2 page 1051 Alderton Appendix 2 page 1252 Alderton Appendix 2 page 853 If the entire site area is take (16.91 ha) it would exceed the 11.3 ha, if the Site A developable area (11.7 ha) is taken the 11.3 ha is exceeded. If the Appeal B developable area is taken the figure is 10.2 ha. The development area figures are set out at CD42 paragraph 2.2.1.

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60. Mr Cottage, who gave evidence on behalf of the Joint Parties, suggested that the Scarab’s

need (and the need of an occupier of the former ADL premises) could be met outside

Maidstone’s administrative area and identified four sites.

61. As a business, Scarab are, of course entitled to take the position that they have, namely as

explained by Mr Cassingham, that if they are going to move then they should move to the

‘perfect’ location54. However, the fact that Scarab have taken that position, is relevant when

considering the weight to be given to their desire to move to Waterside Park. If a company

were to take such a position and the resulting ‘need’ was allowed to prevail, that one

company’s search for perfection (in meeting its own requirements) would override all other

considerations. That is not a realistic position to take on a planning application, where

competing priorities must be weighed and balanced.

62. Another factor which goes to weight, is that Scarab have not entered into any legally binding

commitment to acquire premises at Waterside Park, and have not agreed a price with

Gallaghers. Furthermore the Appellants appear to be reluctant to put forward a planning

obligation which requires first occupation of the proposed buildings by Scarab. That

uncertainty diminishes the weight that can be given to Scarab’s need, as there must remain

some doubt that Scarab will move to Waterside Park if planning permission were to be

granted.

63. The suitability of the alternative sites advanced by Mr Cottage on which the need can be met

is demonstrated by:

a. The fact that, Stephens Maguire, after they had been informed by Scarab’s

operations director about their requirements, suggested all four of the sites put

forward by Mr Cottage55.

b. The fact that G Park, Neats Court, and Kingsnorth were also considered by ADL56.

c. The fact that G Park was identified by ADL as a potential ‘fall back’57, being an option

to be pursued should the preferred option become unavailable, and remained under

consideration as a fallback in April 2015 when Mr Buckwell prepared his proof of

evidence58.

64. The main criticism of the alternative sites is that they are too far away from Marden and so

staff retention will be a difficult issue. Criticism is also made of road access.

54 Cassingham XX55 Buckwell Appendices page JB 11-256 CD04, ES Appendix 4.2, Table 2.557 CD 04, ES Appendix 4.2 paragraph 2.5.6, and Buckwell PoE 7.4.1158 Buckwell PoE 7.4.11

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65. If the location of the site at G Park Sittingbourne was unacceptable on grounds of impact on

staff retention, inadequate motorway access, or indeed for lack of prestige, it would have

been ruled out by ADL. It was not. It ranked third in their 2012 analysis59, was marked green

in the comparison table, and was a ‘fall back’ until April 2015.

66. If Kingsnorth was unacceptable because it was too far from a motorway, that feature would

have been identified under the heading ‘negative’ in ADL’s 2012 exercise, it was not so

identified60.

Conclusions

67. The conclusions to be drawn are that:

a. There is uncertainty as to the amount of land required to meet industrial land

requirements in Maidstone in the period to 2031.

b. Even on Mrs Evans’ figures the appeal proposals (at 16.1 ha, or if the development

area is taken: 11.7 ha for appeal A, or 10.2 ha for Appeal B61) would be sufficient to

meet the entire balance of requirement or almost the entire balance of requirement

for the entire local plan period.

c. There are alternative sites outside the Maidstone area, which were considered by

both Scarab and ADL and which, although they may not be described as ‘perfect’,

are capable of meeting their needs, or needs of similar businesses which might

otherwise take the former ADL building on the appeal site.

68. Given those conclusions no great weight should be placed on the need, whether general or

specific to Scarab.

The NPPF

69. The Appellants seek to place great emphasis on paragraph 14 of the NPPF.

a. There are three main questions to ask when applying paragraph 14 to the facts of

this case:

i. Is the development plan (and in particular policy ENV28) up to date?

ii. Is the proposal properly to be considered to be sustainable development?

iii. Would the adverse impacts of granting planning permission significantly and

demonstrably outweigh the benefits when assessed against the policies in

the NPPF taken as a whole?

59 Buckwell Ap.10 page 4760 Buckwell Ap.10 page 4761 Revised planning statement paragraph 2.2.1 CD42 page 6

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b. If the proposals are not properly to be considered to be sustainable development

the presumption in favour of such development will not apply62.

Is the Development Plan up to date?

70. The main issue at dispute is whether ENV 28 is consistent with the NPPF.

71. For employment land, there is no similar ‘deeming’ provision to that relating to housing land

supply in paragraph 49 of the NPPF. Therefore the particular policy concerned has to be

examined to see whether it is out of date. Age will not, of itself, make a policy out of date.

72. Mr Buckwell relies on five reasons for his conclusion that ENV 28 is out of date63.

73. As agreed by Mr Buckwell64 there is no inconsistency with the NPPF in having a policy which

protects the countryside, namely all those areas not defined as the built up area. As a result

the first reason he relies upon falls.

74. The fact that there is quantitative or qualitative need for employment land (which

encompasses Mr Buckwell’s reasons 2-4) does not necessarily mean that the built up area

boundary is out of date as provision could be made within the existing built up areas.

75. The fact that the approach to countryside protection in the NPPF is different to that set out

in previous advice (the former PPG 7) does not make a policy which applies a different

approach within and outside built up area boundaries out of date.

76. ENV 28 can neither be said to be inconsistent with the NPPF or otherwise out of date.

Sustainable Development

77. The proposal cannot properly be considered to be sustainable development65, and in

particular, does not fulfil the environmental role referred to at paragraph 7 of the NPPF.

a. Both the Kent Downs AONB and the Leeds Castle registered park or garden are

valued landscapes as referred to in paragraph 109 of the NPPF.

i. A development does not have take place within a valued landscape (such as

the AONB or registered park or garden) to have an effect on it. Development

within the setting of a valued landscape can harm it, and therefore fail to

protect or enhance it.

ii. Even on the evidence of Mr Etchells, harm is caused to a valued landscape

(the moderate adverse visual effect on views from Leeds Castle66 and the 62 Wenman v. Secretary of State for Communities and Local Government [2015] EWHC 925 (Admin) at paragraph 7463 Buckwell PoE 6.2.664 Buckwell XX by S Whale65 Carpenter PoE 7.1366 Etchells PoE 6.4.5 bullet 7 on page 39

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effect on the AONB). As a result the landscape is neither protected nor

enhanced, as was acknowledged by Mr Etchells and Mr Buckwell in cross-

examination.

iii. On the evidence of Mr Russell-Vick, which I would urge you to prefer, there

would be a significant visual effect on the Kent Downs AONB, and on the

view from Leeds Castle, and as a consequence neither valued landscape

would be protected nor enhanced.

iv. Whether you accept the evidence of Mr Etchells or Mr Russell-Vick, the

proposals are in conflict with paragraph 109 of the NPPF.

b. Paragraph 115

i. Paragraph 115 of the NPPF can apply to impact on land viewed in

conjunction with the AONB from the AONB67.

ii. Even on Mr Etchells’ evidence there will be a degree of harm. On Mr Russell-

Vick’s evidence there will be a significant adverse effect.

iii. There will be harm to views from the AONB to land viewed in conjunction

with the AONB (which forms part of the setting). The landscape and scenic

beauty of the AONB will not be conserved in conflict with paragraph 115.

78. As a result of the conflict with those important environmental policies and the fact that the

proposals will diminish the intrinsic character and beauty of the countryside68, and as a

result of the other landscape and visual harm, the proposed development cannot properly

be regarded as sustainable development when judged against the policies in the NPPF.

The weighted balance

79. If you accept my submissions and find that the development proposed is not sustainable the

paragraph 14 NPPF presumption would not apply and there would be no weighted balance

to carry out.

80. If, however, contrary to my submissions, you find the development to be sustainable, the

economic benefits would have to be weighed against the harm. The views out of the AONB

from scarp (which are views from the AONB of land viewed in conjunction with the AONB)

including those to the appeal site are of great importance to the AONB and its attributes. As

a result great weight should be given to conserving landscape and scenic beauty. The

67 Stroud DC v. Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin) at paragraph 2668 NPPF paragraph 17 5th bullet point

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proposed development would cause harm to landscape and scenic beauty – that harm must

be given great weight in the balance.

81. Given the great weight to be given to adverse impact on the views from the AONB, and

given the adverse impact on valued landscapes falling into two different categories, despite

the economic advantages of the scheme and the contribution they make the economic

dimension of sustainable development, the harm significantly and demonstrably outweighs

the benefits when assessed against the policies in the NPPF taken as a whole.

AONB Management Plan

82. An AONB Management Plan is prepared pursuant to the provisions of section 89 of the

Countryside and Rights of Way Act 2000. Section 89 requires local authorities to prepare

and publish a plan.

83. The Kent Downs Area of Natural Beauty Management Plan 2014-2019 second revision April

2014 was prepared by the Kent Downs AONB Unit and the Joint Advisory Committee for and

on behalf of the twelve local authorities whose administrative areas include parts of the

AONB69.

84. Mr Buckwell acknowledges that the AONB Management Plan is a material consideration70

and identifies policies SD8 and SD11 as being of relevance71.

85. Given that it was prepared pursuant to the duties imposed by the Countryside and Rights of

Way Act 2000, and given that it identifies the special characteristics and qualities of the

AONB, I invite you to accept and endorse Mr Russell-Vick’s view that it should be given

considerable weight.

86. The Management Plan is of particular assistance when considering ‘setting’ in that it

provides a definition72. It is also explains that impact on views to and from the scarp being a

feature of the AONB instrumental in its designation, should be given considerable weight73.

87. The appeal proposal, despite lying outside the AONB, has a direct impact on the views from

the scarp.

88. The management plan also states that matters such as the size of the proposals, their

distance, incompatibility with their surroundings, movement reflectivity and colour are likely

to affect impact.

69 Russell-Vick PoE 3.970 Buckwell PoE 5.2.4471 Buckwell PoE 5.2.4672 Russell-Vick Appendix H pages 22-2473 Russell-Vick Appendix H page 24

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89. In this case the incongruity and scale of the proposal are said to by Mr Russell-Vick to be

wholly out of keeping with the surrounding landscape and immediate landscape of the

AONB74.

90. The fact that the management plan identifies the views out from the scarp of particular

importance indicates that considerable weight should be given to any adverse impact on

those views is particular relevance in this case. If the natural beauty of the AONB is to be

conserved those views must not be adversely affected. These proposals would adversely

affect those views from the scarp and would not conserve the AONB, they would harm it.

Given the importance of the AONB, the adverse impact that would occur if the development

were allowed to proceed must be given great weight in the decision.

Prematurity

91. Guidance on the issue of prematurity is given in the PPG75. The PPG states that arguments

that an application is premature are unlikely to justify a refusal of planning permission other

than where it is clear that the adverse impacts of granting planning permission would

significantly and demonstrably outweigh the benefits, taking the policies of the Framework

and any other material considerations into account. The PPG then states that such

circumstances are likely, but not exclusively to be limited to situations where both:

a) the development proposed is so substantial, or its cumulative effect would be so significant, that to

grant permission would undermine the plan-making process by predetermining decisions about the

scale, location or phasing of new development that are central to an emerging Local Plan or

Neighbourhood Planning; and

b) the emerging plan is at an advanced stage but is not yet formally part of the development plan for

the area.

92. The PPG also states that refusal of planning permission would seldom be justified where a

draft local plan has yet to be submitted for examination.

93. Alternative sites have been advanced for consideration in the local plan process, such as the

Woodcut Farm site put forward by Mr Jarman. Other arguments, such as the dispersed

approach, may also fall for consideration the local plan process.

94. There can be little doubt that the proposal is so substantial that a decision to grant planning

permission on the appeal site would pre-determine decisions about the location of new

74 Russell-Vick PoE 5.2175 Paragraph 14 of the section on Determining a Planning Application

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employment development which is central to the emerging local plan, and that point is not

disputed by Mr Buckwell. However the local plan has yet to be submitted for examination.

95. The issue in dispute is whether the circumstances are such that, as an exception to the

general approach, refusal on grounds of prematurity would be justified, despite the fact that

the emerging plan is not an advanced stage.

96. The PPG makes plain that the circumstances in which refusal on prematurity grounds would

be justified are likely to be to be limited to cases in which both criterion (a) and criterion (b)

apply. However the guidance contemplates that refusal might be justified in other

circumstances.

97. This case is an example of such other circumstances, the development proposed is not only

substantial in size, but substantial in relation to the likely local plan industrial land

requirement. The GVA balance of requirement figure for industrial land is negative76. Mrs

Evans equivalent figure is 11.3 ha. Those figures relate to the entire plan period to 2031.

Even if all Mrs Evans’ views were accepted, including her point on the suitability of the

existing supply, granting planning permission for a 16.91 ha site, would pre-empt the local

decision on industrial land for the entire plan period.

98. The fact that a development would be so substantial that to grant permission would

undermine the plan-making process does, as Mr Buckwell said in re-examination, fall within

criterion (a) in the PPG guidance. However the fact that those circumstances fall within (a)

do not preclude or prevent them, in an appropriate case, from being of such importance as

to indicate that a departure should be made from the general approach. The effect of

granting planning permission is not to pre-determine one, or even a significant number of

decisions on allocation, but to pre-determine almost all decisions on allocating new land for

industrial use. Furthermore, as made plain in these submissions, this is a case where the

adverse impacts of granting permission would significantly and demonstrably outweigh the

benefits.

99. In those circumstances refusal on grounds of prematurity is justified, or alternatively

prematurity is, at the very least, a material consideration which weighs heavily against

granting planning permission.

Conclusion on other material considerations

100. The other material considerations do not give any indication which is different from

that given by the development plan; they like the development plan indicate that planning

permission should be refused.76 CD40 Table 29

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Conclusion 101. For the reasons I have given, the conclusions that I invite you to reach are:

a. The proposal is contrary to the development plan.

b. Policy ENV 28 is not out of date.

c. The proposed development cannot properly be described as sustainable.

d. The paragraph 14 NPPF presumption is not engaged.

e. The visual and landscape harm clearly outweighs the benefits.

f. There are insufficient material considerations to outweigh the indication given by

the development plan.

102. If, contrary to my submissions, you hold that the plan is out of date, and that the

development proposed is sustainable, I invite you to conclude that the adverse impacts of

granting planning permission would significantly and demonstrably outweigh the benefits

when assessed against the policies in the NPPF taken as a whole.

103. For those reasons I urge you to make a decision which protects the long term future

of the AONB its natural beauty and the stunning views from the scarp and dismiss both

appeals.

Landmark Chambers, Neil Cameron QC

180, Fleet Street,

London EC4A 2HG 21st May 2015

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