Case Reference: 3205558

Paul Stookes Our ref: APP/P1133/W/18/3205558
Richard Buxton Solicitors
19B Victoria Street
Cambridge 3 June 2020
CB1 1JP
Dear Sir,
LOCAL GOVERNMENT ACT 1972 – SECTION 250(5)
TOWN AND COUNTRY PLANNING ACT 1990 – SECTIONS 78 AND 320
APPEAL BY ANTHONY, STEVEN & JILL REW
LAND AT WOLBOROUGH BARTON, COACH ROAD, NEWTON ABBOT, TQ12
1EJ
APPLICATION REF: 17/01542/MAJ
APPLICATION FOR AN AWARD OF COSTS
1. I am directed by the Secretary of State to refer to the enclosed letter notifying his
decision on the appeal as listed above.
2. This letter deals with your client’s application for a full award of costs against the
appellant. The application as submitted and the appellant’s response are
recorded in the Inspector’s Costs Report, a copy of which is enclosed.
3. In planning inquiries, the parties are normally expected to meet their own
expenses, and costs are awarded only on grounds of unreasonable behaviour
resulting in unnecessary or wasted expense in the appeal process. The
application for costs has been considered in the light of the Planning Practice
Guidance, the Inspector’s Costs Report, the parties’ submissions on costs, the
inquiry papers and all the relevant circumstances.
4. The Inspector’s conclusions are stated at CR50-59. She recommended that your
client’s application for a full award of costs be refused.
5. Having considered all the available evidence, and having particular regard to the
Planning Practice Guidance, the Secretary of State agrees with the Inspector’s
conclusions in her report and accepts her recommendation. Accordingly, he has
decided that a full award of costs against the appellant, on grounds of
Andrew Lynch, Decision Officer Tel 0303 444 3594
Planning Casework Unit Email: PCC@communities.gov.uk
Ministry of Housing, Communities & Local Government
3rd Floor, Fry Building
2 Marsham Street
'unreasonable behaviour', is not justified in the particular circumstances. The
application is therefore refused.
6. This decision on your application for an award of costs can be challenged under
section 288 of the Town and Country Planning Act 1990 if permission of the High
Court is granted. The procedure to follow is identical to that for challenging the
substantive decision on this case and any such application must be made within
six weeks from the day after the date of the Costs decision.
7. A copy of this letter has been sent to the appellant.
Yours faithfully,
Andrew Lynch
Andrew Lynch
Authorised by the Secretary of State to sign in that behalf
Costs Reports to the Secretary of State
for Housing, Communities and Local
Government
by Frances Mahoney MRTPI IHBC
an Inspector appointed by the Secretary of State for Communities and Local Government
Date 2 April 2020
TOWN & COUNTRY PLANNING ACT 1990
LOCAL GOVERNMENT ACT 1972
TEIGNBRIDGE DISTRICT COUNCIL
APPEAL BY ANTHONY, STEVEN & JILL REW
Inquiry commenced on 26 March 2019
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
File Ref: APP/P1133/W/18/3205558
https://www.gov.uk/planning-inspectorate
Cost application A
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by Anthony, Steven & Jill Rew for a full/partial award of costs
against Teignbridge District Council.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for both a full and a partial award of costs be refused.
___________________________________________________________________
Cost application B
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by the Abbotskerswell Parish Council & Wolborough Residents’
Association for a full award of costs against Anthony, Steven & Jill Rew.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for a full award of costs be refused.
____________________________________________________________________
https://www.gov.uk/planning-inspectorate Page 1
Cost application C
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by Anthony, Steven & Jill Rew for a partial award of costs
against Torbay and South Devon NHS Trust.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for a partial award of costs be refused.
____________________________________________________________________
Cost application D
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by Torbay and South Devon NHS Trust for a partial award of
costs against Anthony, Steven & Jill Rew.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for a partial award of costs be refused.
https://www.gov.uk/planning-inspectorate Page 2
Cost application A
The submissions for the appellants1
1. The appellants seek both a full award of costs2 against the Council3 and in the
alternative a partial award in relation to the defence of amongst other matters,
heritage, highway impact, and air quality.
2. Firstly, the Council failed to determine the application within the required time
limit. Planning Practice Guidance (PPG) sets out at 16-0484 that:
If it is clear that the local planning authority will fail to determine an application
within the time limits, it should give the applicant a proper explanation. In any
appeal against non-determination, the local planning authority should explain
their reasons for not reaching a decision within the relevant time limit, and why
permission would not have been granted had the application been determined
within the relevant period.
3. The Council has not provided any proper explanation for not reaching a decision
within the relevant time limit nor did they provide putative reasons for refusal.
Its statement of case repeated various comments made by statutory consultees
and others, without providing clarity as to what it was the Council itself was
saying were tenable reasons for refusal as opposed to matters for
conditions/obligations.
4. Secondly, the Council’s withholding of planning permission falls within the first
example of LPA substantive unreasonableness in PPG para. 16-049: preventing or
delaying development which should clearly be permitted, having regard to its
accordance with the development plan, national policy and any other material
considerations.
5. The Council’s Statement of Case gave the impression that it may take a broader
range of points against the appeal, including heritage and the absence of a Local
Planning Authority led development framework plan for the NA3 allocation (albeit
the opaqueness of the Statement of Case meant that the nature of the Council’s
case on these points was unclear). When proofs were exchanged Ms Taylor‘s5
proof added the further contention that there would, after 300 dwellings, be a
‘severe’ impact on highway capacity in the absence of a link road (Council officers
having recommended a 500 dwelling trigger for the link road in relation to the
duplicate application, which the appellants did not and do not contest), as well as
making associated points on air quality.
1 Inquiry Doc 44.
2 If a full award of costs is not made, a partial award of costs is sought in the alternative in relation to the
matters set out at paras 5-6 of this Report.
3 Minus any costs awarded against the Torbay and South Devon NHS Trusts for its procedurally
unreasonable conduct during the appeal.
4 PPG Appeals – Advice on planning appeals and the award of costs.
5 Senior Transport Planner Devon County Council.
https://www.gov.uk/planning-inspectorate Page 3
6. The appellants had to produce evidence to deal with all these points: contained in
Mr Seaton’s main proof and the appended reports on design/master planning
(including how heritage was taken into account) and air quality, and Mr Lacey’s
rebuttal. Time was taken up at the Inquiry too on these points, eg in cross-
examination of Ms Taylor.
7. During the Inquiry the Council’s case retreated to the Greater Horseshoe Bat
(GHB)/Special Area of Conversation (SAC) issue. Mr Perry accepted in cross-
examination that save in relation to this issue, the appeal scheme on an allocated
site is in accordance with the development plan.
8. The Council’s case on the GHB/SAC issue is substantively unreasonable. The
appellants rely on their closing submissions6 in this regard and highlights in
particular the following:
a. It was unreasonable for the Council to have failed to appreciate that the
critical question for Habitats Directive/Regulations compliance is that
posed at paragraph 33 of the appellants’ closing submissions, namely:
having regard to the safeguards that can be imposed by way of planning
conditions and the ability of the Council to scrutinise the details of the
development at the reserved matters stage (to which Regulation 70(3)
of the Habitats Regulations expressly says regard must be had), can the
Secretary of State be satisfied beyond reasonable scientific doubt that
the appeal scheme would not harm the ability of GHBs to continue to
travel between the component parts of the SAC “at low levels” in a
“broadly dispersed” manner (descriptions with which the Council’s
witness Mrs Mason agreed) across the wider landscape within which the
appeal site lies?
b. In answering this question, it was unreasonable of the Council to insist,
at this outline stage, on the provision and/or assessment of details
which have been entirely legitimately left until the reserved matters
stage7. In cross-examination she said that she wanted to know now, at
this outline stage, the details of how adverse effects can be ruled out at
the reserved matters stage. That is simply not a requirement of the
Habitats Directive or Regulations. It would require the submission of a
full planning application in all but name, rendering the concept of outline
planning permission of no practical purpose. It is also inexplicably
inconsistent with the Council’s failure to exercise its power under Article
5(2) of the Town and Country Planning (Development Management
Procedure) Order 2015 which allows a Council if so presented with an
outline application to require the submission of further details before the
application is determined.
6 Inquiry Doc 55.
7 See for example paras 6.16-6.16 and 7.4 of Mrs Mason’s proof, which require an
assessment of collision impacts and severance impacts, and mitigation thereof, in relation to
the internal roads of the development; para 7.5 which requires mapping and assessment of
lighting within the site, the location and details of which is inextricably linked to the final
layout; and the details referred to at paras 7.6(a)-(k) which also all relate to matters left
over for subsequent approval by the Council (as she accepted in cross-examination).
https://www.gov.uk/planning-inspectorate Page 4
c. As for the Council’s allegation that further bat surveys need to be
undertaken before permission can be granted due to the passage of
time since the original surveys, it is important to bear in mind at the
outset that this issue has only arisen because of the delay caused by the
Council refusing to determine the application. At the time when the
application was before the Council, the surveys were up to date.
Therefore, this issue cannot excuse the Council’s non-determination of
the original planning application, now the subject of this appeal.
d. The Council’s evidence and submissions fail to grasp that, given (i) the
agreed certainty that the bats use the site as part of a wider landscape
through which they travel between the component parts of the SAC in a
manner that is widely dispersed and at low levels and (ii) the ability of
the Council at the reserved matters stage to ensure that the final form
of the development will enable this function to continue, is what
matters, not the precise number of bats using the site on any particular
survey day(s) or the precise part(s) of the site that they used on those
day(s).
e. It is no justification for the Council to say that it was relying on Natural
England (NE), since NE had at the Local Plan Examination not had any
issue with the principle of the development (and the outline application
here is again only concerned with the principle of the development).
The Council’s witness Mrs Mason did not know, and had not sought to
find out, what had prompted NE to change its stance. If the Council
didn’t know why NE had changed its stance, that change of stance
cannot have provided a reasonable basis for the Council to withhold
permission. NE’s position was untested at the Inquiry and was also
misconceived for the same reasons as the Council’s position was.
Response for the Council8
9. The Council does not accept that its conduct amounts to unreasonable behaviour
and, in any event, its actions have not caused the appellants to incur any
unnecessary expense.
10. The Costs Application is put on three grounds:
a. it is contended that the Council has failed to provide any explanation (or
proper explanation) for its non-determination of the appeal application;
b. that the Council was substantively unreasonable in not granting
planning permission; and
c. that if a full award is not justified then a partial award is justified in
relation to non-GHB matters.
11. The PPG9 sets out that an application for costs will need to clearly demonstrate
how any alleged unreasonable behaviour has resulted in unnecessary or wasted
8 Inquiry Doc 45.
9 PPG Appeals – Advice on planning appeals and the award of costs.
https://www.gov.uk/planning-inspectorate Page 5
expense10. This reflects the need for both conditions to be satisfied in order for
an award of costs to be justified11. The Costs Application heavily focuses on the
first condition and, in so far as it addresses the second condition at all, proceeds
on the premise that not only will the substantive appeal inevitably succeed but
that no other outcome could be reasonably contemplated by the decision maker.
12. If, as the Council has maintained in its Closing Submissions12, the substantive
appeal is dismissed because the appellants have failed to provide sufficient
information to enable a grant of permission to satisfy the Habitats Directive and
the Habitats Regulations, it will be that failure which has resulted in the
appellants incurring all of the costs of the appeal to no good effect, and the
essential basis for the Costs Application will fall away. However, even if the
Council’s case is not accepted, it by no means follows that the Council has acted
unreasonably in putting it forward. At all stages the Council has acted with the
benefit of professional advice when dealing with the appeal proposal and it was
entirely reasonable for the Council to put forward a case based on that advice.
a. Explanation for non-determination
13. The appellants have quoted from part of ID16-048-20140306 but have not
quoted the most relevant part:
If an appeal in such cases [ie non-determination cases] is allowed, the local
planning authority may be at risk of an award of costs, if the Inspector or
Secretary of State concludes that there were no substantive reasons to justify
delaying the determination and better communication would have enabled the
appeal to be avoided altogether.
14. In the present case, the principal parties have a fundamental disagreement about
the proper operation of the Habitats Directive and the Habitats Regulations,
having regard to the scope of the contentious outline planning permission
element of the hybrid appeal application. This disagreement, based on the
advice of the respective parties’ ecological advisers and legal advisers, is
rehearsed in full detail in the respective Closing Submissions of the principal
parties13. The Council maintains its position, that the grant of planning
permission (even recognising the subsequent controls at the reserved matters
stage) is not a legally permissible or Habitats Directive/Regulations-compliant
option. If the Secretary of State agrees with the Council there is no question of
the appeal being allowed, and the case will not fall within the ambit of the advice
at ID16-048-20140306 at all.
15. However, even if the Secretary of State ultimately concludes that a planning
permission can be lawfully granted, it cannot be said that the Council’s contrary
case (which is, of course, fully supported in this regard by Natural England as the
Government’s statutory advisor on Habitats Directive/Regulations matters), does
not set out or provide substantive reasons to justify delaying the determination
10 ID16-032-20140306.
11 ID16-030-20140306.
12 Inquiry Doc 52.
13 Inquiry Docs 52, 53 and 55.
https://www.gov.uk/planning-inspectorate Page 6
until the provision of the required information which the Council contends is
needed to show that the appeal proposal will not have an adverse effect on the
integrity of the South Hams SAC. The Council has fully articulated those reasons,
both by reference to the relevant case law and by reference to the specific facts
concerning the appeal site and the relationships between the GHBs using the site
and the South Hams SAC. Whether or not those reasons are ultimately accepted
by the Secretary of State, it cannot be argued that they provide no substantive
reasons to explain the Council’s stance. Thus, even in this scenario, there is no
basis for an award of costs.
16. With specific reference to the Council’s provision of an explanation of the reasons
for the non-determination, this is set out in section 3 of the Proof of Ian Perry,
which rehearses the application history, including the changes made to the
appeal proposals during the course of its consideration by the Council, the views
expressed by consultees, and the extent to which the Council sought to resolve
outstanding issues through consideration of a duplicate application. Whilst
officers were prepared to support that application, it was made clear that even
this could only be on the basis of the provision of further information in relation
to GHBs (both survey data and an adequate GHB mitigation plan informed by
such survey data). In other words, the Council has never taken the view that a
planning permission could be granted on the state of knowledge about the effects
of the proposals on the SAC up until the close of the Inquiry.
17. However, even if the view were to be taken that, instead of seeking to resolve
issues by requesting further information (either on the appeal application or on
the duplicate application), the Council should have proceeded to determine the
appeal application, it remains the case that, based on the professional advice
received by the Council from its ecological and legal advisers, the appropriate
course in any such determination would have been to refuse planning permission.
That would have meant that, if the appellants had wished to challenge the
Council’s position, an appeal would have been inevitable. Better communication
between the parties would not have avoided the appeal because of the
fundamental disagreement between the parties on the substantive GHB/SAC
issue. It is therefore not possible to conclude that the Council’s non-
determination, even if thought to be unreasonable in the circumstances (which
the Council does not accept), has been causative of any unnecessary expense.
b. Substantive unreasonableness
18. It is not tenable for the appellants to argue that the Council’s position is one of
substantive unreasonableness. As set out in the Council’s Closing Submissions,
the appellants accept that the proposal needs to satisfy the tests in the Habitats
Directive and the Habitats Regulations in order to be granted planning
permission, and that if the proposal cannot satisfy those tests it cannot comply
with Policy NA3(n) of the adopted Local Plan, or be in accordance with the
development plan, or be consistent with national policy (para 177 of the National
Planning Policy Framework (the Framework)).
19. Without repeating its Closing Submissions, the Council does not accept that it has
misunderstood the key questions that need to be considered. Rather, it is the
appellants who have wrongly elided (i) the principle of development established
(without the benefit of any site surveys) by the allocation of the NA3 site at the
https://www.gov.uk/planning-inspectorate Page 7
plan-making stage, but expressly conditional upon and subject to the subsequent
provision of an appropriate bespoke GHB mitigation plan (which would need to be
informed by adequate site surveys) prior to any grant of permission, in order to
satisfy Policy NA3(n), with (ii) the principle of development in relation to the
quantum of 1210 dwellings (and associated development) on the particular
application site that would be established by any grant of planning permission as
sought in the present appeal. Despite the appellants’ repeated endeavours to
treat the two positions as the same, it is abundantly clear that they are different
and require different levels of evidence in order to satisfactorily discharge the
requirements of the Habitats Directive and the Habitats Regulations. This is
reinforced by the terms of Policy NA3(n) which expressly requires more at the
planning permission stage than was needed to support the Local Plan allocation.
20. The Council’s approach does not render the concept of an outline planning
permission and reserved matters otiose, as claimed by the appellants. It simply
means that, in the context of a case where the Habitats Directive and the
Habitats Regulations are undoubtedly engaged, and Policy NA3(n) is very explicit
about its requirement for a bespoke GHB mitigation plan prior to any grant of
planning permission, an applicant/appellant has to provide more specificity on
matters that are germane to how the development would impact on GHBs than in
a bare outline case. That is neither surprising (given the rigours of the HRA
tests) nor inconsistent with Regulation 70(3) of the Habitats Regulations.
21. It is noted that the Costs Application (para 8 c14) tacitly concedes that the
available GHB survey data is no longer up-to-date, but then seeks to blame the
Council for this state of affairs. This is, of course, a complete red herring. The
obligations of the Habitats Directive and the Habitats Regulations are required to
be satisfied in the light of the actual circumstances of the case. If there is
inadequate survey evidence to allow those obligations to be met, it does not
matter whether that is due to the applicant’s default or due to another party. In
any event, the Council does not accept that its non-determination can be
regarded as wrong-doing, and furthermore it is quite clear from Regulation 63(2)
of the Habitats Regulations that it is for the applicant/appellant to provide the
necessary information to the competent authority to enable an appropriate
assessment to be undertaken. It is also abundantly clear that since 2017 both
the Council and Natural England have consistently advised the appellants of the
need to provide further and up-to-date survey data. The fact that the appellants
have chosen not to do so cannot be laid at the Council’s door.
22. However, even if the Secretary of State is ultimately satisfied that he has
sufficient information to grant planning permission, it cannot be said to be
substantively unreasonable for the Council to have taken a contrary view. Its
position was supported by its expert ecological advice, by the advice of Natural
England, and by its legal advisers, having regard to the relevant regulatory
provisions and the applicable European and domestic case law. For the Council
to act on that professional advice cannot be said to be unreasonable.
23. It is quite clear that the claim in the Costs application for a full award of costs is
misconceived. There has been no unreasonable behaviour by the Council and in
14 Inquiry Doc 44.
https://www.gov.uk/planning-inspectorate Page 8
any event, given the regulatory requirements imposed by the Habitats Directive
and the Habitats Regulations, its actions have not caused any unnecessary
expense to be incurred by the appellants. The appellants have incurred expense
because they chose to appeal but without providing the information needed to
allow an appropriate assessment to be properly undertaken by the competent
authority.
24. Partial Award - This application would seem to relate to the non-GHB elements of
the case. The Council does not accept that its conduct of its case in relation to
heritage, highways, or master-planning was unreasonable. In relation to
heritage, the Council had justified concerns about the adequacy of the heritage
assessment undertaken by the appellants, and commissioned its own heritage
assessment, and in the light of that latter assessment was able to conclude that
heritage matters could be adequately addressed by the proposed conditions. All
of this is explained in the Proof of Ian Perry and the supporting appendices
provided by Maureen Pearce. No Inquiry time was taken on heritage matters by
the Council (obviously there was a separate heritage case raised by Historic
England that the appellants had to deal with in any event).
25. In relation to highways, it will be recalled that, after the submission of the main
proofs (in line with the Inquiry timetable) the appellants submitted (via rebuttal
evidence on 20 March 2019) new traffic data and junction capacity assessments,
and it was only in the light of this new evidence that Devon County Council, as
highway authority, was able to revise its position on the timing of the provision of
the link road. It cannot be unreasonable for a party’s position to change in the
light of the receipt of new technical information. The revised position was
explained by Ms Taylor in her evidence, together with the reasons for it. The
Council, and its highways witness, reacted promptly to the receipt of the new
information and there was no unreasonable behaviour.
26. In relation to master-planning, this had been the subject of lengthy discussions
and negotiations during the application process, with iterations of a masterplan
evolving during the consideration of the application. Given the requirements of
Policy NA3(a) and the importance of the document to the proposed development,
it was not unreasonable for the Council to give close scrutiny to its contents, and
to the processes that led to its production. The Council also undertook its own
master-planning exercise, as explained in paras 6.6 to 6.16 of the Proof of Ian
Perry, seeking to pro-actively test sustainable options for overall delivery of the
allocated site. In the event, the Council was satisfied that the final iteration of
the appellants’ masterplan was sufficiently close to its aspirations for the site that
further matters could be left as reserved matters. This was a reasonable stance
to take. It will also be noted that no time was spent at the Inquiry on this
matter.
27. The Council does not therefore accept that any partial award of costs is
warranted.
https://www.gov.uk/planning-inspectorate Page 9
Conclusions- The appellant’s Costs application against the Council15
28. The Planning Practice Guidance states that irrespective of the outcome of an
appeal, costs may only be awarded against a party who has behaved
unreasonably and thereby caused the party applying for costs to incur
unnecessary or wasted expense in the associated appeal process. The same
guidance makes it clear that it is necessary for local planning authorities, when
failing to determine an application for planning permission, to give the applicant a
proper explanation, and further in any appeal against non-determination, the
local planning authority should explain their reasons for not reaching a decision
within the relevant time limit, and why permission would not have been granted
had the application been determined within the relevant period. If they have
failed to do so they are at risk of an award of costs if they behave unreasonably
with respect to the substance of the matter under appeal. Failing to produce
evidence to substantiate a reason for refusal on appeal, or making vague,
generalised or inaccurate assertions about a proposal’s impact which are
unsupported by any objective analysis, are cited as examples16.
29. The appellants’ claim centres on the following grounds:
• whether the Council has provided a proper explanation for not reaching a
decision, and
• reasons why permission would not have been granted (putative reasons for
refusal).
30. The reason for the non-determination of the planning application stem from the
fundamental disagreement between the parties of the proper operation of the
Habitats Directive and the Habitats Regulations. This disagreement was based on
expert advice on both sides. This dispute was maintained going forward into the
Inquiry and was examined over the course of the consideration of evidence
leading to the Competent Authority17 making his decision.
31. Such disputes are not uncommon and when, what at face value appear to be
intransigent positions are maintained, so progress forward becomes stifled. In
such circumstances applicants often feel they have no alternative but to move
onto the next stage of the process, that being an appeal. However, those
entrenched positions were on both sides in this case and it was by means of the
process of evidential examination at the Inquiry that a decision could be reached.
32. The Council has made it clear that the principle of development is not a matter of
dispute between the Council and the appellants18. It is also accepted that the
appeal site forms the largest part of the mixed-use allocation NA3 in the adopted
Teignbridge Local Plan (2014)19.
15 Inquiry Doc 44, 45 – the Costs claim solely relates to the Outline part of this hybrid appeal
proposal.
16 Paragraph: 049 Reference ID: 16-049-20140306
17 In this case the SofS.
18 Inquiry Doc 8 para 1.
19 Both the Council and Devon County Council supported the allocation at the LP stage.
https://www.gov.uk/planning-inspectorate Page 10
33. The Council’s Statement of Case20 refers to reasons for non-determination
centred on the Link Road delivery in the context of timing and creation of a
sustainable transport network, the impact on the GHBs in the context of whether
there was sufficient information to make that assessment under the Habitat
Regulations, heritage impacts, whether the promoted Masterplan fulfils the
requirements of LP Policy NA3, and finally, in the then absence of a mechanism
for delivery whether the proposal would deliver the obligations required in order
to make the development acceptable (S106 agreement). The Council’s
Statement of Case makes it quite clear the reasons why permission would not
have been granted and the Proof of Mr Perry picks up the same themes at section
3.
34. Following the submission of the parties’ Statements of Case, through mutual
negotiations those disputed matters were narrowed, and various Statements of
Common Ground produced which re-focused the Council’s case to a reduced
number of issues between the parties. At the opening of the Inquiry the Council
made it clear what their concerns were as expressed in their Opening21. Through
the examination of evidence, as the Inquiry progressed, the submission of an
acceptable and completed S106 agreement, and the final submission of survey
work in relation to GHBs, submitted by the Council after the close of the Inquiry,
some matters in dispute were dealt with.
35. In these circumstances the Council did not prevent or delay development which
should clearly be permitted. As already indicated the proposal was in step with
the LP NA3 allocation, but the Council were entitled to find that at the time of
consideration of the proposal, insufficient evidence had been submitted to enable
them, as the then Competent Authority, to make a determination as to whether
the proposal would have an adverse effect on the integrity of the South Hams
SAC.
36. The appellants highlight the Council’s initial promoted position on heritage
matters, as expressed in the Council’s Statement of Case, which indicates some
concern in relation to the level of detail within the application being insufficient to
determine the level of harm to the range of heritage assets affected by the
proposal, more particularly by the means of access. The Council also aligns itself
to some extent with the considerations of Historic England. However, by the time
the parties had reached the Inquiry room, the Council was no longer associating
itself with any opposition on heritage grounds, considering these matters could
be resolved through conditions and at reserved matters stage.
37. It could be said that the movement of the Council from promoting a heritage
concern, to disassociating itself from the Historic England position, could be
considered tentatively unreasonable. However, in this appeal special regard to
the desirability of preserving listed buildings or their settings or any features of
special architectural or historic interest which they possess, and special attention
being paid to the desirability of preserving or enhancing the character or
appearance of conservation areas, had to be considered due to the statutory duty
20 Submitted Oct 2018 – on appeal file-green folder.
21 Inquiry Doc 8.
https://www.gov.uk/planning-inspectorate Page 11
placed upon the decision-maker22. Therefore, the heritage case presented by
the appellants to answer the case of Historic England and initially the Council was
required to be examined in any case to enable the decision-maker23 to come to a
view in this regard. Therefore, the appellants were not put to any wasted
expense in this regard.
38. Both highway and air quality matters were similarly initially raised by the Council.
Air quality was a major concern for the Rule 6 party and evidence was heard in
this regard. Therefore, the appellant had to offer a defence on this ground in any
event. Similarly, highways matters were pursued by both the Rule 6 party and
third parties and were aired by means of a round table discussion. The position
of the County Council did shift during the examination of the evidence in relation
to the provision of the bus service and to some extent the timing for the delivery
of the Link Road. This was as a result of a mutual examination of the evidence
and an acceptance and realisation of an opposing position. I do not consider this
to be unreasonable behaviour, more the outcome of skilful examination of
evidence in the Inquiry setting leading to the resolution of disputed issues.
39. For all of the above reasons I conclude that the Council has not behaved in such
a manner as to substantiate a finding of unreasonable behaviour which has
directly caused another party to incur unnecessary or wasted expense in the
appeal process sufficient to justify either a full or a partial award of costs.
Cost application B
Submissions of the Abbotskerswell Parish Council & Wolborough Residents’
Association24
40. Abbotskerswell Parish Council and Wolborough Residents’ Association (Rule 6
Party) were granted Rule 6 status on 19 February 2019. They have participated
in the appeal throughout and have incurred significant costs in employing
professional legal and expert advice in doing so.
41. They have maintained the position throughout the appeal and expressed the
point clearly in Closing submissions25 that the appellants have provided
insufficient environmental information for the appeal to be determined. The Rule
6 Party also made submissions that the significant adverse effects of the proposal
on for instance air quality, biodiversity, heritage and other environmental effects
were such that planning permission should be refused in any event; there was an
overriding concern that there was a fundamental lack of information being
provided by the appellants. The failure to provide either sufficient and/or
adequate information is such that if the Secretary of State were to grant
permission on the evidence presented, that decision would inevitably be unlawful
22 Section 16(2), 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas)
Act 1990.
23 Secretary of State.
24 Inquiry Doc 46.
25 Inquiry Doc 53.
https://www.gov.uk/planning-inspectorate Page 12
by, amongst other things, a breach of the EIA Directive 2011/92/EU, the EIA
Regulations 2011 and the Habitats Regulations 2017.
42. The Rule 6 Party has made it clear to the appellants throughout the Inquiry that
the information provided is insufficient and inadequate. This included:
1) Their letter to the Inspectorate of 26.2.19, copied to the appellants;
2) A further letter on 18.3.19 again expressing concern that there was too
much critical information that had not been made available;
3) In their Opening submissions26 highlighting in yet more detail where
there was an absence of information; and
4) In their response to the publication of the ES Addendum (April 2019)
and Revised NTS (April 2019).
43. On each occasion, the Rule 6 Party suggested that the appeal should be
withdrawn or adjourned until satisfactory information would be provided. They
considered that the appellants’ agreement to submit further information on the
ES in March 2019 may address the critical concerns. However, the information
provided was superficial in nature, at best.
44. Moreover, the appellants were reminded of the need to provide relevant
information in the Inspectorate’s letter to them of 21.12.18 which noted: … court
cases which have stressed the need for all the relevant environmental
information in an ES to be comprehensive and easily accessible.
45. The Rule 6 Party recognise the normal costs rules in relation to Inquiry costs.
However, they submit that the appellants’ persistent failure to acknowledge and
address the significant lack of environmental information provided in the Appeal
is not only contrary to their obligations under the EIA Directive it is unreasonable
and has put the Rule 6 Party to considerable unnecessary expense. Most, if not
all the costs incurred by the Rule 6 Party could have been avoided had the
appellants acknowledged, as early as 21.12.18, that they were not in fact
providing the information that was lawfully required in legislation and which has
been underlined as necessary by the Courts.
46. In the light of the above, and having regard to the closing submissions of Rule 6
Party27, which highlights in detail the lack of information, the Rule 6 Party invite
the Secretary of State to make a full costs award in their favour such that the
appellants pay the costs arising out of and incidental to this appeal.
Response by the appellants28
47. The Rule 6 Party’s application is wholly misconceived. It does not identify any
substantive or procedural unreasonableness by the appellants in the conduct of
26 Inquiry Doc 9.
27 Inquiry Doc 53.
28 Inquiry Doc 47.
https://www.gov.uk/planning-inspectorate Page 13
its appeal or at the Inquiry. It is founded on alleged shortcomings in the
appellants’ Environmental Statement and Addenda, and the costs that the Rule 6
Party says it has incurred in pointing out those alleged shortcomings. However,
there is nothing unusual about a third party pointing out alleged shortcomings in
an Environmental Statement. That is inherent in the process of consultation
under the EIA Regulations. See R (Blewett) v. Derbyshire County Council [2004]
Env. L.R. 29 per Sullivan. at paragraph 41 (emphasis added):
The Regulations should be interpreted as a whole and in a common-sense way. The
requirement that 'an EIA application' (as defined in the Regulations) must be
accompanied by an environmental statement is not intended to obstruct such
development. As Lord Hoffmann said in R v North Yorkshire County Council ex
parte Brown [2000] 1 A.C. 397 at page 404, the purpose is 'to ensure that
planning decisions which may affect the environment are made on the basis of
full information'. In an imperfect world it is an unrealistic counsel of perfection to
expect that an applicant's environmental statement will always contain the 'full
information' about the environmental impact of a project. The Regulations are
not based upon such an unrealistic expectation. They recognise that an
environmental statement may well be deficient and make provision through the
publicity and consultation processes for any deficiencies to be identified so that
the resulting 'environmental information' provides the local planning authority
with as full a picture as possible. There will be cases where the document
purporting to be an environmental statement is so deficient that it could not
reasonably be described as an environmental statement as defined by the
Regulations…, but they are likely to be few and far between.
48. As is clear from the above paragraph, even if (which is strongly denied) there is
any merit in the Rule 6 Party’s criticisms of the Environmental Statement and
Addenda, the fact that shortcomings have been identified in the Environmental
Statement is illustrative not of something having gone wrong in the EIA process,
but of the process operating as it is intended to operate.
49. For the reasons given in the appellants’ closings29, the Rule 6 Party’s criticisms
are without merit; and there is no clear and convincing explanation of how any
alleged unreasonableness has caused the Rule 6 Party undue expense. As noted
in the appellants’ closing submissions, the EIA process is not an obstacle course -
even if the Planning Inspectorate had agreed before the Inquiry with the Rule 6
Party that the current Environmental Statement and Addenda were inadequate,
this was always remediable and could never ultimately have prevented the
appeal and Inquiry proceeding. Therefore, the suggestion in the Rule 6 Party’s
Costs application that their entire Inquiry costs would have been avoided is
manifestly incorrect.
Conclusions- The Rule 6 Party’s Costs application against the appellants30
50. The Planning Practice Guidance31 states that irrespective of the outcome of an
appeal, costs may only be awarded against a party who has behaved
29 Inquiry Doc 55.
30 Inquiry Doc 46, 47 – the Costs claim solely relates to the Outline part of this hybrid appeal
proposal.
31 Planning Practice Guidance: Appeals – ID:16.
https://www.gov.uk/planning-inspectorate Page 14
unreasonably and thereby caused the party applying for costs to incur
unnecessary or wasted expense in the associated appeal process. The same
guidance makes it clear that it is necessary for parties to follow good practice,
both in terms of timeliness and in the presentation of full and detailed evidence
to support their case. If they have failed to do so they are at risk of an award of
costs if they behave unreasonably with respect to the substance of the matter
under appeal or the procedure of the appeal. Failing to produce evidence to
substantiate a reason for refusal on appeal, or making vague, generalised or
inaccurate assertions about a proposal’s impact which are unsupported by any
objective analysis, are cited as examples32.
51. The Rule 6 Party are seeking a full award of Costs from the appellants, taking the
position that the appellants have provided insufficient environmental information
for the appeal to be determined. This is in particular respect of a need, in their
view, to submit further information on the Environmental Statement which should
be comprehensive and easily accessible.
52. The consultation process under the EIA Regulations does allow for clarification,
omissions and the need to submit further detail to be highlighted. This, in my
view, is a fundamental part of the securing of a body of evidence which can
appropriately inform a decision-maker.
53. In my experience it is not uncommon for Environmental Statements to be less
than perfect. Through the consultation process they do, however, start
conversations between interested parties such as Natural England, which inform
further evidential submissions. Perfection is something we can all strive for but
sometimes, taking a common-sense approach, being good enough is what is
realistic.
54. In this case other than the impact on the GHBs (SAC) only the Rule 6 Party made
any allegations of deficiency in the generality of the environmental assessments
submitted and subsequently supplemented33. The Council and other statutory
consultees were able to come to reasoned conclusions on the environmental
effects of the appeal proposal34.
55. The Rule 6 Party were right to highlight any concerns they might have with the
Environmental Statement. They chose to continue to pursue their concerns that
the Environmental Statement was deficient through the appeal process, which is
their right. They also made submissions upon and offered evidence in other
matters such as the prematurity of the development, impact on local services and
resources, air quality, biodiversity and heritage.
56. To avoid the delay of development identified within an adopted Local Plan which
has already been tested through a Local Plan Examination and subjected to a raft
of environmental testing at that stage, the body of environmental evidence
should be considered in the round, including the Environmental Statement and
Addenda. In the case of this appeal this includes the evidence submitted both
32 Paragraph: 049 Reference ID: 16-049-20140306
33 At the appeal stage.
34 Save for the impact upon the GHBs (SAC).
https://www.gov.uk/planning-inspectorate Page 15
before, at and after the Inquiry. It is the totality of this environmental evidence
which will be considered by the decision-maker to evaluate the proposal in this
context and move forward to a decision, taking into account the relevant
Directives and Regulations. However, it is for the decision-maker to decide
whether the quality and extent of the Environmental Statement and other
informative material is good enough to allow for an appropriately informed
decision. This matter will be resolved by the Secretary of State.
57. The associated Appeal Report reaches a recommendation that there is sufficient
environmental information for the appeal to be determined. Whether this is
accepted by the decision-maker is another matter, but whilst a perceived
deficiency in information was identified by the Rule 6 Party, which they felt
compelled to pursue through the appeal process, the appellants were continuing
to work with the Council and other statutory consultees to expand on the
environmental evidential base information. The Council also contributed to this
through their own evidence, including the up to date GHB survey. From the
questioning of some Inquiry witnesses it was clear that some of the extended
submitted appeal evidence was not familiar to them.
58. I do not consider that the appellants did not respond when the possible
deficiencies in the submitted environmental information was raised.
Supplementary information/evidence was submitted. The issue of whether the
environmental information was sufficient to test the proposal against the Habitats
Directive and the Habitats Regulations, in order to be granted planning
permission, was a narrowing point before, during and after the Inquiry. I am
satisfied the proposal would have ended up in the Inquiry room in any event due
to the dispute between experts on the impact on the GHBs alluded to in Costs
application A above. The Rule 6 Party continued their opposition, in the main, to
the totality of the environmental information, even in the face of relevant
additional information/evidence.
59. Therefore, for all of the above reasons I conclude that the appellants have not
behaved in such a manner as to substantiate a finding of unreasonable behaviour
which has directly caused another party to incur unnecessary or wasted expense
in the appeal process sufficient to justify a full award of costs.
Cost application C
Submissions of the appellants35
60. The National Health Service Financial Trust (NHSFT) is not a statutory consultee,
nor is it a Rule 6 Party.
61. PPG 16-056 provides:
Interested parties who choose to be recognised as Rule 6 parties under the
inquiry procedure rules, may be liable to an award of costs if they behave
unreasonably…
35 Inquiry Doc 48.
https://www.gov.uk/planning-inspectorate Page 16
It is not anticipated that awards of costs will be made in favour of, or against,
other interested parties, other than in exceptional circumstances. An award will
not be made in favour of, or against interested parties, where a finding of
unreasonable behaviour by one of the principal parties relates to the merits of
the appeal. However an award may be made in favour of, or against, an
interested party on procedural grounds, for example where an appeal has been
withdrawn without good reason or where an unnecessary adjournment of a
hearing or inquiry is caused by unreasonable conduct.
62. In accordance with this guidance, this costs application is directed at the
procedural unreasonableness of the NHSFT.
63. Despite being a substantial body and being professionally represented by
solicitors and counsel, and despite its request for a contribution being a seven-
figure sum, the NHSFT’s first participation in this application/appeal came without
warning only days before the Inquiry started, well after the time limits for
comments on the application and appeal had expired. No satisfactory
explanation has been provided.
64. The way the NHSFT’s case was then presented was highly irregular and
unsatisfactory. At the March session of the Inquiry oral evidence was given by
Mr Grute and representations were made by counsel, but relevant documentation
was not provided (such as the governing contractual arrangements or the
legislative framework under which the NHSFT operated). The appellants
responded during the adjournment between the March and June sessions of the
Inquiry, as it was plainly entitled to do, both in accordance with the general
principle that the appellants have the last word, and in light of the belated nature
of the NHSFT’s objection and Mr Grute’s evidence. Amongst other things, that
response pointed out that the NHSFT’s evidence and representations had not
presented an accurate and complete picture of its obligations and its relationship
with other NHS bodies. Despite the principle that the appellants have the last
word at inquiries, the NHSFT then produced in response – provided to the
appellants at 16:12 the day before the Inquiry resumed in June – 20 pages of
further material including a ‘Witness Statement’ from a new witness, Mr Cooper,
and further representations apparently drafted by counsel and/or solicitors.
There was then a session in the order of half a day on the final day of the Inquiry
where once again the Trust sought to elaborate its position and for which the
appellant needed to have Mr Lock QC in attendance.
65. Had the NHSFT made representations within the relevant time limits, or even
after the time limits, but in a single comprehensive fashion in good time prior to
the Inquiry, rather than advance its case in this belated and piecemeal fashion,
this lengthy, time consuming and costly exchange could have been avoided. The
matter could, in that situation, have been dealt with as part of the ordinary S106
session, based upon the written material. Instead, the appellants have been put
to the unnecessary and considerable expense of two standalone Inquiry sessions
on this point as well as having to consider (with the advice of its professional
team, at cost) and respond to the drip-feed of material that came from the
NHSFT. The NHSFT has manipulated the inquiry process to obtain most, if not all,
of the benefit of Rule 6 party status – in terms of inquiry time, representation
and submissions by counsel, provision of a ‘Witness Statement’ i.e. a proof of
evidence, calling witnesses through counsel – but with none of the
https://www.gov.uk/planning-inspectorate Page 17
responsibilities, including in particular in relation to the timing of its
representations and evidence. That was procedurally unreasonable.
66. The appellants therefore seeks their costs of the two standalone sessions on the
contribution sought by the NHSFT as well as the professional costs associated
with considering and responding to the NHSFT’s written material.
Response of NHSFT36
67. The complaint of unreasonable behaviour appears to be that the appellants
had insufficient opportunity to understand the NHSFT's case before its
appearance at the Inquiry in March and, consequently, it had to request
further documents and participate in a second Inquiry session to deal with
the S106 request. It says that it has incurred wasted expense in the form
of responding to the material it requested, providing the advice of David
Lock QC and two standalone sessions at the Inquiry.
68. It is denied that the NHSFT has behaved unreasonably and, in any event,
the appellant has not incurred any wasted expense.
69. As set out in the witness statement of Leenamari Aantaa-Collier, solicitor
for the NHSFT, the NHSFT provided written material (with full appendices)
to the Inquiry. This written material is in a similar form to that which has
been provided to previous inquiries. It was submitted to the Planning
Inspectorate and served on the appellants on 20 February 2019, over a
month before the NHSFT appeared at the Inquiry on 28 March 2019.
Accordingly, there was ample time for the appellants to digest it and
request any further documents they wished from the NHSFT in light of it.
Instead, what appears to have happened is that the appellants did not
really get to grips with it until after the NHSFT appeared at the Inquiry and
the appellants said they were not in a position to respond, they would do
so through their Planning Witness, the NHSFT therefore needed to return
when the appellants’ case was being presented, and they also asked for
additional documents from the NHSFT.
70. The appellants’ 'reactive' stance was entirely down to it not having
prepared sufficiently for the March session; rather than due to any
unreasonable behaviour on the part of the NHSFT. Indeed, the
documents were provided a day after they were requested. Then the
appellants submitted, without warning, a lengthy opinion from leading
counsel (rather than dealing with the matter through its Planning Witness,
as had been said in the March session). It was only fair that the NHSFT
had the right to respond to that and it did so as promptly as possible.
36 Inquiry Doc 49.
https://www.gov.uk/planning-inspectorate Page 18
71. In any event, it is not clear what wasted expense has been incurred by the
appellants. It is completely unrealistic to suggest that the NHSFT
contribution (being so actively disputed) could be dealt with in the normal
S106 session on the papers without counsel for the NHSFT and witness
attendance. Given the scrutiny being applied to the contribution, it was
inevitable there would have to be Inquiry time taken up with oral
submissions. Furthermore, the appellants would have wanted to put in
David Lock QC' s opinion irrespective of timing and would have requested
the NHS contract etc. and needed to respond to that. Therefore, the
appellants did not incur any wasted expense due to anything done by the
NHS Trust in any event.
Conclusions - The appellants’ Costs application against the NHSFT37
72. The Planning Practice Guidance sets out38 that it is not anticipated that
awards of costs will be made in favour of, or against, other interested
parties39, other than in exceptional circumstances. The appellants are
seeking a partial award of costs against the NHSFT in respect of the
Inquiry sessions dealing with this matter along with the associated
professional fees for considering and responding to the NHSFT written
material.
73. The NHSFT is not a statutory consultee nor did they have Rule 6 party
status. They were however an interested party. They were included in the
Inquiry process on that basis. Whilst presentation by counsel for
interested parties outside of the designation of Rule 6 Parties, is unusual at
Inquiry, it is at the discretion of the Inspector. Some latitude was afforded
to the NHSFT in respect of the presentation of their case, as well as the
cross questioning of their evidence and that of the appellants in this
regard. This was on the basis that this was the most efficient and
appropriate way to examine the case of the NHSFT, allowing the appellants
to explore and challenge that case, and for the Inspector to fully
understand and question the opposing cases in this regard. That
examination of evidence took up about half a day of Inquiry time. It was
not prolonged and the questioning of all parties was pertinent and focused.
It was also dealt with as a discrete session under the umbrella of the S106
obligations. It was a useful and necessary part of the examination of the
evidence in relation to the impact of the appeal proposal. This matter was
always going to take up Inquiry time there being a fundamental difference
in approach between the parties. In the interest of fairness and
transparency this matter needed to be aired within the Inquiry room.
74. The NHSFT became involved in the appeal process in February 2012?,
about a month before the Inquiry opened. This may have been somewhat
37 Inquiry Doc 48 & 49.
38 At ID: 16-056-20161210.
39 Other than the Rule 6 Party.
https://www.gov.uk/planning-inspectorate Page 19
eleventh hour, but I consider this was in the main due to the confusion
within the hierarchy of the NHS as to who and where the responsibility lies
for exploring and pursuing such funding streams in a measured and logical
way40. The NHSFT should not be penalised for their late awakening to the
appeal process already moving into the station.
75. I do agree with the appellants that it was unfortunate that the NHSFT’s
additional evidence was not submitted until close to the resumption of the
Inquiry in June. However, the appellants were aware of the essence of the
NHSFT case. The matter was also not dealt with until the final throws of
the Inquiry and this did give several days for very experienced advocates
to examine evidence and prepare questions. The appellants’ witness in
this matter was also a very experienced QC who, in participating in the
Inquiry session, appeared well prepared and there was no suggestion the
appellants were disadvantaged by the squeeze on preparation time.
76. There is no evidence that the NHSFT manipulated the Inquiry process to
obtain a status akin to a Rule 6 party. Their status was given at the
discretion of the Inspector to facilitate the workings of the Inquiry and
assist in obtaining the information required to appropriately advise the
Secretary of State. These are not exceptional circumstances.
77. Therefore, for all of the above reasons I conclude that there are no procedural
grounds relating to the behaviour of the NHSFT which have directly caused the
appellants to incur unnecessary or wasted expense in the appeal process
sufficient to justify a partial award of costs.
Cost application D
Submission of the NHSFT41
78. The Torbay and South Devon NHSFT makes an application for a partial award of
costs against the appellants. The basis for the application is as follows.
79. The NHSFT is an interested party who has taken part in the appeal process and
thus has standing to apply for an award of costs42.
80. The Planning Practice Guidance states that: It is not anticipated that awards of
costs will be made in favour of, or against, other interested parties, other than in
exceptional circumstances. An award will not be made in favour of, or against
interested parties, where a finding of unreasonable behaviour by one of the
principal parties relates to the merits of the appeal43. This application does not
relate to the merits of the appeal, but rather the way in which the appellants
chose to argue its case in relation to the NHSFT’s S106 contribution request.
40 Confirmed through Inspector’s questions.
41 Inquiry Docs 50 & 32.
42 PPG 029 Ref ID: 16-029-20140306.
43 PPG para 056 Ref ID: 16-056-20161210.
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81. The appellants have behaved unreasonably in submitting the advice of David
Lock QC dated 1 June 2019. That behaviour has resulted in unnecessary
expense to the NHSFT who have had to respond and correct that advice through
the production of its Response and the Witness Statement of Paul Cooper,
Finance Director of the Trust44 on 10 June 2019.
82. The Advice is unreasonable because it misunderstands and misrepresents the
relevant facts and law. The extent of the errors of law and inaccuracies is such
that ‘exceptional circumstances’ are made out.
83. It is unclear from the Advice what instructions Mr Lock was given by Mr Rew or
what documents he was provided with, but it is apparent throughout the Advice
that there are fundamental misunderstandings of the law and facts. There is no
expert evidence provided to support the many paragraphs which purport to
explain the complex system of NHS funding. A number of assumptions are made
and the law applied does not accurately reflect the position.
84. One clear indicator that Mr Lock is not properly cognisant of the NHSFT request is
apparent from the first paragraph of the Advice where he states that he is asked
to advise Mr Anthony Rew concerning a request which has been made by Torbay
and South Devon NHS Foundation Trust to a planning inspector that a condition
should be imposed in any planning consent. There is no request for a condition
to be imposed. The NHSFT requests a financial contribution under S106 of the
Town and Country Planning Act 1990. Mr Lock goes on to apply the law relating
to planning conditions in Newbury (see eg summary of advice in paragraph 2).
This is simply wrong.
85. His statement that: the requests made by NHSFT for funding linked to a proposed
planning consent does not appear to me to have any proper basis within planning
law ignores the fact that contributions for hospital running costs have regularly
been made by the Secretary of State and the Secretary of State has agreed in
the context of High Court proceedings as well as on appeal that such
contributions meet the CIL tests in principle. Mr Lock does not refer (perhaps
because he was under the misunderstanding that he was advising on a condition)
to the House of Lords decision in Tesco Stores or, in fact, to S106 itself at all. Mr
Lock appears to combine references to the tests for the imposition of conditions
(in Newbury) with Regulation 122 of the CIL Regulations, which has nothing
whatsoever to do with conditions. This betrays a fundamental misunderstanding
of the relevant law, which the NHSFT has been obliged to correct.
86. In respect of Mr Lock’s portrayal of the NHS funding regime, there is no expert
evidence to support his statements and assumptions. Throughout the advice
there are numerous factual matters and assumptions which the Trust has been
obliged to correct through the evidence of Paul Cooper. This costs application
does not set out each and every one which can be found in the witness statement
of Paul Cooper and the Trust’s response. However, by way of example, Mr Lock
assumes that the financial contribution will be used to reduce deficit rather than
44 Inquiry Doc 32.
https://www.gov.uk/planning-inspectorate Page 21
go towards running costs, where there is in fact no current deficit at all. He
speculates that the funding shortfall only arises because of the type of
contractual arrangement the Trust has chosen, which is not the case.
87. He furthermore does not appear to have any regard to the previous Inspector’s
decisions where contributions have been awarded to another NHS Trust and
sought in any way to distinguish them. He does not appear to have been aware
of the appellant’s own evidence, for example that the development will increase
population by 2,805 people and seems to be unaware that the calculation takes
into consideration an activity rate derived from LSOA (which estimates a
percentage of use of services).
88. All of these sorts of matters are not simply differences of opinion which go to the
merits of the case, but unreasonable behaviour in failing to ensure that the
instructions given to leading counsel, the information available to him and his
particular expertise are accurate and relevant to the appeal. They have
necessitated substantial work on the part of the Trust to correct them to ensure
that the Inspector is not seriously mislead.
89. For these reasons, the Trusts seeks its costs associated with the production of its
written response to that Advice and the witness statement of Paul Cooper.
Response of the appellants45
90. The Trust is not a statutory consultee, nor is it a Rule 6 Party.
91. PPG 16-056 provides the Interested parties who choose to be recognised as Rule
6 parties under the inquiry procedure rules, may be liable to an award of costs if
they behave unreasonably… It is not anticipated that awards of costs will be
made in favour of, or against, other interested parties, other than in exceptional
circumstances. An award will not be made in favour of, or against interested
parties, where a finding of unreasonable behaviour by one of the principal parties
relates to the merits of the appeal. However an award may be made in favour
of, or against, an interested party on procedural grounds, for example where an
appeal has been withdrawn without good reason or where an unnecessary
adjournment of a hearing or inquiry is caused by unreasonable conduct.
92. Therefore, in order for the NHSFT to obtain an award of costs it must
demonstrate exceptional circumstances and procedural unreasonableness by the
appellants (as opposed to criticising the substance of the appellants’ case against
the NHSFT).
93. The NHSFT’s costs application does not come close to demonstrating exceptional
circumstances. It is based upon the NHSFT’s view that the critique of its position
by Mr Lock QC46 was misplaced. Mere disagreement with another party’s
position, no matter how strongly held, does not comprise exceptional
circumstances.
45 Inquiry Docs 51 & 28.
46 Inquiry Doc 28.
https://www.gov.uk/planning-inspectorate Page 22
94. Further, whilst being dressed up as a claim of procedural unreasonableness, the
NHSFT costs application is patently directed at the substance of the appellant’s
case against the NHSFT, and in particular the substance of Mr Lock QC’s analysis.
95. Either of these points is of itself fatal to the NHSFT’s costs application.
96. Further, it was plainly procedurally reasonable for the appellants to seek to
respond to the belated and unforeshadowed evidence and submissions of the
NHSFT provided only days before the Inquiry and then elaborated orally at the
March session of the Inquiry. Mr Lock’s advice was that response. Procedurally,
it could not have been provided any earlier and its provision between the March
and June sessions of the Inquiry was in keeping with the timetable set by the
Inspector at the end of the March session.
97. For the reasons set out in Annex 1 of the Appellants’ closing submissions47, Mr Lock
QC’s critique of the Trust’s case for the contribution was well founded.
98. In any event, it must be remembered that the application for costs is against,
and thus the unreasonable conduct must be attributable to, the appellants. It
was plainly reasonable for the appellants to rely on the advice of leading counsel
(Mr Lock QC). To the extent that the NHSFT’s costs application seeks to make
inferences about the instructions given to Mr Lock QC, that is a wholly
inappropriate and unlawful attempt to violate legal privilege.
99. For the reasons set out in Annex 1 of the Appellants’ closing submissions and the
appellant’s cost application against the NHSFT48, the proper analysis of the
chronology relating to the dispute between the NHSFT and the appellant is that
the party guilty of procedural unreasonableness is, unquestionably, the NHSFT.
100. For any or all the above reasons the NHSFT’s application for costs should be
refused.
101. Finally, the appellants have received the NHSFT’s Response to the appellant’s
Costs Application. The NHSFT’s Response is accompanied by a further Witness
Statement (a new evidential Inquiry Document). It is wholly inappropriate for
the Trust to seek to introduce a new Witness Statement at this extraordinarily
late stage of the proceedings.
102. Further, the content of both the NHSFT’s Response and the Witness Statement
is factually inaccurate. As explained in the letter from Clarke Willmott to the
Planning Inspectorate dated 24 May 2019, despite having promised to provide a
copy of the contract within a week of 28 March 2019, the NHSFT did not provide
a copy until 23 May 2019 (and then, only after several prompts and the provision
of documents other than the contract). Clarke Willmott’s letter of 24 May 2019
was copied to the NHSFT. The chronology set out in that letter has never been
challenged by the NHSFT.
47 Inquiry Doc 55.
48 Inquiry Doc 48.
https://www.gov.uk/planning-inspectorate Page 23
103. The only document requested on 28 March and provided on 29 March was the
NHS Improvement publication. This was requested by Clarke Willmott for
general information (not as an Inquiry document). The NHS Improvement
publication was not introduced by the NHSFT as an Inquiry document until 12
June 2019.
104. The NHSFT has had little or no regard to the Inquiry Procedure rules
throughout this appeal. The NHSFT’s Costs Response and Witness Statement is a
further example.
Conclusions - The NHSFT’s Costs application against the appellants49
105. The NHSFT are seeking a partial award of costs claiming exceptional
circumstances50 on the basis of the way in which the appellants chose to argue
their case in respect of the NHSFT requested S106 contribution. The NHSFT
allege the appellants behaved unreasonably in submitting the advice of David
Lock QC with which they diametrically disagreed, and they then had to respond
through the statement of Paul Cooper, Finance Director of the Trust.
106. It is for the particular party to decide how they present their case and respond
to opposing evidence. Their instructions to the expert witnesses they chose to
call is a matter for that party. The context in which Mr Lock was called as a
witness was made plain to the Inquiry and his experience and qualifications were
submitted51.
107. The focus and relevance of Mr Lock’s evidence was a matter for the appellants
who presented him as their expert witness. The NHSFT may not have agreed with
Mr Lock but they did have the opportunity to provide explanatory and correcting
evidence (in their view) via Mr Cooper’s submission and as part of the relevant
Inquiry session. As in all examinations of appeal evidence, whether through
Inquiries or other recognised means, the decision-maker must come to a
judgement based upon everything that has been written, read, seen and heard.
The submission, answering of evidence and offering alternative perspectives,
interpretations and contradictory evidence is the normal churn of the Inquiry and
disagreement the reason why we all gather in the Inquiry room to work.
108. A disagreement over the instruction, content, focus and quality of the advice
given by a party to the Inquiry cannot be considered exceptional circumstances.
This is not unreasonable behaviour on the part of the appellants, but just part of
the workings of the Inquiry.
109. Therefore, for all of the above reasons I conclude that there are no procedural
grounds52 relating to the behaviour of the appellants which have directly caused
the NHSFT to incur unnecessary or wasted expense in the appeal process
sufficient to justify a partial award of costs.
49 Inquiry Doc 50 & 51.
50 PPG para 056 Ref ID: 16-056-20161210.
51 Inquiry Doc 57.
52 Related to the way in which the appellants chose to argue their case.
https://www.gov.uk/planning-inspectorate Page 24
Recommendations
The appellants Costs application against the Council
110. I recommend that no award of costs is made.
The Rule 6 Party Costs application against the appellants
111. I recommend that no award of costs is made.
The appellants Costs application against the NHSFT
112. I recommend that no award of costs is made.
The NHSFT Cost application against the appellants
113. I recommend that no award of costs is made.
Frances Mahoney
Inspector
https://www.gov.uk/planning-inspectorate Page 25


David Seaton Our ref: APP/P1133/W/18/3205558
Managing Director
PCL Planning
13a-15a Old Park Avenue 3 June 2020
Exeter
Devon
EX1 3WD
Dear Sir,
LOCAL GOVERNMENT ACT 1972 – SECTION 250(5)
TOWN AND COUNTRY PLANNING ACT 1990 – SECTIONS 78 AND 320
APPEAL BY ANTHONY, STEVEN & JILL REW
LAND AT WOLBOROUGH BARTON, COACH ROAD, NEWTON ABBOT, TQ12
1EJ
APPLICATION REF: 17/01542/MAJ
APPLICATION FOR AN AWARD OF COSTS
1. I am directed by the Secretary of State to refer to the enclosed letter notifying his
decision on the appeal as listed above.
2. This letter deals with your client’s applications for:
i. a full or partial award of costs against the Council; and
ii. a partial award of costs against the Torbay and South Devon NHS
Trust
The application as submitted and responses by the Council and by the Torbay
and South Devon NHS Trust are recorded in the Inspector’s Costs Report, a copy
of which is enclosed.
3. In planning inquiries, the parties are normally expected to meet their own
expenses, and costs are awarded only on grounds of unreasonable behaviour
resulting in unnecessary or wasted expense in the appeal process. The
application for costs has been considered in the light of the Planning Practice
Andrew Lynch, Decision Officer Tel 0303 444 3594
Planning Casework Unit Email: PCC@communities.gov.uk
Ministry of Housing, Communities & Local Government
3rd Floor, Fry Building
2 Marsham Street
Guidance, the Inspector’s Costs Report, the parties’ submissions on costs, the
inquiry papers and all the relevant circumstances.
4. For the application for full or partial costs against the Council, the Inspector’s
conclusions are stated at CR28–39. She recommended that your client’s
application for a full or partial award of costs be refused.
5. Having considered all the available evidence, and having particular regard to the
Planning Practice Guidance, the Secretary of State agrees with the Inspector’s
conclusions in her report and accepts her recommendation. Accordingly, he has
decided that a full or partial award of costs against the Council, on grounds of
'unreasonable behaviour', is not justified in the particular circumstances. The
application is therefore refused.
6. For the application for partial costs against the Torbay and South Devon NHS
Trust, the Inspector’s conclusions are stated at CR72-77. She recommended that
your client’s application for a partial award of costs be refused.
7. Having considered all the available evidence, and having particular regard to the
Planning Practice Guidance, the Secretary of State agrees with the Inspector’s
conclusions in her report and accepts her recommendation. Accordingly, he has
decided that a partial award of costs against the Torbay and South Devon NHS
Trust, on grounds of 'unreasonable behaviour', is not justified in the particular
circumstances. The application is therefore refused.
8. These decisions on your applications for awards of costs can be challenged
under section 288 of the Town and Country Planning Act 1990 if permission of
the High Court is granted. The procedure to follow is identical to that for
challenging the substantive decision on this case and any such application must
be made within six weeks from the day after the date of the Costs decision.
9. Copies of this letter have been sent to the Council and the Torbay and South
Devon NHS Trust.
Yours faithfully,
Andrew Lynch
Andrew Lynch
Authorised by the Secretary of State to sign in that behalf
Costs Reports to the Secretary of State
for Housing, Communities and Local
Government
by Frances Mahoney MRTPI IHBC
an Inspector appointed by the Secretary of State for Communities and Local Government
Date 2 April 2020
TOWN & COUNTRY PLANNING ACT 1990
LOCAL GOVERNMENT ACT 1972
TEIGNBRIDGE DISTRICT COUNCIL
APPEAL BY ANTHONY, STEVEN & JILL REW
Inquiry commenced on 26 March 2019
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
File Ref: APP/P1133/W/18/3205558
https://www.gov.uk/planning-inspectorate
Cost application A
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by Anthony, Steven & Jill Rew for a full/partial award of costs
against Teignbridge District Council.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for both a full and a partial award of costs be refused.
___________________________________________________________________
Cost application B
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by the Abbotskerswell Parish Council & Wolborough Residents’
Association for a full award of costs against Anthony, Steven & Jill Rew.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for a full award of costs be refused.
____________________________________________________________________
https://www.gov.uk/planning-inspectorate Page 1
Cost application C
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by Anthony, Steven & Jill Rew for a partial award of costs
against Torbay and South Devon NHS Trust.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for a partial award of costs be refused.
____________________________________________________________________
Cost application D
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by Torbay and South Devon NHS Trust for a partial award of
costs against Anthony, Steven & Jill Rew.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for a partial award of costs be refused.
https://www.gov.uk/planning-inspectorate Page 2
Cost application A
The submissions for the appellants1
1. The appellants seek both a full award of costs2 against the Council3 and in the
alternative a partial award in relation to the defence of amongst other matters,
heritage, highway impact, and air quality.
2. Firstly, the Council failed to determine the application within the required time
limit. Planning Practice Guidance (PPG) sets out at 16-0484 that:
If it is clear that the local planning authority will fail to determine an application
within the time limits, it should give the applicant a proper explanation. In any
appeal against non-determination, the local planning authority should explain
their reasons for not reaching a decision within the relevant time limit, and why
permission would not have been granted had the application been determined
within the relevant period.
3. The Council has not provided any proper explanation for not reaching a decision
within the relevant time limit nor did they provide putative reasons for refusal.
Its statement of case repeated various comments made by statutory consultees
and others, without providing clarity as to what it was the Council itself was
saying were tenable reasons for refusal as opposed to matters for
conditions/obligations.
4. Secondly, the Council’s withholding of planning permission falls within the first
example of LPA substantive unreasonableness in PPG para. 16-049: preventing or
delaying development which should clearly be permitted, having regard to its
accordance with the development plan, national policy and any other material
considerations.
5. The Council’s Statement of Case gave the impression that it may take a broader
range of points against the appeal, including heritage and the absence of a Local
Planning Authority led development framework plan for the NA3 allocation (albeit
the opaqueness of the Statement of Case meant that the nature of the Council’s
case on these points was unclear). When proofs were exchanged Ms Taylor‘s5
proof added the further contention that there would, after 300 dwellings, be a
‘severe’ impact on highway capacity in the absence of a link road (Council officers
having recommended a 500 dwelling trigger for the link road in relation to the
duplicate application, which the appellants did not and do not contest), as well as
making associated points on air quality.
1 Inquiry Doc 44.
2 If a full award of costs is not made, a partial award of costs is sought in the alternative in relation to the
matters set out at paras 5-6 of this Report.
3 Minus any costs awarded against the Torbay and South Devon NHS Trusts for its procedurally
unreasonable conduct during the appeal.
4 PPG Appeals – Advice on planning appeals and the award of costs.
5 Senior Transport Planner Devon County Council.
https://www.gov.uk/planning-inspectorate Page 3
6. The appellants had to produce evidence to deal with all these points: contained in
Mr Seaton’s main proof and the appended reports on design/master planning
(including how heritage was taken into account) and air quality, and Mr Lacey’s
rebuttal. Time was taken up at the Inquiry too on these points, eg in cross-
examination of Ms Taylor.
7. During the Inquiry the Council’s case retreated to the Greater Horseshoe Bat
(GHB)/Special Area of Conversation (SAC) issue. Mr Perry accepted in cross-
examination that save in relation to this issue, the appeal scheme on an allocated
site is in accordance with the development plan.
8. The Council’s case on the GHB/SAC issue is substantively unreasonable. The
appellants rely on their closing submissions6 in this regard and highlights in
particular the following:
a. It was unreasonable for the Council to have failed to appreciate that the
critical question for Habitats Directive/Regulations compliance is that
posed at paragraph 33 of the appellants’ closing submissions, namely:
having regard to the safeguards that can be imposed by way of planning
conditions and the ability of the Council to scrutinise the details of the
development at the reserved matters stage (to which Regulation 70(3)
of the Habitats Regulations expressly says regard must be had), can the
Secretary of State be satisfied beyond reasonable scientific doubt that
the appeal scheme would not harm the ability of GHBs to continue to
travel between the component parts of the SAC “at low levels” in a
“broadly dispersed” manner (descriptions with which the Council’s
witness Mrs Mason agreed) across the wider landscape within which the
appeal site lies?
b. In answering this question, it was unreasonable of the Council to insist,
at this outline stage, on the provision and/or assessment of details
which have been entirely legitimately left until the reserved matters
stage7. In cross-examination she said that she wanted to know now, at
this outline stage, the details of how adverse effects can be ruled out at
the reserved matters stage. That is simply not a requirement of the
Habitats Directive or Regulations. It would require the submission of a
full planning application in all but name, rendering the concept of outline
planning permission of no practical purpose. It is also inexplicably
inconsistent with the Council’s failure to exercise its power under Article
5(2) of the Town and Country Planning (Development Management
Procedure) Order 2015 which allows a Council if so presented with an
outline application to require the submission of further details before the
application is determined.
6 Inquiry Doc 55.
7 See for example paras 6.16-6.16 and 7.4 of Mrs Mason’s proof, which require an
assessment of collision impacts and severance impacts, and mitigation thereof, in relation to
the internal roads of the development; para 7.5 which requires mapping and assessment of
lighting within the site, the location and details of which is inextricably linked to the final
layout; and the details referred to at paras 7.6(a)-(k) which also all relate to matters left
over for subsequent approval by the Council (as she accepted in cross-examination).
https://www.gov.uk/planning-inspectorate Page 4
c. As for the Council’s allegation that further bat surveys need to be
undertaken before permission can be granted due to the passage of
time since the original surveys, it is important to bear in mind at the
outset that this issue has only arisen because of the delay caused by the
Council refusing to determine the application. At the time when the
application was before the Council, the surveys were up to date.
Therefore, this issue cannot excuse the Council’s non-determination of
the original planning application, now the subject of this appeal.
d. The Council’s evidence and submissions fail to grasp that, given (i) the
agreed certainty that the bats use the site as part of a wider landscape
through which they travel between the component parts of the SAC in a
manner that is widely dispersed and at low levels and (ii) the ability of
the Council at the reserved matters stage to ensure that the final form
of the development will enable this function to continue, is what
matters, not the precise number of bats using the site on any particular
survey day(s) or the precise part(s) of the site that they used on those
day(s).
e. It is no justification for the Council to say that it was relying on Natural
England (NE), since NE had at the Local Plan Examination not had any
issue with the principle of the development (and the outline application
here is again only concerned with the principle of the development).
The Council’s witness Mrs Mason did not know, and had not sought to
find out, what had prompted NE to change its stance. If the Council
didn’t know why NE had changed its stance, that change of stance
cannot have provided a reasonable basis for the Council to withhold
permission. NE’s position was untested at the Inquiry and was also
misconceived for the same reasons as the Council’s position was.
Response for the Council8
9. The Council does not accept that its conduct amounts to unreasonable behaviour
and, in any event, its actions have not caused the appellants to incur any
unnecessary expense.
10. The Costs Application is put on three grounds:
a. it is contended that the Council has failed to provide any explanation (or
proper explanation) for its non-determination of the appeal application;
b. that the Council was substantively unreasonable in not granting
planning permission; and
c. that if a full award is not justified then a partial award is justified in
relation to non-GHB matters.
11. The PPG9 sets out that an application for costs will need to clearly demonstrate
how any alleged unreasonable behaviour has resulted in unnecessary or wasted
8 Inquiry Doc 45.
9 PPG Appeals – Advice on planning appeals and the award of costs.
https://www.gov.uk/planning-inspectorate Page 5
expense10. This reflects the need for both conditions to be satisfied in order for
an award of costs to be justified11. The Costs Application heavily focuses on the
first condition and, in so far as it addresses the second condition at all, proceeds
on the premise that not only will the substantive appeal inevitably succeed but
that no other outcome could be reasonably contemplated by the decision maker.
12. If, as the Council has maintained in its Closing Submissions12, the substantive
appeal is dismissed because the appellants have failed to provide sufficient
information to enable a grant of permission to satisfy the Habitats Directive and
the Habitats Regulations, it will be that failure which has resulted in the
appellants incurring all of the costs of the appeal to no good effect, and the
essential basis for the Costs Application will fall away. However, even if the
Council’s case is not accepted, it by no means follows that the Council has acted
unreasonably in putting it forward. At all stages the Council has acted with the
benefit of professional advice when dealing with the appeal proposal and it was
entirely reasonable for the Council to put forward a case based on that advice.
a. Explanation for non-determination
13. The appellants have quoted from part of ID16-048-20140306 but have not
quoted the most relevant part:
If an appeal in such cases [ie non-determination cases] is allowed, the local
planning authority may be at risk of an award of costs, if the Inspector or
Secretary of State concludes that there were no substantive reasons to justify
delaying the determination and better communication would have enabled the
appeal to be avoided altogether.
14. In the present case, the principal parties have a fundamental disagreement about
the proper operation of the Habitats Directive and the Habitats Regulations,
having regard to the scope of the contentious outline planning permission
element of the hybrid appeal application. This disagreement, based on the
advice of the respective parties’ ecological advisers and legal advisers, is
rehearsed in full detail in the respective Closing Submissions of the principal
parties13. The Council maintains its position, that the grant of planning
permission (even recognising the subsequent controls at the reserved matters
stage) is not a legally permissible or Habitats Directive/Regulations-compliant
option. If the Secretary of State agrees with the Council there is no question of
the appeal being allowed, and the case will not fall within the ambit of the advice
at ID16-048-20140306 at all.
15. However, even if the Secretary of State ultimately concludes that a planning
permission can be lawfully granted, it cannot be said that the Council’s contrary
case (which is, of course, fully supported in this regard by Natural England as the
Government’s statutory advisor on Habitats Directive/Regulations matters), does
not set out or provide substantive reasons to justify delaying the determination
10 ID16-032-20140306.
11 ID16-030-20140306.
12 Inquiry Doc 52.
13 Inquiry Docs 52, 53 and 55.
https://www.gov.uk/planning-inspectorate Page 6
until the provision of the required information which the Council contends is
needed to show that the appeal proposal will not have an adverse effect on the
integrity of the South Hams SAC. The Council has fully articulated those reasons,
both by reference to the relevant case law and by reference to the specific facts
concerning the appeal site and the relationships between the GHBs using the site
and the South Hams SAC. Whether or not those reasons are ultimately accepted
by the Secretary of State, it cannot be argued that they provide no substantive
reasons to explain the Council’s stance. Thus, even in this scenario, there is no
basis for an award of costs.
16. With specific reference to the Council’s provision of an explanation of the reasons
for the non-determination, this is set out in section 3 of the Proof of Ian Perry,
which rehearses the application history, including the changes made to the
appeal proposals during the course of its consideration by the Council, the views
expressed by consultees, and the extent to which the Council sought to resolve
outstanding issues through consideration of a duplicate application. Whilst
officers were prepared to support that application, it was made clear that even
this could only be on the basis of the provision of further information in relation
to GHBs (both survey data and an adequate GHB mitigation plan informed by
such survey data). In other words, the Council has never taken the view that a
planning permission could be granted on the state of knowledge about the effects
of the proposals on the SAC up until the close of the Inquiry.
17. However, even if the view were to be taken that, instead of seeking to resolve
issues by requesting further information (either on the appeal application or on
the duplicate application), the Council should have proceeded to determine the
appeal application, it remains the case that, based on the professional advice
received by the Council from its ecological and legal advisers, the appropriate
course in any such determination would have been to refuse planning permission.
That would have meant that, if the appellants had wished to challenge the
Council’s position, an appeal would have been inevitable. Better communication
between the parties would not have avoided the appeal because of the
fundamental disagreement between the parties on the substantive GHB/SAC
issue. It is therefore not possible to conclude that the Council’s non-
determination, even if thought to be unreasonable in the circumstances (which
the Council does not accept), has been causative of any unnecessary expense.
b. Substantive unreasonableness
18. It is not tenable for the appellants to argue that the Council’s position is one of
substantive unreasonableness. As set out in the Council’s Closing Submissions,
the appellants accept that the proposal needs to satisfy the tests in the Habitats
Directive and the Habitats Regulations in order to be granted planning
permission, and that if the proposal cannot satisfy those tests it cannot comply
with Policy NA3(n) of the adopted Local Plan, or be in accordance with the
development plan, or be consistent with national policy (para 177 of the National
Planning Policy Framework (the Framework)).
19. Without repeating its Closing Submissions, the Council does not accept that it has
misunderstood the key questions that need to be considered. Rather, it is the
appellants who have wrongly elided (i) the principle of development established
(without the benefit of any site surveys) by the allocation of the NA3 site at the
https://www.gov.uk/planning-inspectorate Page 7
plan-making stage, but expressly conditional upon and subject to the subsequent
provision of an appropriate bespoke GHB mitigation plan (which would need to be
informed by adequate site surveys) prior to any grant of permission, in order to
satisfy Policy NA3(n), with (ii) the principle of development in relation to the
quantum of 1210 dwellings (and associated development) on the particular
application site that would be established by any grant of planning permission as
sought in the present appeal. Despite the appellants’ repeated endeavours to
treat the two positions as the same, it is abundantly clear that they are different
and require different levels of evidence in order to satisfactorily discharge the
requirements of the Habitats Directive and the Habitats Regulations. This is
reinforced by the terms of Policy NA3(n) which expressly requires more at the
planning permission stage than was needed to support the Local Plan allocation.
20. The Council’s approach does not render the concept of an outline planning
permission and reserved matters otiose, as claimed by the appellants. It simply
means that, in the context of a case where the Habitats Directive and the
Habitats Regulations are undoubtedly engaged, and Policy NA3(n) is very explicit
about its requirement for a bespoke GHB mitigation plan prior to any grant of
planning permission, an applicant/appellant has to provide more specificity on
matters that are germane to how the development would impact on GHBs than in
a bare outline case. That is neither surprising (given the rigours of the HRA
tests) nor inconsistent with Regulation 70(3) of the Habitats Regulations.
21. It is noted that the Costs Application (para 8 c14) tacitly concedes that the
available GHB survey data is no longer up-to-date, but then seeks to blame the
Council for this state of affairs. This is, of course, a complete red herring. The
obligations of the Habitats Directive and the Habitats Regulations are required to
be satisfied in the light of the actual circumstances of the case. If there is
inadequate survey evidence to allow those obligations to be met, it does not
matter whether that is due to the applicant’s default or due to another party. In
any event, the Council does not accept that its non-determination can be
regarded as wrong-doing, and furthermore it is quite clear from Regulation 63(2)
of the Habitats Regulations that it is for the applicant/appellant to provide the
necessary information to the competent authority to enable an appropriate
assessment to be undertaken. It is also abundantly clear that since 2017 both
the Council and Natural England have consistently advised the appellants of the
need to provide further and up-to-date survey data. The fact that the appellants
have chosen not to do so cannot be laid at the Council’s door.
22. However, even if the Secretary of State is ultimately satisfied that he has
sufficient information to grant planning permission, it cannot be said to be
substantively unreasonable for the Council to have taken a contrary view. Its
position was supported by its expert ecological advice, by the advice of Natural
England, and by its legal advisers, having regard to the relevant regulatory
provisions and the applicable European and domestic case law. For the Council
to act on that professional advice cannot be said to be unreasonable.
23. It is quite clear that the claim in the Costs application for a full award of costs is
misconceived. There has been no unreasonable behaviour by the Council and in
14 Inquiry Doc 44.
https://www.gov.uk/planning-inspectorate Page 8
any event, given the regulatory requirements imposed by the Habitats Directive
and the Habitats Regulations, its actions have not caused any unnecessary
expense to be incurred by the appellants. The appellants have incurred expense
because they chose to appeal but without providing the information needed to
allow an appropriate assessment to be properly undertaken by the competent
authority.
24. Partial Award - This application would seem to relate to the non-GHB elements of
the case. The Council does not accept that its conduct of its case in relation to
heritage, highways, or master-planning was unreasonable. In relation to
heritage, the Council had justified concerns about the adequacy of the heritage
assessment undertaken by the appellants, and commissioned its own heritage
assessment, and in the light of that latter assessment was able to conclude that
heritage matters could be adequately addressed by the proposed conditions. All
of this is explained in the Proof of Ian Perry and the supporting appendices
provided by Maureen Pearce. No Inquiry time was taken on heritage matters by
the Council (obviously there was a separate heritage case raised by Historic
England that the appellants had to deal with in any event).
25. In relation to highways, it will be recalled that, after the submission of the main
proofs (in line with the Inquiry timetable) the appellants submitted (via rebuttal
evidence on 20 March 2019) new traffic data and junction capacity assessments,
and it was only in the light of this new evidence that Devon County Council, as
highway authority, was able to revise its position on the timing of the provision of
the link road. It cannot be unreasonable for a party’s position to change in the
light of the receipt of new technical information. The revised position was
explained by Ms Taylor in her evidence, together with the reasons for it. The
Council, and its highways witness, reacted promptly to the receipt of the new
information and there was no unreasonable behaviour.
26. In relation to master-planning, this had been the subject of lengthy discussions
and negotiations during the application process, with iterations of a masterplan
evolving during the consideration of the application. Given the requirements of
Policy NA3(a) and the importance of the document to the proposed development,
it was not unreasonable for the Council to give close scrutiny to its contents, and
to the processes that led to its production. The Council also undertook its own
master-planning exercise, as explained in paras 6.6 to 6.16 of the Proof of Ian
Perry, seeking to pro-actively test sustainable options for overall delivery of the
allocated site. In the event, the Council was satisfied that the final iteration of
the appellants’ masterplan was sufficiently close to its aspirations for the site that
further matters could be left as reserved matters. This was a reasonable stance
to take. It will also be noted that no time was spent at the Inquiry on this
matter.
27. The Council does not therefore accept that any partial award of costs is
warranted.
https://www.gov.uk/planning-inspectorate Page 9
Conclusions- The appellant’s Costs application against the Council15
28. The Planning Practice Guidance states that irrespective of the outcome of an
appeal, costs may only be awarded against a party who has behaved
unreasonably and thereby caused the party applying for costs to incur
unnecessary or wasted expense in the associated appeal process. The same
guidance makes it clear that it is necessary for local planning authorities, when
failing to determine an application for planning permission, to give the applicant a
proper explanation, and further in any appeal against non-determination, the
local planning authority should explain their reasons for not reaching a decision
within the relevant time limit, and why permission would not have been granted
had the application been determined within the relevant period. If they have
failed to do so they are at risk of an award of costs if they behave unreasonably
with respect to the substance of the matter under appeal. Failing to produce
evidence to substantiate a reason for refusal on appeal, or making vague,
generalised or inaccurate assertions about a proposal’s impact which are
unsupported by any objective analysis, are cited as examples16.
29. The appellants’ claim centres on the following grounds:
• whether the Council has provided a proper explanation for not reaching a
decision, and
• reasons why permission would not have been granted (putative reasons for
refusal).
30. The reason for the non-determination of the planning application stem from the
fundamental disagreement between the parties of the proper operation of the
Habitats Directive and the Habitats Regulations. This disagreement was based on
expert advice on both sides. This dispute was maintained going forward into the
Inquiry and was examined over the course of the consideration of evidence
leading to the Competent Authority17 making his decision.
31. Such disputes are not uncommon and when, what at face value appear to be
intransigent positions are maintained, so progress forward becomes stifled. In
such circumstances applicants often feel they have no alternative but to move
onto the next stage of the process, that being an appeal. However, those
entrenched positions were on both sides in this case and it was by means of the
process of evidential examination at the Inquiry that a decision could be reached.
32. The Council has made it clear that the principle of development is not a matter of
dispute between the Council and the appellants18. It is also accepted that the
appeal site forms the largest part of the mixed-use allocation NA3 in the adopted
Teignbridge Local Plan (2014)19.
15 Inquiry Doc 44, 45 – the Costs claim solely relates to the Outline part of this hybrid appeal
proposal.
16 Paragraph: 049 Reference ID: 16-049-20140306
17 In this case the SofS.
18 Inquiry Doc 8 para 1.
19 Both the Council and Devon County Council supported the allocation at the LP stage.
https://www.gov.uk/planning-inspectorate Page 10
33. The Council’s Statement of Case20 refers to reasons for non-determination
centred on the Link Road delivery in the context of timing and creation of a
sustainable transport network, the impact on the GHBs in the context of whether
there was sufficient information to make that assessment under the Habitat
Regulations, heritage impacts, whether the promoted Masterplan fulfils the
requirements of LP Policy NA3, and finally, in the then absence of a mechanism
for delivery whether the proposal would deliver the obligations required in order
to make the development acceptable (S106 agreement). The Council’s
Statement of Case makes it quite clear the reasons why permission would not
have been granted and the Proof of Mr Perry picks up the same themes at section
3.
34. Following the submission of the parties’ Statements of Case, through mutual
negotiations those disputed matters were narrowed, and various Statements of
Common Ground produced which re-focused the Council’s case to a reduced
number of issues between the parties. At the opening of the Inquiry the Council
made it clear what their concerns were as expressed in their Opening21. Through
the examination of evidence, as the Inquiry progressed, the submission of an
acceptable and completed S106 agreement, and the final submission of survey
work in relation to GHBs, submitted by the Council after the close of the Inquiry,
some matters in dispute were dealt with.
35. In these circumstances the Council did not prevent or delay development which
should clearly be permitted. As already indicated the proposal was in step with
the LP NA3 allocation, but the Council were entitled to find that at the time of
consideration of the proposal, insufficient evidence had been submitted to enable
them, as the then Competent Authority, to make a determination as to whether
the proposal would have an adverse effect on the integrity of the South Hams
SAC.
36. The appellants highlight the Council’s initial promoted position on heritage
matters, as expressed in the Council’s Statement of Case, which indicates some
concern in relation to the level of detail within the application being insufficient to
determine the level of harm to the range of heritage assets affected by the
proposal, more particularly by the means of access. The Council also aligns itself
to some extent with the considerations of Historic England. However, by the time
the parties had reached the Inquiry room, the Council was no longer associating
itself with any opposition on heritage grounds, considering these matters could
be resolved through conditions and at reserved matters stage.
37. It could be said that the movement of the Council from promoting a heritage
concern, to disassociating itself from the Historic England position, could be
considered tentatively unreasonable. However, in this appeal special regard to
the desirability of preserving listed buildings or their settings or any features of
special architectural or historic interest which they possess, and special attention
being paid to the desirability of preserving or enhancing the character or
appearance of conservation areas, had to be considered due to the statutory duty
20 Submitted Oct 2018 – on appeal file-green folder.
21 Inquiry Doc 8.
https://www.gov.uk/planning-inspectorate Page 11
placed upon the decision-maker22. Therefore, the heritage case presented by
the appellants to answer the case of Historic England and initially the Council was
required to be examined in any case to enable the decision-maker23 to come to a
view in this regard. Therefore, the appellants were not put to any wasted
expense in this regard.
38. Both highway and air quality matters were similarly initially raised by the Council.
Air quality was a major concern for the Rule 6 party and evidence was heard in
this regard. Therefore, the appellant had to offer a defence on this ground in any
event. Similarly, highways matters were pursued by both the Rule 6 party and
third parties and were aired by means of a round table discussion. The position
of the County Council did shift during the examination of the evidence in relation
to the provision of the bus service and to some extent the timing for the delivery
of the Link Road. This was as a result of a mutual examination of the evidence
and an acceptance and realisation of an opposing position. I do not consider this
to be unreasonable behaviour, more the outcome of skilful examination of
evidence in the Inquiry setting leading to the resolution of disputed issues.
39. For all of the above reasons I conclude that the Council has not behaved in such
a manner as to substantiate a finding of unreasonable behaviour which has
directly caused another party to incur unnecessary or wasted expense in the
appeal process sufficient to justify either a full or a partial award of costs.
Cost application B
Submissions of the Abbotskerswell Parish Council & Wolborough Residents’
Association24
40. Abbotskerswell Parish Council and Wolborough Residents’ Association (Rule 6
Party) were granted Rule 6 status on 19 February 2019. They have participated
in the appeal throughout and have incurred significant costs in employing
professional legal and expert advice in doing so.
41. They have maintained the position throughout the appeal and expressed the
point clearly in Closing submissions25 that the appellants have provided
insufficient environmental information for the appeal to be determined. The Rule
6 Party also made submissions that the significant adverse effects of the proposal
on for instance air quality, biodiversity, heritage and other environmental effects
were such that planning permission should be refused in any event; there was an
overriding concern that there was a fundamental lack of information being
provided by the appellants. The failure to provide either sufficient and/or
adequate information is such that if the Secretary of State were to grant
permission on the evidence presented, that decision would inevitably be unlawful
22 Section 16(2), 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas)
Act 1990.
23 Secretary of State.
24 Inquiry Doc 46.
25 Inquiry Doc 53.
https://www.gov.uk/planning-inspectorate Page 12
by, amongst other things, a breach of the EIA Directive 2011/92/EU, the EIA
Regulations 2011 and the Habitats Regulations 2017.
42. The Rule 6 Party has made it clear to the appellants throughout the Inquiry that
the information provided is insufficient and inadequate. This included:
1) Their letter to the Inspectorate of 26.2.19, copied to the appellants;
2) A further letter on 18.3.19 again expressing concern that there was too
much critical information that had not been made available;
3) In their Opening submissions26 highlighting in yet more detail where
there was an absence of information; and
4) In their response to the publication of the ES Addendum (April 2019)
and Revised NTS (April 2019).
43. On each occasion, the Rule 6 Party suggested that the appeal should be
withdrawn or adjourned until satisfactory information would be provided. They
considered that the appellants’ agreement to submit further information on the
ES in March 2019 may address the critical concerns. However, the information
provided was superficial in nature, at best.
44. Moreover, the appellants were reminded of the need to provide relevant
information in the Inspectorate’s letter to them of 21.12.18 which noted: … court
cases which have stressed the need for all the relevant environmental
information in an ES to be comprehensive and easily accessible.
45. The Rule 6 Party recognise the normal costs rules in relation to Inquiry costs.
However, they submit that the appellants’ persistent failure to acknowledge and
address the significant lack of environmental information provided in the Appeal
is not only contrary to their obligations under the EIA Directive it is unreasonable
and has put the Rule 6 Party to considerable unnecessary expense. Most, if not
all the costs incurred by the Rule 6 Party could have been avoided had the
appellants acknowledged, as early as 21.12.18, that they were not in fact
providing the information that was lawfully required in legislation and which has
been underlined as necessary by the Courts.
46. In the light of the above, and having regard to the closing submissions of Rule 6
Party27, which highlights in detail the lack of information, the Rule 6 Party invite
the Secretary of State to make a full costs award in their favour such that the
appellants pay the costs arising out of and incidental to this appeal.
Response by the appellants28
47. The Rule 6 Party’s application is wholly misconceived. It does not identify any
substantive or procedural unreasonableness by the appellants in the conduct of
26 Inquiry Doc 9.
27 Inquiry Doc 53.
28 Inquiry Doc 47.
https://www.gov.uk/planning-inspectorate Page 13
its appeal or at the Inquiry. It is founded on alleged shortcomings in the
appellants’ Environmental Statement and Addenda, and the costs that the Rule 6
Party says it has incurred in pointing out those alleged shortcomings. However,
there is nothing unusual about a third party pointing out alleged shortcomings in
an Environmental Statement. That is inherent in the process of consultation
under the EIA Regulations. See R (Blewett) v. Derbyshire County Council [2004]
Env. L.R. 29 per Sullivan. at paragraph 41 (emphasis added):
The Regulations should be interpreted as a whole and in a common-sense way. The
requirement that 'an EIA application' (as defined in the Regulations) must be
accompanied by an environmental statement is not intended to obstruct such
development. As Lord Hoffmann said in R v North Yorkshire County Council ex
parte Brown [2000] 1 A.C. 397 at page 404, the purpose is 'to ensure that
planning decisions which may affect the environment are made on the basis of
full information'. In an imperfect world it is an unrealistic counsel of perfection to
expect that an applicant's environmental statement will always contain the 'full
information' about the environmental impact of a project. The Regulations are
not based upon such an unrealistic expectation. They recognise that an
environmental statement may well be deficient and make provision through the
publicity and consultation processes for any deficiencies to be identified so that
the resulting 'environmental information' provides the local planning authority
with as full a picture as possible. There will be cases where the document
purporting to be an environmental statement is so deficient that it could not
reasonably be described as an environmental statement as defined by the
Regulations…, but they are likely to be few and far between.
48. As is clear from the above paragraph, even if (which is strongly denied) there is
any merit in the Rule 6 Party’s criticisms of the Environmental Statement and
Addenda, the fact that shortcomings have been identified in the Environmental
Statement is illustrative not of something having gone wrong in the EIA process,
but of the process operating as it is intended to operate.
49. For the reasons given in the appellants’ closings29, the Rule 6 Party’s criticisms
are without merit; and there is no clear and convincing explanation of how any
alleged unreasonableness has caused the Rule 6 Party undue expense. As noted
in the appellants’ closing submissions, the EIA process is not an obstacle course -
even if the Planning Inspectorate had agreed before the Inquiry with the Rule 6
Party that the current Environmental Statement and Addenda were inadequate,
this was always remediable and could never ultimately have prevented the
appeal and Inquiry proceeding. Therefore, the suggestion in the Rule 6 Party’s
Costs application that their entire Inquiry costs would have been avoided is
manifestly incorrect.
Conclusions- The Rule 6 Party’s Costs application against the appellants30
50. The Planning Practice Guidance31 states that irrespective of the outcome of an
appeal, costs may only be awarded against a party who has behaved
29 Inquiry Doc 55.
30 Inquiry Doc 46, 47 – the Costs claim solely relates to the Outline part of this hybrid appeal
proposal.
31 Planning Practice Guidance: Appeals – ID:16.
https://www.gov.uk/planning-inspectorate Page 14
unreasonably and thereby caused the party applying for costs to incur
unnecessary or wasted expense in the associated appeal process. The same
guidance makes it clear that it is necessary for parties to follow good practice,
both in terms of timeliness and in the presentation of full and detailed evidence
to support their case. If they have failed to do so they are at risk of an award of
costs if they behave unreasonably with respect to the substance of the matter
under appeal or the procedure of the appeal. Failing to produce evidence to
substantiate a reason for refusal on appeal, or making vague, generalised or
inaccurate assertions about a proposal’s impact which are unsupported by any
objective analysis, are cited as examples32.
51. The Rule 6 Party are seeking a full award of Costs from the appellants, taking the
position that the appellants have provided insufficient environmental information
for the appeal to be determined. This is in particular respect of a need, in their
view, to submit further information on the Environmental Statement which should
be comprehensive and easily accessible.
52. The consultation process under the EIA Regulations does allow for clarification,
omissions and the need to submit further detail to be highlighted. This, in my
view, is a fundamental part of the securing of a body of evidence which can
appropriately inform a decision-maker.
53. In my experience it is not uncommon for Environmental Statements to be less
than perfect. Through the consultation process they do, however, start
conversations between interested parties such as Natural England, which inform
further evidential submissions. Perfection is something we can all strive for but
sometimes, taking a common-sense approach, being good enough is what is
realistic.
54. In this case other than the impact on the GHBs (SAC) only the Rule 6 Party made
any allegations of deficiency in the generality of the environmental assessments
submitted and subsequently supplemented33. The Council and other statutory
consultees were able to come to reasoned conclusions on the environmental
effects of the appeal proposal34.
55. The Rule 6 Party were right to highlight any concerns they might have with the
Environmental Statement. They chose to continue to pursue their concerns that
the Environmental Statement was deficient through the appeal process, which is
their right. They also made submissions upon and offered evidence in other
matters such as the prematurity of the development, impact on local services and
resources, air quality, biodiversity and heritage.
56. To avoid the delay of development identified within an adopted Local Plan which
has already been tested through a Local Plan Examination and subjected to a raft
of environmental testing at that stage, the body of environmental evidence
should be considered in the round, including the Environmental Statement and
Addenda. In the case of this appeal this includes the evidence submitted both
32 Paragraph: 049 Reference ID: 16-049-20140306
33 At the appeal stage.
34 Save for the impact upon the GHBs (SAC).
https://www.gov.uk/planning-inspectorate Page 15
before, at and after the Inquiry. It is the totality of this environmental evidence
which will be considered by the decision-maker to evaluate the proposal in this
context and move forward to a decision, taking into account the relevant
Directives and Regulations. However, it is for the decision-maker to decide
whether the quality and extent of the Environmental Statement and other
informative material is good enough to allow for an appropriately informed
decision. This matter will be resolved by the Secretary of State.
57. The associated Appeal Report reaches a recommendation that there is sufficient
environmental information for the appeal to be determined. Whether this is
accepted by the decision-maker is another matter, but whilst a perceived
deficiency in information was identified by the Rule 6 Party, which they felt
compelled to pursue through the appeal process, the appellants were continuing
to work with the Council and other statutory consultees to expand on the
environmental evidential base information. The Council also contributed to this
through their own evidence, including the up to date GHB survey. From the
questioning of some Inquiry witnesses it was clear that some of the extended
submitted appeal evidence was not familiar to them.
58. I do not consider that the appellants did not respond when the possible
deficiencies in the submitted environmental information was raised.
Supplementary information/evidence was submitted. The issue of whether the
environmental information was sufficient to test the proposal against the Habitats
Directive and the Habitats Regulations, in order to be granted planning
permission, was a narrowing point before, during and after the Inquiry. I am
satisfied the proposal would have ended up in the Inquiry room in any event due
to the dispute between experts on the impact on the GHBs alluded to in Costs
application A above. The Rule 6 Party continued their opposition, in the main, to
the totality of the environmental information, even in the face of relevant
additional information/evidence.
59. Therefore, for all of the above reasons I conclude that the appellants have not
behaved in such a manner as to substantiate a finding of unreasonable behaviour
which has directly caused another party to incur unnecessary or wasted expense
in the appeal process sufficient to justify a full award of costs.
Cost application C
Submissions of the appellants35
60. The National Health Service Financial Trust (NHSFT) is not a statutory consultee,
nor is it a Rule 6 Party.
61. PPG 16-056 provides:
Interested parties who choose to be recognised as Rule 6 parties under the
inquiry procedure rules, may be liable to an award of costs if they behave
unreasonably…
35 Inquiry Doc 48.
https://www.gov.uk/planning-inspectorate Page 16
It is not anticipated that awards of costs will be made in favour of, or against,
other interested parties, other than in exceptional circumstances. An award will
not be made in favour of, or against interested parties, where a finding of
unreasonable behaviour by one of the principal parties relates to the merits of
the appeal. However an award may be made in favour of, or against, an
interested party on procedural grounds, for example where an appeal has been
withdrawn without good reason or where an unnecessary adjournment of a
hearing or inquiry is caused by unreasonable conduct.
62. In accordance with this guidance, this costs application is directed at the
procedural unreasonableness of the NHSFT.
63. Despite being a substantial body and being professionally represented by
solicitors and counsel, and despite its request for a contribution being a seven-
figure sum, the NHSFT’s first participation in this application/appeal came without
warning only days before the Inquiry started, well after the time limits for
comments on the application and appeal had expired. No satisfactory
explanation has been provided.
64. The way the NHSFT’s case was then presented was highly irregular and
unsatisfactory. At the March session of the Inquiry oral evidence was given by
Mr Grute and representations were made by counsel, but relevant documentation
was not provided (such as the governing contractual arrangements or the
legislative framework under which the NHSFT operated). The appellants
responded during the adjournment between the March and June sessions of the
Inquiry, as it was plainly entitled to do, both in accordance with the general
principle that the appellants have the last word, and in light of the belated nature
of the NHSFT’s objection and Mr Grute’s evidence. Amongst other things, that
response pointed out that the NHSFT’s evidence and representations had not
presented an accurate and complete picture of its obligations and its relationship
with other NHS bodies. Despite the principle that the appellants have the last
word at inquiries, the NHSFT then produced in response – provided to the
appellants at 16:12 the day before the Inquiry resumed in June – 20 pages of
further material including a ‘Witness Statement’ from a new witness, Mr Cooper,
and further representations apparently drafted by counsel and/or solicitors.
There was then a session in the order of half a day on the final day of the Inquiry
where once again the Trust sought to elaborate its position and for which the
appellant needed to have Mr Lock QC in attendance.
65. Had the NHSFT made representations within the relevant time limits, or even
after the time limits, but in a single comprehensive fashion in good time prior to
the Inquiry, rather than advance its case in this belated and piecemeal fashion,
this lengthy, time consuming and costly exchange could have been avoided. The
matter could, in that situation, have been dealt with as part of the ordinary S106
session, based upon the written material. Instead, the appellants have been put
to the unnecessary and considerable expense of two standalone Inquiry sessions
on this point as well as having to consider (with the advice of its professional
team, at cost) and respond to the drip-feed of material that came from the
NHSFT. The NHSFT has manipulated the inquiry process to obtain most, if not all,
of the benefit of Rule 6 party status – in terms of inquiry time, representation
and submissions by counsel, provision of a ‘Witness Statement’ i.e. a proof of
evidence, calling witnesses through counsel – but with none of the
https://www.gov.uk/planning-inspectorate Page 17
responsibilities, including in particular in relation to the timing of its
representations and evidence. That was procedurally unreasonable.
66. The appellants therefore seeks their costs of the two standalone sessions on the
contribution sought by the NHSFT as well as the professional costs associated
with considering and responding to the NHSFT’s written material.
Response of NHSFT36
67. The complaint of unreasonable behaviour appears to be that the appellants
had insufficient opportunity to understand the NHSFT's case before its
appearance at the Inquiry in March and, consequently, it had to request
further documents and participate in a second Inquiry session to deal with
the S106 request. It says that it has incurred wasted expense in the form
of responding to the material it requested, providing the advice of David
Lock QC and two standalone sessions at the Inquiry.
68. It is denied that the NHSFT has behaved unreasonably and, in any event,
the appellant has not incurred any wasted expense.
69. As set out in the witness statement of Leenamari Aantaa-Collier, solicitor
for the NHSFT, the NHSFT provided written material (with full appendices)
to the Inquiry. This written material is in a similar form to that which has
been provided to previous inquiries. It was submitted to the Planning
Inspectorate and served on the appellants on 20 February 2019, over a
month before the NHSFT appeared at the Inquiry on 28 March 2019.
Accordingly, there was ample time for the appellants to digest it and
request any further documents they wished from the NHSFT in light of it.
Instead, what appears to have happened is that the appellants did not
really get to grips with it until after the NHSFT appeared at the Inquiry and
the appellants said they were not in a position to respond, they would do
so through their Planning Witness, the NHSFT therefore needed to return
when the appellants’ case was being presented, and they also asked for
additional documents from the NHSFT.
70. The appellants’ 'reactive' stance was entirely down to it not having
prepared sufficiently for the March session; rather than due to any
unreasonable behaviour on the part of the NHSFT. Indeed, the
documents were provided a day after they were requested. Then the
appellants submitted, without warning, a lengthy opinion from leading
counsel (rather than dealing with the matter through its Planning Witness,
as had been said in the March session). It was only fair that the NHSFT
had the right to respond to that and it did so as promptly as possible.
36 Inquiry Doc 49.
https://www.gov.uk/planning-inspectorate Page 18
71. In any event, it is not clear what wasted expense has been incurred by the
appellants. It is completely unrealistic to suggest that the NHSFT
contribution (being so actively disputed) could be dealt with in the normal
S106 session on the papers without counsel for the NHSFT and witness
attendance. Given the scrutiny being applied to the contribution, it was
inevitable there would have to be Inquiry time taken up with oral
submissions. Furthermore, the appellants would have wanted to put in
David Lock QC' s opinion irrespective of timing and would have requested
the NHS contract etc. and needed to respond to that. Therefore, the
appellants did not incur any wasted expense due to anything done by the
NHS Trust in any event.
Conclusions - The appellants’ Costs application against the NHSFT37
72. The Planning Practice Guidance sets out38 that it is not anticipated that
awards of costs will be made in favour of, or against, other interested
parties39, other than in exceptional circumstances. The appellants are
seeking a partial award of costs against the NHSFT in respect of the
Inquiry sessions dealing with this matter along with the associated
professional fees for considering and responding to the NHSFT written
material.
73. The NHSFT is not a statutory consultee nor did they have Rule 6 party
status. They were however an interested party. They were included in the
Inquiry process on that basis. Whilst presentation by counsel for
interested parties outside of the designation of Rule 6 Parties, is unusual at
Inquiry, it is at the discretion of the Inspector. Some latitude was afforded
to the NHSFT in respect of the presentation of their case, as well as the
cross questioning of their evidence and that of the appellants in this
regard. This was on the basis that this was the most efficient and
appropriate way to examine the case of the NHSFT, allowing the appellants
to explore and challenge that case, and for the Inspector to fully
understand and question the opposing cases in this regard. That
examination of evidence took up about half a day of Inquiry time. It was
not prolonged and the questioning of all parties was pertinent and focused.
It was also dealt with as a discrete session under the umbrella of the S106
obligations. It was a useful and necessary part of the examination of the
evidence in relation to the impact of the appeal proposal. This matter was
always going to take up Inquiry time there being a fundamental difference
in approach between the parties. In the interest of fairness and
transparency this matter needed to be aired within the Inquiry room.
74. The NHSFT became involved in the appeal process in February 2012?,
about a month before the Inquiry opened. This may have been somewhat
37 Inquiry Doc 48 & 49.
38 At ID: 16-056-20161210.
39 Other than the Rule 6 Party.
https://www.gov.uk/planning-inspectorate Page 19
eleventh hour, but I consider this was in the main due to the confusion
within the hierarchy of the NHS as to who and where the responsibility lies
for exploring and pursuing such funding streams in a measured and logical
way40. The NHSFT should not be penalised for their late awakening to the
appeal process already moving into the station.
75. I do agree with the appellants that it was unfortunate that the NHSFT’s
additional evidence was not submitted until close to the resumption of the
Inquiry in June. However, the appellants were aware of the essence of the
NHSFT case. The matter was also not dealt with until the final throws of
the Inquiry and this did give several days for very experienced advocates
to examine evidence and prepare questions. The appellants’ witness in
this matter was also a very experienced QC who, in participating in the
Inquiry session, appeared well prepared and there was no suggestion the
appellants were disadvantaged by the squeeze on preparation time.
76. There is no evidence that the NHSFT manipulated the Inquiry process to
obtain a status akin to a Rule 6 party. Their status was given at the
discretion of the Inspector to facilitate the workings of the Inquiry and
assist in obtaining the information required to appropriately advise the
Secretary of State. These are not exceptional circumstances.
77. Therefore, for all of the above reasons I conclude that there are no procedural
grounds relating to the behaviour of the NHSFT which have directly caused the
appellants to incur unnecessary or wasted expense in the appeal process
sufficient to justify a partial award of costs.
Cost application D
Submission of the NHSFT41
78. The Torbay and South Devon NHSFT makes an application for a partial award of
costs against the appellants. The basis for the application is as follows.
79. The NHSFT is an interested party who has taken part in the appeal process and
thus has standing to apply for an award of costs42.
80. The Planning Practice Guidance states that: It is not anticipated that awards of
costs will be made in favour of, or against, other interested parties, other than in
exceptional circumstances. An award will not be made in favour of, or against
interested parties, where a finding of unreasonable behaviour by one of the
principal parties relates to the merits of the appeal43. This application does not
relate to the merits of the appeal, but rather the way in which the appellants
chose to argue its case in relation to the NHSFT’s S106 contribution request.
40 Confirmed through Inspector’s questions.
41 Inquiry Docs 50 & 32.
42 PPG 029 Ref ID: 16-029-20140306.
43 PPG para 056 Ref ID: 16-056-20161210.
https://www.gov.uk/planning-inspectorate Page 20
81. The appellants have behaved unreasonably in submitting the advice of David
Lock QC dated 1 June 2019. That behaviour has resulted in unnecessary
expense to the NHSFT who have had to respond and correct that advice through
the production of its Response and the Witness Statement of Paul Cooper,
Finance Director of the Trust44 on 10 June 2019.
82. The Advice is unreasonable because it misunderstands and misrepresents the
relevant facts and law. The extent of the errors of law and inaccuracies is such
that ‘exceptional circumstances’ are made out.
83. It is unclear from the Advice what instructions Mr Lock was given by Mr Rew or
what documents he was provided with, but it is apparent throughout the Advice
that there are fundamental misunderstandings of the law and facts. There is no
expert evidence provided to support the many paragraphs which purport to
explain the complex system of NHS funding. A number of assumptions are made
and the law applied does not accurately reflect the position.
84. One clear indicator that Mr Lock is not properly cognisant of the NHSFT request is
apparent from the first paragraph of the Advice where he states that he is asked
to advise Mr Anthony Rew concerning a request which has been made by Torbay
and South Devon NHS Foundation Trust to a planning inspector that a condition
should be imposed in any planning consent. There is no request for a condition
to be imposed. The NHSFT requests a financial contribution under S106 of the
Town and Country Planning Act 1990. Mr Lock goes on to apply the law relating
to planning conditions in Newbury (see eg summary of advice in paragraph 2).
This is simply wrong.
85. His statement that: the requests made by NHSFT for funding linked to a proposed
planning consent does not appear to me to have any proper basis within planning
law ignores the fact that contributions for hospital running costs have regularly
been made by the Secretary of State and the Secretary of State has agreed in
the context of High Court proceedings as well as on appeal that such
contributions meet the CIL tests in principle. Mr Lock does not refer (perhaps
because he was under the misunderstanding that he was advising on a condition)
to the House of Lords decision in Tesco Stores or, in fact, to S106 itself at all. Mr
Lock appears to combine references to the tests for the imposition of conditions
(in Newbury) with Regulation 122 of the CIL Regulations, which has nothing
whatsoever to do with conditions. This betrays a fundamental misunderstanding
of the relevant law, which the NHSFT has been obliged to correct.
86. In respect of Mr Lock’s portrayal of the NHS funding regime, there is no expert
evidence to support his statements and assumptions. Throughout the advice
there are numerous factual matters and assumptions which the Trust has been
obliged to correct through the evidence of Paul Cooper. This costs application
does not set out each and every one which can be found in the witness statement
of Paul Cooper and the Trust’s response. However, by way of example, Mr Lock
assumes that the financial contribution will be used to reduce deficit rather than
44 Inquiry Doc 32.
https://www.gov.uk/planning-inspectorate Page 21
go towards running costs, where there is in fact no current deficit at all. He
speculates that the funding shortfall only arises because of the type of
contractual arrangement the Trust has chosen, which is not the case.
87. He furthermore does not appear to have any regard to the previous Inspector’s
decisions where contributions have been awarded to another NHS Trust and
sought in any way to distinguish them. He does not appear to have been aware
of the appellant’s own evidence, for example that the development will increase
population by 2,805 people and seems to be unaware that the calculation takes
into consideration an activity rate derived from LSOA (which estimates a
percentage of use of services).
88. All of these sorts of matters are not simply differences of opinion which go to the
merits of the case, but unreasonable behaviour in failing to ensure that the
instructions given to leading counsel, the information available to him and his
particular expertise are accurate and relevant to the appeal. They have
necessitated substantial work on the part of the Trust to correct them to ensure
that the Inspector is not seriously mislead.
89. For these reasons, the Trusts seeks its costs associated with the production of its
written response to that Advice and the witness statement of Paul Cooper.
Response of the appellants45
90. The Trust is not a statutory consultee, nor is it a Rule 6 Party.
91. PPG 16-056 provides the Interested parties who choose to be recognised as Rule
6 parties under the inquiry procedure rules, may be liable to an award of costs if
they behave unreasonably… It is not anticipated that awards of costs will be
made in favour of, or against, other interested parties, other than in exceptional
circumstances. An award will not be made in favour of, or against interested
parties, where a finding of unreasonable behaviour by one of the principal parties
relates to the merits of the appeal. However an award may be made in favour
of, or against, an interested party on procedural grounds, for example where an
appeal has been withdrawn without good reason or where an unnecessary
adjournment of a hearing or inquiry is caused by unreasonable conduct.
92. Therefore, in order for the NHSFT to obtain an award of costs it must
demonstrate exceptional circumstances and procedural unreasonableness by the
appellants (as opposed to criticising the substance of the appellants’ case against
the NHSFT).
93. The NHSFT’s costs application does not come close to demonstrating exceptional
circumstances. It is based upon the NHSFT’s view that the critique of its position
by Mr Lock QC46 was misplaced. Mere disagreement with another party’s
position, no matter how strongly held, does not comprise exceptional
circumstances.
45 Inquiry Docs 51 & 28.
46 Inquiry Doc 28.
https://www.gov.uk/planning-inspectorate Page 22
94. Further, whilst being dressed up as a claim of procedural unreasonableness, the
NHSFT costs application is patently directed at the substance of the appellant’s
case against the NHSFT, and in particular the substance of Mr Lock QC’s analysis.
95. Either of these points is of itself fatal to the NHSFT’s costs application.
96. Further, it was plainly procedurally reasonable for the appellants to seek to
respond to the belated and unforeshadowed evidence and submissions of the
NHSFT provided only days before the Inquiry and then elaborated orally at the
March session of the Inquiry. Mr Lock’s advice was that response. Procedurally,
it could not have been provided any earlier and its provision between the March
and June sessions of the Inquiry was in keeping with the timetable set by the
Inspector at the end of the March session.
97. For the reasons set out in Annex 1 of the Appellants’ closing submissions47, Mr Lock
QC’s critique of the Trust’s case for the contribution was well founded.
98. In any event, it must be remembered that the application for costs is against,
and thus the unreasonable conduct must be attributable to, the appellants. It
was plainly reasonable for the appellants to rely on the advice of leading counsel
(Mr Lock QC). To the extent that the NHSFT’s costs application seeks to make
inferences about the instructions given to Mr Lock QC, that is a wholly
inappropriate and unlawful attempt to violate legal privilege.
99. For the reasons set out in Annex 1 of the Appellants’ closing submissions and the
appellant’s cost application against the NHSFT48, the proper analysis of the
chronology relating to the dispute between the NHSFT and the appellant is that
the party guilty of procedural unreasonableness is, unquestionably, the NHSFT.
100. For any or all the above reasons the NHSFT’s application for costs should be
refused.
101. Finally, the appellants have received the NHSFT’s Response to the appellant’s
Costs Application. The NHSFT’s Response is accompanied by a further Witness
Statement (a new evidential Inquiry Document). It is wholly inappropriate for
the Trust to seek to introduce a new Witness Statement at this extraordinarily
late stage of the proceedings.
102. Further, the content of both the NHSFT’s Response and the Witness Statement
is factually inaccurate. As explained in the letter from Clarke Willmott to the
Planning Inspectorate dated 24 May 2019, despite having promised to provide a
copy of the contract within a week of 28 March 2019, the NHSFT did not provide
a copy until 23 May 2019 (and then, only after several prompts and the provision
of documents other than the contract). Clarke Willmott’s letter of 24 May 2019
was copied to the NHSFT. The chronology set out in that letter has never been
challenged by the NHSFT.
47 Inquiry Doc 55.
48 Inquiry Doc 48.
https://www.gov.uk/planning-inspectorate Page 23
103. The only document requested on 28 March and provided on 29 March was the
NHS Improvement publication. This was requested by Clarke Willmott for
general information (not as an Inquiry document). The NHS Improvement
publication was not introduced by the NHSFT as an Inquiry document until 12
June 2019.
104. The NHSFT has had little or no regard to the Inquiry Procedure rules
throughout this appeal. The NHSFT’s Costs Response and Witness Statement is a
further example.
Conclusions - The NHSFT’s Costs application against the appellants49
105. The NHSFT are seeking a partial award of costs claiming exceptional
circumstances50 on the basis of the way in which the appellants chose to argue
their case in respect of the NHSFT requested S106 contribution. The NHSFT
allege the appellants behaved unreasonably in submitting the advice of David
Lock QC with which they diametrically disagreed, and they then had to respond
through the statement of Paul Cooper, Finance Director of the Trust.
106. It is for the particular party to decide how they present their case and respond
to opposing evidence. Their instructions to the expert witnesses they chose to
call is a matter for that party. The context in which Mr Lock was called as a
witness was made plain to the Inquiry and his experience and qualifications were
submitted51.
107. The focus and relevance of Mr Lock’s evidence was a matter for the appellants
who presented him as their expert witness. The NHSFT may not have agreed with
Mr Lock but they did have the opportunity to provide explanatory and correcting
evidence (in their view) via Mr Cooper’s submission and as part of the relevant
Inquiry session. As in all examinations of appeal evidence, whether through
Inquiries or other recognised means, the decision-maker must come to a
judgement based upon everything that has been written, read, seen and heard.
The submission, answering of evidence and offering alternative perspectives,
interpretations and contradictory evidence is the normal churn of the Inquiry and
disagreement the reason why we all gather in the Inquiry room to work.
108. A disagreement over the instruction, content, focus and quality of the advice
given by a party to the Inquiry cannot be considered exceptional circumstances.
This is not unreasonable behaviour on the part of the appellants, but just part of
the workings of the Inquiry.
109. Therefore, for all of the above reasons I conclude that there are no procedural
grounds52 relating to the behaviour of the appellants which have directly caused
the NHSFT to incur unnecessary or wasted expense in the appeal process
sufficient to justify a partial award of costs.
49 Inquiry Doc 50 & 51.
50 PPG para 056 Ref ID: 16-056-20161210.
51 Inquiry Doc 57.
52 Related to the way in which the appellants chose to argue their case.
https://www.gov.uk/planning-inspectorate Page 24
Recommendations
The appellants Costs application against the Council
110. I recommend that no award of costs is made.
The Rule 6 Party Costs application against the appellants
111. I recommend that no award of costs is made.
The appellants Costs application against the NHSFT
112. I recommend that no award of costs is made.
The NHSFT Cost application against the appellants
113. I recommend that no award of costs is made.
Frances Mahoney
Inspector
https://www.gov.uk/planning-inspectorate Page 25


Our ref: APP/P1133/W/18/3205558
David Seaton Your ref: -
Managing Director
PCL Planning
13a-15a Old Park Avenue
Exeter
Devon 3 June 2020
EX1 3WD
Dear Sir,
TOWN AND COUNTRY PLANNING ACT 1990 – SECTION 78
APPEAL MADE BY ANTHONY, STEVEN & JILL REW
LAND AT WOLBOROUGH BARTON, COACH ROAD, NEWTON ABBOT TQ12 1EJ
APPLICATION REF: 17/01542/MAJ
1. I am directed by the Secretary of State to say that consideration has been given to the
report of Frances Mahoney MRTPI IHBC, who held a public local inquiry between 26
March 2019 and 10 July 2019 into your client’s appeal against the failure of Teignbridge
District Council to determine your client’s application for planning permission for a hybrid
proposal for the following development:
• Outline proposal for mixed use development comprising circa 1210 dwellings (C3),
a primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of
community facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m
of floorspace, open space (including play areas, allotments, MUGA) and
associated infrastructure (Means of Access to be determined only); and
• Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of
new build structures, construction of an access road and parking, plus other
associated conversion and minor works.
in accordance with application ref: 17/01542/MAJ, dated 9 June 2017.
2. On 3 July 2018, this appeal was recovered for the Secretary of State's determination, in
pursuance of section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country
Planning Act 1990.
Inspector’s recommendation and summary of the decision
3. The Inspector recommended that the appeal should be allowed and planning permission
granted, subject to conditions.
4. For the reasons given below, the Secretary of State agrees with the Inspector’s
and grant planning permission, subject to conditions. A copy of the Inspector’s report (IR)
is enclosed. All references to paragraph numbers, unless otherwise stated, are to that
report.
Environmental Statement
5. In reaching this position, the Secretary of State has taken into account the Environmental
Statement which was submitted under the Town and Country Planning (Environmental
Impact Assessment) Regulations 2017 and the environmental information submitted
during and after the inquiry. Having taken account of the Inspector’s comments at IR397,
the Secretary of State is satisfied that the Environmental Statement and other additional
information provided complies with the above Regulations and that sufficient information
has been provided for him to assess the environmental impact of the proposal.
Procedural matters
6. As set out at IR5, the proposal has been amended since the original planning application
was submitted, with a decrease in the number of proposed dwellings and an increase in
the amount of employment floorspace. The development description at paragraph 1 of
this Decision Letter reflects this revised description, and the Secretary of State has made
his decision based on this.
7. The Secretary of State notes that these alternative plans were available to all the main
parties, including those who addressed the Inquiry (IR5). Given this, he does not consider
that the revised description of development raises any matters that would require him to
refer back to the parties for further representations prior to reaching his decision on this
appeal, and he is satisfied that no interests have thereby been prejudiced. He agrees
with the approach of the Inspector as set out in IR11 in respect of the plans produced for
illustrative purposes.
Matters arising since the close of the inquiry
8. The following applications for an award of costs were made (IR3):
• An award of full of partial costs made by the appellants against the Council;
• An award of full costs made by a Rule 6 Party against the appellants;
• An award of partial costs made by the appellant against the Torbay and South
Devon NHS Trust; and
• An award of partial costs made by the Torbay and South Devon NHS Trust against
the appellants
These applications are the subject of separate decision letters issued at the same time as
this Decision Letter.
Policy and statutory considerations
9. In reaching his decision, the Secretary of State has had regard to section 38(6) of the
Planning and Compulsory Purchase Act 2004 which requires that proposals be
determined in accordance with the development plan unless material considerations
indicate otherwise.
10. In this case, relevant elements of the development plan include the Teignbridge Local
2016-2033, made October 2017 (ANP). The Secretary of State considers that relevant
development plan policies include those set out at IR15-18.
11. The Secretary of State notes that part of the appeal site is also covered by the Newton
Abbot Neighbourhood Development Plan 2016-2033, made June 2016, but that no
conflict with this plan was suggested (IR18).
12. Other material considerations which the Secretary of State has taken into account include
the National Planning Policy Framework (‘the Framework’) and associated planning
guidance (‘the Guidance’).
13. In accordance with section 66(1) of the Planning (Listed Buildings and Conservation
Areas) Act 1990 (the LBCA Act), the Secretary of State has paid special regard to the
desirability of preserving those listed buildings potentially affected by the proposals, or
their settings or any features of special architectural or historic interest which they may
possess.
14. In accordance with section 72(1) of the Planning (Listed Buildings and Conservation
Areas) Act 1990 (the LBCA Act), the Secretary of State has paid special attention to the
desirability of preserving or enhancing the character or appearance of conservation
areas.
Emerging plan
15. The emerging plan comprises the Local Plan Review 2020 - 2040. A draft version was
published for public consultation on 23 March 2020 until 15 June 2020. Paragraph 48 of
the Framework states that decision makers may give weight to relevant policies in
emerging plans according to: (1) the stage of preparation of the emerging plan; (2) the
extent to which there are unresolved objections to relevant policies in the emerging plan;
and (3) the degree of consistency of relevant policies to the policies in the Framework. As
this emerging plan is still at a very early stage, with adoption not expected until summer
2021, the Secretary of State considers it can carry no weight in the decision making
process for this appeal.
Main issues
16. The Secretary of State notes that the element of this proposal seeking full planning
permission for the conversion of the agricultural buildings into hotel/restaurant/bar uses,
does not raise opposition in policy terms that would lead to a conclusion of refusing
permission, but that it does require consideration against statutory heritage duties
(IR368). This will be returned to in the “Heritage” section of this Decision Letter at
paragraphs 19-24. For this reason, unless specified, this Decision Letter will primarily
consider the impacts of the outline part of the proposal.
Suitability of the location
17. The Secretary of State notes (IR369) that the principle of the outline element was not a
disputed matter between the parties. TLP policy NA3 Wolborough allocates around
120ha of land for a sustainable extension for Newton Abbott, of which the appeal site
makes up a large part (IR372).
18. For this reason, he agrees with the Inspector (IR374) that the determination of this appeal
should not question the principle of a mixed-use development in this location, but, as the
of the proposal in order to make a meaningful assessment of the proposal against LP
Policy NA3 a) (IR373-375).
Heritage
19. The Secretary of State has carefully considered the Inspector’s analysis of the impacts
on the proposal on the heritage assets identified at IR376-388.
20. The Wolborough Hill Conservation Area (WHCA) lies to the east of the appeal site. For
the reasons given at IR383, the Secretary of State agrees with the Inspector that the
proposal would have a neutral impact on the character and appearance of the WHCA.
21. The Grade-II listed St Augustine’s Priory lies to the south of the appeal site. For the
reasons given at IR384, the Secretary of State agrees with the Inspector that the
significance and setting of the Priory would be preserved.
22. The Grade-I listed parish church of St Mary the Virgin lies to the north of the appeal site,
and directly opposite the agricultural buildings that would be converted to hotel and
restaurant uses in the full element of the proposal. With regards to the full element, the
Secretary of State agrees with the Inspector at IR382 that the removal of unsympathetic
modern buildings, alongside the preservation and enhancement of the agricultural
buildings, would preserve and enhance their relationship with the church.
23. With regards to the outline element, the Secretary of State agrees with the Inspector for
the reasons given at IR380-382 that the outline element, and therefore the appeal
proposal overall, would erode the setting of the church, and to a lesser extent its
significance, by diminishing the association of the pastural land upon which the appeal
development would be built (IR385). He agrees with the Inspector that, when taking all
the identified evidence into account, there would not be a total loss of the church’s
significance, and so the appeal proposal, as a totality, would lead to a less than
substantial harm, albeit on the mid to upper level of a sliding scale (IR387).
24. As set out at Paragraph 196 of the Framework, 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. This will be returned to in
the Planning Balance section of this Decision Letter.
Greater Horseshoe Bats and impact on the South Hams Special Area of Conservation (SAC)
25. The proposal is for a large mixed use development, with up to 1210 homes, employment
space, ancillary development and supporting infrastructure including a new connecting
road. Article 6 of the Habitats Directive, which has been transposed into UK law through
the Conservation of Habitats and Species Regulations 2017 and the Conservation of
Offshore Marine Habitats and Species Regulations 2017 (for plans and projects beyond
UK territorial waters (12 nautical miles)), requires that where a plan or project is likely to
result in a significant effect on a European site either alone or in combination with other
plans or projects, and where the plan or project is not directly connected with or
necessary to the management of the European site, a competent authority (the Secretary
of State in this instance) is required to make an Appropriate Assessment of the
implications of that plan or project on the integrity of the European site in view of the
site’s conservation objectives. The Secretary of State is the Competent Authority for the
purposes of the Conservation of Habitats and Species Regulations 2017.
26. For the reasons set out at IR432 he agrees with the Inspector that he is required to make
an Appropriate Assessment of the implications of the proposal on the integrity of any
affected European site in view of each site’s conservation objectives.
27. The proposal site is located to the south of Newton Abbott, and close to the the South
Hams Special Area of Conservation (SAC). The SAC consists of five sites dispersed
across South Devon, namely the Berry Head to Sharkham Point SSSI (14km from the
appeal site), Buckfastleigh Caves SSSI (11km), the Bulkamore Iron Mine SSSI (12km),
Chudleigh Caves and Woods (7.2km), and the Haytor and Smallacombe Iron Mines SSSI
(10km) (IR415). All distances to the appeal site are as the crow flies.
28. This SAC’s designation is in part due to the hosting of Greater Horseshoe Bats (GHBs), a
qualifying Annex II species and one of the rarest and most threatened bats in Europe.
The appeal site and the wider NA3 allocation have relevance to the South Hams SAC
due to the regular use of the site by GHBs likely to comprise part of the wider SAC
population (IR413-414). The component parts of the SAC include significant GHB roosts
for summer maternity colonies and winter hibernation. The GHBs for the SAC form part of
a larger meta-population, and their long-term survival is dependent on genetic flows
between colonies (IR415-416).
29. GHBs feed in different habitats across the year as prey availability changes, and foraging
habitats can include grazed pastures, the edges of woodland, stream corridors, tree lines,
thick tall hedges, and wetlands. Adult GHBs usually forage within 4km of their roost, with
juveniles mainly within 1km, but longer ranges have been recorded (IR417).
30. The proposed development will change land that is currently in agricultural use to
residential. This will impact on the GHBs, as they use a complex network of commuting
routes to travel between roost sites and feeding groups across the South Devon
countryside, and this is likely to be the main value of the appeal site for them (IR417;
421-422).
31. As set out at paragraph 27, the appeal site is located some distance from the SAC
components, and beyond the typical foraging ranges of GHBs of 1-4km. The Secretary of
State considers it reasonable to assume that the appeal site does not fall within any
defined sustenance zone in relation to any designated European site. However, as set
out at paragraph 30, it is likely the GHBs use the site as part of their complex network of
commuting routes, which could include journeys to and from the five component parts of
the SAC from more distant roosts (IR422). For this reason there is a general need to
ensure landscape permeability, and the Secretary of State notes that at the time of the
inquiry, guidance was being revised to reflect this (IR421 ). Adopting a precautionary
stance, and in the absence of avoidance or mitigation measures, he considers there is
potential for the development proposals to contribute towards a significant effect on the
South Downs SAC. He therefore concludes that an Appropriate Assessment is required
32. The relevant conservation objective in the case of this SAC relates to the GHBs, one of
the rarest and most threatened bats in Europe. The SAC represents an international
stronghold for them, in the context of decline elsewhere (IR414). The conservation
objectives of the SAC include maintaining the population of Greater Horseshoe Bats, and
maintaining both the extent and distribution of supporting habitats, and their structure and
function.
33. As part of his Appropriate Assessment, the Secretary of State has taken into account the
GHB Mitigation Plan, which will establish networks of connected and continuous habitat
permeability across the landscape and allowing GHBs to continue commuting between
parts of the SAC and outlying roosts. The corridors within the scheme will include
reinforced hedgerows, which provide foraging grounds. There would also be a wetlands
SUDS habitat that would provide further foraging habitats. A detailed lighting strategy to
be delivered as part of a Reserved Matters applications would ensure minimal
disturbance from light spill (IR428). The Secretary of State is content that these would all
be secured by planning conditions.
34. At the time of the Inquiry, Natural England considered some comparison work necessary
between the bat surveys from 2013-2014 and that of 2019 to ascertain whether the
mitigation measures proffered in the GHB Mitigation Plan would still stand as being
relevant. The Inspector records at IR427 that variations in the survey protocol/analysis
between the surveys would make such a comparison of limited value, and considered
that the overall results of the 2019 survey, in the context of the results from the 2013-
2014 survey would be sufficiently robust to inform an AA and mitigation at outline stage.
35. The 2019 survey was not published until November of that year, after the close of the
Inquiry. In making this assessment, the Secretary of State has consulted Natural England
on the up to date survey, and on the reasons for any comparison being of limited value.
Natural England have now confirmed that it is satisfied that the further and up-to-date
GHB survey provides a suitable evidence base to inform a Habitats Regulations
Assessment. They consider that the Secretary of State as the competent authority has
sufficient information to be satisfied that no development likely to adversely affect the
integrity of the South Hams SAC can be carried out under the outline permission
consistent with the provisions of the Habitats Regulations.
36. The Secretary of State therefore concludes, in his role as the Competent Authority on this
matter, that there would be no adverse effect on the integrity of the South Downs SAC.
Other ecological issues
37. For the reasons given at IR398-403, the Secretary of State agrees with the Inspector that
the imposition of a condition in relation to the design and securing of the SUDS would be
sufficient at this stage of the evolution of the strategic, policy committed development to
safeguard the well-being of the Wolborough Fen SSSI (IR403).
38. For the reasons given at IR404-412, the Secretary of State agrees that the proposal
would overall serve to minimise harm to public health and improve the air of the District,
and that the terms of LP Policies EN6 and S11 would not be offended (IR412). He
attaches limited weight to this benefit.
Highways
39. For the reasons given at IR389-396, the Secretary of State agrees with the Inspector that
there is no evidenced suggestion that the proposal would result in residual cumulative
impacts on the road network which could be considered severe (IR395) and that the LP
Examining Inspector’s report gives some confirmation that resultant traffic generated by
the new development would be tempered by the number of residents using the new bus
service as well as walking/cycling into town (IR396).
Public benefits
40. The proposal would deliver 1210 new homes, including a policy-compliant level of 20%
appeal represents the bulk of the total number of homes it seeks to deliver. The
Secretary of State agrees with the Inspector that this must carry significant weight in
favour of the proposal (IR437), and that delivering a policy compliant affordable housing
provision also adds considerably to the positive side of the balance (IR439). The
Secretary of State considers that taken together, these carry very significant weight in
favour of the proposal.
41. The proposal would provide two care homes (IR440), helping to diversify the local
accommodation options and respond to the needs of people at different stages of their
life. The Secretary of State considers that this attracts moderate weight in favour.
42. The proposal would provide a youth centre, local shops, a primary school. The Secretary
of State agrees (IR441) that these primarily are to mitigate the needs of future residents,
but agrees with the Inspector that there will be some benefits to existing residents as
well. Consequently he considers that these attract moderate weight in favour.
43. There would be economic benefits from the construction and occupation of the new
homes, and from the employment opportunities offered by the employment land, local
shops, the school and care homes. The Secretary of State agrees with the Inspector that
these benefits, plus possibilities for new businesses to become established or existing
businesses to relocate with the possibility of growth represent a weighty benefit and he
affords them significant weight in favour (IR442).
44. As set out at IR443, the appeal site is in a location accessible to services and facilities
described as “highly sustainable”, and the encouragement of cycling, walking,
implementation of the Travel Plan, along with the provision of the new circular bus route,
would provide options for other modes of transport other than the car. The Secretary of
State agrees that while highway improvements would mainly serve as mitigations for the
effects of the proposal, they would benefit the wider population in respect of improving
highway safety. Overall, the Secretary of State considers this attracts moderate weight in
favour of the proposal.
Planning conditions
45. The Secretary of State has given consideration to the Inspector’s analysis at IR290-320,
the recommended conditions set out at the end of the IR and the reasons for them, and
to national policy in paragraph 55 of the Framework and the relevant Guidance. He is
satisfied that the conditions recommended by the Inspector comply with the policy test
set out at paragraph 55 of the Framework and that the conditions set out at Annex B
should form part of his decision.
Planning obligations
46. A planning obligation was sought by the Torbay and South Devon NHS Foundation Trust
(IR321), to mitigate the short-term impact of the additional residents on healthcare
services (IR323; IR355). The Secretary of State has carefully considered the Inspector’s
analysis of this obligation at IR322-353, and her conclusions at IR354-365. For the
reasons given there, the Secretary of State agrees with the Inspector that in the
circumstances of a ‘known’ development within an adopted Development Plan document
which had been the subject of consultation with relevant health providers at the time of
production, it can not be justified to require a developer to plug a gap in funding
essentially to pay staff wages, which is brought to the appeal at the eleventh hour, even
though that may, in part, be due to some element of new population which may move into
reason he considers that the provision obligation fails to meet the tests of Regulation 122
of the Community Infrastructure Levy Regulations 2010 (as amended) and is not
therefore enforceable, in line with clause 4.2 of the Unilateral Undertaking to Teignbridge
District.
47. Having had regard to the Inspector’s analysis of the other obligations at IR366-367, the
planning obligations dated 27 June 2019 (although without Schedule 7 of the undertaking
to Teignbridge District Council, as detailed above), paragraph 56 of the Framework, the
Guidance and the Community Infrastructure Levy Regulations 2010, as amended, the
Secretary of State agrees with the Inspector’s conclusion for the reasons given in IR367
that the obligation complies with Regulation 122 of the CIL Regulations and the tests at
paragraph 56 of the Framework.
Planning balance and overall conclusion
48. For the reasons given above, the Secretary of State considers that the appeal scheme is
in accordance with TLP Policies S4 and NA3 of the development plan, and is in
accordance with the development plan overall. He has gone on to consider whether there
are material considerations which indicate that the proposal should be determined other
than in accordance with the development plan.
49. The proposal would provide 1210 new homes, which attracts significant weight in favour.
This includes a policy-compliant level of affordable housing, which adds further weight.
Taken together, this attracts very significant weight in favour. There would be new
community facilities, commercial space, and a primary school, attracting moderate
weight. There would be economic benefits from the construction and occupation of the
homes, also attracting significant weight when considered together with the various
employment opportunities offered by the proposal. The proposal would deliver a new
road link that would help improve air quality in the wider district, attracting limited weight.
There would be no adverse effect on the integrity of the South Downs SAC.
50. The Secretary of State has considered whether the identified ‘less than substantial’ harm
to the significance of the Grade-I listed St Mary the Virgin church is outweighed by the
public benefits of the proposal. In accordance with the s.66 duty, he attributes
considerable weight to the harm. The public benefits of the proposal are set out at
paragraphs 40-44 of this Decision Letter.
51. Overall the Secretary of State agrees with the Inspector at IR445-446 that the benefits of
the appeal scheme are collectively sufficient to outbalance the identified ‘less than
substantial’ harm to the significance of the Grade-I listed St Mary the Virgin church,
particularly taking into account the importance of the NA3 allocation to the Council’s
strategy for future growth and economic prosperity. He considers that the balancing
exercise under paragraph 196 of the Framework is therefore favourable to the proposal.
52. The Secretary of State considers that the material considerations in this case indicate a
decision in line with the development plan. The Secretary of State therefore concludes
that the appeal should be allowed and planning permission granted, subject to conditions.
Formal decision
53. Accordingly, for the reasons given above, the Secretary of State agrees with the
Inspector’s recommendation. He hereby allows your client’s appeal and grants planning
permission, subject to the conditions set out in Annex B of this Decision Letter, for a
hybrid proposal for the following development:
• Outline proposal for mixed use development comprising circa 1210 dwellings (C3),
a primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of
community facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of
floorspace, open space (including play areas, allotments, MUGA) and associated
infrastructure (Means of Access to be determined only); and
• Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
in accordance with application ref: 17/01542/MAJ, dated 9 June 2017, as amended (see
paragraph 7).
54. This letter does not convey any approval or consent which may be required under any
enactment, bye-law, order or regulation other than section 57 of the Town and Country
Planning Act 1990.
Right to challenge the decision
55. A separate note is attached setting out the circumstances in which the validity of the
Secretary of State’s decision may be challenged. This must be done by making an
application to the High Court within 6 weeks from the day after the date of this letter for
leave to bring a statutory review under section 288 of the Town and Country Planning Act
1990.
56. An applicant for any consent, agreement or approval required by a condition of this
permission for agreement of reserved matters has a statutory right of appeal to the
Secretary of State if consent, agreement or approval is refused or granted conditionally or
if the Local Planning Authority fail to give notice of their decision within the prescribed
period.
57. A copy of this letter has been sent to Teignbridge District Council and the Abbotskerswell
Parish Council & Wolborough Residents’ Association, and notification has been sent to
others who asked to be informed of the decision.
Yours faithfully
Andrew Lynch
Andrew Lynch
Authorised by the Secretary of State to sign in that behalf
Annex A – Schedule of representations
Annex B – List of conditions
ANNEX A - SCHEDULE OF REPRESENTATIONS
Representations received in concerning the ecological information (see paragraphs 34-35)
Party Date
Planning Inspectorate, to Natural England 7 April 2020
Natural England, to the Planning Inspectorate 8 April 2020
Planning Inspectorate, to Natural England 14 April 2020
Natural England, to the Planning Inspectorate 27 April 2020
ANNEX B – LIST OF CONDITIONS
Full Permission
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new build
structures, construction of an access road and parking, plus other associated conversion
and minor works.
1) The development hereby permitted must be begun not later than the expiration of three years
from the date on which this permission is granted.
2) The development hereby permitted shall be carried out in accordance with the following
approved plans:
• Site Location Plan (160107 L 01 01)
• Proposed General Arrangement Plan (160107 L 02 01 A + Rev C)
• Proposed floor plans – Buildings 2 and 4 (160107 L 04 01 A)
• Proposed floor plans – Buildings 3, 5 and 6 (160107 L 04 02 A)
• Proposed elevations – Buildings 2 and 4 (160107 E 05 01 A)
• Proposed elevations – Building 5 (160107 E 05 02)
• Proposed elevations – Buildings 3 and 6 (160107 E 05 03)
• Proposed sections (160107 Se 02 01)
• Building retention and demolition plan (160107 L 06 01)
• External works (160107 L 07 01 B)
• Timber pergola detail (160107 DE 05 01)
• Farm buildings parking layout (4035-021 Rev B)
3) No development shall take place until details of sustainable surface and ground water
drainage have been submitted to and approved in writing by the local planning authority
(such details to be in general conformity with the submitted Flood Risk Assessment).
Development shall be carried out in accordance with the approved details and the surface
water drainage infrastructure shall be retained and maintained in functioning order as such
thereafter.
4) No windows, doors and other glazed or timber panels shall be installed until details of
joinery have been submitted to and approved in writing by the Local Planning Authority.
Such details shall include cross sections, profiles, reveal, surrounds, materials, finish
and colour in respect of new windows and doors. The work shall thereafter be carried
out and retained in accordance with the approved details.
5) Notwithstanding the details of the materials shown on the submitted drawings, the roofing
materials to be used in the development shall be submitted to and approved in writing by
the local planning authority prior to their installation. The work shall then be carried out
and retained in accordance with the agreed details.
6) Any areas identified as stonework on the approved plans shall be constructed of a natural
stone, a sample of which including construction details and mortar specification shall be
areas of stonework commencing. The stonework shall thereafter be carried out as
approved.
7) No building shall be constructed above damp proof course until details of the proposed
render type and colours have been submitted to and approved in writing by the local
planning authority. The work shall then be carried out in accordance with the agreed
details.
8) Prior to the laying of setts/paviours and other surface materials to be used as part of the
hard-surfacing scheme, precise details of the form and colour shall be submitted to and
approved in writing by the local planning authority and shall thereafter be laid out on site
in accordance with the agreed details.
9) No building shall be constructed above damp proof course until details of the external colour
and finish of the timber to be used have been submitted to and agreed in writing with the
local planning authority. The work shall then be carried out in accordance with the agreed
details.
10) No building shall be constructed above damp proof course until details of both hard and soft
landscape works have been submitted to and approved in writing by the local planning
authority and these works shall be carried out as approved.
These details shall include proposed finished levels or contours; means of enclosure; car
parking layouts; other vehicle and pedestrian access and circulation areas; hard surfacing
materials; minor artefacts and structures (e.g. furniture, refuse or other storage units, signs,
lighting etc.); proposed and existing functional services above and below ground (e.g.
drainage power, communications cables, pipelines etc. indicating lines, manholes, supports
etc.); retained historic landscape features and proposals for restoration, where relevant.
Soft landscape works shall include planting plans; written specifications (including cultivation
and other operations associated with plant and grass establishment); schedules of plants
(noting species, plant sizes and proposed numbers/densities); implementation and
management programme.
The development shall be carried out in accordance with the agreed details.
11) No development shall take place until highway details have been submitted to and approved
in writing by the local planning authority. These shall include details of the proposed road(s),
cycleways, footways, verges, junctions, street lighting, sewers, drains, retaining walls,
service routes, surface water outfall, road maintenance/vehicle overhang margins,
embankments, visibility splays, accesses, car parking, and street furniture. Development
shall be carried out in accordance with the approved details.
12) Prior to the installation of any external lighting a lighting strategy, including details of all
external lighting, shall have been submitted to and approved in writing by the local planning
authority. Development shall be carried out in accordance with the approved details. No
external light sources shall be installed other than those external light sources permitted by
the local planning authority.
13) No development shall take place until a Construction Environmental Management Plan
(CEMP) has been submitted to and approved in writing by the local planning authority. The
CEMP shall include a summary of the work to be carried out; a description of the site layout
and access including proposed haul routes and parking facilities and the location of site
equipment including the supply of water for damping down; an inventory and timetable of all
dust generating activities; a list of dust and emission control methods to be used; the
identification of an authorised responsible person on site for air quality; a summary of
monitoring protocols and an agreed procedure for notification to the local authority
Environment & Safety Services Department; a site log book to record details and action
taken in response to incidences of the air quality objectives being exceeded and any
exceptional incidents; proposed hours of work (including construction, piling, deliveries and
there is any risk of affecting nearby properties. There should be a paved area between the
wheel-wash and the main road. The development shall be carried out in accordance with the
approved CEMP.
14) No building shall be occupied until works for the disposal of foul sewage have been provided
in accordance with details submitted to and approved in writing by the local planning
authority for the relevant building.
15) No development shall take place, or any equipment, machinery or materials be brought
onto the site for the purpose of development until fencing to delineate a Protection Zone
to protect retained hedges has been constructed in accordance with location and
construction details shown on plans and particulars including in relation to retention and
removal timetables that have been submitted to and approved in writing by the local
planning authority. Within the Protection Zone nothing shall be stored or placed, nor any
works take place, nor shall any changes in ground levels or excavations take place
unless a method statement for such works has also been submitted to and approved in
writing by the local planning authority.
16) No development shall take place until the applicant has secured the implementation of an
agreed programme of archaeological work in accordance with a written scheme of
investigation which has been submitted and approved in writing by the local planning
authority. The development shall be carried out at all times in strict accordance with the
approved scheme.
17) No development other than that required to be carried out as part of an approved scheme of
remediation shall take place until sections 1 to 3 of this condition have been complied with. If
unexpected contamination is found after development has begun, development must be
halted on that part of the site affected by the unexpected contamination to the extent
specified by the local planning authority in writing until section 4 of this condition has been
complied with in relation to that contamination.
Section 1. Site Characterisation
An investigation and risk assessment, in addition to any assessment provided with the
planning application, shall be completed in accordance with a scheme to assess the nature
and extent of any contamination on the site, whether or not it originates on the site. The
contents of the scheme are subject to the approval in writing of the Local Planning Authority.
The investigation and risk assessment must be undertaken by competent persons and a
written report of the findings must be produced.
The written report is subject to the approval in writing of the local planning authority. The
report of the findings must include:
(i) a survey of the extent, scale and nature of contamination;
(ii) an assessment of the potential risks to:
o human health
o property (existing or proposed) including buildings, crops, livestock, pets, woodland
and service lines and pipes
o adjoining land
o groundwaters and surface waters
o ecological systems
o archaeological sites and ancient monuments;
(iii) an appraisal of remedial options, and proposal of the preferred option(s).
This must be conducted in accordance with DEFRA and the Environment Agency's 'Model
Procedures for the Management of Land Contamination, CLR 11'.
Section 2. Submission of Remediation Scheme
A detailed remediation scheme to bring the site to a condition suitable for the intended use
by removing unacceptable risks to human health, buildings and other property and the
natural and historical environment shall be prepared and is subject to the approval in writing
of the local planning authority. The scheme must include all works to be undertaken,
proposed remediation objectives and remediation criteria, timetable of works and site
management procedures. The scheme must ensure that the site will not qualify as
contaminated land under Part 2A of the Environmental Protection Act 1990 in relation to the
intended use of the land after remediation.
Section 3. Implementation of Approved Remediation Scheme
The approved remediation scheme shall be carried out in accordance with its terms prior to
the commencement of the development other than that required to carry out remediation,
unless otherwise agreed in writing by the local planning authority. The local planning
authority must be given two weeks written notification of commencement of the remediation
scheme works. Following completion of measures identified in the approved remediation
scheme, a verification report (referred to in the replaced PPS23 as a validation report) that
demonstrates the effectiveness of the remediation carried out must be produced and is
subject to the approval in writing of the local planning authority.
Section 4. Reporting of Unexpected Contamination
In the event that contamination is found at any time when carrying out the approved
development that was not previously identified it shall be reported in writing immediately to
the local planning authority. An investigation and risk assessment must be undertaken in
accordance with the requirements of section 1 of this condition, and where remediation is
necessary a remediation scheme must be prepared in accordance with the requirements of
section 2, which is subject to the approval in writing of the local planning authority. Following
completion of measures identified in the approved remediation scheme a verification report
must be prepared, which is subject to the approval in writing of the local planning authority in
accordance with section 3.
18) No building comprised shall be built above damp-proof course unless and until details of the
proposed finished floor levels of each building have been submitted to and approved in
writing by the local planning authority. The development shall be carried out in accordance
with the approved details.
19) No development shall take place until an ecological mitigation strategy, in so far as it relates
to this proposal, has been submitted to, and approved in writing by, the local planning
authority. The strategy shall be based on the proposed mitigation in the Chapter 8 of Volume
2 of the Environmental Statement submitted as part of the planning application and the
submitted GHB mitigation plan (and addendum dated 8 March 2019). The Development
shall be carried out and maintained in accordance with the approved strategy.
Outline Permission
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care homes
(C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community facilities
(D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace, open space
(including play areas, allotments, MUGA) and associated infrastructure (Means of
Access to be determined only)
1) Details of the appearance, layout, scale and landscaping (hereinafter called "the reserved
matters") for each phase shall be submitted to and approved in writing by the local planning
authority before any development takes place on the relevant phase and the development
shall be carried out as approved.
2) Application for approval of the reserved matters for the first phase approved pursuant to
condition 5 shall be made to the local planning authority not later than three years from the
date of this permission. Application for approval of all of the reserved matters shall be made
to the local planning not later than 12 years from the date of this permission.
3) The development of each phase hereby permitted shall take place not later than two years
from the date of approval of the last of the reserved matters to be approved for the relevant
phase.
4) Outline planning permission is hereby granted for no more than:
a. 1,210 dwellings (including custom build), house and flats and other uses within Class
C3
b. A Primary School
c. 12,650 sq m gross of Employment floorspace within Use Class B1
d. 5,500 sq m gross of Care Home floorspace within Use Class C2 in no more than two
individual facilities
e. 1,250 sq m gross of community facilities floorspace within Use Class D1
f. 1,250 sq m gross of Retail / Local Centre floorspace within Use Classes A1/A3/A4
and/or A5 (cumulative)
g. Car parking and other miscellaneous uses including public bicycle interchange /
storage facilities, substations, waste storage and recycling facilities
The development hereby permitted shall be carried out in accordance with the following
approved plans:
• Site Location Plan (Reference:141204 L01 01 G)
• Proposed access drawings (References: 4035-010 D; 4035-011 E – 4035-018 Rev B;
4035-012 C - 4035-017 Rev B)
5) As part of the first application for the approval of reserved matters, a detailed phasing plan
shall be submitted to and approved in writing by the local planning authority. The phasing plan
shall specify the proposed timing for the delivery of the areas of public open space/green
infrastructure on each phase as well as the construction programme for the housing (including
self or custom build housing) and other built elements of the development. The development
hereby approved shall be carried out in accordance with the approved phasing plan.
6) Prior to the submission of any reserved matters application in relation to any phase, a
Masterplan and Design Code shall be submitted to and approved in writing by the Local
Planning Authority. The Masterplan and Design Code shall be formulated broadly in
accordance with the submitted Design and Access Statement and Illustrative Masterplan
(141204 L02 02 k) and Parameter Plan (14 204 P01 rev B) and shall include the following
details:
(a) The proposed movement network delineating the primary, secondary and tertiary
streets and pedestrian and cycleway connections, setting out the approach to
estate design, treatment of non-vehicular routes and car and cycle parking including
connection into the existing pedestrian and cycleway routes shown on drawing no
4035 020 Rev A. These details shall include and take account of design principles
to be agreed with the local planning authority in respect of crossing points of bat
(b) The proposed layout use and function of all open space within the development.
(c) The approach to and design principles applied to car parking (on street and off-
street).
(d) Phased layout principles to include urban structure, form and layout of the built
environment, building heights, densities, legibility, means of enclosure, key
gateways, landmark buildings, key frontages and key groups.
(e) The design approach for areas within the public realm including landscaping and
hard surface treatments, lighting, street trees, boundary treatments, street furniture
and play equipment including an explanation of how the design approach and
layout will achieve the proposed mitigation as set out in the Chapter 8 of Volume 2
of the Environmental Statement submitted as part of the planning application and
the submitted Greater Horseshoe Bat (GHB) Mitigation Plan (and addendum dated
8 March 2019)
(f) Servicing, including utilities, design for the storage and collection of waste and
recyclable materials.
(g) External materials, to include a palette of wall and roof finishes, windows, doors,
porches, heads, cills, chimneys, eaves and verges and rainwater goods.
(h) The design principles that will be applied to the development to encourage security
and community safety.
(i) The specific design principles that will be applied to the Local Centre.
(j) The design principles for the incorporation of a Sustainable Urban Drainage System
(SUDS) throughout the development. This should include the defining of the
Wolborough Fen catchment area and the results of a detailed hydrological and
hydrogeological investigation (covering seasonal fluctuations) which should inform
the design of the SUDS.
k) The location and accommodation of existing GHB corridors which cross the site
along with the creation of additional GHB habitat with linkages to existing GHB
routes shall form part of the general design code.
Thereafter any application for the approval of reserved matters shall comply with the
approved Design Code.
7) No development shall take place within an approved phase of the development hereby
permitted until an ecological mitigation strategy for that phase has been submitted to, and
approved in writing by, the local planning authority. The strategy shall be based on the
proposed mitigation in the Chapter 8 of Volume 2 of the Environmental Statement submitted
as part of the planning application and the submitted GHB mitigation plan (and addendum
dated 8 March 2019). The Development shall be carried out and maintained in accordance
with the approved strategy.
8) No development shall take place on any phase of the development until a Landscape and
Ecology Implementation and Management Plan (LEMP) for that phase has been submitted to
and approved in writing by the local planning authority. The LEMP shall include a timetable for
implementation of the landscaping and ecology work and details of the management regime.
The LEMP shall be implemented in accordance with the approved details.
9) No development shall commence on any phase until a low emissions strategy for mitigating
the air quality impacts of the relevant phase (including the construction of the relevant phase)
has been submitted to and approved in writing by the local planning authority. The approved
strategy shall be implemented in accordance with the timescales set out therein. Any
measures which are required to be retained shall be maintained throughout the life of the
development.
10) No development shall take place until details of a strategy for sustainable surface water and
including mechanisms for ongoing management has been submitted to and approved in
writing by the local planning authority. No development on any individual phase shall take
place until details of sustainable surface water and ground water drainage (including
temporary drainage provision during construction) for that phase to accord with the submitted
Flood Risk Assessment have been submitted to and approved in writing by the local planning
authority. Development shall be carried out in accordance with the approved details and the
surface water drainage infrastructure shall be retained and maintained in operational order
thereafter.
11) The delivery of the spine road through the site shall be provided to the eastern boundary of
the site at a location to be agreed with the local planning authority (to enable its continuation
through to Kingskerswell Road and the A380) prior to the occupation of the 500th dwelling.
12) Prior to the installation of any external lighting on the site, within any phase of development, a
lighting strategy for that particular phase, including full details of all external lighting (heights,
mounting, cowling, and lamp bulb details should be included), including that serving individual
plots (non-domestic), must be submitted to and approved in writing by the local planning
authority. A dark areas/corridor map where lighting levels of less than 0.5 lux would persist
shall be included within the details to be agreed by the local planning authority (GHB
commuting routes). The impact of house height, orientation and screening of roads and
turning heads to retain darkness in corridors shall be considered and incorporated in the
lighting strategy. The detailed assessment shall include contour lux modelling. No external
light sources shall be permitted on those areas shown coloured green on Drawing 141204 P
01 Rev D. No external light sources shall be installed at the site other than those external
light sources permitted by the local planning authority.
13) No building in any phase shall be occupied until works for the disposal of foul sewage from
that phase have been provided, in accordance with details first submitted to and approved in
writing by the local planning authority.
14) No development shall take place on any phase of the development until a Construction
Environment Management Plan (CEMP) has been submitted to and approved in writing by
the local planning authority for that phase. The CEMP shall include a summary of the work to
be carried out; a description of the site layout and access including proposed haul routes and
parking facilities and the location of site equipment including the supply of water for damping
down; an inventory and timetable of all dust generating activities; a list of dust and emission
control methods to be used; details of timetabling for movements of construction vehicles to
avoid the AQMA during peak traffic periods; details of timetabling or means for construction
vehicles to visit the construction site to avoid queuing traffic; the identification of an authorised
responsible person on site for air quality; a summary of monitoring protocols and an agreed
procedure for notification to the local authority Environment & Safety Services Department; a
site log book to record details and action taken in response to incidences of the air quality
objectives being exceeded and any exceptional incidents; proposed hours of work (including
construction, piling, deliveries and other movements to and from the site); and an Ecological
Construction Method Statement including how GHB identified corridors will be protected
during the construction phase as well minimising light spill (no more than 0.5 lux in corridors).
Construction vehicles must be low emission which comply with current Euro emission
standards. All vehicles leaving the site must be wheel-washed if there is any risk of affecting
nearby properties. There should be a paved area between the wheel-wash and the main
road. The development shall be carried out in accordance with the approved CEMP.
15) No development shall take place on a phase of the development until full highway details for
that phase have been submitted to and approved in writing by the local planning authority.
These shall include details of the proposed estate road(s), cycleways, footways, verges,
junctions, street lighting, sewers, drains, retaining walls, service routes, surface water outfall,
road maintenance/vehicle overhang margins, embankments, visibility splays, accesses, car
parking, and street furniture. Development shall be carried out in accordance with the
approved details.
16) No development shall take place on any phase, or any equipment, machinery or materials
be brought onto any part of the relevant phase for the purpose of development until
fencing to delineate a Protection Zone to protect retained hedges has been constructed in
accordance with location and construction details shown on plans and particulars
including in relation to retention and removal timetables that have been submitted to and
approved in writing by the local planning authority. Within the Protection Zone nothing
shall be stored or placed, nor any works take place, nor shall any changes in ground
levels or excavations take place unless a method statement for such works has also been
submitted to and approved in writing by the local planning authority.
17) Notwithstanding the Arboricultural Impact Assessment (ES Technical Appendix 8.6) no
development shall take place on any phase of the development until a detailed tree survey
has been carried out on that phase and a plan submitted and approved by the local planning
authority that clearly identified those trees to be retained and those removed. In relation to
those trees identified to be retained no development shall take place within an approved
phase of the development hereby permitted until details of tree and hedgerow protection
measures for that phase during construction have been submitted to, and approved in writing
by, the local planning authority. The measures shall accord with BS 5837:2012 Trees in
relation to design, demolition and construction – Recommendations and shall indicate exactly
how and when the trees will be protected throughout the construction period. The measures
shall include provision for the supervision of tree protection works by a suitably qualified
arboricultural consultant. The development shall be carried out in accordance with the
approved details and protection measures.
18) No development shall take place on a phase of the development until the applicant has
secured the implementation of a programme of archaeological work in accordance with a
written scheme of investigation for that phase, which has been submitted by the applicant and
approved in writing by the local planning authority. The development shall be carried out at all
times in strict accordance with the approved scheme.
19) Unless otherwise agreed by the local planning authority, development on any phase of the
development other than that required to be carried out as part of an approved scheme of
remediation shall not take place until sections 1 to 3 of this condition have been complied with
in respect of that phase of the development. If unexpected contamination is found after
development has begun, development must be halted on that part of the site affected by the
unexpected contamination to the extent specified by the local planning authority in writing until
section 4 of this condition has been complied with in relation to that contamination.
Section 1. Site Characterisation
An investigation and risk assessment, in addition to any assessment provided with the
planning application, shall be completed in accordance with a scheme to assess the nature
and extent of any contamination on the site, whether or not it originates on the site. The
contents of the scheme are subject to the approval in writing of the Local Planning Authority.
The investigation and risk assessment must be undertaken by competent persons and a
written report of the findings must be produced.
The written report is subject to the approval in writing of the local planning authority. The
report of the findings must include:
(i) a survey of the extent, scale and nature of contamination;
(ii) an assessment of the potential risks to:
o human health
o property (existing or proposed) including buildings, crops, livestock, pets, woodland
and service lines and pipes
o adjoining land
o ecological systems
o archaeological sites and ancient monuments;
(iii) an appraisal of remedial options, and proposal of the preferred option(s).
This must be conducted in accordance with DEFRA and the Environment Agency's 'Model
Procedures for the Management of Land Contamination, CLR 11'.
Section 2. Submission of Remediation Scheme
A detailed remediation scheme to bring the site to a condition suitable for the intended use by
removing unacceptable risks to human health, buildings and other property and the natural
and historical environment shall be prepared and is subject to the approval in writing of the
local planning authority. The scheme must include all works to be undertaken, proposed
remediation objectives and remediation criteria, timetable of works and site management
procedures. The scheme must ensure that the site will not qualify as contaminated land under
Part 2A of the Environmental Protection Act 1990 in relation to the intended use of the land
after remediation.
Section 3. Implementation of Approved Remediation Scheme
The approved remediation scheme shall be carried out in accordance with its terms prior to
the commencement of any phase of the development other than that required to carry out
remediation, unless otherwise agreed in writing by the local planning authority. The local
planning authority must be given two weeks written notification of commencement of the
remediation scheme works. Following completion of measures identified in the approved
remediation scheme, a verification report (referred to in the replaced PPS23 as a validation
report) that demonstrates the effectiveness of the remediation carried out must be produced
and is subject to the approval in writing of the local planning authority.
Section 4. Reporting of Unexpected Contamination
In the event that contamination is found at any time when carrying out the approved
development that was not previously identified it shall be reported in writing immediately to
the local planning authority. An investigation and risk assessment must be undertaken in
accordance with the requirements of section 1 of this condition, and where remediation is
necessary a remediation scheme must be prepared in accordance with the requirements of
section 2, which is subject to the approval in writing of the local planning authority. Following
completion of measures identified in the approved remediation scheme a verification report
must be prepared, which is subject to the approval in writing of the local planning authority in
accordance with section 3.
20) No development shall take place within the Wolborough Fen SSSI hydrological
catchment unless and until a Scheme (based upon an evidence base agreed with the
local planning authority in consultation with Natural England) has been submitted to
and approved by the local planning authority in consultation with Natural England
which sets out detailed measures to ensure that the development does not have an
adverse impact on the integrity of the Wolborough Fen SSSI during the construction
or operation of the development The development shall thereafter proceed in
accordance with the approved details.
21) No commercial buildings shall be occupied or otherwise brought into use until provision for
the loading and unloading of goods vehicles for that building has been made in accordance
with details which shall have been submitted to and approved in writing by the Local Planning
Authority.
22) The total use class A (A1/A3/A4/A5) (as defined in the Town and Country Planning (Use
Classes) Order 1987 (as amended) or any other instrument that replaces it words) floorspace
hereby approved shall not exceed 1,250 sq.m gross external area. No more than 100 sq.m
purposes (use class A5) and no single unit of A1 use shall exceed 500 sq.m (gross external
area) floor area.
23) No more than 300 of the dwellings permitted hereby shall be occupied unless and until the
works to the Ogwell Cross Roundabout (shown on drawing nos 4035-012 E, 4035-017 B) and
Firestone Lane (shown on drawing no 4035-011 E) have been completed.
24) No more than 600 dwellings to be occupied until the further works to the improvement of the
Ogwell Roundabout (shown on drawing number drawing 4035 003 Rev B) have been fully
implemented.
25) A design code for the custom build dwellings within each relevant phase shall be
submitted to and approved by the local planning authority prior to the submission of
the first reserved matters application for any phase including a custom build dwelling.
The reserved matters applications for the custom-build dwellings shall accord with the
requirements of the approved design code.
26) The Community Building shall be completed prior to the occupation of more than 50% of the
Dwellings comprised in Area 2 in accordance with a specification which shall include details of
the size (which shall be no less than 500m2 Gross External Area), location and proposed
range of uses of a Community Building which has first been submitted to and approved by the
local planning authority. The Community Building shall be considered to have been
completed when it meets the following criteria:
a. The building is wind and water tight which may include temporary provision/arrangement
pending finally agreed fit out works
b. All services have been provided to the boundary and/or the external envelope of the
building and there is proper and safe access to the building
c. In respect of those parts of the building which are to be fitted by a tenant the relevant
parts of the building are ready for the tenant to fit out
d. In respect of those parts of the building which are not to be fitted out by a tenant the
relevant parts of the building are ready for beneficial use and occupation
e. The building has been constructed and substantially completed in all respects to shell
standard
27) A building located in Neighbourhood Area 2 to provide floorspace of not less than 500sqm
(Gross Internal Floor Area) for Use Class A retail purposes shall be constructed to shell and
core specification prior to the occupation of 50% of the dwellings in Neighbourhood Area 2.
The building shall be marketed for such purposes in accordance with a strategy to be
submitted to and approved in writing by the local planning authority prior to any such
marketing commencing. For the avoidance of doubt, this may comprise multiple lettable
units.
28) 1.8 hectares of land to be used for the provision of education shall be serviced, accessible
and made available prior to the occupation of no more than 400 dwellings. The land shall be
provided in the location shown on the submitted illustrative framework plan (141204 L02 02 J)
or other such location as may be first submitted to and approved in writing by the local
planning authority. The serviced land shall be kept available solely for education purposes for
10 years from the date of planning approval or the Occupation of the 600th Dwelling,
whichever is the later.
29) No building comprised in any phase shall be built above damp-proof course unless and until
details of the proposed finished floor levels of each building comprised in that phase have
been submitted to and approved by the local planning authority. The development shall be
carried out in accordance with the approved details.
Report to the Secretary of State for
Housing, Communities and Local
Government
by Frances Mahoney MRTPI IHBC
an Inspector appointed by the Secretary of State
Date 4 March 2020
TOWN & COUNTRY PLANNING ACT 1990
TEIGNBRIDGE DISTRICT COUNCIL
APPEAL BY ANTHONY, STEVEN & JILL REW
Inquiry commenced on 26 March 2019
File Ref: APP/P1133/W/18/3205558
https://www.gov.uk/planning-inspectorate
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The appeal is made under section 78 of the Town and Country Planning Act 1990 against
a failure to give notice within the prescribed period of a decision on an application for
outline planning permission in respect of the mixed use development and full planning
permission relating to change of use of agricultural buildings (see below).
• The appeal is made by Anthony, Steven & Jill Rew against Teignbridge District Council.
• The application Ref 17/01542/MAJ is dated 9 June 2017.
• This is a hybrid proposal for the following development:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care homes
(C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community facilities
(D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace, open space
(including play areas, allotments, MUGA) and associated infrastructure (Means of Access
to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new build
structures, construction of an access road and parking, plus other associated conversion
and minor works.
Summary of Recommendation: The appeal should be allowed in both
instances.
CONTENTS
Page
Preliminary matters 2
Appeal proposal 3
Site and surroundings 3
Planning Policy 4
Matters not in dispute between the Council and the appellants 5
In the absence of reasons for refusal the Council’s position 7
Rule 6 Party position 7
The case for the appellants 8
The case for the Council 21
The case for the Rule 6 Party 36
Pertinent Statutory Undertaker comments 60
Third parties who addressed the Inquiry 61
Conditions 65
Obligations 67
Inspector’s reasons 76
Heritage balance 93
Planning balance 93
Recommendations 94
Annex A – Schedule of recommended conditions Full and Outline 95
proposals
Appearances 108
Inquiry Documents 110
https://www.gov.uk/planning-inspectorate Page 1
Preliminary matters
1. The Inquiry sat from the 26 – 28 March, 11 - 13 June, with a site visit1 on the 13
June 2019. The Inquiry closed in writing on 10 July 2019.
2. This appeal was recovered on the 3 July 2018 under Section 79 and paragraph 3
of Schedule 6 of the above Act by the Secretary of State (SoS), because the
appeal involves proposals which would significantly impact on the Government’s
objective to secure a better balance between housing demand and supply and
create high quality, sustainable, mixed and inclusive communities2.
3. At the Inquiry applications for costs were as follows:
• Appellants’ costs application against the Council;
• Rule 6 Party costs application against the appellants;
• Appellants’ cost application against the Torbay and South Devon NHS Trust;
and
• The Torbay and South Devon NHS Trust cost application against the
appellants.
These applications are the subject of a separate Report.
4. The appeal proposal includes two distinct elements of development. One an
outline for the mixed-use development and a full proposal for a part conversion
of agricultural buildings to a hotel and restaurant. I have considered these
proposals separately unless otherwise indicated.
5. The description of the proposed mixed-use development set out above in the
bullet points is an amended version of the original description which appears on
the planning application form3. In essence there was a decrease of the number
of proposed dwellings and an increase in the amount of employment floorspace4.
This changed over the life of the planning application before the appeal was
lodged. All the main parties, along with those who addressed the Inquiry were
aware of the alternative plans and made comment in the context of them where
appropriate. As such I am satisfied that there has been no prejudice to any
interested party in the change in the description of development. Therefore, the
consideration of this appeal should be based on the description reflected in the
bullet points above.
6. I am also conscious that other than the location plan and site access plan, all
other plans are purely for illustrative purposes only and whilst they may not be
determinative, they have informed my reasoning. That notwithstanding I have
1 Both accompanied and unaccompanied (site and its environs also visited on an unaccompanied basis
on 26 March 2019).
2 Direction of recovery letter dated 3 July 2018.
3 Outline proposal for mixed use development comprising circa 1275 dwellings (C3), a primary school
(D1), up to 3500 sq m of employment floorspace (B1), two care homes (C2) providing up to 5,500
sq m of floorspace, up to 1250 sq m of community facilities (D1), a local centre (A1/A3/A4/A5)
providing up to 1250 sq m of floorspace, open space (including play areas, allotments, MUGA) and
associated infrastructure (Means of Access to be determined only).
4 To reflect the level of employment provision on the appellants’ land as shown on the
Proposals Map.
https://www.gov.uk/planning-inspectorate Page 2
been asked to consider the broad approach to the development of the appeal site
as set out on the Illustrative Masterplan5.
7. The Abbotskerswell Parish Council & Wolborough Residents’ Association (Rule 6
Party) were granted Rule 6 party status on the 19 February 2019. They
subsequently took a full and active part in the presentation and testing of
evidence at the Inquiry. Their case is reflected within this Report.
8. The Torbay and South Devon NHS Foundations Trust (NHSFT) was not a rule 6
party but, in respect of seeking a significant S106 planning obligation to, in their
view, mitigate the impact of the development on the health of the local
population, they produced both written and oral evidence at the Inquiry in this
regard. This was subject to the testing of that evidence and the appellants’
produced written and oral rebuttal evidence. A summary of the NHSFT case has
also been produced within the Report.
9. Following the close of the Inquiry the 2019 Housing Delivery Test results were
published on 13 February 2020. It is noted that Teignbridge District Council is
identified as being a ‘no consequence’ authority. Comments received from the
parties have been reflected within the rehearsal of their individual cases below.
Appeal proposal
10. The appeal proposal is in a hybrid form seeking full planning permission for a
change of use of agricultural buildings6 and outline planning permission for the
mixed-use development with all matters reserved for future consideration except
for the means of access.
11. In respect of the outline proposal, other than the location plan and site access
plans7, all other plans are purely for illustrative purposes only8. However, I have
considered them on the basis of a promoted design/layout approach and whilst
they may not be determinative, they have informed my reasoning9.
Site and surroundings
12. The appeal site lies on the southern fringe of Newton Abbot, partly bounded by
the A381 Totnes Road to the west and Coach Road to the north. The Town
Centre lies just to the north10. The site of some 66 hectares includes several
farm buildings adjacent to and accessed from Coach Road, land in active
agricultural use, both arable and pasture and dense woodland. The appeal site
and its immediate environs are characterised by rolling Devon pastureland where
the change in levels is marked, and the undulating land rises up from Coach Road
towards the south west corner of the appeal site, to a ridge at Stonemans Hill,
marking the high point in this part of the landscape setting of the Town.
5 Dwg No 141204 L 02 02 Rev K.
6 Referred to sometimes as the farmyard.
7 CDs CD2g, 2h, 2i.
8 CD2f – Illustrative Masterplan.
9 I have noted that the appellant company has suggested the broad perimeters of the
illustrative material could be secured through the use of conditions.
10 Approximately 1 kilometre away.
https://www.gov.uk/planning-inspectorate Page 3
13. To the north the land rises from Coach Road and the characterising urban
residential development of Newton Abbot spills down this opposing slope. The
Town in general is characterised by the undulations of the river valleys and
intervening hills, with a convergence flowing into the River Teign and then out to
the sea. Newton Abbot has developed regardless of any challenges in the
topography of its location and the townscape is dominated by urban, mainly
residential development of a variety of designs, types, ages and densities,
hugging valley slopes and covering high points within the Town as well as the
river side plains. The Town is punctuated in pockets by well treed spaces, the
green nature of which reflects the broadleaf and mixed woodland within the
landscape surroundings, along with the characterising field and roadside
hedgerows. The Wolborough and Decoy Country Park, including the Wolborough
Fen (to the east) accentuates the valley slope down from Stonemans Hill to
Decoy Road.
14. The acceptance and accommodation of the local topography is a dominant
characterising visual feature of the development of Newton Abbot in the wider
landscape context. That context similarly reflects the undulating topography as
does the appeal site itself.
Planning Policy
15. The Development Plan includes the Teignbridge Local Plan 2013-2033 (LP)11.
This seeks to cluster its main future development needs into its main towns.
Newton Abbot12 is the largest of the main towns within Teignbridge District
providing a broad range of services, facilities and employment. LP Policy S4
establishes a clear principle for growth in the Heart of Teignbridge that
contributes towards 50% of the District’s future housing needs over the plan
period. That need is expressed in Policy S4 as being an average of 620 dwellings
per year to 2033. Through the monitoring of the housing market the Council will
seek to proactively ensure that this level of provision is brought forward.
16. LP Policy NA3 promotes the allocation of 120 hectares at Wolborough of a
sustainable, high quality mixed-use development to deliver at least 1500 homes,
with a target of 20% affordable homes. It is the second largest proposal within
the Heart of Teignbridge.
17. The Abbotskerswell Neighbourhood Plan 2016-2033 (NP) was made on 31
October 2017. The cases of the parties based on planning policy did not promote
the NP to the decision-maker as being compromised by the proposed
development. The NP accepts the principle of the NA3 allocation, but highlights
concerns in respect of the protection of the natural environment and the setting
of Abbotskerswell in the landscape. The establishment of green infrastructure to
address these matters is identified in NP Policy PH2 which seeks to minimise the
impact of the LP allocation NA313.
11 CD8a. Other components of the Development Plan such as the Newton Abbot
Neighbourhood Plan 2016-2033 (made June 2016), Abbotskerswell Neighbourhood Plan
2016-2033 (made 31 October 2017), Devon Waste Plan (adopted 2014) and Devon Minerals
Plan 2011-2033 (adopted February 2017) are not relied upon in the opposition to this
proposal.
12 Population of some 25,000.
13 CD 8b).
https://www.gov.uk/planning-inspectorate Page 4
18. Similarly, the Newton Abbot Neighbourhood Development Plan 2016-2033 (final
version June 2016 (CD8c)) was brought to my attention, but it was not
suggested that a conflict with the plan arose through the appeal proposal bearing
in mind the context of the adopted Development Plan policy14.
Matters not in dispute between the Council and the appellants15
19. The principle of development is not a matter of dispute between the Council and
the appellants16. It is also accepted that the appeal site forms the largest part of
the mixed-use allocation NA3 in the adopted Teignbridge Local Plan (2014)17.
Two small areas of land project beyond the LP allocation boundaries. This is to
accommodate a realignment of the access and link road and to respect an
existing field boundary18. These extensions are considered to be minor and
uncontroversial. The NA3 Wolborough Masterplan within the LP stemmed from
stakeholder engagement, including workshops to which the appellants were a
party.
20. The Examining Inspector in his report on the LP19 in relation to the NA3 allocation
specifically considered:
• Landscape and visual impacts20;
• Impacts upon the setting of listed buildings21;
• Ecological and drainage impacts22; and
• Infrastructure provision23.
21. Following the completion of the Examination of the LP it was adopted in May
2014, including the NA3 allocation.
22. The LP projects delivery of 1500 dwellings by 2033 from the NA3 allocation. The
Annual Monitoring Report 2017-18 suggests delivery from the appeal site by
2020/2021. A significant proportion of the 1500 dwelling target from this
allocation would be proposed to be delivered from the development of the appeal
site. Clearly slippage is inevitable.
Arboricultural
23. The tree survey and tree constraints plans have informed the approach to the
proposed development of the site and the Illustrative Masterplan. The overall
14 I am also aware of the Ogwell Neighbourhood Plan made on the 5 April 2018, but this too
does not present any policy barrier to the appeal proposal.
15 Statement of Common Ground (SofCG) – January 2019 CD15a and Additional SofCG June
2019 CD29.
16 Inquiry Doc 8 para 1.
17 Both the Council and Devon County Council supported the allocation at the LP stage.
18 Statement of Common Ground (SofCG) dated January 2019 page 13 Developing the Plan
shows the two areas in the context of the allocation.
19 CD9k.
20 Para 70.
21 Para 71.
22 Para 72 & 73.
23 Para 74.
https://www.gov.uk/planning-inspectorate Page 5
impact on existing hedgerows and trees on the appeal site is agreed as being
limited and any limited losses would be compensated for with new planting and
habitat creation.
Landscape
24. The evaluation of landscape matters made by the Examining Inspector in his
report on the LP (LPIR) is relied upon, particularly paragraphs 70 and 75. The
site has neither national nor local designation. The Illustrative Masterplan shows
how the site can be developed in an appropriate manner and the detail of layout
and landscaping would be agreed at the reserved matters stage24.
Flood risk
25. The Flood Risk Assessment25 concludes that the proposed development is within
Flood Zone 1 and consequently has a low probability of flooding from fluvial and
tidal sources. There would be no increase in flood risk to the proposed
development or the area surrounding the site26. The revised FRA and detailed
drainage strategy for the element of the proposal requiring full planning
permission was submitted and agreed.
Surface water drainage and the Wolborough Fen SSSI
26. The Examining LP Inspector was satisfied that a suitably designed Sustainable
Urban Drainage Scheme (SUDS) could regulate all surface water within the
development site, thereby preserving and protecting the environment27. The
control of the surface drainage outflow by a SUDS would control the amount of
water feeding into the SSSI thus preserving this environmental asset28. This
matter can be dealt with by means of planning conditions and the terms of the
S106 agreement which provides for the opportunity for the inputs to the Fen to
be managed by a management body for the Fen. This matter will be returned to
in Inspector’s reasons.
Impact on Heritage Assets
27. There is no objection to the conversion of the agricultural buildings into a hotel
and restaurant use29, including from Historic England (HE).
28. The Examining LP Inspector in his report at paragraph 71 dealt with the impact
of the NA3 allocation, and concluded he did not see why the setting of the Grade
I Church could not be protected through the detailed master planning process.
This is the position of the Council but not of HE who maintained an objection to
the outline proposal. The Report will return to this matter.
24 The Design and Access Statement (DAS) considers impacts of the proposed development
within the surrounding landscape context and adjoining residential areas. A Landscape and
Visual Impact Assessment (LVIA) is also included within the Environmental Statement
(Binder 4 ES Volume 3(A)).
25 Binder 4 ES Volume 3 (A).
26 FRA page 37, paras 6.1 & 6.2.
27 CD9k para 73.
28 CD9k para 75.
29 Verbally confirmed in Opening by the Council.
https://www.gov.uk/planning-inspectorate Page 6
Highways30
29. It is the agreed position of the Highway Authority, Devon County Council (HA)
and the appellants that the proposed means of access are suitable to serve the
appeal proposal31. The off-site improvements to pedestrian and cycle
connectivity at Coach Road and Newton Abbot footpaths are to be dealt with by
means of a contribution secured through the S106 agreement.
30. Subject to a condition precluding the occupation of more than 500 dwellings until
the Spine Road has been delivered to the eastern boundary of the site, the HA
considers the proposal acceptable in planning terms.
31. Whilst there is much agreement between the Council and the appellants on the
above topics the Rule 6 Party was not a signatory to the SofCGs, and maintain
objections to the proposal, including an in-principle objection to the development
of the site. These matters will be returned to.
In the absence of reasons for refusal the Council’s position
32. The Council’s concerns centre on constraints placed upon the development of the
appeal site by reason of its relationship to the South Hams Special Area of
Conservation (SAC) which is designated, in part, because it hosts an important
population of Greater Horseshoe Bats (GHBs). That constraint is identified in LP
Policy NA3 n). When the site was considered at the LP Examination stage it was
accepted that, in principle, it should be possible to develop the site in a way
which would be compatible with the constraint. However, this would need to be
demonstrated at the project stage wh en the site was put forward for planning
permission.
33. The LP was the subject of legal challenge in respect of the allocation of site NA3,
which was unsuccessful, partly on the basis that there would be further, more
detailed assessment material of GHB impacts at the planning application stage.
The issue for the Council is whether the appellants have provided such
information as the competent authority32 may reasonably require for the
purposes of undertaking an Appropriate Assessment (AA) prior to any planning
permission being granted. This matter will be returned to.
Rule 6 Party position
34. The position of the Rule 6 Party differs from the Council in that they maintain an
in principle objection to the proposal, including objections on the basis of the site
being an unsustainable development, likely to have unacceptable adverse effects
on the locality, including on local health services, traffic, air pollution and
heritage. They also support the Council’s concern relating to the impact of the
proposal on GHBs.
30 This is the agreed position between Devon County Council as Highway Authority and the
appellants as set out in the Highways SofCG March 2019 and the Additional SofCG June
2019 CD29.
31 Design of the access has been the subject of negotiations with HA and a Stage 1 safety
audit.
32 In this case the Secretary of State as decision-maker.
https://www.gov.uk/planning-inspectorate Page 7
The Case for the appellants33
35. The appeal scheme is not some speculative proposal on an unallocated greenfield
site. It forms the lion’s share of one of the most significant allocations in the
Council’s Development Plan, Policy NA3 of the Teignbridge District Local Plan
(adopted May 2014). The proposal does go beyond the allocation in two respects
which were not opposed by the Council. Firstly, the application for full permission
for the redevelopment of the existing farmyard, and secondly, the proposed means
of access to the appeal scheme34. Other than the change of use of agricultural
buildings, the appeal proposals are outline in nature, simply seeking confirmation
of the allocation, with the details to be the subject of reserved matters applications
in accordance with any conditions imposed on the outline permission sought.
36. The alleged impacts of the LP Policy NA3 allocation were given careful
consideration by the Local Plan Examining Inspector’s Report which was detailed
and informed by a Sustainability Appraisal (plus addenda) which must be taken
to have been fully compliant with the requirements of the Strategic
Environmental Assessment Directive 2001/42/EC35. The Examining Inspector
considered that the site was in a highly sustainable location and that heritage and
ecological considerations (including in relation to GHB) did not undermine the
principle of development but went to the details. Those details are not the
subject of the application to which this appeal relates. What is at issue is the
principle of development which the Examining Inspector, and Policy NA3, have
endorsed.
37. A High Court challenge to the adoption of the Local Plan and Policy NA3, in
particular by Abottskerswell Parish Council (part of Rule 6 Party), was rejected by
the High Court; permission to appeal was refused by the Court of Appeal on the
basis that there was no realistic prospect of the challenge succeeding.
38. It would have been anticipated that in these circumstances progress of the
appellants’ application would have been straightforward. However, the Council
failed to comply with its duty to determine the application within the prescribed
statutory timetable. It was not clear what were the Council’s putative reasons for
refusal nor what matters could be dealt with by means of conditions/obligations.
39. A duplicate planning application was submitted by the appellants to the Council in
the hope of avoiding the need for appeal or at least getting some clarity. Officers
recommended that Members resolve to grant conditional permission subject to
provision of further information in relation to GHB; Members were warned of the
possible costs consequences if they did not follow that professional advice. They
nonetheless resolved to refuse permission. The appellants then sought
confirmation from the Council that the reasons for refusal on the duplicate
33 Based on appellants’ Closing Submissions Inquiry Doc 55.
34 Which is the subject of a SOCG with the local highway authority, Devon County Council.
35 There is authority at the highest level to the effect that a public law decision, including in
the planning context and in the context of EU environmental law, is to be treated as having
all the effects in law of a valid decision unless and until it is quashed by the High Court or
the appellate court; its legality cannot be collaterally challenged in a claim for judicial review
of some subsequent decision relying upon it. See the lengthy discussion of this principle in
the judgment of Auld LJ in R (Noble) v. Thanet District Council [2006] 1 P.& C.R. 13 (CA) at
paras. 42-61 and the House of Lords case-law cited therein.
https://www.gov.uk/planning-inspectorate Page 8
scheme stood as the putative reasons for refusal on the appeal scheme. The
Council did not provide that confirmation, instead saying that whilst the refusal of
the duplicate application was a material consideration, “it is not the Council’s
intention to introduce new evidence which is not set out in our Statement of
Case” (Ian Perry email, CD15d, 20 February 2019).
40. The evidence of the Rule 6 Party, the NHSFT and of the Council, to a lesser
degree, present an underlying desire to re-open arguments that were resolved in
the Local Plan process and in that context to throw everything possible at the
appeal scheme irrespective of the quality of their arguments and irrespective of
their procedural responsibilities. It would make a mockery of the planning
system and of the Government’s stated commitment to boosting the supply of
housing in order to address the national housing crisis, if the Secretary of State’s
decision gave any credence to this approach.
41. Save possibly for a S106 issue about bus contributions, the Council does not now
part from the appellants, in terms of what the Secretary of State is asked to
decide, on any of these issues other than the first: GHBs and impact on the SAC.
It is agreed with the Council that, if the Secretary of State finds for the
appellants on the GHB/SAC issue, the appeal scheme is in accordance with the
Development Plan for the purposes of s.38(6) of the Planning and Compulsory
Purchase Act 2004 (PCPA 2004).
42. Even on the GHB/SAC issue, it has not been made clear during the Inquiry
whether the Council are asking the Secretary of State to dismiss the appeal and
refuse permission or, as officers recommended to the Council’s Planning
Committee on the duplicate application, allow the appellants an opportunity to
undertake the additional work which the Council says is necessary before
permission can be granted (or before development can commence).36 The final
paragraph of the Council’s closing is the first time during the Inquiry it has been
said explicitly that they wish to see the appeal for this allocated site dismissed.
Greater Horseshoe Bats & impact on the SAC
43. There is no dispute that the appeal scheme requires appropriate assessment.
Therefore, the recent case-law regarding the approach to determining whether
appropriate assessment is required is not relevant.
44. Regulation 70(3) of the Conservation of Habitats and Species Regulations 2017
(the Habitats Regulations) provides, consistently with Article 6(3) of the Habitats
Directive, that:
Where the assessment provisions apply, outline planning permission must not be
granted unless the competent authority is satisfied (whether by reason of the
conditions and limitations to which the outline planning permission is to be made
subject, or otherwise) that no development likely adversely to affect the integrity
of a European site or a European offshore marine site could be carried out under
the permission, whether before or after obtaining approval of any reserved
matters.
36 There is no reason why this could not be the Secretary of State’s decision in the event that,
contrary to the appellants’ case, he agrees with the Council on the GHB/SAC issue.
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45. The role of conditions and other limitations (such as S106 obligations) in
contributing to the avoidance of adverse effects must be taken into account.
Where planning conditions on an outline planning application require the local
planning authority’s future approval of specified reserved matters and other
details of the development, and in so doing enables the local authority to avoid
adverse effects by scrutinising the details at that future approval stage and only
granting approval if satisfied that the details would not lead to adverse effects,
then those conditions provide sufficient safeguards to enable the conclusion to be
reached at the stage of granting planning permission that Regulation 70(3) and
thus Article 6(3) are complied with.
46. There is no support in the wording of the legislation or in the case-law for the
proposition that all details of matters which may affect site integrity have to be
provided and assessed at the outline stage. Indeed, if that were the case, then
there would be no place for outline planning permission in relation to
development requiring appropriate assessment. Details can be left over by an
outline planning permission for subsequent approval, provided there are effective
safeguards built into the permission to enable the decision-maker to ensure that
when the details are provided, they demonstrate that harm to site integrity will
not be caused.
47. It is through this prism that the precautionary principle must be applied. The
precautionary principle does not require you to assume that the Council will not
do its job properly at the reserved matters / discharge of conditions stage37.
48. The Council through Mrs Mason failed to grasp this. Putting to one side her desire
for more survey work, all the matters, which in Section 7 of her proof she said
more detail was needed to be provided, now relate to details which are left to the
reserved matters stage and/or approval of conditions precedent, and which will
require the Council’s approval at that stage (meaning that consistently with
Holohan there are adequate safeguards in place to ensure the Council has the
power to prevent the details coming forward in a manner that would adversely
affect site integrity). For example, paragraphs 6.16-6.16 and 7.4 require an
assessment of collision impacts and severance impacts, and mitigation thereof, in
relation to the internal roads of the development; paragraph 7.5 requires
mapping and assessment of lighting within the site, the location and details of
which is inextricably linked to the final layout; and the details referred to at
paragraphs 7.6(a)-(k) also all relate to matters left over for subsequent approval
by the Council, as she accepted in cross-examination (XX). In XX she said that
she wanted to know now, at this outline stage, “the details of how adverse
effects can be ruled out at the reserved matters stage”. That is simply not a
requirement of the Habitats Directive or Regulations. It would require the
submission of a full planning permission in all but name, rendering the concept of
outline planning permission serving no practical purpose.
37 The CJEU’s judgment in Case C-461/17 Holohan ECLI:EU:C:2018:883, to which the Council
has repeatedly referred, is entirely consistent with the above analysis – for full text of legal
principles see Inquiry Doc 55 paras 19-27. Holohan is perfectly consistent with the
proposition that details can be left over by an outline planning for subsequent approval,
provided there are effective safeguards built into the permission to enable the decision-
maker to ensure that when the details are provided they demonstrate that harm to site
integrity will not be caused.
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49. Further, at times it has appeared that the Council and/or others have overstated
the precautionary principle. The appellants have also always acknowledged that
the application of the precautionary principle means that the appropriate
assessment must enable the Secretary of State to conclude that (having regard
to the safeguards within the planning conditions that can be attached to any
grant of planning permission) it is necessary to be certain beyond reasonable
scientific doubt that the grant of planning permission would not lead to any
adverse effect on site integrity. However, beyond reasonable scientific doubt in
this context does not mean absolute certainty or zero risk38.
50. The precautionary principle, therefore, does not require the Secretary of State to
abstain from subjecting the competing evidence to proper scrutiny before
reaching a conclusion, and instead treat the mere existence of disagreement
between the appellants on the one hand and the Council and NE on the other
hand (whose representations were not able to be tested in XX at the Inquiry and
therefore must carry less weight) as automatically meaning that there is
reasonable scientific doubt. The test can be satisfied where the decision-maker is
subjectively certain even where others disagree. See also Holohan at paragraph
52 of the CJEU’s judgment, which makes clear that the decision-maker can,
consistently with the precautionary principle, depart from the findings of an
expert, provided sufficient reasons are given.
The relationship between the appeal site and the SAC
51. The appeal site is not in any of the five SSSI component parts of the SAC, the
nearest of which is over 7.2km away (the remainder are all over 10km away).
52. The Habitats Directive, therefore, does not protect the appeal site (or the nearby
roost at Conitor Copse) for its own sake.
53. The appeal site is also well outside the 4km ‘sustenance zone’ surrounding each
of the component parts of the SAC on which the GHB population within the SAC
rely for their essential food sources. As Mr Holloway (proof paragraph 4.13) and
Mrs Mason in XX both agreed, the appeal site is outside the normal foraging
range of the GHB population within the SAC.
54. The appeal site is instead part of a much broader area of land over which the
GHB population within the SAC will travel from one component part of the SAC to
another (occasionally foraging en-route but doing so incidentally to their travel
38 See eg Case C-102 Waddenzee [2005] 2 C.M.L.R. 31, per Advocate General Kokott at
paragraph AG107:
However, the necessary certainty cannot be construed as meaning absolute certainty
since that is almost impossible to attain. Instead, it is clear from the second sentence of
Article 6(3) of the Habitats Directive that the competent authorities must take a decision
having assessed all the relevant information which is set out in particular in the
appropriate assessment. The conclusion of this assessment is, of necessity, subjective in
nature. Therefore, the competent authorities can, from their point of view, be certain that
there will be no adverse effects even though, from an objective point of view, there is no
absolute certainty.
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between component parts of SAC as opposed to this being a critical foraging
resource). This too was agreed with Mrs Mason (XX).
55. It is also common ground that, the nature of how GHB travel over this broader
area of land within which the appeal site lies is that they are “widely dispersed
across the landscape” (Mason proof paragraph 6.12 and XX), “in low numbers”
(Mason XX; South Hams SAC draft SPD Feb 2018, CD8e, p24). The consensus of
scientific evidence before the Inquiry is therefore that the former theory of
“strategic flyways” within this wider landscape, providing critical corridors
through which GHB travel between component parts of the SAC is concentrated,
has been disproved (Holloway main proof paras. 4.25-4.29). Certainly, there is
consensus that the appeal site “is not a critical route corridor but is part of a
much broader landscape in which GHB movements are widely dispersed” (Mrs
Mason accepted this in XX) and that, consistent with their use of that broader
landscape, GHB movements over the site are at “low levels” (see Holloway
rebuttal paragraph 3.18; agreed by Mrs Mason in XX).
56. The critical question for the purposes of Regulation 70(3) and Article 6(3) is
whether, having regard to the safeguards that can be imposed by way of
planning conditions and the ability of the Council to scrutinise the details of the
development at the reserved matters stage, can the Secretary of State be
satisfied beyond reasonable scientific doubt that the appeal scheme would not
harm the ability of GHB to continue to travel “at low levels” in a “broadly
dispersed” manner across the wider landscape within which the appeal site lies?
57. There is sufficient information for the Secretary of State to answer this question
in the affirmative.
58. First - once the question for the Secretary of State is properly defined, it is
obvious that further surveys are not necessary to provide an answer. The
functional link between the appeal site and the SAC is already known, as
described above, as part of a wider landscape beyond the SAC and the
sustenance zones, within which GHB travel from one part of the SAC to another
in a manner that is “widely dispersed” and “at low levels”. The agreed certainty
that this is the site’s function, and the ability of the Council at the reserved
matters stage to ensure that the final form of the development will enable this
function to continue, is what matters, not the precise number of bats using the
site on any particular survey day(s) or the precise part(s) of the site that they
used on those day(s). For this overarching reason, as elaborated by Section 3 of
Dr Holloway’s rebuttal, further survey work is not necessary. It does not matter
where the bats traverse the site, or the precise quantum of the agreed “low
level”, provided that they can continue to do so in future (Holloway Re-
examination (RX)). The Council and Mrs Mason have failed to give proper
consideration to whether the ‘unknowns’ to which they refer actually bear upon
the critical question to be addressed for the purposes of the Habitats Regulations
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and Directive39. Mr Seaton’s criticisms at paragraphs 2.13-2.14 of his first
rebuttal are well founded.
59. Secondly - the GHB/SAC issue has already been considered at the plan-making
stage. Informed by the Habitats Regulations Assessment for the Council
undertaken by Mike Oxford of Kestrel Wildlife Ltd (CD 9f) and Kestrel’s
supplementary report (CD9g), as well as the evidence provided to the Local Plan
Examination, the LPIR at paragraph 72 concluded that even on the now-
discredited assumption that there was a ‘strategic flyway’ critical route corridor
running along the southern boundary of the site, the principle of the development
enshrined in the allocation was capable of avoiding harm to the SAC subject in
particular to (i) “a buffer to be retained in the form of a green space along a
ridge”, (which the appeal scheme provides notwithstanding the subsequent
evidence discrediting the ‘strategic flyway theory’40) and (ii) scrutiny over the
specific details of the development (which the Council would have at the reserved
matters / discharge of conditions stage).
60. Thirdly - as noted by LPIR paragraph 72, the evidence of Mr Oxford to the LP
Examination was the buffer did not need to be 500m wide (again, even on the
disproved assumption that it was a ‘strategic flyway’ critical route corridor). As Dr
Holloway observed at paragraph 4.35-4.38 of his proof, and elaborated in oral
evidence, a 10-15m flyway corridor was found to be sufficient even within the
sustenance zone in the Devon Wildlife Trust/ Chudleigh case (see also the plan at
CDR7 and Mr Seaton’s first rebuttal at paragraphs 2.7-2.9). At its narrowest the
buffer that the appeal scheme will provide for is 250m wide; Mrs Mason offered
no evidential basis for disagreeing with Dr Holloway’s analysis that this would be
more than ample to allow the aforementioned function of the appeal site in
relation to the SAC to continue.
61. Fourthly - as Dr Holloway outlined at paragraphs 4.38 and 5.17-5.13 of his proof,
as elaborated in Evidence in Chief (EiC), the appeal site’s contribution to GHBs
would be enhanced; the GHB Mitigation Plan (Appendix 3 to CD1b) as
supplemented by the Addendum appended to Dr Holloway’s Rebuttal proof,
contains a number of measures to ensure that the development which comes
forward at the reserved matters stage (which must be consistent with the GHB
Mitigation Plan & Addendum) would contain, in addition to the principal green
buffer along the south of the site as envisaged by LPIR paragraph 72, significant
additional new foraging habitats for GHBs, including approximately 3km of new
‘Devon Hedges’, the creation of a community orchard, a mosaic of
marsh/meadow grassland and a wetland SUDS habitat, internal green corridors
linking the principal ‘green buffer’ with the new and retained on site habitats, and
the sowing of the fields within the green corridors with a species-rich grassland
mix. This compares favourably to the current state of the appeal site which is
primarily comprised of agricultural fields principally used for intensive farming
39 The point made by Mr Bedford in XX of Dr Holloway about the LP not having been informed
by on-site surveys contradicts, rather than supports, the Council’s case in this appeal since it
shows that the LP Examination Inspector and the Council’s own expert Mr Oxford (whose
expertise Mr Bedford himself stressed in XX) must both have considered that on-site surveys
were not necessary to address the critical question for the purposes of the Habitats
Regulations and Habitats Directive.
40 As Mr Seaton notes at para. 2.2 of his rebuttal, this is if anything a generous approach by
the appellants.
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which, as Dr Holloway explained at paragraph 5.8 of his main proof and in EiC,
are not high-quality foraging habitats for GHBs. As well as being prescribed in the
GHB Mitigation Plan and Addendum, these features are also depicted on the
framework plan in the appellants’ Design and Access Statement (DAS) at pp 54-
55.
62. Fifthly - a newcomer to this case would assume from much of the Council’s
evidence and XX of the appellants’ witnesses on the subject of Policy NA3(n) that
the appellants had not provided a GHB Mitigation Plan. One has been provided,
and indeed supplemented through the Addendum, and for the reasons outlined
above it is plain that a form of development which complies with it (as would be
a requirement of the conditions to any grant of outline planning permission)
would more than merely avoid adverse effects on site integrity of the SAC,
(which is the overarching objective of Policy NA3(n)) but would lead to the appeal
site preforming an enhanced role for GHBs.
63. Sixthly - Dr Holloway’s evidence and the Environmental Statement (ES) has
assumed conservatively that the Conitor Copse roost is functionally linked with
the SAC (and therefore any doubt as to whether or not it is in fact functionally
linked does not need to be resolved – the appropriate assessment can proceed on
the ‘worst case’ scenario that it is). There would be no direct impacts on the
roost. The highest the Council relied upon was that the appeal site might provide
foraging habitat for the roost; but for the reasons outlined above, the foraging
quality will be substantially enhanced under the appeal scheme pursuant to the
GHB Mitigation Plan and Addendum. Further, and in any event, the evidence
demonstrates the Conitor Copse site is used only by a low level of GHBs who are
separated from the appeal site by the A381 and other roads (Seaton First
Rebuttal paragraphs 2.4-2.6).
64. Seventhly - the stance of Natural England (NE) should not alter the above
analysis. As recorded at LPIR paragraph 72, NE did not object to the principle of
the allocation and considered that “the Plan proposals would provide for
satisfactory protection of the bats”. No explanation has been offered by them as
to why they take a different stance now. NE declined to attend the Inquiry at the
behest of the appellants. Therefore, their position has not had the advantage of
being informed or tested by the oral evidence, thereby reducing the weight which
can be ascribed to it.
65. Eighthly - none of the above is affected by Mr Bedford’s submissions on behalf of
the Council on the Proberun judgment (paragraph 47 of the Council’s closing
submissions), which reaffirmed the proposition that a local planning authority
may not refuse to approve reserved matters on grounds going to the principle of
the development itself and which are therefore already implicit in the grant of
outline planning permission. Here, as Mr Bedford himself confirmed in opinion,
the Council is not opposed to the principle of the development, which is of course
enshrined in an up to date Development Plan allocation. The issue is about
ensuring that the details of the development come forward in a manner that
would not harm the ability of GHBs to continue to travel “at low levels” in a
“broadly dispersed” manner across the wider landscape within which the appeal
site lies (there being no sensible doubt that, in principle this would be
achievable). The Council’s case on GHB/the SAC is not about if the development
should come forward but how, which is squarely within the remit of reserved
matters.
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Heritage, highways and other matters raised by the Council
Heritage
66. The impact of the principle of the development on the listed buildings in the
vicinity, including the Grade I St Mary’s Church, was expressly addressed in the
LPIR at paragraph 71.
67. Save for the two exceptions41 already highlighted, the appeal proposal is outline
in nature, simply seeking confirmation of the allocation, with the details to be the
subject of reserved matters applications in accordance with the conditions
imposed on the outline permission sought.
68. The first exception is the application for full permission for the redevelopment of
the existing farmyard. Neither the Council nor Historic England (HE) take any
issue in relation to the impact of that aspect of the appeal scheme from a
heritage perspective. This part of the appeal scheme is consistent with the Local
Plan allocations map which was before the Examining Inspector, and which
envisaged community uses in this part of the site42. As Mr Seaton explained the
application for full rather than outline permission for this element of the appeal
scheme was intended to provide certainty that the development in closest
proximity to the Church and other associated heritage assets would have an
acceptable relationship with them. It is also important to note that the adjacent
“green buffer” between the Church and the nearest housing, which the LP
Inspector at LPIR paragraph 71 clearly thought was an important consideration in
this context, would be provided under the appeal scheme43.
69. The second exception is the proposed means of access to the appeal scheme,
which is not a reserved matter on the outline element of the application. As to
this:
a) The access points are not fixed by Policy NA3 (as Ms Rhys of HE agreed in XX).
Nor is the alignment of the link road, which is to some extent influenced by the
access points: paragraph 7.28 of the LP (CD8a, p 87) expressly describes the
illustrative depiction of the link road on the Proposals Map as “indicative”.44
b) The access points are agreed with the HA.
c) No-one has suggested any candidate alternative access points during the Inquiry.
d) An Options Appraisal for the points of access was provided to HE45 and they have
not responded to or commented on it. In XX Ms Rhys confirmed that she did not
“contradict or gainsay” this Options Appraisal.
e) Accordingly, the proper conclusions should be that (i) the access points, and any
effect they have on the alignment of the Spine Road are consistent with Policy
NA3, and thus within the parameters of what the Examining Inspector found to
41 Full application for change of use of agricultural buildings and secondly the access details.
42 Compare the LP proposals map on pp.20-21 of the appellants’ DAS with the appeal scheme
framework plan at pp 54-55.
43 Compare pp 20-21 of the DAS (LP Proposals Map) and pp 54-55 (Framework Plan) +
Design/Master planning statement at Appendix 1 to Seaton’s Proof.
44 See further Mr Seaton’s proof at paras 5.50-5.51.
45 Inquiry Doc 16.
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be acceptable in principle, including from a heritage perspective, and (ii) that
there is no obvious alternative that the evidence before the Inquiry shows would
be acceptable in highways terms, deliverable and preferable in heritage terms.
70. In all other respects, the details of the development are a matter for reserved
matters, governed by the various conditions imposed on any planning application
granted by the Secretary of State. The Council rightly accepts that the
considerations they have raised in relation to heritage can appropriately be dealt
with at that stage, subject to the agreed (as between the Council and the
appellants) conditions on the outline planning permission that is sought now.
71. As Mr Seaton noted in EiC, appended to the Planning Statement (CD1d)
submitted with the planning application for the appeal scheme is a Heritage
Appendix. This acknowledges that there would be a limited degree of less than
substantial harm from the development to the wider setting of the Church,
principally due to the development of the farmland associated with Wolborough
Barton, but that this would be limited for the reasons given at paragraphs 5.6-
5.8 on p16. Further, this impact is an inherent consequence of the allocation,
not of anything particular about how the appeal scheme gives effect to the
allocation. It is a matter which has already been considered at the plan-making
stage.
72. As paragraph 6.9 of the Heritage Appendix concludes, the less than substantial
harm can be minimised, in particular because the considerations of LPIR
paragraph 71 seen as being most important, in this context, apply with equal
force here. There are clear ‘public benefits’ as summarised at paragraph 6.3 of
the Heritage Appendix (pp 17-18). The consequence is that the ‘heritage
balance’ in National Planning Policy Framework (Framework) paragraph 196 falls
firmly in favour of the appeal scheme.
73. It is agreed with the Council that, if the Secretary of State finds for the
appellants on the GHB/SAC issue, the appeal scheme is in accordance with the
Development Plan for the purposes of s.38(6) PCPA 2004. Therefore, in the
‘planning balance’ under s.38(6), the question in relation to heritage is whether
there would be heritage impacts that are material considerations of sufficient
force to justify a decision to refuse planning permission despite the Development
Plan accordance (see paragraph 6.9 of the Heritage Appendix to the Planning
Statement46). The conclusion should be that there are not, for the same reasons
as the heritage balance falls in favour of the appeal scheme and/or in any event
because:
a) The heritage issues have already been considered in the context of the
allocation of the site for development. Having been taken into account in the
formulation of the LP, they cannot then sensibly lead to a subsequent conclusion
that there should be a departure from the LP. That would undermine the plan-
led system. The proper approach in this context is that set out by the Secretary
of State in the Whitehill DL (appended to CD1d) at paragraph 14: … this
(heritage) impact must be seen in the context of the allocation of the appeal
site for development as part of LP Policy NA2. As such he has gone on to
consider whether there is something about the design of the scheme that makes
46 CD1d.
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it more harmful than it needs to be and paragraph 17: the Secretary of State
agrees that the LA policy NA3 allocation means that the appearance of housing
on the appeal site, which would be visible from Church Path, is an expectation
of the plan. Ms Rhys confirmed in XX that she accepted that this was a valid
approach for the Secretary of State to take and that it should be taken in this
case too.
b) In considering this issue the outline nature of the element of the appeal scheme
(save for the two exceptions already dealt with above) must be borne in mind.
If in relation to any ‘variables’ left to the reserved matters stage, the Secretary
of State does not like what is shown on the Illustrative Masterplan (whether in
relation to heritage or any other issue), that is not a basis for refusing
permission; it can be addressed at the reserved matters stage. This is
consistent with the approach taken in the Rowtree Road appeal decision (also
appended to CD1d) at Inspector’s Report paragraphs 282-28 with which the
Secretary of State agreed.
c) Subject to the agreed conditions, the evidence demonstrates that the heritage
impact of the appeal scheme will not be any more harmful than the principle of
the allocation; such impacts as there are expectations of, and attributable to,
the LP. Notably in XX, Ms Rhys herself eventually accepted that there was no
evidence for concluding that the appeal scheme is more harmful than the
principle of the allocation.
74. For these reasons, the Council’s and the appellants’ joint position that there are
no heritage grounds for refusal and that the issues in this context are a matter
for conditions (the wording of which is agreed) should be preferred to that of HE.
Highways
75. The HA47 accepted a 500 dwelling trigger for the provision of the Spine Road.
That is now reflected in the additional Highways SOCG with Devon County
Council (DCC) dated 4th June and in the S106 obligations.
76. An issue arose near the very end of the S106 session, relating to whether the
S106 obligations should include a subsidy towards the bus service that is to serve
the Spine Road, once the Spine Road and thus the bus service becomes
operational at the 500-dwelling trigger point. The purported rationale for this
was to ensure the bus service would be viable in its early years.
77. It is for those seeking planning obligations to make their case. If DCC wanted to
seek a contribution of this nature, the onus rested on them to provide evidence
that, without a subsidy, the bus service would not be viable (and for how long
that situation would prevail before the service became viable). No such evidence
was provided.
78. The Council’s early position was that following the provision of the Spine Road a
bus service running through the Spine Road is likely to be commercially viable
without a S106 contribution.
47 Ms Taylor Devon County Council (DCC) in oral evidence.
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79. There is therefore no evidential basis for DCC / the Council subsequently to have
suggested at the S106 session that such a contribution was necessary.
Planning
80. Before the Inquiry, and certainly before the exchange of proofs, there was
considerable uncertainty as to whether the Council’s case was that, irrespective
of GHBs, heritage and highways, there was an in-principle planning objection
based upon an interpretation of Policy NA3(a) to the effect that a Council-
approved development framework plan needed to be in place before permission
should be granted.
81. The Council make no case of an in-principle planning objection to the proposal
based upon the interpretation of LP Policy NA3(a) to the effect that a Council-
approved development framework plan needed to be in place before permission
should be granted48. Mr Perry49 accepted that, save in relation to the GHB/SAC
issue, the Council accepted that the appeal scheme was in accordance with the
Development Plan for the purposes of s.38(6) PCPA 2004. The Council’s
evidence did not identify any material considerations indicating otherwise than a
decision allowing the appeal, in the event that it is found to accord with the
Development Plan.
Additional points made by the Rule 6 Party and other Third Parties50
Wolborough Fen SSSI
82. Both the Council and NE have now withdrawn their previous objection in relation
to impact on Wolborough Fen SSSI and agree that this issue can appropriately be
dealt with by planning condition. Appendix 2 of Mr Seaton’s main proof, entitled
‘Wolborough Fen Position Statement’, provided expert evidence on this issue and
explains that, subject to conditions, the effect of the development on the SSSI
will in fact be beneficial. Mr Seaton’s first rebuttal proof contained planning
evidence as to why the imposition of a condition would be an appropriate way of
dealing with this issue. This was not challenged in XX of Mr Seaton by Dr
Stookes on behalf of the Parish Council (or by anyone). Dr Watson provided no
convincing response. His evidence on this issue was founded on (i) a
misconceived in principle objection to the use of negatively worded conditions of
the nature proposed in this context (ii) a failure to ask the right question in this
context, namely is there some, as opposed to no, prospect of the negatively-
worded condition being discharged within the lifetime of the planning permission
(see e.g. PPG 21a-009, first paragraph, final sentence) and (iii) allegations that
the ES contained ‘gaps’ in respects relevant to the SSSI, which in XX were shown
to be ill-founded and as a result of Dr Watson not having read all the relevant
parts of the ES.
48 Mr Seaton’s main proof covered this issue at paras.5.33 to 5.41 which were not challenged
in XX or rebutted in the written or oral evidence of any other party. The point has been
resurrected in the Parish Council’s closing submissions at paras. 115-119 but the Parish
Councils called no evidence on the point nor did they challenge Mr Seaton on it in XX. His
uncontested evidence should therefore be preferred.
49 Council’s planning witness.
50 Points extended beyond the Council’s case. It is noted that some of the points made were
merely an attack on the allocation of the site by LP Policy NA3.
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Alleged deficiencies in the ES, including in relation to air quality
83. The Parish Council’s broader complaints about the ES and addenda are without
merit.
84. Under Regulation 2(1) of the Town and County Planning (Environmental Impact
Assessment) Regulations 2011 (“the EIA Regulations”) (which, we agree with the
Parish Council, apply to the appeal application and not the replacement 2017
Regulations due to the latter’s transitional provisions), an ‘Environmental
Statement’ is defined as a statement:
“(a) that includes such of the information referred to in Part 1 of Schedule 4 as
is reasonably required to assess the environmental effects of the
development and which the applicant can, having regard in particular to
current knowledge and methods of assessment, reasonably be required to
compile, but
(b) that includes at least the information referred to in Part 2 of Schedule 4.”
85. The provisions to the original ES and any addenda have to be taken as a whole.
The ES covers the mandatory topics in Part 2 of Schedule 4.
86. Where the Local Planning Authority or, on appeal the Secretary of State consider
that an ES needs to contain more information “in order to be an environmental
statement” as defined in Reg. 2(1) they have power to request further
information under Regulation 22 of the 2011 Regulations.
87. In essence the question is whether the appellants have provided all the
information in Part 1 of Schedule that “is reasonably required to assess the
effects on the environment”.
88. Save on the GHB/SAC issue dealt with above, the Council has plainly considered
itself to have sufficient information to reach a view on environmental effects of
the appeal scheme. There has been no indication from any other party that they
need anything more to be able to understand the likely significant environmental
effects of the development. It must follow that both levels of decision maker
consider that the ES does provide the information reasonably required to make
an informed decision.
89. In R (Spurrier and others) v. Secretary of State for Transport [2019] EWHC 1070
(Admin), the Divisional Court (Hickinbottom LJ and Holgate J.) held at para 434
that, in the SEA context which at paragraph 418 the Court had found to be
analogous with EIA:
“Where an authority fails to give any consideration at all to a matter which it
is explicitly required by the… Directive to address... the court may conclude
that there has been non-compliance with the Directive. Otherwise, decisions
on the inclusion or non-inclusion in the environmental report of information on
a particular subject, or the nature or level of detail of that information, or the
nature or extent of the analysis carried out, are matters of judgment for the
plan-making authority. Where a legal challenge relates to issues of this kind.
[t]he established principle is that the decision-maker's judgment in such
circumstances can only be challenged on the grounds of irrationality.”
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90. The Parish Council’s criticisms are of the second kind. The evaluative judgment of
the decision-making bodies51 is that sufficient information has been provided
(given the context of the LP, LPIR and SA/SEA work underpinning the adopted
Policy NA3 allocation to which the appeal scheme would give effect). As the
Court made clear, a party’s disagreement with such a judgment does not equate
to a legal objection.
91. In any event, as became clear in Mr Watson’s XX, those acting for the Parish
Council who were criticising the ES for failing to deal with certain points had not
read the relevant parts in full. Points in relation to the impact on Wolborough
Fen SSSI, which he said had not been covered in the ES, were in fact covered as
he accepted when taken to the references in XX. It was also clear that his
approach had been to try to ‘pick holes’ in the ES rather than to consider it fairly
and respond constructively. In doing so he and the Parish Council failed to heed
the observation of Sullivan LJ in R (Hart DC) v. Secretary of State for
Communities and Local Government [2008] EWHC 1204 (Admin) at paragraph 72
that EIA “is intended to be an aid to effective decision making, not a legal
obstacle course”.
92. On air quality, the late evidence of Dr Holman is inadmissible and should be
disregarded. It was not a response to the recent ES Addendum (which was
directed at the potential or otherwise for cumulative effects with the scheme
which is the subject of the recent Langford Bridge Farm application) but to the
original ES.
93. The Council withdrew their evidence dealing with air quality52.
94. In any event, at the air quality round table session Dr Holman made clear that
her critical departure from the ES and Ms Kirk’s analysis (contained in Appendix 3
to Mr Seaton’s main proof and elaborated by Ms Kirk at the air quality round-
table session) was in relation to the prospect of the Low Emission Strategy (LES)
which can be conditioned into any grant of permission being able to achieve the
mitigation identified in the ES. Dr Holman’s evidence was that this was very
unlikely, but she did not say there was no prospect of it happening. Therefore,
even taking her case at its highest, her evidence is not inconsistent with a
conclusion that there is some prospect of the relevant negatively-worded
condition being successfully discharged within the lifetime of the planning
permission, and therefore there can be no objection to the use of a negatively
worded condition (see eg PPG 21a-009, first paragraph, final sentence). Dr
Holman was also unfamiliar with the LP Policy NA3 context of the appeal and
what the accompanying SA/SEA had said in relation to air quality.
95. The points made at paragraphs 64-73 of the Rule 6 Party’s closing submissions in
relation to climate change are unsupported by any evidence presented by them
or anyone else to the Inquiry. They also conspicuously fail to recognise the
allocated status of the appeal scheme in the up to date Local Plan which
enshrines the principle of the development and which as noted above was itself
subject to an SA/SEA assessment which must be taken to have complied fully
with the requirements of the SEA Directive.
51 The Council at the stage of the Inquiry.
52 Within Taylor proof.
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The evidence offered on behalf of Mr Glyn (adjacent landowner)
96. As noted above, in XX Mr John and Mr Lloyd on behalf of Mr Glyn confirmed that
they were not actually asking the Secretary of State to refuse permission or
impose any particular conditions. Subsequent correspondence from them
appeared to row back from this concession. Section 1 of Mr Seaton’s Further
Rebuttal Proof (pp 2-5), provides a comprehensive response to Mr John’s and Mr
Lloyd’s proofs. Mr Seaton’s evidence was not challenged.
NHSFT obligation requirements
97. The case in respect of the NHSFT obligation requirements is dealt with in the
Planning Obligation section of the Report.
Conclusion
98. The appeal scheme is in accordance with the Development Plan for the purposes
of s.38(6) PCPA 2004. Save in relation to the GHB/SAC issue, the Council
agrees. For the reasons outlined above, their reservation on that single issue is
without merit. There are no material considerations indicating that the Secretary
of State’s decision should be taken other than in accordance with the
Development Plan.
99. Under Framework paragraph 11(c), the presumption in favour of sustainable
development means approving development proposals that accord with an up-to-
date development plan without delay. Thus, the appeal scheme can be treated
as sustainable development within the meaning of the Framework and its
approval is supported by national planning policy.
100. The appellants submitted further comment on the submission by the Council of
the Bat Survey 201953, submitted following the close of the Inquiry. They
concluded that there are no GHB roosts on the appeal site and it is not proximate
to a designated SAC roost site. Further there can be no harmful impact upon the
successful foraging of GHBs that roost at the SAC sites.
101. In respect of the Housing delivery Test Results 2019 the appellants do not
consider these materially affect their case, the proposal still being subject to the
presumption in favour of sustainable development54.
The case for the Council55
102. At the outset in respect of any of the statutory heritage duties that arise in this
case the Council are satisfied that, provided appropriate conditions are imposed,
the proposal would not compromise those duties.
103. The Council’s position is that a grant of planning permission for the
development of the site would be contrary to Regulation 63(5) of the
Conservation of Habitats & Species Regulations 2017 (SI 2017/1012) (the
Habitats Regulations) and in breach of Article 6(3) of Council Directive 92/43/EEC
(the Habitats Directive).
53 Inquiry Doc 58.
54 Inquiry Doc 65.
55 Inquiry Doc 52.
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Appropriate Assessment
104. Regulations 3(1) and 7(1) of the Habitats Regulations make it clear that the
Secretary of State is a competent authority for the purpose of the duties imposed
by those Regulations. In accordance with Regulations 3(1) and 5(1)(b) of the
Habitats Regulations Natural England (NE) is the appropriate nature conservation
body in this case (which concerns a European site and a development project in
England). Regulation 61(1) of the Habitats Regulations provides that the
assessment provisions means Regulations 63 and 6456.
105. In R(Mynydd y Gwynt Ltd) v Secretary of State for Business Energy &
Industrial Strategy [2018] EWCA 231 a recent summary of the operation of the
principal requirements of Regulation 63 of the Habitats Regulations (which
transposed Article 6(3) of the Habitats Directive into domestic law), was provided
by the Court of Appeal.
106. Peter Jackson LJ said that the task of the decision-maker is first to consider
whether the risk of the project having a significant effect on the site’s
conservation objectives can be excluded. If it cannot, an assessment must be
undertaken to ascertain the impact of the project and identify whether it is
consistent with maintaining the site’s conservation status. Mitigation measures
must be taken into account and considerable weight should be attached to the
views of the nature conservation body. Once the assessment has been carried
out, approval can only be given if the authority is convinced that the project will
not adversely affect the integrity of the site concerned. Absolute certainty is not
required, and where it cannot be achieved after all scientific efforts, the decision-
maker must work with reasoned probabilities and estimates; but where doubt
remains, authorisation will be refused.
107. Since the Mynydd y Gwynt Ltd decision (in February 2018) the Court of Justice
of the European Union (CJEU) has issued several key decisions on proper
interpretation and application of the Habitats Directive. It is now established
that, contrary to the views previously expressed by the UK’s domestic courts,
mitigation measures which are proposed as part of a project cannot be taken into
account when making the initial threshold (or screening) decision as to whether it
is necessary to undertake an Appropriate Assessment in relation to that project’s
potential effects on a European site: People Over Wind v Coillte Teoranta (Case
C-323/17, 12 April 2018); followed by Dove J in Canterbury City Council v
SoSHCLG [2019] EWHC 1211 (Admin), 14 May 2019, at paragraph 77. In the
present case, it is not suggested by the appellants that it is possible to avoid the
requirement to carry out an Appropriate Assessment, on the basis that all risk of
a significant effect on the European site from the development can be excluded
by reference to objective information, so this aspect does not require greater
discussion. The appellants have not sought to challenge the consistent view of
NE and the Council that an Appropriate Assessment is required57.
56 For definitions of regulations see Inquiry Doc 52 paras 5-8 which also includes the
provisions of Regulation 70 and case law in respect of the operation of the principal
requirements of Regulation 63.
57 Natural England letter dated 17 November 2017 (Mason App.2); Policy NA3(n) and para
7.30 of the Teignbridge Local Plan (CD8a); Mason POE, paras 6.2, 6.3, 6.6, and 6.7;
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108. In the case of Holohan v An Bord Pleanala (Case C-461/17, 7 November 2018)
the following findings were made. In the light of the foregoing, the answer to the
first three questions is that Article 6(3) of the Habitats Directive must be
interpreted as meaning that an ‘appropriate assessment’ must, on the one hand,
catalogue the entirety of habitat types and species for which a site is protected,
and, on the other, identify and examine both the implications of the proposed
project for the species present on that site, and for which that site has not been
listed, and the implications for habitat types and species to be found outside the
boundaries of that site, provided that those implications are liable to affect the
conservation objectives of the site58
109. In the Holohan case the CJEU also dealt with the relationship between the
adequacy of the available information to carry out an Appropriate Assessment
and the views expressed by those with expertise in relation to the potential
effects of a development on a European site. This sets out that the competent
authority should be in a position to state to the requisite legal standard the
reasons why it was able, prior to the granting of development consent, to achieve
certainty, that there is no reasonable scientific doubt with respect to the
environmental impact of the work envisaged on the site concerned.
110. Article 6(3) of the Habitats Directive must be interpreted as meaning that,
where the competent authority rejects the findings in a scientific expert opinion
recommending that additional information be obtained, the ‘appropriate
assessment’ must include an explicit and detailed statement of reasons, capable
of dispelling all reasonable scientific doubt concerning the effects of the work
envisaged on the site concerned59.
111. The European site which requires consideration in the present case is the
South Hams Special Area of Conservation (the SAC). The Citation for the SAC60
is clear that the GHB is a Qualifying Species of the SAC and the fact that the SAC
hosts that species is one of the reasons for designation of the SAC. The GHB is
an Annex II species in the Habitats Directive (but not a priority species).
112. The Conservation Objectives for the SAC61 make it clear that the GHB is a
Qualifying Feature of the SAC and that, subject to natural change, the
Conservation Objectives are to …ensure that the site contributes to achieving the
Favourable Conservation Status of its Qualifying Features by maintaining or
restoring… the structure and function of the habitats of qualifying species, the
supporting processes on which… the habitats of qualifying species rely, [and] the
populations of qualifying species…
113. Regulation 63(1) of the Habitats Regulations is explicit that the Appropriate
Assessment of the implications of a development for a European site must be
made in view of that site’s conservation objectives. As noted by the CJEU in
Holohan, consideration of whether the favourable conservation status of a
Council’s Stage 1 screening assessment on the appellants’ duplicate application (Mason
App.7); Appellants’ Appropriate Assessment Considerations report, para 4.2 (CD1b).
58 Para 40 of the judgement. Paras 33, 34, 35, 39 and 40 are relevant and reproduced in
Inquiry Doc 52 para 12.
59 Inquiry Doc 52 para 13 for full judgement text.
60 Mason, App.5.
61 Mason, App.4.
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European site will be preserved is a component element of considering whether
there will be an adverse effect on the integrity of the European site62, that this
too will require consideration of the conservation objectives for the site63, and
where those conservation objectives are liable to be affected by the implications
of a development for habitats and species found outside of the boundaries of the
European site, those implications must be included within the Appropriate
Assessment64.
114. It is clear therefore that the Conservation Objectives which have been
established for the SAC are a critical component to any Appropriate Assessment.
115. Subsequent to the publication of the Conservation Objectives, NE published its
Conservation Objectives: Supplementary Advice on Conserving and Restoring
Site Features for the SAC65. The Supplementary Advice is not itself part of the
Conservation Objectives, but those Objectives do require that where
supplementary advice is available, the Conservation Objectives should be read in
conjunction with the accompanying Supplementary Advice document, which
provides more detailed advice and information to enable the application and
achievement of the Objectives set out above66. Whilst the appellants have been
critical of the timing of the publication of the Supplementary Advice, it is clear
that it represents the considered views of NE, and that it was produced after a
process of engagement with relevant stakeholders67. The Supplementary Advice
presents attributes which are ecological characteristics of the designated species
and habitats within a site and its tables bring together the findings of the best
available scientific evidence relating to the site’s qualifying features… Where
evidence and references have not been indicated, NE has applied ecological
knowledge and expert judgment68. There is no reason for doubting these
statements by NE about the scientific underpinnings of the Supplementary
Advice. Specific aspects of the Supplementary Advice are considered below
116. However, firstly the characteristics of the SAC with reference to how it hosts
its population of GHBs are considered. The position was described as follows by
the High Court in R (Devon Wildlife Trust) v Teignbridge District Council [2015]
EWHC 2159 (Admin),69 per Hickinbottom J at paragraphs 4 and 5:
Para 4 - The GHB is one of Britain's largest and rarest bats, with a total
national population of 5,500 individuals of which about one-third are believed
to be within the South Hams SAC. The SAC is unusual, in that it comprises five
separate but interconnected nationally designated Sites of Special Scientific
Interest which include significant roosts for hibernating in the winter and
summer roost sites where the females gather to give birth and rear their
young. However, in addition to those specific sites within the notified SAC,
GHBs use the wider countryside of South Devon for the majority of their
activities including commuting, foraging, roosting and mating. Within that
62 Para 35.
63 Para 36.
64 Para 40.
65 Mason, Replacement App. 6 (20 March 2019).
66 Mason, App.5.
67 See in particular Replacement App. 6, p.2, under the heading ‘About this document’.
68 Also p.2.
69 CD14c.
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countryside, as well as other roosts, there are vital flyways and sustenance
zones recognised as critical in the Natural England document, South Hams SAC
– GHB Consultation Zone Planning Guidance (June 2010) (the 2010 Guidance).
Natural England is an independent executive non-departmental public body,
created by section 1 of the Natural Environment and Rural Communities Act
2006, which acts as an adviser to the Government on all aspects of the natural
environment in England, with the role of protecting nature and landscape
within the various statutory protective schemes including those set up as a
response to European obligations.
Para 5 - As to flyways, GHBs require linear features in the landscape to
navigate, feed and access key foraging grounds. They generally fly close to
the ground up to a height of only about 2m, and mostly beneath vegetation
cover. GHBs are extremely sensitive to light and will avoid lit areas: lighting
renders areas inhospitable and practically inaccessible to them. The
interruption of a flyway by light disturbance has a similar effect to a physical
obstruction, and will force GHBs to find an alternative route that will at least
add to the bats' energy burden and may ultimately threaten the viability of a
colony and/or lead to fragmentation of GHB population and isolation from key
foraging areas and roosts.
117. The appellants have been critical of the South Hams SAC GHB Consultation
Zone Planning Guidance (the 2010 Guidance), especially with regard to its
identification of strategic flyways, as referred to by Hickinbottom J. Nonetheless,
the 2010 Guidance remains in place and it is quite clear from the Supplementary
Advice that NE has not, as asserted by Dr Holloway, abandoned the concept of
strategic flyways as being flawed70, with the strategic flyways and the 2010
Guidance being relied on within that Supplementary Advice71. It is correct that
relevant local planning authorities (including the Council) are in the process of
producing revised planning guidance for developments within a revised
consultation zone that may have implications for the SAC, and that draft planning
guidance has been the subject of discussion with NE. The draft guidance
proposes to replace the strategic flyways with a landscape connectivity zone
(which is more extensive), in recognition of the fact that The new evidence base
[since the 2010 Guidance] shows that outside Sustenance Zones greater
horseshoe bats are dispersed widely and in low numbers using a complex
network of commuting routes rather than a few key Strategic Flyways72. This
statement about dispersed flightpaths does not mean that there is evidence to
show that the areas of the strategic flyways are not used by GHBs for commuting
across the wider countryside of South Devon (outside of the SAC) but rather than
their commuting routes are not confined to those flyways73. There is, therefore,
no good reason for departing from the general description given by Hickinbottom
70 Holloway POE, para 4.20. Indeed, in XX Dr Holloway confirmed that NE have not
abandoned flyways. He also accepted (in cross-examination (XX)) that the strategic flyways
would be part of the routes used [by GHBs] but not the only routes.
71 Mason, Replacement App. 6, see in particular pp. 58 and 61.
72 Mason, App. 14, p24.
73 Mason in chief: Now become apparent that away from the main sustenance zones, the
actual flight paths do go wider- a landscape approach… we are not saying the strategic
flyways are not used, but that other areas [are] used too.
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J of the inter-relationship between the SAC and the wider countryside in terms of
accommodating movements of GHBs.
118. The appellants have focused on the separation distance between the SAC and
the site and have compared that with the usual range of foraging activity
undertaken by GHBs in seeking to justify the contention that the appeal
proposals cannot impact on the [Favourable Conservation Status] of any of the
component sites of the SAC due to the distance of the appeal site from each of
the SSSIs and the absence of any pathway by which the appeal proposals could
produce an impact on the habitats at the protected sites…74.
119. Dr Holloway has conceded in XX that he was wrong to claim that None of the
qualifying habitats/features listed in the citation for the South Hams SAC… are
found within the appeal site 75 because the GHB was listed as a qualifying species
(in the Citation) and as a qualifying feature (in the Conservation Objectives), and
the GHB has clearly been found to be present at the appeal site. This is not
simply a matter of a minor correction to Dr Holloway’s evidence, because what it
reveals is a misunderstanding of the relationships between the SAC and the GHB,
and between the GHB and the wider countryside.
120. It is important to be clear that for the Conservation Status of a European site
(including this SAC) to be favourable, Article 1(e) of the Habitats Directive makes
it necessary to consider not merely the habitats within the European site but also
whether the conservation status of its typical species is favourable as defined in
(i). Article 1(i) of the Habitats Directive then identifies that the Conservation
Status of a species will be favourable when:
– population dynamics data on the species concerned indicate that it is
maintaining itself on a long-term basis as a viable component of its natural
habitats, and
- the natural range of the species is neither being reduced nor is likely to be
reduced for the foreseeable future, and
- there is, and will probably continue to be, a sufficiently large habitat to
maintain its population on a long-term basis.
121. The habitats which are relevant for the purposes of Article 1(i) in terms of
supporting the favourable conservation status of a species are not limited only to
habitats within the SAC. What are relevant are the natural habitats of the
species, across its natural range, wherever they happen to be, and they need to
be large enough to allow for the population of the species to be maintained on a
long-term basis. If areas of habitat are used by a species as part of its life cycle,
whether for shelter, for feeding, or for mating, it is necessary to consider whether
development impacts on those areas could then affect the favourable
conservation status of the species concerned. If they could (or that conclusion
cannot be excluded on the basis of the available evidence), then, there will be an
inability of the European site itself to achieve or maintain favourable conservation
status.
74 Holloway POE, para 4.12.
75 Holloway POE, para 4.11, last bullet point.
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122. Dr Holloway sought to argue that, for the purposes of Article 1(i), the GHB was
not a typical species of the SAC on the basis that it is not part of the eco-systems
that maintains the habitats of the SAC 76. This was an untenable position. There
is nothing in Article 1(i) of the Habitats Directive to limit typical species of a
habitat to those species which maintain the habitat. Nor is there anything in
Article 1(i) to suggest that a species which is prevalent within a particular habitat
is not a typical species because it may also be prevalent elsewhere on other
habitats. The GHB is undoubtedly a typical species of this particular SAC, which
it relies on for essential activities in its life cycle, including hibernation and the
rearing of young.
123. Where a typical species of a European site (and all the more the case for a
typical species which is a Qualifying Feature of the European site) does not
confine itself in terms of its natural range only to habitats which exist within the
European site, it is necessary to consider how any changes to the wider habitat
used by that species could affect the population dynamics of the species, natural
range of the species, and extent of the habitat needed to maintain its population
for the long-term, in order to assess whether the habitat of the European site
itself will be maintained at Favourable Conservation Status.
124. In other words, the pathways between a development site and the European
site are not limited to direct pathways such as watercourses but can also include
pathways which are material to the long-term maintenance of the population and
range of the typical species of the European site. In the case of GHBs this could
potentially include commuting routes, or satellite roosts used for mating
purposes, or sustenance areas that support those roosts. The importance of any
such features for the GHBs hosted by the SAC, and so for the Favourable
Conservation Status of the SAC, will depend on reliable and up-to-date
information on those features and on GHB activity relating to them.
125. It is correct that the site lies between 7.2km and 14km from the various
component parts of the SAC and that the typical range for foraging of an adult
GHB is about 4km to 6km from a roost site (there is a lesser distance for
juveniles)77. Thus, a GHB roosting at the SAC is unlikely to forage at the site, if
that foraging activity is undertaken as part of nocturnal feeding trips from the
SAC and returning to the same roost. However, not all commuting activity by
GHBs associated with the SAC is confined to foraging, and not all foraging occurs
when GHBs are coming from and returning to the same roost. Dr Holloway
acknowledged78 that the 4km to 6 km distances were for day to day visits rather
than the natural range of GHBs.
126. The evidence shows that GHBs will travel greater distances (than 4km to
6km) for particular purposes and at particular times of the year79. They can travel
up to 30km80 to 60km81 between hibernation roosts and maternity roosts. They
76 In XX.
77 The 4km distance is in the 2010 Guidance, p.6, item (5): Mason, App. 9. The 6km distance
is at Holloway POE, para 4.13.
78 In XX.
79 2010 Guidance, p.5, item (2): Mason, App. 9.
80 Supplementary Advice, pp.7-8: Mason, Replacement App. 6.
81 BCT Bat Survey Guidelines, p.25, Table 3.2: Mason, App.15.
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also travel further afield than 4km to 6km for mating82. They also make use of
satellite roosts away from the main roost sites, including for mating purposes83.
Dr Holloway accepted84 that the appeal site lies within these distances, and that
the bats utilising the appeal site are capable of being bats that are part of the
SAC population. I have never denied that.
127. These characteristics of GHB behaviour are reflected in the Supplementary
Advice. In relation to the distribution of supporting habitats the Supplementary
Advice recognises that GHBs also use a range of transitional roosts in spring and
autumn in addition to their summer and winter roosts but notes that the use of
transitional roosts by the South Hams metapopulation is not well understood85.
In relation to the extent of supporting habitat the Supplementary Advice
recognises that it is also essential to protect key flightpaths between roosts and
between roosts and foraging areas86. In relation to supporting off-site habitat
(flight lines), the Supplementary Advice recognises that Flight lines will extend
beyond the designated site boundary into the wider local landscape87. In relation
to supporting processes, the Supplementary Advice identifies that The current
understanding of critical foraging areas and strategic flyways is shown in Annex 1
(taken from Natural England (2010) and advises that a range of management
measures are required in the wider countryside, such as maintaining and
restoring… commuting routes88. It also notes that the concentration of the
population in very few roost sites leaves the bats vulnerable…89.
128. In fairness, the appellants’ evidence does recognise that the GHB population
of the SAC is not limited only to activity which takes place within the SAC and
within the foraging areas up to 4km to 6km from the SAC. The ES drew the
following conclusions from the bat surveys that were undertaken in 2013/2014:
It is likely that the majority of greater horseshoe activity within the application
site originated from local roosts such as Conitor Copse, although periodic
seasonal use of the site from bats associated with the SAC cannot be
discounted. In taking a metapopulation approach, impacts on greater
horseshoe bats recorded within the application site could transpose to effects
on the greater horseshoe population status associated with the SAC where
commuting was hampered by the proposed development90.
129. The summary conclusion of the appellants’ bat survey report was that:
Although no significant concentration of activity was identified within the
strategic flyway, the woodland edge and hedgerow habitats together with
areas of grazed pasture are likely to be used on occasion as commuting and
foraging habitat by individual greater horseshoe bats. The bats present are
82 2010 Guidance, p.5 item (2): Mason, App.9; HRA of the NA3 Wolborough DFP by
Greenbridge Ltd, p.11, para 4.6.1: Mason, App. 13.
83 HRA of the NA3 Wolborough DFP, p11, para 4.6.2.
84 In XX.
85 Supplementary Advice, p.56.
86 Supplementary Advice, p.57.
87 Supplementary Advice, p. 58
88 Supplementary Advice, p. 61.
89 Supplementary Advice, p. 62.
90 ES, Vol. 2, para 8.5.24.
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likely to form part of the meta-population for which the South Hams SAC has
been designated91.
130. Ultimately, Dr Holloway’s evidence was to the same effect. He did not seek to
distance himself from these findings in the ES and in the Bat Survey Report. He
acknowledged that it is possible that the roost at Conitor Copse was a mating
roost and a satellite roost for the SAC and that the appeal site was clearly within
the foraging/sustenance zone of that roost and contained suitable habitat for
GHB foraging. He accepted92 that we need to ensure sufficient permeability and
also foraging to maintain that roost. Dr Holloway also agreed93 with the
conclusion that followed from these points, which was that impacts on the GHBs
using the site therefore have the potential to impact on the integrity of the SAC
by affecting one of its designated Qualifying Features, the GHB population of the
SAC.
131. It is in the light of this evidence that it is then necessary to consider whether
the available evidence on GHB activity at the site is sufficient to ascertain to the
requisite standard that there will not be any adverse impacts on the integrity of
the SAC arising from the proposed development by reason of its impacts on the
GHBs using the site.
132. There is no dispute that the bat surveys undertaken in 2013/2014 accorded
with best practice guidance at the time and represented a reasonable degree of
survey effort. To that extent they were fit for purpose at that time. However,
the decision maker is not now considering the position in 2013/2014 but some 5
or 6 years later. The age of a survey does not necessarily make it out-of-date,
but the passage of time can increase the risk of changes of circumstance
meaning that a survey no longer provides a reliable baseline for assessment.
133. In part of his evidence, Dr Holloway sought to suggest that bat surveys were
of limited value and provided nothing more than the confirmation of presence or
absence of a particular species on a site94. However, he did not seek to maintain
that position, and even his own evidence acknowledged that survey results can
provide evidence of the spatial and temporal distribution of GHB presence within
the appeal site95. He recognised96 that surveys tell us how, where, when, GHBs
are using the site. This reflects the advice in the BCT guidelines on survey
purposes. The BCT guidelines are clear that surveys can be used to provide
information on What are the activity levels of bats on the site and can this tell us
anything about the abundance (number) of bats using the site, and What are the
bats using the site for, and What is the temporal (both seasonally and in relation
to time of night) and spatial distribution of recorded bat activity on site97.
134. It is obvious that GHB is a mobile species and will react to changes in its
environment. The BCT Guideline recommend that ideally, the survey data should
be from the last survey season before a planning application is submitted but
91 ES, App.8.2, Executive Summary, p.21.
92 In XX.
93 In XX.
94 Holloway POE, para 7.22.
95 Holloway POE, para 7.23.
96 In XX.
97 Mason, App. 15, section 8.1, p.54 of the BCT Guidelines.
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recognises that a case-by-case assessment is needed as to whether older data
remains valid, including consideration of Has the nature of the site or the
surroundings changed since the original surveys and Are additional surveys likely
to provide information that is material to a decision (such as a planning consent),
the design of mitigation measures…98.
135. Clearly, some 5 or 6 survey seasons have passed since the survey evidence in
this case. A walkover habitat survey in 2017 showed that the habitats on the site
itself have not materially changed, but the wider context has. Since those
surveys the South Devon Link Road has opened to traffic and this lies only a
short distance to the east of the site. Dr Holloway accepted that the presence of
traffic on the road is a further barrier to the passage of GHBs and a material
change but in his view, it was not a significant change regarding GHBs using the
site. There is no evidential basis for the assertion that the change is not
significant. There is very limited data on how GHBs are using the wider
landscape affected by the provision of the new road (and its opening to traffic).
The culverts provided as part of the link road are effective pinch points for bat
movements, and it is unclear whether the barrier effect of the link road has
served to contain GHBs to the west of it, so potentially making more
concentrated use of the appeal site, or whether the culverts have shifted the
pattern of movements away from the previously used flightpaths to new or
different routes within the site, or whether GHB activity has continued much as
before. It is simply not robust, or in any way scientific, in the face of knowledge
that there has been a material change in the external environment which at the
very least has the potential to affect GHB movement patterns, to blithely assume
that there has been no change in the spatial distribution of GHBs at the site or in
their abundance within the site and so that up-to-date information is simply not
required.
136. The appellants have also sought to rely on the site’s inclusion within99 the NA3
allocation in the Local Plan combined with the outline status of the main part of
the appeal proposal to argue that there is no need for further surveys at this
stage. However, this contention is based on a misunderstanding of both the LP’s
consideration of the site and of the nature of matters that are settled by the
grant of outline planning permission.
137. Starting with the LP, it is clear that its identification of the site as suitable in
principle to accommodate residential (and other) development without detriment
to the SAC was not based on any site surveys of GHBs at that time100. The issue
was dealt with by establishing a policy requirement for a bespoke GHB mitigation
plan at the planning permission stage101 which needed to be informed by
appropriate and adequate ecological surveys102. That requirement for bespoke
mitigation plans was carried forward into the LP103 and was relied on by both the
98 Mason, App. 15, section 2.6.3, pp.20-21.
99 A small part of the appeal site lies outside of the allocation but for present purposes that is
not material to the arguments.
100 Paras 3.1 and 3.2, p.23, Supplementary HRA report, CD9g.
101 Pp.28-29 of Supplementary HRA, CD9g.
102 Para 9.4.11, p.40 of the HRA, CD9f; see also item 2, p.18 of CD9g.
103 Policy NA3(n) and para 7.30.
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LP Inspector104 and by the High Court105 in concluding that the LP was not in
breach of the requirements of the Habitats Regulations.
138. Thus, the appellants’ references to the HRA and the Strategic Environmental
Assessment that supported the LP are nothing to the point and do not provide a
coherent basis for failing now to provide an adequate bespoke mitigation plan.
Whilst a mitigation plan has been submitted106 with the application, it cannot be
regarded as adequate because its mitigation strategy has not been informed by
appropriate survey evidence. It has only been informed by the results of the
2013/2014 surveys107, which are no longer fit for purpose due to the passage of
time and the changes in circumstance in the site’s environs since they were
undertaken. The mitigation plan does seek to be spatially specific about several
of its proposed mitigation measures108, but whether those measures are
appropriately located within the site crucially depends on how GHBs are using the
site, including for what purposes, where, and in what numbers. The proposed
flyways and dark corridors to be safeguarded (or enhanced) may or may not be
appropriately sited. Without up-to-date survey evidence that is fit for purpose, it
is not possible to ascertain to any reasonable degree of scientific doubt, that the
proposals will not adversely affect the GHBs using the site and so adversely affect
the integrity of the SAC.
139. The requirement in Policy NA3(n) is quite clear that the bespoke mitigation
plan must demonstrate how the site will be developed so as to avoid adverse
effects on the integrity of the SAC. That requirement is not limited only to
applications for full (or detailed) planning permission but also apples to outline
permissions too. Thus, whatever may be the position in abstract terms that, as a
generality, an outline permission is only seeking to establish the principle of
development and it can leave all details to reserved matters, an outline
permission on the allocated NA3 site is expected to settle, via its required
bespoke GHB mitigation plan, how the site will be developed so as to avoid
adverse effects on the integrity of the SAC. That policy requirement is not
merely something that is needed to satisfy the statutory development plan. It is
something that was necessarily required to be part of the LP in order for the LP to
meet the requirements of the Habitats Regulations.
140. It is not therefore a policy requirement that can be side-lined or brushed
aside. Policy NA3(n) therefore requires rather more specificity about the format
of the development, and its associated mitigation, than would be achieved by an
outline planning permission. In other words, more is expected to be settled at
the outline stage than was considered necessary at the allocation stage. Whilst
this does not require a fully detailed layout to be approved at the outline stage, it
does require the key details of the fundamental elements of the GHB Mitigation
104 Paras 15 and 72 of the Inspector’s report, pp.7 and 21, CD9k
105 Paras 62, 72, and 78 of Abbotskerswell Parish Council v Teignbridge District Council, per
Lang J, CD14a.
106 The main GHB Mitigation Plan is included within the Appropriate Assessment
Considerations report, CD1b. There is a later Addendum but that is not relevant to the
arguments here.
107 See sections 2.2.1 to 2.2.3 of the Mitigation Plan.
108 See in particular p.6 of the Mitigation Plan, concerning the proposed green corridors routed
north from the strategic flyway to Decoy Woods, Wolborough Hill, Wolborough Fen, and along
the eastern boundary.
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Plan to be spatially identified, and for parameters used for the choice of those
measures to be adequately informed by appropriate survey evidence, so as to
demonstrate, in the light of the best available evidence that there will not be
adverse effects on the integrity of the SAC.
141. Ms Mason explained what was needed in her evidence109, with particular
reference to the selection of where there would be dark corridors: I am looking
for more than just a concept. I am looking for dark routes so that bats can
permeate across the site. I need sufficient detail so that dark corridors and
hedges are secured so that bats can move across the site, based on up-to-date
survey data…. Surveys- the objective is to inform the detailed mitigation in the
list110, the technical details, once set the corridors at the outline stage, can come
forward at the reserved matters stage. The purpose of the surveys being
updated is to inform the outline GHB Mitigation Plan.
142. She also gave further clarification111: I want assurances that the mitigation
parameters and design principles are secured… for example, the principle of
maximum light levels in hedgerows, at this stage I am looking for a lighting zone
map so can be assured there are dark corridors across the site… I want to
understand how the development will be designed to give the competent
authority assurance that the qualifying feature won’t be harmed… The details at
outline stage should allow for a dark corridor across the landscape to be mapped,
so it can be conditioned, with the details of the dark corridors at the detailed
stage. I appreciate we cannot actually stipulate where they go but would like to
see a parameters map.
143. In other words, it will not be sufficient to simply propose that there should be
dark corridors across the site as a matter of principle, or to show where, on an
illustrative basis, such corridors could (but not necessarily would) be located. It
is necessary to provide sufficient information on the choice of the locations for
the dark corridors to ascertain that providing corridors in those locations (which
would be designed in detail as part of the reserved matters) would not be subject
to undue light from the development and that, having regard to how GHBs
currently use the site to traverse the landscape, the choice of those locations
would enable GHBs to continue to move across the site.
144. The appellants’ contention that an outline planning application does not need
to provide that level of information is inconsistent with the express policy
requirement for a bespoke GHB mitigation plan at the planning permission stage.
The appellants seek to support their position by an argument that an outline
planning permission will not settle anything beyond the principle of development,
but this is also mistaken. The planning permission that is sought is for a stated
quantum of development (1,210 dwellings in the case of the residential element).
Qualifying that quantum by the words up to does not give the local planning
authority at the reserved matters stage the freedom to cut down the approved
quantum of development. At the reserved matters stage the Council cannot
refuse to approve the maximum quantum stated in the outline planning
permission if that is the form of development that is put forward. The
109 In XX.
110 Mason, POE, p.38.
111 In re-examination.
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acceptability of any particular reserved matters details has to be judged in the
context that the outline permission will have established that 1,210 dwellings can
be provided on the site. If that quantum of development can only be achieved by
the provision of built form (or any associated roadways or lighting) in locations
that would have detrimental impacts on GHBs using the site, the Council could
not rely on its ability to approve (or not approve) reserved matters to achieve a
lesser amount of development. The reserved matters stage cannot be used to
retreat from matters which are established by the outline planning permission. A
developer is entitled to insist on approval of reserved matters which deliver on
what has been authorised by the outline permission, provided that the reserved
matters put forward are the best that can be achieved within the confines of the
site. This principle was set out by the Court of Appeal in Proberun Ltd v
Secretary of State for the Environment [1990] 3 PLR 79 at 84D, 85F, and 87C.
145. It is for this reason that Policy NA3(n) requires at the planning permission
stage details in the bespoke GHB mitigation plan of how the development will
take place so as to avoid adverse effects on the integrity of the SAC.
146. It is no doubt in recognition of the basic principles applicable to outline
planning permissions, that Regulation 70(3) Habitats Regulations requires the
decision maker at the outline planning permission stage to be satisfied (whether
by reason of the conditions or limitations to which the outline planning
permission is to be made subject, or otherwise) that no development likely to
adversely affect the integrity of a European site… could be carried out under the
permission… Unless the decision maker can be so satisfied, Regulation 70(3)
does not allow the grant of planning permission. In other words, the decision
maker has to proceed on the basis of being satisfied that, whatever could lawfully
come forward at the reserved matters stage, there is no prospect of detriment to
the SAC.
147. The appellants have made reference to the facts concerning the development
of the Chudleigh site which featured in the High Court case of Devon Wildlife
Trust v Teignbridge District Council112 and have sought to argue that the Council
accepted that detailed GHB mitigation matters could be left to be resolved at the
reserved matters stage on a site that was more sensitive than the appeal site
because of its closer proximity to the SAC. However, the key points of difference
in that case are (i) there was adequate and up-to-date survey evidence which
was regarded as sufficient to inform the decision, and (ii) NE accepted that there
was a sufficient mitigation strategy in place which was secured by the conditions
of the outline permission, so its earlier objections were withdrawn113. Neither of
those two factors is the case here. The case does not therefore provide any
support for the stance taken by the present appellants of putting forward a
Mitigation Plan without the appropriate degree of up-to-date survey information
to inform its strategy.
148. The appellants have been critical of the decision of NE in this case to provide
written representations114 setting out its objections, rather than attend the
Inquiry and answer questions. Clearly, it is a matter for NE how it wishes to
112 CD14c.
113 See paras 46, 50, 55, 59, 61 and 87 of the Judgment of Hickinbottom J.
114 Mason, App.2, NE letter dated 17 November 2017 on the appeal application; Mason App.
8, NE letter of 4 February 2019 on the HRA of the duplicate application.
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pursue its objections, but its written objections are clear, coherent, and
consistent. The fact that it did not object to the LP or to the Policy NA3 allocation
is not evidence of any inconsistency of approach. It is quite clear both from the
legal position115 and from the specific facts in relation to the formulation of Policy
NA3 that the level of information needed to reach a reasoned judgment on
Appropriate Assessment matters are different at the plan-making and the
development management stages. It is clear that considerable weight should be
given to the views expressed by NE,116 and in addition cogent reasons need to be
given if their advice, that more information is needed in order to discharge the
decision maker’s duties as competent authority under the Habitats Regulations, is
to be set to one side117.
The Council therefore suggests that the following key conclusions can be drawn:
i. it is not in dispute that GHBs use the site to traverse the wider countryside,
it is not possible to discount that the GHBs using the site are part of the
population of GHBs hosted by the SAC,
ii. it should be assumed that the nearby roost at Conitor Copse, which may be
the immediate source of the GHBs using the site, is a satellite roost
supporting the SAC,
iii. it is not in dispute that impacts on the GHBs using the site could have
potential implications for the integrity of the SAC,
iv. to demonstrate there will be no such adverse effects there needs to be a
bespoke GHB mitigation plan at the planning permission stage,
v. such a plan needs to be informed by appropriate and adequate survey
evidence. These matters are not, ultimately, controversial (albeit elements
of Dr Holloway’s written evidence seemed to suggest that they might be).
The matters of dispute relate to whether there is appropriate and adequate
survey data to inform the mitigation plan, notwithstanding changes of
circumstance since the survey work was undertaken, and whether the
proposals of the mitigation plan are sufficiently detailed to meet both the
requirements of Policy NA3(n) and to demonstrate that there will be no
adverse effects on the integrity of the SAC.
149. The Council suggests that, having due regard to the precautionary principle,
and the need for matters to be ascertained so as to leave no reasonable scientific
doubt, recognising also what will be settled by the grant of an outline planning
permission, it is abundantly clear that there is an insufficient evidence base to
allow the Secretary of State to conclude that the proposed development will
(rather than might) come forward in a manner which will not adversely affect the
integrity of the SAC by reason of the way in which it impacts on the ability of
GHBs to traverse the site. It is for this reason that the Council considers that it is
not possible to grant planning permission for the appeal proposal. Thus, in the
absence of further information, there is no lawful option other than to dismiss the
115 See in particular the Abbotskerswell decision at para 72; see also the caselaw and good
practice advice in Mason Note on References, Inq Doc 31.
116 See Mynydd y Gwynt at para 8(viii).
117 See Holohan at para 52.
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appeal. The Inspector is invited to recommend accordingly. This conclusion is
determinative of the appeal. However, for completeness, the Council also
comments, briefly, on the other main issues.
Biodiversity and ecological connectivity
150. This issue is substantially subsumed within the Council’s case above in relation
to Appropriate Assessment. With the exception of the treatment of GHBs, the
Council does not raise any other biodiversity or ecological concerns and notes
that the issues in relation to Wolborough Fen SSSI have been resolved.
Effects on heritage assets
151. Whilst the Council does not share all of the conclusions put forward in the
appellants’ evidence on heritage matters, it is content that there is now a
sufficient level of information available (including the Statement of Significance
and Setting Assessment)118 to assess the effects on heritage assets, and that the
imposition of the suggested conditions (in particular in relation to the masterplan
and the design code) will enable the statutory duties in S66 Listed Buildings Act
1990 to be discharged. In policy terms, there would be less than substantial
harm to the setting of the Grade I listed Church of St Mary the Virgin, but this is
outweighed by the public benefits delivered by the development, especially in
terms of the provision of housing and affordable housing to meet identified local
needs119.
Infrastructure and mitigation
152. The Council’s case on the inadequacies of the GHB mitigation are set out
above as part of the Appropriate Assessment section. In relation to transport
mitigation, it remains the Council’s view (based on the evidence provided by the
HA)120 that a bus contribution for three years is required because there is no
evidence to show that a service routed through the site would be financially self-
supporting in its early years. Bus services are only provided by commercial
operators without subsidy if they assess that there will be sufficient patronage to
make the service viable. There can be no automatic assumption that viability will
be achieved, and the appellants have put forward no evidence from a commercial
operator to show that a service would be viable from the outset. However, if the
service becomes viable, the planning obligation already provides that there is no
requirement to then pay the contribution121. The appellants are not therefore at
risk of having to make a contribution for a viable service. This matter is
provisionally resolved by the terms of the Unilateral Undertaking, and the
Secretary of State is invited to conclude that the clauses in Schedule 3 requiring
the contribution should be found to be necessary to make the development
acceptable in planning terms. Option 2 is preferable to Option 1 because it will
provide the contribution at an earlier stage of the development.
118 Appendix 19 to the Written Statement of Maureen Pearce.
119 Para 6.51 of the POE of Ian Perry.
120 Taylor Proof, paras 6.47 and 6.48; Ms Taylor (in XX).
121 Paras 11 and 14 of Schedule 3 to the Unilateral Undertaking to Devon County Council –
Inquiry Doc 43.
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153. Other matters of infrastructure and mitigation are resolved to the Council’s
satisfaction, in line with the respective Unilateral Undertakings. The Council
remains unpersuaded that the contribution requested by the NHSFT meets the
requirements of Regulation 122 of the CIL Regulations 2010, for the reasons set
out in its Note122.
Traffic and highway matters
154. The Council is now satisfied that with the imposition of a condition to restrict
occupation to no more than 500 units until the provision of the Spine Road
through the site, there are no outstanding traffic issues123.
Sustainable development and policy compliance
155. The Council’s case on appropriate assessment is set out above. If the
Secretary of State accepts that case, it will follow that an Appropriate
Assessment undertaken would be unable to conclude that the development will
not adversely affect the integrity of the South Hams SAC. That would result in a
dismissal of the appeal. In addition, it would mean, in line with para 177 of the
Framework (2019) that there is no scope to apply the presumption in favour of
sustainable development124. It would also mean that there would be non-
compliance with Policy NA3 of the Local Plan, which is the site-specific policy for
this site. The appellants accept that non-compliance with NA3(n) is a show-
stopper and also accept that non-compliance with Policy NA3 means the proposal
would not accord with the Development Plan125. There are no material
considerations that could indicate otherwise where the policy that is breached is
intended to secure the protection of a European site.
156. Thus, whether the appeal is considered solely by reference to the requirements
of the Habitats Regulations, or wider reference is made to the Framework and the
LP, the result is the same: the appeal must be dismissed.
157. The Council submitted an up-dated Bat survey following the close of the
Inquiry (Inquiry Doc 58).
158. The Council through Mrs Mason comments that it is considered, based on the
analysis within Table 1 of Inquiry Doc 61, that, subject to recommended
safeguards being in place, secured by condition and/or obligation, and supported
by the updated survey data (Inquiry Doc 58) that the uncertainty of there being
no adverse effect on the integrity of the SAC could be reduced to an acceptable
level to conclude an Appropriate Assessment in accordance with LP Policies NA3,
EN9, EN10 and the Framework.
The Case for Abbotskerswell Parish Council & Wolborough Residents
Association (Rule 6 Party)126
Environmental Impact
122 Inquiry Doc 27.
123 See para 2.2 of the Additional SoCG, part of Inquiry Doc 29.
124 Accepted by Mr Seaton (in XX).
125 Both points accepted by Mr Seaton (in XX).
126 Based upon Inquiry Doc 53 – Closings of Rule 6 Party.
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-The EIA Directive 2011/92/EU
159. It is common ground that the proposal falls within the scope of the
environmental impact assessment (EIA) provisions. It is governed by the
Directive 2011/92/EU on the assessment of the effects of certain public and
private projects on the environment (the EIA Directive). The Directive was
amended in April 2014 by Directive 2014/52/EU: the amendments entered into
force in May 2017 and apply to this proposal. The Town and Country Planning
(EIA) Regulations 2017 sought to transpose the amendment, although the
appellants’ view on transposition of the Directive is that the EIA Regulations 2011
continue to apply: Reg. 76(2) provides that the 2011 Regulations continue to
apply where an appellant has requested an EIA scoping opinion prior to the
commencement of the 2017 Regulations, which was the case. The Rule 6 party
agrees and simply adds that where the EIA Regulations 2011 does not cover
certain points of the EIA Directive 2011/92/EU as amended, the Directive has
direct effect. In the circumstances, it is relevant to refer to the provisions of the
Directive and these are set out in Inquiry Document 53 paragraphs 3-11.
160. Article 2(1) of the EIA Directive requires that:
… before development consent is given, projects likely to have significant
effects on the environment by virtue, inter alia, of their nature, size or
location are made subject to a requirement for development consent and
an assessment with regard to their effects on the environment. Those
projects are defined in Article 4.
161. It appears common ground that project 17/01542/MAJ falls within Article 4
and that Article 2 applies. The grant of this hybrid application would be regarded
as development consent.
162. There has been a failure to identify, describe and assess the significant effects
of 17/01542/MAJ contrary to Article 3127 and having regard to the information
that must be provided under Article 5(1) of the Directive128. The additional
Annex IV information129 is also found wanting.
163. The description of the likely significant effects on the factors specified in Article
3(1) should cover the direct effects and any indirect, secondary, cumulative,
transboundary, short-term, medium term and long term, permanent and
temporary, positive and negative effects of the project. This description should take
into account the environmental protection objectives established at Union or
Member State level which are relevant to the project.
164. Recital 2 of the EIA Directive provides that:
127 EIA Directive Article 3 explains what the EIA should undertake – Inquiry Doc 53 para 6.
128 Article 5 is defined in Inquiry Doc 53 para 8.
129 Inquiry Doc 53 para 9.
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… effects on the environment should be taken into account at the
earliest possible stage in all the technical planning and decision-making
processes130.
-The Town and Country Planning (EIA) Regulations 2011
165. The prohibition on granting planning permission without consideration of
environmental information under Art. 2(1) of the Directive is at Reg. 3(4) of the
EIA Regulations 2011 which provides that:
The relevant planning authority or the Secretary of State or an inspector
shall not grant planning permission or subsequent consent pursuant to
an application to which this regulation applies unless they have first
taken the environmental information into consideration, and they shall
state in their decision that they have done so.
166. Regulation 2 of the EIA Regulations 2011 explains that:
environmental information means the environmental statement,
including any further information and any other information, any
representations made by anybody required by these Regulations to be
invited to make representations, and any representations duly made by
any other person about the environmental effects of the development;
-The Habitats Regulations 2017
167. It is common ground that the Conservation of Habitats and Species
Regulations 2017 (the Habitats Regulations 2017) applies. This transposes
Council Directive 92/43/EEC on the conservation of natural habitats and of wild
fauna and flora. Relevant regulation 63 is set out at Inquiry Document 53
paragraph 14.
168. For clarity the Secretary of State is the competent authority for the purpose of
the appeal.
- Local policies131
169. For the Rule 6 Party the relevant policies in the Teignbridge Local Plan 2013-
2033 include Policies EN6 Air Quality, NA3 Wolborough132 and the Teignbridge
District Council 2017 Air Quality Annual Status Report (June 2018).
- Air quality133
130 This point has been underlined by UK and European Courts. See e.g. the House of Lords in
R (Barker) v LB Bromley [2007] 1 AC §22 per Lord Hope.
131 Inquiry Doc 53 para 17.
132 CD8a.
133 Inquiry Doc 53 paras 18-37.
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170. There are serious concerns that there was a lack of adequate assessment and
analysis on air pollution. Further representations in response to the appellants’
provision of an ES Addendum in April 2019134, noting that the updating
information provided 3 short additional paragraphs on dust and air quality, did
not provide any further assessment of impacts and effects. The Rule 6 Party’s
evidence is explained through the proof of Dr Holman135, which sets out that the
information on air quality in the various documents provided by the appellants as
an ES, were incomplete in relation to construction impacts by failing to assess the
impact on future receptors, the risk of dis-amenity and that more mitigation may
be required. The air pollution dispersion modelling used to predict the impact of
the proposed development on air quality was flawed136. The ES documents
provided no indication that the differences between the model results and the
measurements were investigated to minimise the differences and improve model
performance137. With such a high verification factor the air quality practitioner
should have reviewed the model setup and input data in an effort to close the
gap with the measurements. There is no evidence that this was undertaken138.
The statistics referred to by the appellants relate to a later stage in the process,
when the model results, which relate solely to the local traffic emissions, have
been added to the ‘background’ air pollution to provide an estimate of the total
concentration.
171. The concerns centre on the lack of clarity regarding cumulative assessment,
material calculation errors; that the ES was incomplete by not stating that the
adverse impacts on air quality should be recorded as significant; that the ES
failed to provide information on human health effects; and, that substantial
effects would occur at 13 receptors without the Spine Road and 6 receptors with
the Spine Road all went unchallenged. In summary, notwithstanding concerns
regarding the reliability of the modelling, the various documents of the ES show
that the increase in air pollution due to the proposed development would give
rise to a significant effect with no evidence that it can be mitigated139. The
Secretary of State has absolutely no idea whether the vague Low Emission
Strategy (LES) will work, there is no information on this whatsoever provided by
the appellants140.
- Conclusions on air quality
134 Inquiry Doc 23.
135 Inquiry Doc 26 Annex C.
136 Inquiry Doc 53 para 20.
137 Holman proof - Inquiry Doc 26, Annex C paras 9-12.
138 The Defra publication: Local Air Quality Management Technical Guidance (TG16) (Feb
2018) Inquiry Doc 26 Annex C, how to model air quality for local authority review and
assessment when there is non-compliance with an air quality objective such as Newton
Abbot and an AQMA order has been made.
139 Inquiry Doc 53 paras 18-19 set out concerns in more detail. Supporting judgements to
the Rule 6 Party position that instances of development causing adverse air quality effects
and a lack of detail on mitigation have been the basis to refuse permission are set out at
Inquiry Doc 53 paras 26-28.
140 The developers in Gladman appealed the High Court decision to the Court of Appeal. This
has been heard and judgment is awaited.
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172. In conclusion on air quality, §§12.6.6-7 of the ES note that there will be minor
to moderate adverse impact without the Spine Road within the AQMA and that
there would be moderate adverse effects outside the AQMA even with the Spine
Road i.e. significant adverse effects in ES terms.
173. The ES Addendum, Dec. 2017, §8.1 also concludes that: “The proposed
development would result in a slight to moderate adverse impact within the
Newton Abbot AQMA should the development be operational without the Spine
Road being available. However, the proposed link road would reduce the impact
of the development and would result in a slight beneficial “.
174. In ES terms these are significant adverse effects and a reason to refuse
permission. There is reliance by the appellant upon a ‘low emission strategy’ as an
attempt to mitigate the significant effects. However, no attempt has been made by
the appellants to provide any detail as to what that strategy may involve. It is
nothing more than a wish list of this developer. The appellants simply state at
§12.6.9 of the ES that: … it is not possible to develop a detailed LES at this stage.
This is repeated at §8.1 of the ES Addendum Dec 2017: As the application is for
outline planning permission and proposals are for a large mixed allocation it is not
possible to develop a detailed LES at this stage. This approach provides no
meaningful information to the Secretary of State to be able to assess whether a low
emission strategy will minimise the substantial adverse effects of the proposed
development on the local community.
175. This approach must be seen in the context of worsening air quality in and
around Newton Abbot: see eg the relevant entry in the Council’s 2017 Air Quality
Annual Status Report (June 2018) (extracted in Rule 6 Party opening (Inquiry
Document 9) which notes in its executive summary at pages ii-iii that for 39 tube
locations:
• 21 locations got worse but still remained below the national objective; and
• 7 locations exceeded the National Objective.
176. In essence, air pollution in the locality is getting worse. This reflects the national
position. Air pollutants, primarily from road vehicles, are NO and particulate
2
matter (PMs). It has been known for some time that these pollutants are
responsible for a significant number of premature deaths, increases in the
occurrence of respiratory diseases and an increase in the severity of symptoms of
those already suffering from these diseases141. Increasing air pollution in an area
already experiencing poor air quality is likely to exacerbate health problems at
significant social and economic cost to society. It will also increase the financial
pressure on the local health care system that is understood to be operating at
capacity.
141 see e.g. the Government’s COMEAP (1996) and more recently the COMEAP Report:
Associations of long-term average concentrations of nitrogen dioxide with mortality
(22.8.18) which provides a range of estimates of the annual mortality burden of human-
made air pollution in the UK is estimated as an effect equivalent to 28,000 to 36,000 deaths
(its previous 2010 estimate was 29,000). See also the Royal College of Physicians Report,
Every Breath we Take (2016), and update report (2018) which states that: “Each year in the
UK, around 40,000 deaths are attributable to exposure to outdoor air pollution”.
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177. The appellants’ approach typifies the lack of robust information on air pollution in
planning decisions. It is likely to be one reason why the land use planning system
has failed to improve air quality despite it being one of the key policy areas with
scope to do so. The information provided by the appellants is inaccurate and
inadequate to address the significant adverse air pollution effects on the health of
the local community. It breaches LP Policy EN6 which requires adequate
information to assess the impacts of a proposal on air quality. It is contrary to
national policy and efforts to tackle chronic air pollution problems.
178. Finally, the appellants’ approach of avoiding discussion of any mitigation
measures such as providing information on the low emission strategy is a breach of
Article 5(1)(c) of the EIA Directive which requires developers to provide a
description of the measures envisaged to avoid, prevent or reduce, and, if possible,
offset likely significant adverse effects on the environment; …. As such, the
appellants’ air pollution information fails to meet the obligations under the
Directive and fails to provide adequate information to the Secretary of State such
that permission for the proposal cannot be lawfully granted.
Adverse impacts on biodiversity
179. The proposal will have an unacceptable impact on biodiversity including a
potentially significant adverse impact on the GHB, a European protected species
and by extension could result in an adverse impact on the integrity of the South
Hams SAC. The appellants have failed to both provide adequate information on
likely effects on biodiversity in accordance with Article 2(1) of the EIA Directive
and provide adequate information to enable an appropriate assessment to be
undertaken on behalf of the Secretary of State under Reg 63 of the Habitats
Regulation 2017. If the appropriate assessment were carried out, then it must
conclude beyond reasonable scientific doubt that the project will not affect the
integrity of the South Hams SAC, a European designated site.
180. It is accepted that the planning application to which this appeal relates,
was submitted in respect of part of a Local Plan allocation (the Wolborough
NA3 allocation). However, the allocation engages with both a European site
of nature conservation importance (the South Hams SAC) and a SSSI of
national importance in a UK context (the Wolborough Fen SSSI). It has
always been envisaged that both of these sites will be subject to stringent
protection through the delivery of the allocation and its associated policies.
181. In order to achieve these legal and policy requirements, there is a need for
sensitive master planning and development design that firstly seeks to avoid
negative effects on either designation entirely, or if this is unavoidable (and
such lack of avoidance can be fully justified having regard to alternative
solutions), secures appropriate mitigation and, as a last resort,
compensation to ensure no net negative effect, and indeed no net loss of
biodiversity more generally.
182. To arrive at a masterplan and development design that achieves these
aims, and is therefore legally and policy compliant, requires a thorough
understanding of the sensitivities of these sites, including the features and
processes essential to supporting their continued interest and condition. In
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the case of the South Hams SAC this means an adequately thorough
understanding of how GHB use the site (and, in particular, the identified
‘strategic flyway’ running through the site). In the case of the Wolborough
Fen SSSI, this means an adequately thorough understanding of the
hydrological regime, both within the SSSI and within its wider catchment,
that feeds and supports the habitats of interest. Neither the Council nor the
Inspector has been furnished with such information.
183. With regard to the South Hams SAC, the survey information on bats
generally, and GHB in particular is out of date, short of industry standards
and insufficient to determine with the requisite level of confidence whether
the likely significant effects on the South Hams SAC that are accepted by all
parties to arise, can be properly addressed in a manner that avoids
impacting the integrity of that site.
184. With regard to the Wolborough Fen SSSI, the level of understanding of the
hydrological regime critical to the SSSI is far short of the level required in
order to be confident that suitable mitigation measures are at all achievable,
having regard to the development proposals and their proximity to the
SSSI. In such circumstances it is patently not appropriate to defer this
critical matter to a planning condition and it is surprising that NE has taken
this approach, in the context of its statutory duties and the general
requirement to adopt a precautionary approach to a site of such elevated
interest.
185. This appeal cannot be granted without offending a broad raft of national and
local planning policies that seek to protect internationally and nationally
important sites, and indeed the statutory obligations on decision makers that
flow from the Wildlife and Countryside Act 1981 (as amended) and the
Conservation of Habitats and Species Regulations 2017.
186. The ES Addendum April 2019 failed to address the concerns about the earlier
lack of information raised by opposing parties. The Rule 6 Party note of
15.5.19142 explained that the information at section 5 of the ES Addendum April
2019 was materially incorrect by stating that there was no GHB activity shown in
the Langford Bridge ES biodiversity report when that report clearly showed that
there was bat activity and further that GHB registrations were also recorded
every month that a remote detector survey was in place in relevant locations.
187. The ES Addendum April 2019 compounded the factual errors of the appellants’
assessment by stating at paragraph 5.1.5 that there is a lack of noteworthy
biodiversity features of the land relating to the Langford Bridge proposal. The
Rule 6 Party explained that some 75% of the Langford Bridge application site is
located within a Strategic Flyway (for GHB) identified by NE as being important to
the maintenance of South Hams SAC at a favourable conservation status. Even
had there been no empirical survey data proving the use of the site by GHB, I
142 Inquiry Doc 26 Annex A.
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cannot see how this strategic flyway could be dismissed as not a noteworthy
biodiversity feature143.
188. It is clear even without further analysis that the submitted ES (Addendum April
2019) fundamentally misrepresents the information submitted with the Langford
Bridge planning application. The assessments it contains are therefore founded
on a flawed baseline. They cannot be considered to be the robust assessment of
the potential cumulative impacts on GHB needed in the context of the need to
fully understand the scope for an adverse impact on the integrity of the South
Hams SAC from the Wolborough Barton planning application and appeal acting
in-combination with other plans and projects144.
189. The updated report of Conservation First, Berthinussen, A, Altringham, J of
May 2019: The likely impact of the proposed NA3 Wolborough development and
associated mitigation, with particular reference to greater horseshoe bats of the
South Hams Special Area of Conservation145 prepared to consider the additional
development at Langford Bridge included the following:
1.1 An overview of the application - Update 2019: Since our original
report in 2017, additional proposals have been brought forward within
the NA3 allocation for a development at Langford Bridge to include 450
dwellings, 85 care units and 22,000 m of employment space with
associated infrastructure including a partial link road and access roads.
The site is immediately to the east of the NA3 Wolborough development
described above and overlaps significantly with the greater horseshoe
bat strategic flyway restricting it even further (see map in Appendix 3).
At least 10 bat species (some identified to genus only, e.g. Myotis,
Nyctalus spp. and long-eared bats) have been recorded across the site,
including greater and lesser horseshoe bats and barbastelle (Ecology
Solutions Ltd 2019a). The development would result in loss or changes
to commuting, foraging and roosting habitat including improved and
semi-improved grassland, trees, sections of hedgerow and
watercourses, and several farm buildings.
1.2.1 Bat survey - Update 2019: Additional data collected by the Devon
Wildlife Trust at six sites immediately adjacent to the proposed NA3
Wolborough site between April and November 2018 showed regular
activity of greater horseshoe bats at all locations and across the season
(see Berthinussen 2019).
1.2.2 Satellite Roosts – Update 2019: A new document recently
published by Natural England providing supplementary advice on
conserving and restoring features of the South Hams SAC recognises
the importance of transitional roosts and acknowledges that the use of
transitional roosts by the South Hams (greater horseshoe bat)
metapopulation is not fully understood (Natural England 2019).
143 Inquiry Doc 26 Annex A.
144 Inquiry Doc 26 Annex A.
145 Inquiry Doc 26 Annex B.
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Update 2019: Further bat surveys were carried out at Conitor Cave in
2017 and 2018 (Wills 2018). During October 2017, high levels of
greater horseshoe bat activity were recorded inside the cave entrance
with 943 passes (including numerous social calls) over nine nights. This
provides further evidence for a possible mating site at Conitor Cave.
High activity was also recorded in July and August 2018 (583 passes
over ten nights) indicating significant use of the cave by GHBs during
the summer. Lesser horseshoe, Natterers and whiskered bats were also
recorded in high numbers, and common pipistrelle, Daubentons and
long-eared bats in low numbers.
Additional data collected by the Devon Wildlife Trust between April and
November 2018 showed high levels of GHB activity at several other
sites in proximity to the NA3 Wolborough development during
September and October (see Berthinussen 2019). At one site, 287 GHB
passes were recorded during a single night in October, which suggests
that there may be other late summer transitional roosts or mating sites
in the area.
1.2.3 Other impacts - Update 2019: The recently proposed development
at Langford Bridge lies immediately to the east of the NA3 Wolborough
development. It is essential that the effects of the two developments
are considered in combination. Both result in significant losses or
changes to habitat and encroach significantly on a greater horseshoe
bat strategic flyway creating a long and narrow ‘pinch point’ in an area
that is already under pressure from urban development.
1.2.5 Additional development at Langford Bridge - We have also
reviewed the planning documents for the additional development within
the NA3 allocation at Langford Bridge (specifically Chapter 9 of the
Environmental Statement and the Habitat Regulations Assessment;
Ecology Solutions Ltd 2019a & 2019b). We found issues with the
impact assessment and mitigation proposals that largely reflect those
discussed above.
The ES describes GHB activity across the application site as being only
very occasional (Para 9.4.137) and low (Para 9.4.171), despite greater
horseshoe bats being recorded across the season (April to October) and
at 27 of 29 static detector locations. No consideration is given to the
survey constraints or the difficulty in detecting greater horseshoe bats.
It also appears that more than half of the surveys were carried out in
sub-optimal weather conditions, which may have resulted in reduced or
atypical bat activity (see Detailed Comments below).
The mitigation plan provided in the HRA is again vague and lacks
important detail. ‘Dark corridors’ are proposed across the site for
commuting bats, but these are narrow and close to roads, footpaths and
buildings and are likely to be subject to light, noise and recreational
disturbance. Effective mitigation for light pollution will be essential, but
very little information is provided. The corridors will also be severed in
multiple places by access roads, which may act as barriers or create a
collision mortality risk for bats attempting to cross them. Most of the
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proposed mitigation measures have not been proven to be effective,
such as plantings and raised embankments to guide bats over roads,
temporary guides such as Heras fencing or ‘dead hedging’ and new or
relocated roosting structures. Where new plantings or habitat are
proposed, little consideration is given to the time it will take for them to
become established or the need for them to be functional in advance of
any impacts (i.e. prior to construction commencing). It is also not clear
whether mitigation measures, such as corridors, will be integrated with
those in the adjacent NA3 Wolborough development or existing habitats
in the wider landscape.
Despite the lack of information and the uncertainties surrounding the
effectiveness of the proposed mitigation, it is again assumed that it will
be effective. Paragraph 93 of the HRA concludes that, with the proposed
mitigation in place, the function of the part of the Strategic Flyway that
lies within the Application Site will be maintained. It is also concluded
that there will be no in-combination effects in relation to the wider NA3
proposals (Para 100). This is despite the fact that the Langford Bridge
development lies immediately adjacent to the NA3 Wolborough
development and will double the length of the strategic flyway that will
be restricted to a narrow corridor.
Monitoring is briefly mentioned, but the proposed duration (two years
post-construction) is not long enough to assess the impacts of the
development on bat populations or the effectiveness of mitigation. A
monitoring plan is not provided, nor are there any contingency plans
should the proposed mitigation fail.
190. The Rule 6 Party evidence was unchallenged. The appellants did not address
the recent findings by Berthinussen, A and Altringham, J.
191. The appellants continued to maintain their position that the survey data from
2013-2014 was adequate and that, contrary to the guidance and some 6 years
on, there was no need to provide up to date surveys on GHBs. This view was
taken in the knowledge that there had been a material change in local landscape
matters including the operation (rather than construction) of the South Devon
Link Road. The premise that the surveys would have limited utility in explaining
what they already know that there were GHBs using the site continued to be
relied upon.
192. The appellants categorised the appeal site as having low value in biodiversity
terms although this seemed contrary to their written evidence that the appeal
site had moderate to high value: see e.g. 8.4.24, ES. This was inconsistent with
the opposing parties’ position that the area is of high habitat quality for GHBs.
193. Dr Holloway further asserted that the strategic flyways that could be offered
for GHBs could be around 15 metres wide in contrast to the NE guidance that
stated these should be in the region of 500 metres146. He asserted this by mis-
quoting and misunderstanding the text of a judgment in DWT v Teignbridge DC
[2015] EWHC 2159 (Admin) which provided that:
146 Holloway proof para 4.36.
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59. On 10 October 2014, Natural England required some small changes
to the AA, namely:
i) changing the flyway commuting corridor buffers from 10m to 15-
20m; and ii) clarifying and correcting the labelling of features on the
mitigation map, to make them consistent with the AA.
194. When it was put to Dr Holloway that he had mis-read the judgment and that
the judgment referred to 15-20 metre buffers that must apply to the strategic
flyway corridors he maintained that corridors themselves were 15m.
195. The extent of the strategic flyway corridors for Chudleigh Caves and Woods
SSSI were around 500 metre buffers (and for much of the area in excess of this)
as shown by the turquoise area marked area called ‘Strategic Flyways 500m
buffer zones on the plan [CDR7]. Dr Holloway’s view of a 15metre strategic
flyway corridor was nonsense.
196. NE maintained an objection to the proposal147. In evidence Mr Seaton
expressed surprise at the approach by NE. He noted that the Local Plan
Examining Inspector placed great weight on the position of NE. However, Mr
Seaton suggests that for this inquiry the position of NE should not be followed.
The position of NE was clear and reasonable; they simply required information:
• Comprehensive, up to date survey data.
• Further analysis of collision and severance impacts.
• A lighting assessment.
• A comprehensive mitigation and avoidance plan
197. The appellants failed to provide such information and therefore NE’s objections
were maintained.
- Wolborough Fen SSSI
198. There are two flaws in the surface water SUDS scheme proposed for that part
of the development that is within the catchment of the SSSI. These are that:
a) based on the appellants own evidence, the attenuation basins could not be
relied upon to ensure surface water discharged into the ground based on
the failure of the soakaway tests to be able to demonstrate that the ground
would infiltrate at all, and
b) in the absence of successful infiltration, the result was a SUDS system that
collected surface water from the SSSI catchment and changed it from being
defuse ground water recharge of the SSSI, to a point source surface water
recharge into the SSSI, fundamentally altering the process by which the
hydrological regime that underpins the special interest of SSSI operates.
147 Mason proof Appendix 1 – letter of 29 August 2017.
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- The legal basis of the Habitats Assessment required
199. The approach to habitats assessment taken by the Court of Justice of the
European Union (CJEU) in Case C-322/17People over Wind v Coilete Teoranta
[2018] PTSR 1668 and as recently clarified in Case C-461/17 Holohan v An Bord
Pleanala [2018] (7.11.18) is the one to be followed. In Holohan the Court held
that for an appropriate assessment:
37 . ... all aspects which might affect [the nature conservation
objectives of the European site] must be identified and since the
assessment carried out must contain complete, precise and definitive
findings in that regard, it must be held that all the habitats and species
for which the site is protected must be catalogued. A failure, in that
assessment, to identify the entirety of the habitats and species for
which the site has been listed would be to disregard the
abovementioned requirements and, therefore, as observed, in essence,
by the Advocate General in point 31 of her Opinion, would not be
sufficient to dispel all reasonable scientific doubt as to the absence of
adverse effects on the integrity of the protected site (see, to that
effect, judgment of 26 April 2017, Commission v Germany, C-142/16,
EU:C:2017:301, paragraph 33).
40 … an ‘appropriate assessment’ must, on the one hand, catalogue
the entirety of habitat types and species for which a site is protected,
and, on the other, identify and examine both the implications of the
proposed project for the species present on that site, and for which
that site has not been listed, and the implications for habitat types and
species to be found outside the boundaries of that site, provided that
those implications are liable to affect the conservation objectives of the
site."
200. In light of the reasoning and analysis in People over Wind and Holohan,
APC/WRA submit that the appellants’ approach to assessment is incomplete and
inadequate. The evidence of the parties in opposition explained why it is
impossible to state that ‘no likely significant environmental effects will arise on
the protected site.
- The wider concerns for biodiversity
201. Concerns about the adverse effects on biodiversity must also be seen in the
wider context of significant species loss and the deterioration in nature and
wildlife in the UK. This was recently emphasised in the UK’s 6th National Report
to the Convention on Biological Diversity (Jan 2019), which explained that there
was insufficient progress in the UK for 14 out of 20 agreed Aichi targets set by
the International Convention on Biological Diversity.
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202. Consistent with the UK’s 6th National Report is the recent report on the
significant global decline on insect species and the implications of this148; with the
report noting that the most significant reason for species decline appears to be
habitat loss and conversion to intensive agriculture and urbanisation. The
Government’s 25-year plan requires urgent action to improve biodiversity; the
proposal will undermine this.
- Conclusion on biodiversity
203. In the light of the above submissions, it is impossible for the Secretary of
State to conclude that there will be no likely significant adverse environmental
effects from the proposal on any European site, or any other relevant site as
required by the Habitat Regulations 2017, having regard to the CJEU judgment in
Holohan. It is also clear from the above that the areas to be covered by the
appropriate assessment go beyond the areas suggested by the appellants and
that, having carried out an appropriate assessment, it is highly likely that §177 of
the NPPF would be engaged and that the presumption of sustainable
development would dis-apply for ecological and biodiversity reasons; as well as
the proposal being environmentally unacceptable and contrary to the principles of
sustainable development.
204. Moreover, as with the concerns over air pollution, the proposal fails to provide
any meaningful information on mitigation contrary to Art 5(1) of the EIA
Directive.
205. Set in the above context, the appellants’ approach to biodiversity and the
desire to further urbanise a critical rural site in South Devon is untenable. The
perceived need for housing must be seen in the context of biodiversity impacts in
and around the site but also against a backdrop of a much greater crisis in
biodiversity.
206. Moreover, the appellants’ persistent failure to provide up-to-date information
on biodiversity means that the Secretary of State cannot grant permission until
adequate information is provided. In the light of the above, the Secretary of
State will be acting unlawfully by granting permission.
Failure to assess impacts on climate change
207. The appellants’ ES failed entirely to consider climate change and the adverse
impacts of greenhouse gas emissions. They did this notwithstanding that the
Council had made it very clear in its scoping opinion of 27.11.15 that climate
change must form part of the ES and that: greenhouse gas emissions (GHG)
need to be assessed following IEMA149’s Climate Change and EIA Series150.
208. The IEMA guidance notes the following:
148 Sanchez-Bayo, F and Wyckhuys, K: Worldwide decline of the entomofauna: A review of its
drivers in Biological Conservation 232, pp. 8-27 (April 2019, Elsevier)
149 Institute of Environmental Management and Assessment.
150 CD26 Annex D.
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Whilst Strategic Environmental Assessment (SEA) and Sustainability
Appraisal (SA) can present a broader opportunity to manage GHG
emissions this does not absolve EIA from consideration of climate
change mitigation. The principles below focus on climate change
mitigation, but EIA practitioners must also consider adaptation, …
209. The IEMA guidance provides over-arching principles including:
• The GHG emissions from all projects will contribute to climate change;
the largest inter-related cumulative environmental effect.
• The consequences of a changing climate have the potential to lead to
significant environment effects on all topics in the EIA Directive – e.g.
Population, Fauna, Soil, etc.
• The UK has legally binding GHG reduction targets – EIA must therefore
give due consideration to how a project will contribute to the
achievement of these targets.
• GHG emissions have a combined environmental effect that is
approaching a scientifically defined environmental limit, as such any
GHG emissions or reductions from a project might be considered to be
significant.
• The EIA process should, at an early stage, influence the location and
design of projects to optimise GHG performance and limit likely
contribution to GHG emissions.
210. The IEMA guidance then provides further assessment principles which include:
• During scoping, climate change mitigation and adaptation issues and
opportunities should be considered alongside each other to ensure
integration in project design.
• The scope of GHG emissions must consider the relevant policy
framework (local to global) and should also review the relevant findings
in any associated SEA / SA.
• When assessing alternatives, consideration of the relative GHG
emissions performance of each option should be considered alongside a
range of other environmental criteria.
• Baseline considerations related to GHG emissions should refer to the
policy framework and also include the current situation and, where
possible, take account of the likely future baseline situation.
• Quantification of GHG emissions (e.g. carbon calculators) will not
always be necessary within EIA; however, where qualitative assessment
is used (e.g. emissions trends related to construction practices) it must
be robust, transparent and justifiable.
• The assessment should aim to consider whole life effects including, but
not limited to:
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o Embodied energy in the manufacture of materials used for the
development
o Emissions related to construction - from materials delivery to on-site
machinery
o Operational emissions related to the functioning of the development-
including appropriate off-site emissions.
o Decommissioning, where relevant.
• When evaluating significance, all new GHG emissions contribute to a
significant negative environmental effect; however, some projects will
replace existing development that have higher GHG profiles. The
significance of a project’s emissions should therefore be based on its
net GHG impact, which may be positive or negative.
• Where GHG emissions cannot be avoided, the EIA should aim to reduce
the residual significance of a project’s emissions at all stages - design,
construction, operation, etc.
• Where GHG emissions remain significant but cannot be further reduced
- having considered: financial, programme, operational, political and
societal constraints - approaches to compensate the project’s remaining
emissions should be considered. Without any analysis
211. The IEMA guidance is consistent with the approach of the EIA Directive. It is
clear, from a number of authoritative sources, that the impacts and effects of
GHG emissions both in construction and operations must be provided by
developers as part of the EIA process. Moreover, the failure by the appellants
and absence of any climate change analysis, despite the Council’s request, is
brought into focus by the UK Parliament declaring a climate emergency on
1.5.19151.
212. Finally, if there was the need for any further confirmation that climate change
and GHG emissions were significant impacts and effects that must be taken into
account, the Prime Minister announced on 12.6.19 that the Climate Change Act
2008 would be amended to provide to require net UK carbon emissions to be zero
by 2050. The Climate Change (Emissions Targets) Bill is now before Parliament
awaiting its second reading152.
213. This proposal and the appellants’ approach are clear examples of why it has
been necessary to declare a climate emergency. The proposal ignores the
legislative provisions requiring information on climate change and GHG
emissions. It ignores a formal notice in the form of a scoping opinion issued by
the Council and required under the EIA Regulations that expressly required
climate change assessment. It also ignores key guidance on what and how to
151 The Hansard Vol 659, no. 294, page 317 – Inquiry Doc 53 para 68.
152 See Inquiry Doc 53 para 70.
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provide relevant climate change information and the impacts and effects of GHG
emissions. Having been given a further opportunity in March 2019 to provide
information after the lack of relevant information had been pointed out, the
appellants again failed to provide the information.
214. As a consequence of the above, the appellants are acting contrary to Articles 2
and 3 of the EIA Directive 2011/92/EU in failing to provide environmental
information on climate change and GHG emissions that should … identify,
describe and assess in an appropriate manner, the direct and indirect significant
effects of a project … on, amongst other things, climate.
215. Without this information the Secretary of State is unable to assess or evaluate
this particular project in terms of climate change and, as a consequence, will act
unlawfully if permission is granted without this information.
Unsustainable development
216. The proposal cannot reasonably be regarded as being consistent or compatible
with the concept of sustainable development. As is clear above it is contrary to
key principles relating to land use and environmental decision-making and in
addition to have substantial adverse effects on air quality, biodiversity and
climate change it will have unacceptable adverse effects on socio-environmental
matters such as local health services, heritage, visual amenity etc.
- The concept of sustainable development
217. Paragraph 7 of the Framework 2019 sets out that sustainable development at
a very high level can be summarised in accordance UN General Assembly
Resolution 42/187 which provides that: …
The General Assembly,
Concerned about the accelerating deterioration of the human
environment and natural resources and the consequences of that
deterioration for economic and social development,
Believing that sustainable development, which implies meeting the
needs of the present without compromising the ability of future
generations to meet their own needs, should become a central guiding
principle of the United Nations, …
1. Welcomes the report of the World Commission on Environment and
Development entitled "Our Common Future"; …
4. Agrees further that an equitable sharing of the environmental costs
and benefits of economic development between and within countries
and between present and future generations is a key to achieving
sustainable development; …
7. Calls upon all Governments to ask their central and sectoral
economic agencies to ensure that their policies, programmes and
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budgets encourage sustainable development and to strengthen the role
of their environmental and natural resource agencies in advising and
assisting central and sectoral agencies in that task; …
218. There are then the interdependent economic, social and environmental
objectives in paragraph 8 of the Framework and the paragraph 11 presumption in
favour of sustainable development. Any suggested presumption does not engage
because:
a) the project does not accord with an up-to-date development plan; and
b) policies in the Framework to protect special areas i.e. European Site provide
a clear reason to refuse the proposal; and
c) the adverse impacts would significantly and demonstrably outweigh any
benefits (that may be considered to arise) when assessed against the
Policies in the Framework taken as a whole.
219. When the concept of sustainable development is properly and meaningfully
considered refusing permission and the non-engagement of the presumption is
clear. The correct understanding of the notion of sustainable development may
be unclear in the Framework; however, that it is a general principle in accordance
with the UN provisions is very clear from recent legislation and Government
policy153. Source: Our Common Future, also known as the Brundtland Report.
- Irrelevance of the LP Examination
220. The appellants focussed greatly on the LP Inspector’s comment at paragraph
75 of his decision that the NA3 allocation would be a sustainable urban extension.
This may have some weight if it was correct. However, the evidence presented
orally on behalf of the County Council in relation to transport was that very few
people would in fact walk to the town centre or, indeed, cycle. Indeed, there was
some discussion about how far people would walk to the nearest bus stop. The
concern for this site was, in part, due to the topography of the proposal.
221. The reality is that in the light of the evidence and, importantly, the lack of
evidence before the Inquiry as to any understanding at all as to mitigation for air
pollution, the absence of adverse effects on biodiversity, and no consideration of
climate change, the suggestion that the proposal before the Inquiry is sustainable
is meaningless. The Local Plan Examining Inspector’s comments must be seen in
this context. He would have been aware that an allocation in a local plan was
just that, an allocation. He would have known that what would be required for
any application for planning permission in the NA3 allocation was details relating
to the submission in accordance with legislation. This point was underlined by
the High Court in Abbotskerswell v Teignbridge DC [2014] EWHC 4166 in which
Mrs Justice Lang noted that:
In relation to specific sites, the Inspector gave careful consideration to
the provision for the protection of GHB and concluded that it was
153 Inquiry Doc 53 para 79.
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sufficient. He attached considerable weight to the fact that the
proposals were not objected to by Natural England. He accepted that
the requirement for a bespoke GHB mitigation plan to be approved
before planning permission could be granted for a specific project was
an appropriate safeguard.
And at paragraph 72:
Additionally, the Local Plan provided for mandatory site-specific
bespoke mitigation plans, as recommended in the Habitats Regulations
Assessment. These would necessarily require an impact assessment. In
my view, the Council was entitled to conclude that bespoke GHB
mitigation plans in relation to specific development sites would be both
more appropriate and effective if undertaken at planning permission
stage, when the scope and details of the project would be known to the
Council and the developer. The Local Plan was a high-level strategic
document, setting out broad allocation policies, but without project
detail. (CD14a)
222. In the Court of Appeal in the same case (Abbotskerswell PC v TDC [2015]
EWCA (C1/2015/0076)), Lord Justice Underhill reiterated the point:
So far as the settlement level plans are concerned, the absence of a
specific requirement in the Plan that these should be completed before
any planning application is determined does not compromise the
protection of the site. It remains a requirement of the grant of
planning permission that the developer can demonstrate that there will
be no adverse effect on the site either as a result of his own
development or (importantly) in combination with other plans or
projects: see the quote from the policy at para. 6 above. If he is
unable to do so because that is impossible without a settlement-level
plan of the type recommended in the supplementary report, then
permission must be refused. (CD14b)
223. The appellants suggested during the Inquiry that the Strategic Environmental
Assessment/Sustainability Appraisal (SEA/SA) covered matters such as air quality
impacts but failed to produce this or provide any relevant extracts. Rule 6 party
asked for the definitive SEA/SA to be provided explaining that they could not
locate the relevant parts of the SEA/SA for the LP let alone understand how it
related to the proposed development. The appellants explained to the Inquiry
that the SEA/SA was not straightforward and that it ran to 1,000 pages with
various amendments etc. Neither relevant extracts or a definitive perhaps
consolidated SEA/SA was produced by the appellants.
224. What is clear is that without any meaningful understanding of the SEA/SA or
clear reference to it the Secretary of State has absolutely no idea what it said.
APC/WRA have been unable to make head or tail of the SEA/SA and submit that
the likelihood is that, in common with most SEA/SAs, it is simply a tick box style
exercise that generally suggests that addressing environmental concerns will be a
good thing but that otherwise has no real application to specific projects or
https://www.gov.uk/planning-inspectorate Page 53
development. The appellants are unable to rely upon an assertion that there has
been any meaningful assessment for the proposal as part of an SEA/SA. In
contrast, the EIA Directive requires the detail and clarity of environmental
concerns to be expressed clearly and simply in non-technical language,
recognising the limited value of a strategic assessment to a particular project or
development.
225. Rule 6 party submit that SEA deals with matters on a strategic, general level
but properly recognises that environmental concerns will need to be considered
at the project level. Importantly, unless the appellants can point to specific
aspects of the SEA/SA that address the environmental concerns arising from this
proposal then it is not relevant. Given that the technical appendices of the ES fail
even to quantify mitigation measures (see e.g. the discussion above on air
pollution LES), the lack of biodiversity detail, the lack of a detailed Masterplan
etc. the Secretary of State should place no reliance upon the SEA/SA having
addressed critical environmental and sustainability issues.
- Inadequate assessment of socio-environmental factors
226. Chapter 6 of the appellants’ ES of June 2017 was called: socio-economic
impacts. The chapter is superficial in nature noting that there is no cumulative
effect. On the critical area of healthcare provision, concerns were raised by Torbay
and South Devon NHS Foundation Trust and local GPs that the proposal will have a
detrimental impact on the healthcare provider’s ability to deliver services. The
evidence of Dr Paul Melling said small amounts of (existing) capacity will soon be
overrun. Primary carers were not involved in the development of the Local
Plan154.
227. The consequences of the funding gap for the NHS will be significant and there
will be an increase pressure on local services.
228. The appellants view on the adverse impacts was not that the significant effects
would not arise but that they are not be responsible for e.g. GPs not engaging in
the planning process earlier. Rule 6 Party say that such a view may or may not be
correct, but the Secretary of State needs to be aware that those significant adverse
effects will arise, and the local community should not pay the price and suffer the
consequences of an unprepared under-resources proposal. The consequence is
that the proposal will place increased pressure on health services and will have
significant adverse socio, environmental and economic effects: as such it is
unsustainable, the appellants’ denial of responsibility of this does not change this.
- Landscape and visual impacts
229. Chapter 7 on landscape and visual effects notes that the application has a
moderate adverse effect. In fact, it will be a significant adverse effect and that this
much was clear from the site visit.
154 Inquiry Doc 11.
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230. In terms of landscape Dr Page noted the material gaps in the ES documents. He
noted in particular that:
Remarkably despite their presence in the area surrounding the
application site, the EIA fails to consider any national and regional
designations of sites of Geological Heritage Importance, including the
fossil-rich sites of Devonian limestones at Wolborough Quarry and the
Field near Court Grange County Geological Sites and Ransleigh Quarry,
East Ogwell Quarry and Lemon Valley Woods SSSIs, as well as the
geological importance of the Conitor Cave sites and any interconnected
karstic systems. In addition, historical excavations in the Wolborough
Facies of the Upper Greensand, as described by Sellwood et al. 1984
(Geology of the Country around Newton Abbot, Mem. Geol. Surv.),
revealed a regionally unique development of fossiliferous limestone in
the Upper Greensand 400 m south of Wolborough Church (p.122).
Aller Sand Pit SSSI, also nearby, exposed Upper Greensand, but with
less scientifically important features. The EIA fails to assess the
potential national and regional value of outcrops of these rocks within
the proposed development area and provide any necessary mitigation
against loss or damage.
231. Dr Page also outlined what he understood would be the key geological features
of the proposed development site, which did not appear to have been considered by
the Appellants; Appendix 9.3 called Geo-physical Survey, was an archaeological
survey. Dr Page’s evidence on geology and landscape was generally unchallenged,
although there was some discussion on hydrogeology (discussed below).
- Heritage
232. Historic England made detailed submissions objecting to the proposal. Rule 6
Party agree with the conclusions of Historic England and consider that for
heritage reasons the application should be refused. Moreover, the lack of
information provided on heritage is a breach of Article 5(1) of the EIA Directive,
due to the failure of the appellants in providing adequate environmental
information.
- Water resources, flood risk and drainage
233. As noted in Section B above, the information on water resources, flood risk and
drainage failed to consider the adverse effects of water discharges on the
Wolborough Fen SSSI. The cumulation of impacts and effects of water resources
and flooding is also a concern, something that has to have regard to the complexity
of the landscape.
234. Dr Page also raised concerns about hydrogeology and that there was
inadequate information provided by the appellants. In the Appendix to Dr Page’s
proof he notes:
• Perhaps one of the most revealing comments in the EIA concern the
potential hydrological effects on Wolborough Fen SSSI of the
development, e.g. “any change of land use would affect the processes
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of groundwater recharge and surface runoff and contamination risks”
(section 8.5.75); which would affect “wetland communities considered
rare in south-west England” (8.4.3, p.96); and that the “The fen habitat
is considered to be under threat…from runoff” (8.4.3, p.97); including
“With an increase of impermeable surfaces, there is less time and area
for water to infiltrate into the ground and recharge groundwater. For
the catchment of the Fen, this will be a negative impact as “the most
important source of water to the site is groundwater from the Aller
Gravels and possibly the underlying Upper Greensand”” (11.5.9).
Section 11.5.4 and elsewhere also refer to risks of groundwater
contamination both during construction and after construction (i.e.
when housing is occupied).
• Remarkably, however, despite these statements the EIA apparently
ignores such issues in sections 14.4.11-13.4.13 etc where working
these formations (Aller Gravels, Upper Greensand) as a mineral
resource is proposed, which would of course greatly exacerbate the
problem by removing the crucial aquifer system.
• In addition, the potential stability of slopes developed on
unconsolidated sediments such as the Aller Gravels and Upper
Greensand is not considered. The ‘Upper Greensand’, in particular, is
notorious in East Devon for its ability to liquefy and develop landslip
systems when over saturated – hence its presence in the slope here
should be regarded as a potential stability risk
• It is essential therefore that before any outline or detailed planning
consent is given by TDC that a detailed independent hydrological impact
assessment as well as a full geotechnical survey is carried out, including
to the satisfaction of the Environment Agency and Natural England, who
remain responsible for safeguarding the national nature conservation
importance of Wolborough Fen SSSI, as well and the community
amenity value of Decoy Country Park and more general hydrological
and water supply issues.
• Without adequate modification and mitigation, it is likely that the
proposed development would lead to the serious damage and even
possible loss of the nationally important nature conservation interests of
Wolborough Fen SSSI, as well as other key habitats and species across
the area.
235. It was put to Dr Page in XX that consideration of the hydrological impacts of
the proposal could be required by conditions and he noted that, in principle, it
could. However, the difficulty for the Secretary of State is that in slicing off the
consideration of likely significant environmental impacts and effects of the
proposal on hydrogeology to a post-decision determination would mean that the
Secretary of State has no way of being able to assess the adverse environmental
effects prior to granting permission. As such, the Secretary of State would be
acting unlawfully by granting consent without considering the likely significant
adverse environmental effects on the locality including a SSSI. Such an
approach would be contrary to Article 2(1) of the EIA Directive and Reg 3(4) of
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the EIA Regulations 2011. The environmental information, or lack of it, has been
raised as a concern at the Inquiry and the appellants have made no attempt to
provide this information.
- No real housing need
236. Peter Finch, the Chair of CPRE Devon presented evidence orally and in written
submissions155. In particular he noted that the recent housing figures show that
the targets set in the current Teignbridge Local Plan applying the Government`s
standard methodology:
… greatly exceed the real housing needs of Teignbridge and Devon
residents. Also, housing delivery in Teignbridge is exceeding the
Council`s target. For instance, in 2017-2018, 726 new dwellings were
added to the housing stock (MHCLG statistics). Therefore, there is no
pressing need to approve development on this site. Our local
circumstances should be taken into account, as ORS have, in assessing
our future housing need in Teignbridge.
237. The Council explained to the Inquiry that the NA3 Allocation is currently under
review by the Council and the question of need for housing in this locality is likely
to form part of that review. It is not known when the NA3 allocation review will
conclude.
- Conclusion on unsustainable development
238. There is nothing in the proposal to suggest that the proposal can reasonably
be regarded as aligning to the correct concept of sustainable development. That
the land is allocated for development in the LP does not assist. The NA3
allocation itself was contentious and Rule 6 party’s position is that, while it may
have been lawful, it was wholly inappropriate for the locality. Some six years on
from the allocation it is now clear that it is unwanted by the community and
should certainly not be approved without the range of significant adverse impacts
of the proposal being taken into account. The appellants appear to rely upon the
allocation as in some way seeking to rubber-stamp through the proposal;
whatever the cost to the community. This approach would be unlawful.
239. In relation to socio-economic factors (Section 6 of the ES) the appellants failed
to consider significant adverse effects such as healthcare provision. On landscape
and visual matters, the appellants simply repeated their inadequate analysis relying
upon the need to deliver housing. The need is disputed, but, in any event, it still
requires meaningful assessment so that the Secretary of State can balance the
adverse effects on landscape with purported benefits.
240. The reference in ES Addendum April 2019 to water simply repeated the
incorrect approach of the earlier information relying upon unknown mitigation
measures and failing to explain or describe the cumulation of effects from this
proposal along with the other proposals.
155 Inquiry Doc 12.
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241. In conclusion, because the proposal does not fit the definition or concept of
sustainable development as relied upon in the Framework and legislation, the
proposal should be refused.
- Inadequate environmental information
242. There is concern that until up to date detailed environmental, archaeological
and landscape assessments have been completed; the extent of the information
provided in the environmental statement (ES) is wholly inadequate with no
meaningful evaluation of cumulative effects. It fails to consider the operational
phases of impacts along with most, if not all, of the indirect, secondary and
cumulative impacts. The text above is evidence that the appellants have failed to
provide adequate environmental information they are required to provide under
the Directive156.
243. The Secretary of State has no way of understanding how the environmental
impacts of the proposal, in cumulation with other projects, will affect the local
community. Yet these cumulative effects are required to be provided under Art 5
and Annex IV of the EIA Directive. As a consequence, the appellants have failed to
comply with their obligations under the EIA Directive to provide the information.
244. Not only has there been a comprehensive failure to consider the cumulative
effects of the operational aspects of the proposal and so not comply with the
Directive, there has also been an express approach to slice off a number of
environmental effects for assessment at a later stage: either at the reserved
matters stage or in conditions, or both. While slicing off certain matters for later
environmental assessment or confining consideration to a red-line boundary may
be acceptable in domestic planning policy (by consideration at reserved matters), it
offends the requirements of the EIA Directive, that the environmental effects of the
project must be considered at the earliest possible stage.
245. Further, the appellants’ approach to EIA can reasonably be described as a
paper chase with significant gaps and material errors and so fails to meet the
obligations of the Directive.
246. The EIA Directive is clear that all relevant environmental information must be
provided at the earliest possible stage. It is then essential that critical
environmental aspects and effects are understood at this stage. Attempting to
evaluate and assess any number of reserved matters applications over a period
of anything between 10-12 years would be virtually impossible and would
amount to project splitting in terms of EIA.
247. It is impossible to understand the environmental impacts and effects of this
project in the locality when the information supposed to provide that information is
wholly inadequate. This is not a technical concern arguing about how certain data
may apply, it is that there are fundamental gaps in assessment and analysis. It is
for this reason that the Council was entirely right to conclude that it could not
determine the project.
156 Inquiry Doc 53 at paras 93-105 sets out in more detail the extent of the information gaps
identified and the assessment of the evidence provided including cumulative effects.
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248. In the light of the above, the Secretary of State does not have adequate
environmental information, including any understanding of the cumulative effects
that this proposal may have in the locality in combination with other projects.
- The absence of an adequate masterplan
249. The Illustrative Masterplan provided by the appellants is inadequate and fails
to provide sufficient information for the proposal to be understood. Paragraph:
032 Reference ID: 26-032-20140306 of the National Planning Policy Guidance
provides that:
Masterplans can set out the strategy for a new development including
its general layout and scale and other aspects that may need
consideration. The process of developing masterplans will include
testing out options and considering the most important parameters for
an area such as the mix of uses, requirement for open space or
transport infrastructure, the amount and scale of buildings, and the
quality of buildings.
250. The appellants’ Illustrative Masterplan fails to achieve this. It provides no
strategy for the proposal nor does it provide key aspects of the proposal that
need determination157.
251. The appellants’ approach that any concerns can be dealt with by condition
prior to determination of reserved matters is inadequate. It fails to provide for a
sufficient level of scrutiny and, as with many other aspects of the proposal, it
breaches Article 2(1) of the EIA Directive that all environmental effects should be
assessed before development consent is granted.
252. In summary, the concern focused on the Masterplan failing to meet the
standards required by the Council’s Technical Note on master planning, that the
‘masterplan’ provided only covered ¾ of the NA3 allocation158.
Conclusion
253. In summary the appeal should be dismissed, and planning permission refused
for the following reasons:
i. will cause an unacceptable impact on air pollution in the locality and will result
in a deterioration in air quality in the locality in the short, medium and long
term without sufficient mitigation measures in place;
ii. is likely to cause an unacceptable impact on biodiversity, including on the GHB,
a protected species; in circumstances where there is insufficient information
available for the Secretary of State to undertake a habitats risk assessment
that will conclude there is No Likely Significant Effect on a protected habitat;
157 Watts proof Para 3 and page 52 Appendix CW1.
158 Inquiry Doc 53 paras 116-119 give more detail.
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iii. fails to consider whether the impacts on climate change contrary to law and
policy;
iv. is contrary to key principles relating to land use and environmental decision-
making and in particular the concept of sustainable development because it is
likely to have unacceptable adverse effects on the locality including e.g. on
local health services, heritage etc;
v. cannot be determined until up-to-date detailed environmental, archaeological
and landscape assessments have been completed, the information provided in
the ES continues to be wholly inadequate; and
vi. fails to be supported by an adequate Masterplan contrary to provisions in the
LP.
254. The Rule 6 Party also offered further comments on the up-dated Bat Survey
submitted by the Council following the close of the Inquiry159. The promoted
position of the Rule 6 Party expressed above does not alter, that being that even
with the up-dated survey results the evidence still affords insufficient confidence
as to the ability of the scheme to avoid adverse impacts on the SAC. They do not
accept it can be dealt with by condition.
255. In respect of the Housing Delivery Test Results 2019 they maintained their
position of there being no pressing need for new housing in the district and
particularly on the appeal site and that the contention that the proposal is
sustainable development is wrong160.
256. Inquiry Doc 64 also sets out the Rule 6 Party position on the resolution of the
Council to grant planning permission for the Langford Bridge scheme. They claim
material errors in law in the Council’s consideration of the scheme.
Pertinent Statutory Undertakers comments
Historic England (HE)161
257. HE’s interest lies in the Grade I listed Church St Mary the Virgin and the
significance it derives from its setting. HE acknowledge that the site is allocated
in the LP but have been consistent in its approach at both the LP examination
stage and the extant development management process, that due to the
sensitivities of the site there is a need for a robust understanding of the
significance of the heritage asset contribution made by its setting.
258. Insufficient information has been provided in respect of assessing the
significance of this highly designated heritage asset and the contribution made by
its setting to that significance, and an adequate options appraisal to establish the
road access point. The concern is that due to the close proximity of the allocated
site to the Church inevitable harm caused by the proposed development could
equate to substantial harm if an ill-conceived scheme is brought forward that
does not take into consideration design and the contribution made by the setting
of the Church to its significance.
159 Inquiry Doc 58 (Bat survey 2019) & Rule 6 party response Inquiry Doc 60.
160 Inquiry Doc 66.
161 Inquiry Doc 19.
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259. The decision-maker does not have sufficient information to make the required
assessment on impact in accordance with the statutory duty162 and the
Framework.
260. The proposed access point (for consideration at this stage) would create a
significant urban intrusion into a sensitive part of the Church’s setting and results
in the imposition of a major development constraint on the site. There is no
indication of how the historic environment has been taken into account in respect
of the location of the access.
261. The potential substantial harm to the listed Church can only be accepted if the
decision maker is satisfied that there is clear and convincing justification and that
any public benefits derived from the development decisively outweighs that
harm. The appellants have failed to demonstrate that any inevitable harm has
been justified and this issue can not be resolved through reserved matters.
Natural England (NE)163
262. LP policies advise that Wolborough Fen SSSI should be maintained and
enhanced. There is an outstanding objection to the proposal relating to potential
impacts upon the SSSI. Development within the SSSI hydrological catchment
poses a risk although the hydrological catchment is small and coincides with only
part of the NA3 allocation. It is groundwater rather than surface water which is
the most important source to maintain the ecohydrological features of the SSSI.
263. NE advised that to prevent and avoid damage to the SSSI resulting from the
development within the hydrological catchment of the SSSI a reliable evidence
base should be developed in advance of development proposals within the
catchment area. NE has accepted that a planning condition could be attached to
any outline planning permission requiring that development within the SSSI
hydrological catchment does not come forward until appropriate surveys have
been completed, and appropriate construction, and operational drainage solutions
identified.
264. In respect of the impact on the integrity of the SAC, in the absence of any up
to date survey of GHBs there would be insufficient information on which to
complete an appropriate assessment that could conclude to the required degree
of certainty that there would be no adverse effect on the integrity of the site.
This statement was made prior to the submission of the GHB Survey 2019.
Third parties who addressed the Inquiry
Dr Paul Melling164
265. Dr Melling spoke on behalf of the Newton Abbot Federation of GP Practices. It
is central to providing improved healthcare to the community population in the
community setting to understand population growth, potential demographic
change and health challenges. There are significant challenges facing the local
health care infrastructure through an ageing population living longer, population
162 Section 66 (1) of the Planning (Listed Building and Conservation Area) Act 1990.
163 Letter from Natural England dated 8 February 2019.
164 Inquiry Doc 11.
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growth, the shift of many aspects of healthcare from a hospital to a community
setting and the increase in available interventions.
266. The risk of practice failure is real and local. If primary care fails, the stresses in
the rest of the health and social care systems are immense. The Federation
would like to work with Planners and developers in a pro-active way, rather than
facing these challenges in an unprepared way.
267. The proposed development would have a significant impact on the provision of
health care locally. Albeit that practices have not closed their patient lists this
does not imply that all is well. The Federation has not been invited for their input
into any assessment in respect of this proposal in terms of health care
infrastructure.
Peter Finch CPRE Devon165
268. Historic environment - CPRE agree with the evidence of HE in respect of the
impact of the proposal at this scale on the significance of the Grade I listed
Church causing substantial harm to its setting, eroding its rural isolation including
the loss of trees. Along with All Saints Highweek, St Mary Wolborough flank the
head of the Teign estuary. The conversion of the adjacent barns and the
allocation of a play area are the only mitigating measures which are proposed
and will not mitigate the substantial harm identified. The assessment of HE
should be given great weight.
269. Natural environment – there is no up to date survey of bat movements.
Proposal will add to the cumulative impact on the GHBs from other major
developments on the strategic flyways in the SAC.
270. Dark corridors and bat flyways are vital and must only be decided upon based
on evidence beyond all reasonable scientific doubt. Further the SSSI would be
affected by pollutants likely to run off or leach from the development.
271. Housing needs – the Governments standard methodology is not based on the
latest 2016 household projections from the ONS but uses the 2014 figures which
are out of date. The formula is flawed and takes no account of local
circumstances. The actual local need (ORS report) is considerably less than that
of the LP target or the MHCLG standard methodology target. Local delivery also
exceeds the LP target therefore there is no pressing need to allow this appeal.
272. The proposal will not deliver a sustainable urban extension to Newton Abbot
and risks significant harm to nationally and internationally protected biodiversity
and cause significant harm to the historic landscape.
Mr Sampson166
273. There is no fit for purpose Masterplan in place. The DPD will be the Masterplan
which is the first requirement of LP Policy NA3. So, until proper consultation has
been carried out on DPD this proposal should be dismissed.
274. The environmental concerns around LP Policy NA3 were tested through judicial
review and it is clear that until bat mitigation surveys and other environmental
165 Inquiry Doc 12.
166 Inquiry Doc 13.
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assessments have been carried out permission should not be granted. There
should be a high level of certainty that there will be no adverse effect on the
integrity of the SAC.
275. A relief road for Newton Abbot is desperately required and is a key part of LP
Policy NA3. Yet the proposal only proposed to provide a small spine road
terminating in a single lane traffic light. The inadequacies of the scheme can not
be left to the reserved matters stage.
276. There is already a plentiful supply of housing and future sites and the LP is
being reviewed. We should wait for the DPD to be produced before proceeding.
Mr Shantry167
277. This submission centres on a fierce opposition to the LP Policy NA3 allocation
itself. There are valid objections on ecological grounds, negative effects on
hydrology of the SSSI, destroying the setting of the listed Church, protection of
the GHBs and the effect on local congestion due to the access road not being
agreed.
278. No more homes should be agreed until a full review of the LP is undertaken in
April 2021. The top down pressure to approve higher housing numbers on
greenfield sites is totally in opposition to the localism agenda and the wishes of
the local population.
Mr Daws168
279. It has not been demonstrated that the proposed plans are in the best interests
of the Town, the residents or the wildlife and environment in and around LP
Policy NA3 area. A range of environmental concerns have to be satisfied with a
high level of certainty before permission is granted. This is a flawed proposal
which for the sake of future generations should be dismissed.
Mr John – representing Mr Glynn (Langford Bridge Scheme)169
280. There is no objection to the wider principle of development and ambitions for
the area. The policy and objectives for growth within the LP are recognised
including seeking to facilitate improvements to congestion and air quality.
281. The proposal does represent a large development with another large scheme
also being progressed in parallel. LP policy and the draft Masterplan make it
clear that the delivery of a comprehensive highways solution is critical as part of
wider objectives to reduce congestion and air quality. It is unclear that the
submitted evidence demonstrates that there will be no harm with adequacy of
works and delivery of promised benefits.
282. There is concern that the appeal scheme underestimates traffic impacts, there
are no details on bridge improvements or their delivery and that the proposed
Spine Road alignment deviates from the original rationale of providing a link to
reduce congestion.
167 Inquiry Doc 14.
168 Inquiry Doc 15.
169 Inquiry Doc 17.
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283. In the circumstances of the early stage of the Langford Bridge scheme and the
evolution of the Masterplan it is premature to allow the appeal in the context of
highway impacts not having been thoroughly considered to be confident in no
resultant harm.
Mr Martyn Planning Officer Newton Abbot and District Civic Society170
284. The concerns of the Civic Society centre on matters of heritage and landscape
character. These matters are dealt with by others and rather than repeat
evidence the Society relies on that evidence in opposition. They do summarise
the history of Wolborough Barton in their Inquiry Statement171 to give a better
awareness of what is sought to be replaced by the proposed housing and other
works. The following paragraph is the conclusion of that evidence which should
be read in full at Inquiry Doc 18.
285. For some 1500 years the site of the appeal site has served the purpose of food
production cared for by generations of farmers many of whom lie buried in the
nearby churchyard of St Mary the Virgin. The land has been improved over the
years with better buildings and methods of husbandry and agriculture. What is
now proposed is more a destruction than development and should be strongly
resisted.
Mr Collman172
286. LP Policy NA3 sets out that the development would not proceed until there is
an assurance that GHBs will be protected. No assurance that encircling a habitat
with houses will not affect the Bats can be given. Also, it cannot be ascertained
that the proposal will not adversely affect the integrity of the European site. The
Bats frequent the appeal area and fly regularly between it and the SAC. Varying
weather conditions can influence which particular parts of Devon are chosen by
GHBs flying and foraging beyond their SAC. The normal foraging range is a
human construct that ignores records of GHBs miles from the SAC roosts. The
importance of satellite roosts such as that at Conitor Copse close to the appeal
site is still not known. The flight paths, strategic or otherwise of the GHBs are
likely to be significantly modified or curtailed by a housing development with all
the residential and traffic-light pollution it would bring.
287. The Wolborough Fen SSSI includes wetland communities rare in the south-
west of England. The proposal represents habitat degradation and the increased
footfall from recreational use would be hugely increased. Increased dog and cat
population from the development would impact upon local fauna.
288. Even taking into account any SUDS storm rainfall would not be coped with.
The effectiveness of the SUDS would be difficult to predict due to the geology of
the area, one of sand and gravel interspersed with clay. The concern is that an
inadequate system would ruin the SSSI.
289. Only the removal of LP Policy NA3 can give Wolborough Fen SSSI a reasonable
chance of survival.
170 Inquiry Doc 18.
171 Inquiry Doc 18.
172 Inquiry Doc 22.
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Conditions
290. In the case that the SofS is minded to allow the appeal a schedule of
conditions was submitted by the parties at the Inquiry173. Following discussion at
the Inquiry some conditions have been amended and amalgamated for clarity,
precision, elimination of duplication, and taking into account guidance in this
regard. The conditions are set out at Annex A in respect of both the full and
outline proposals.
291. Only conditions which are formally required to be discharged prior to works
commencing on site have been promoted as pre-commencement conditions, the
terms of which the appellants are in agreement with. These are imposed as they
involve details to be approved for the arrangements of the work on site or
matters that affect the layout and position of development. These details are
required to be submitted and approved by the local planning authority prior to
commencement of development.
Full planning permission
292. In summary, a standard condition is required on the timing of commencement
of development. Confirmation of the approved plans is needed to define the site
and is reasonable and necessary for the avoidance of doubt and in the interests
of proper planning.
293. Conditions relating to the provision of sustainable surface and ground water
drainage as well as foul water disposal are deemed necessary to ensure adequate
arrangements are in place, particularly in relation to flooding and in the interests
of environmental impact.
294. In the interests of securing a satisfactory external appearance and in the
interests of the character and appearance of the traditional farm buildings details
of the following are necessary to be submitted and approved – details of windows
and doors, roofing materials, stone works, external finish of the damp proof
course, hard-surfacing materials, hard and soft landscaping works, internal
highway details, finished floor levels, finish of external timbers, external
materials, external pipe work, aerials etc, sectional drawings of fenestration etc,
refuse bins both residential and commercial.
295. Limitations on external lighting are necessary to minimise visual impacts on
the environment.
296. The Construction Environmental Management Plan is necessary to ensure that
the amenity of occupiers of surrounding premises is not adversely affected by
dust, noise and to most efficiently route construction traffic to minimise impacts
on highway safety and the free flow of traffic as well as taking into account the
locations of the AQMAs.
297. Due to the importance of existing hedgerows in ecological terms a condition to
protect them during construction is required.
173 Most of which had been agreed between the parties – Inquiry Doc 41.
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298. The locality has been identified as having some possible archaeological
interest. Therefore, a condition requiring a programme of investigation is
justified.
299. The sites current use for agricultural purposes warrant some investigation into
any possible contamination.
300. In the interests of the special ecological character of the environs of the site an
ecological Mitigation Strategy is justified to safeguard the ecological well-being of
the locality.
Outline planning permission
301. There may be some repetition in respect of the justification for the conditions
in the outline proposal from that of the full one, but for clarity the justification
has been repeated. In addition, some justification has been set out in the
Inspector’s reasons which follows.
302. Standard conditions are required on the approval of the reserved matters and
on the commencement of development. Further conditions are required to
ensure that the submission of reserved matters and later details comply with the
considerations/parameters taken into account in the approval of the outline
permission.
303. In the interest of clarity, the precise matters permitted by the planning
permission is set out. Confirmation of the approved plans is needed to define the
site and is reasonable and necessary for the avoidance of doubt and in the
interests of proper planning.
304. Due to the size and extent of the development site the submission of a
phasing plan is required to ensure the manageability of both the agreement of
the reserved matters proposals and their implementation.
305. To secure a consistency in the high quality of the design of development
across the various phases which may involve a number of developers, the
submission of a Design Code, including one for custom-built housing is justified.
306. Due to the relationship of the development site with the South Hams SAC and
more specifically the local Greater Horseshoe Bats population, care is required to
secure the necessary mitigation for the long-term well-being of the Bats. This
shall include agreed landscape and ecological works and lighting strategy.
307. The proximity of the Newton Abbot and Kingskerswell AQMA and the extent of
the development justifies the agreement of a low emissions strategy for
mitigating air quality impacts.
308. Conditions relating to the provision of sustainable surface and ground water
drainage (SUDS) as well as foul water disposal are deemed necessary to ensure
adequate arrangements are in place, particularly in relation to flooding and in the
interests of environmental impact. This is particularly important due to the
proximity of Wolborough Fen SSSI.
309. For the avoidance of doubt and in the interest of air quality management and
to secure improved strategic transport linkages in the Town a condition on the
delivery of the Spine Road is justified.
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310. The Construction Environmental Management Plan is necessary to ensure that
the amenity of occupiers of surrounding premises is not adversely affected by
dust, noise and to most efficiently route construction traffic to minimise impacts
on highway safety and the free flow of traffic as well as taking into account the
locations of the AQMAs and air quality. The Ecological Construction Method
Statement would deal with how the construction phase would be reconciled with
the ecological sensitives of the development site.
311. Full details of highway layout and associated design details are required to be
submitted as part of reserved matters. This should take into account the terms
of the agreed Design Code.
312. Due to the importance of existing hedgerows in ecological terms a condition to
protect them during construction is required. Similarly, a condition identifying
the trees to be retained and their means of protection during construction is also
necessary.
313. The locality has been identified as having some possible archaeological
interest. Therefore, a condition requiring a programme of investigation is
justified.
314. The sites current use for agricultural purposes warrant some investigation into
any possible contamination.
315. To ensure the well-being of the Wolborough Fen SSSI a condition requiring
that details of any development within the hydrological catchment area of the
Fen be submitted to ensure the integrity of the Fen is maintained.
316. To ensure commercial units have adequate loading and unloading facilities
available to them details shall need to be submitted for agreement. This is in the
interest of highway safety and to secure convenient and appropriate facilities for
business users.
317. Conditions relating to ensuring the improvements to the Ogwell Roundabout
are undertaken and completed at appropriate stages in the development are
imposed in the interests of highway safety and traffic management.
318. For the avoidance of doubt and to secure the various non-residential uses to
those which have been considered, a condition clarifying those uses and the
various associated floor space is justified.
319. The delivery of the Community Building, the retail offer and the school site are
important parts of the social benefits of the proposal and so conditions securing
that timely delivery is justified.
320. The development site presents a number of design challenges in design terms
due to its topography. A condition requiring details of finished floor levels and
ridge heights is necessary to ensure a properly conceived design strategy in this
regard is settled upon and it is clear at what levels buildings are to be
constructed and the resultant visual impact.
Obligations
321. An obligation was sought by Torbay and South Devon NHS Foundation Trust
and what follows are the cases for each party in this regard, and then Inspector
reasons solely on this topic. The Council did not support the case of the NHSFT.
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The Rule 6 Party, whilst offering some endorsement of the NHSFT position, did
not offer any substantive evidence in this regard.
Torbay and South Devon NHS Foundation Trust (NHSFT) – case for S106 obligation174
322. The NHSFT are seeking £1,070,416 as a S106 contribution to adequately
mitigate the impact of the development on the health of the local population. LP
Policy S1 sets out that impacts from existing or committed developments on
health of occupants or users of the proposed development is a material policy
consideration. In addition, LP Policy S14, which identifies Newton Abbot as being
at the centre for South Devon as part of the Heart of Teignbridge, identifies the
support of existing health services and future expansion of facilities or creation of
new facilities to meet the needs of the population as being sought by the LP.
323. In simple terms, there are four stages to the NHSFT’s argument:
I. The development brings new people into the area;
II. New people present at NHS hospitals seeking treatment, which cannot
be denied;
III. Providing that treatment costs the Trust money;
IV. The Trust is not funded for that care until at least 18 months after the
population has increased and therefore it should be funded by the
developer in order that the general standard of the health service does
not suffer as a result of the population increase. Without mitigation, the
impact that this development creates has a long-term knock-on effect.
324. There can be no doubt that new people will use NHS services from the moment
they occupy the development. The Trust is the principal provider of NHS services
and has an obligation to provide the vast majority of the increased services that
will be used by the residents of this development. It is a condition of the Trust’s
licence as a Foundation Trust to provide a list of mandatory services to all-
comers and without restriction. The costs of more staffing, drugs and other
consumables (i.e. revenue support, not capital) begin as soon as people take up
residence.
325. In the longer term, funding to the local health systems will increase as a result
of the increasing population. However, in the short term, there is no additional
funding to accommodate additional cost. Without such funding, it will provide a
lesser or substandard service. The Trust’s hospitals are already at full capacity.
With unfunded demand for services, waiting times will increase and this will
affect the overall health of the population of the development and the existing
community which in turn will have a knock-on effect on social, health and
wellbeing of the population.
326. The NHSFT is in an invidious position in that the Trust has waiting time targets
(eg a four hour waiting time target for a person to be seen at A&E). If the Trust
fails to meet its targets, it is penalised by withdrawal of its Sustainability and
174 Inquiry Doc 54 – includes rebuttal evidence of Paul Cooper and the response to the advice
note of David Lock QC and the statement of the Council
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Transformation Fund (now called PSF Provider Sustainability Fund) and it may
not receive additional income through the Commissioning for Quality and
Innovation payment framework. Such penalties would further affect the standard
of care that can be provided. It is noted that the Council175 has argued that the
funding is not necessary because the services would be provided in any event.
However, a lesser or substandard service still means that the development will
have an unacceptable impact on the health of the population, which would be
contrary to the focus on healthy communities in the Framework and in LP policy.
327. At a national level, funding is allocated to the Department of Health through a
process of negotiation with Her Majesty’s Treasury. There is no direct reflection
of population movement – funding is more related to affordability, delivery of
national standards, and politically determined cost drivers such as pay awards.
328. The allocation for any given financial year (1st April to 31st March) is
calculated as follows:
• Baseline from the previous year; plus
• Growth – incremental allocation reflecting the overall increase in funding
agreed with HMT; plus, or minus. ‘Growth’ does not mean population
growth. ‘Growth’ is essentially politically driven e.g. an announcement that
the NHS will be given £x more in the Budget,
• Adjustment to growth depending on whether the resultant allocation is
above or below a target allocation.
329. In 2019/20 the allocation to South Devon Trust Clinical Commissioning Group
(CCG) was uplifted on the previous year by 5.48% being ‘average growth’. That
growth allocation is broadly intended to uplift funding to accommodate the
increasing costs of delivering healthcare, including inflation, growth in demand
for certain medical technologies etc. The target allocation is calculated with
reference to population, age and the needs of a local area informed by indicators
such as deprivation indices. As above, at present, the target and actual
allocations for Devon are within normal tolerance, so average levels of growth
are received.
330. Where population changes outside of ‘normal demographics’, such as a
development of this nature, additional funds flow to a CCG as follows:
• Registered GP population increases as people take up residence;
• That increase in population drives a higher target allocation;
• With target allocation then becoming higher than the actual (previous year
plus standard uplift) an additional allocation may be made.
331. This process typically takes up to 3 years to affect a change in allocation:
• Year 1 – Housing development leads to population growth
• Year 2 – Census count at GP practice level, feeds into target allocation model
• Year 3 – Funding flow as additional growth allocation
175 The Council do not support the NHSFT in their pursuit of this S106 contribution.
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332. However, cost-flows to NHS organisations begin from Year 1, as people with
needs access services from their uptake of residency. There is therefore up to a
2 year ‘mismatch’ between local NHS organisations incurring cost and the
allocation of additional funding that might be expected to accommodate a
growing population. This is the basis for the shortfall of (conservatively) 12
months identified by the Trust.
333. The NHSFT has a five-year funding settlement with the CCG overlaid with the
NHS National Contract each year. No additional funding is allocated in any given
year as a direct result of additional activities being undertaken. The Trust
receives no additional income to cover changes in population from a significant
development such as this until the CCG funding catches up, significant changes in
population not being reflected for up to three years. Nor are the Trust able to bill
for additional services. The Trust is left bearing the cost of actions to mitigate
increased demand until such times as the CCG funding allocation catches up and
feeds through into contract values176.
334. The question to justify a S106 contribution must be does the impact of the
proposed development result in a funding deficit to the NHS Trust leading to
adverse impacts on health in the area? The answer to that question must be yes
as set out above.
335. The contribution is necessary to make the development acceptable in planning
terms because, without it, the population increase will be accessing NHS Trust
services without any corresponding funding for (at least) one year which will
adversely affect the standard of service that can be provided leading to an
adverse impact on the health and wellbeing of the population of the Trust’s area
at large. The S106 contribution would be used to fund running costs which is
established in law177 and previous appeal decisions178.
336. Without the requested contribution, the access to adequate health services is
rendered more vulnerable thereby undermining the sustainability credentials of
the proposed development due to conflict with the Framework and Local
Development Plan policies.
Response of the appellants to the request for S106 funding from the NHSFT179
337. The appellants have included an obligation within the submitted Unilateral
Undertaking dated 27 June 2019 to cover the requirements of the NHSFT180.
However, the obligation is subject to clause 4.2 which introduces conditionality.
The obligation will only be enforceable in the event that the Secretary of State
considers that the obligation meets the tests of Regulation 122 of the Community
Infrastructure Levy Regulations 2010 (as amended).
338. However, the appellants position is that the contribution towards the running
costs of the Trust fails each test of Regulation 22 those being;
176 Inquiry Doc 54 paras 12-28 sets out a fully explanation.
177 Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 756 at 770 and
776 - As is set out in the Opinion of Jeremy Cahill QC and Kevin Leigh.
178 Example - APP/T3725/A/14/2221858 at para 36.
179 Inquiry Doc 55 Appendix 1.
180 Inquiry Doc 42.
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• necessary to make the development acceptable in planning terms;
• directly related to the development; and
• fairly and reasonably related in scale and kind to the development.
339. There is a distinct difference between the roles played by NHS commissioners
(which have public law duties to deliver NHS services in the same way that local
authorities have public law duties to deliver education services) and providers of
NHS services which purely have private law duties under NHS commissioning
contracts.
340. The Trust’s case is based on the Secretary of State being prepared to treat the
Trust as if it were a centrally funded NHS body with statutory duties to deliver
services to patients. Its case is that the gradual roll-out of the development over
the coming years will impose costs on the delivery of statutory functions before
the funding arrangements have caught up with the new demands. The request
for a planning obligation is put on the basis that the requested funding would fill
the “gap” until NHS funding catches up with population numbers.
341. The Trust is the wrong public body to make that case. It is solely a provider of
contracted services operating in the NHS market. It has vires to provide NHS
services but no statutory duties to do so. Its duties are purely contractual, not
statutory.
342. In legal terms, the Trust is simply a contracted provider of services within the
NHS market created by the National Health Service Act 2006 and the Health and
Social Care Act 2012. It both competes and co-operates with other public body
and private sector providers of NHS services, but is not a body with statutory
provision duties.
343. The Trust enters into contracts with the relevant NHS statutory commissioning
bodies, namely CCGs, to deliver the NHS services to patients specified in its
contracts. The Trust gets paid by CCGs in accordance with the contract, not as a
result of any financial allocation made by Government.
344. The Trust has entered into legal obligations (in its contract with the CCG) to
provide a defined level of NHS services to local people for a defined annual sum.
A CCG is entitled to enforce compliance by the Trust with the terms of the NHS
Standard contract. The contract defines the type and range of services to be
provided and the standards that the Trust has to meet. The Inspector is entitled
to assume that a public body which enters into a contract will deliver on the
contractual promises it has made. Planning obligations cannot be imposed to
provide subsidy to a contracted public service provider to assist it in performing
the terms of a commercially negotiated contract.
345. The local authority plans to meet its housing supply targets and thus increase
its population were publicly available for a considerable period of time prior to the
date when the Trust and the CCGs entered into their contracting arrangements.
This type of development ought to have been foreseen by both NHS
commissioners and providers of NHS services.
346. The Trust has chosen to enter into a contract which imposes absolute legal
obligations on it to provide a defined range of services to NHS patients living in
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Newton Abbott at a defined standard. There can be no proper basis for the
appellants to be required to provide money to a Trust to assist that Trust in
meeting its existing contractual obligations. This is not necessary to make this
development acceptable in planning terms.
347. The Trust’s case is that the CCG has a time-lag in funding. However, housing
allocations are agreed at a local level to meet the needs of the population which
is projected to be resident in a local authority area.
348. This is a planning application which seeks to develop houses to accommodate
persons who are already anticipated to be in a local authority area as a result of
the local housing supply targets which must be planned for by local authorities
when preparing their local plans. The appeal site is an allocated site within the
Council’s LP. The persons who will move to live in any houses in this
development (if permission is granted) are thus within the already identified local
housing supply target. They are not extra people but people who are already
expected to be living in the Newton Abbot area and who are thus expected to use
public services in that area. Indeed, this proposal is significantly behind schedule
and so, for the purposes of the projected population, these are people who are
already assumed to be living in the Newton Abbot area181.
349. Hence the simple answer to the Trust’s case is that, on the material published
by NHS England, the CCG appears to be already funded to provide acute NHS
services to the new residents of this development. CCG funding also appears to
partly depend on the numbers of persons who register with local GP practices
(which may increase with the new development). However, CCGs fund local GP
practices by a separate route since, for these purposes, the CCG acts as the
delegate of NHS England182. This is an entirely separate funding stream since,
for these purposes, CCGs are acting on behalf of NHS England and not in their
own right.
350. There is a lack of clarity in the evidence of the Trust about their true financial
position. All of the publicly available documents appear to show the Trust, is in
financial deficit and is propped up by negotiated sums of money provided by NHS
Improvement. This is indicative of the wider problem of NHS underfunding, but
that is no reason why a developer should be asked to contribute to make up NHS
deficits. Any contribution that the appellants make to the Trust will simply
reduce the deficit (and thus reduce the need for deficit funding from NHS
Improvement) as opposed to being used to fund additional services.
351. The NHSFT strongly denies they are in a financial position of a deficit, but this
has not been evidenced.
352. The Trust has entered into binding legal obligations to provide a defined level
of services to local NHS patients at defined quality standards. It is not suggested
by the NHSFT that a developer contribution will be used to provide additional
services or increase capacity by, for example, increasing the number of bed
181 See Inquiry Doc 55 Appendix 1 paras 24-31 for more detail.
182 Contracts for GP practices are concluded between NHS England and the private sector
bodies which run GP practices. However, NHS England has delegated responsibility for
managing those contracts to CCGs, despite the fact that the members of CCGs comprise
local GP practices.
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spaces or is required to fund any capital improvements. On the contrary, it is
suggested that the developer contribution will be used, in part, to fund the
performance of the Trust’s existing contractual obligations and provide funding
for additional staff. However, no targeted plans of how any monies would be
used have been submitted.
353. The answer is thus that the Trust is already under binding legal duties to
provide these services. The Trust is legally required to provide all of the
contracted services to defined quality standards, regardless as to whether the
contribution sought by the Trust is imposed or not. As a result, there is no link
between the request for the contribution and the development. The contribution
is not related to planning and is not necessary to make the development
acceptable in planning terms.
Inspector’s conclusion solely on the NHSFT request for funding via the S106
agreement.
354. In considering this aspect of the case and reaching a view I have taken into
account the totality of the evidence submitted and delivered orally by both
parties and summarised within their respective submissions to the Inquiry183.
355. NHSFT submitted an objection to the appeal proposal in February 2019 which
seems to be the first time their concerns were raised. In essence their case
centres on a short-fall in funding for the care of new residents which amounts to
at least an 18 months lag after the population increase184. In the context of the
current NHS funding arrangements an increase in population would be responded
to in the longer term, but NHSFT argue that revenue support such as staffing
costs185 would begin as soon as population increases.
356. No case was advanced by the NHSFT that the contribution they have
requested relates in anyway to the provision of physical premises or facilities. It
seems to me that the short-fall in funding which the appellants are being asked
to ‘plug the gap’ would be as a direct result of the workings of the mechanisms
by which the NHSFT receives its reimbursement in meeting the costs associated
with the delivery of services to patients.
357. This is a difficult situation of short-term financial strain which the NHSFT
currently has to bear. The provision or not of health services to those presenting
for care is not a commercial decision. The NHSFT is responsible as a public
service provider. I do appreciate that this places pressure on services and
particularly on existing staff and it is noted that the extra money would go some
way to meet increased staffing requirements providing a contribution to pay
staff. The further impact of that stress would be that crucial targets on
performance could be missed as the increase in demand would be struggled to be
accommodated. This could also result in additional budget boosting payments as
reward for performance not coming forward, which would place further strain on
an already pressurised system. The argument of the NHSFT in this regard was
clear and the impacts of non-payment were appreciated as unfortunate and
troubling. The NHS is the backbone of our Society offering health and high-
183 Inquiry Doc 54 & Inquiry Doc 55 Appendix 1.
184 ie Occupation of the new homes.
185 Not capital costs.
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quality care for all, now and for future generations. We should do all we can to
support our NHS.
358. However, this proposal is not a windfall development186. As previously
highlighted the appeal site is the larger part of a development site which was
allocated in the LP adopted in 2014 having gone through a whole process of Plan
formulation, including consultation187 and public examination leading up to the
formal adoption of the LP by the Council. The LP has identified that the
expansion of Newton Abbott to provide new homes is one of the central stays of
the LP strategy. LP Policy NA3 deals specifically with the development of the
appeal site to deliver at least 1500 homes and is the second largest development
proposal in the Heart of Teignbridge. This is not a development which should
have come as a surprise to the NHSFT and yet it seems to have. It struck me
that this was partly due to a confusion in responsibilities of which arm of the NHS
should be involved in the plan-making process. It is essential that there is
engagement in the plan-making process to ensure that service providers, such as
the NHS at all levels, are onboard with any proposed expansion and that there is
joined up thinking in respect of the provision of service infrastructure and
ultimately funding. The Council explained that NHS England had been a party to
the LP in its development stages. In those circumstances it is reasonable to
suppose that NHS England would have taken away the implications in respect of
providing and funding those projected services based on the resultant population
expansion through the LP, to amalgamate those into their own strategic planning
for the immediate locality.
359. Whilst I have not had evidence from NHS England submitted, including any
outcomes of resultant strategic planning, nonetheless, I heard that funding for
increasing population numbers is responded to via the current funding
mechanism. As already indicated, it is the workings of this mechanism for
funding which operates in a period of lag188, which places the NHSFT at an
undeniable disadvantage.
360. However, whilst I have understanding for and, to an extent, sympathise with
the position in which the NHSFT finds itself, it is as a result of the workings of the
funding relationship between Government189, the CCG and the actual ‘at the coal
face’ service provider, the NHSFT, which places the NHSFT at disadvantage.
361. I consider that in the circumstances of a ‘known’ development190 within an
adopted Development Plan document which had been the subject of consultation
with relevant health providers at the time of production, it can not be justified to
require a developer to plug a gap in funding essentially to pay staff wages, which
is brought to the appeal at the eleventh hour, even though that may, in part, be
due to some element of new population which may move into the Newton Abbot
area as a result of the building of the new homes191.
186 A site, now promoted for housing development, which has been previously unknown in this
regard.
187 Public and statutory consultees and interested parties.
188 The funding follows the population with a lag of some 18 months.
189 Her Majesty’s Treasury and the Department of Health.
190 Specifically allocated in the LP – LP Policy NA3.
191 Similarly, an already known factor within the NHS hierarchy.
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362. Development Plan Policies S1 and S14 do highlight the need to consider the
impact from committed developments on the health of occupants of proposed
housing schemes and that the LP should seek to support existing health services
and future expansion of facilities or creation of new facilities to meet the needs of
the population. By the NHSFT’s own case those future demands would be meet,
but with the time lag already identified.
363. I am aware of the cases which the NHSFT brought to my attention in respect
of similar funding being allowed at appeal. However, it is the inclusion of the
appeal site as a LP allocation and consequently a site which has been the subject
of consideration by associated service providers in respect of future demands on
their services, which I consider distinguishes this case. I understand that without
the developer contribution services may be put under pressure and this is
unfortunate in the current climate of pressure on NHS services but, as I heard
from Dr Melling, a General Practitioner Kingskerswell & Ipplepen Health Centres,
this could equally apply to pressurised local primary health care such GP
surgeries192.
364. The Council confirmed in Closing193 that they were unpersuaded that the
contribution requested by the NHSFT met the requirements of the CIL
regulations194.
365. Were the Secretary of State not to agree with my reasoning on this topic the
appellants’ have made provision within the Unilateral Undertaking195 for a
planning obligation in the order of the sum requested by the NHSFT.
Further obligations196
366. A signed Unilateral Undertaking under section 106 of the Town and Country
Planning Act 1990197 has been submitted covering the following matters:
• Affordable housing – LP Policy NA3 c) requires 20% affordable housing.
The UU meets this requirement and the obligation is justified in respect of
Development Plan policy198.
• Public Open Space – provision of open space, including allotments, green
space, natural area, children and young people’s space and a multi-use
games area and its transfer to a management company for future
management and maintenance + off-site playing pitch contribution -
justified by amongst others LP Policy NA3 f), l) & m).
• Employment land provision – Marketing details, construction of associated
services – justified by LP Policy NA3 b).
192 Dr Melling did confirm he was not requesting any financial obligations from the developer
as he appreciated that he had missed the boat in this regard in terms of time scale for
seeking obligations.
193 Inquiry Doc 52 para 57.
194 Inquiry Doc 27.
195 Inquiry Doc 42 Schedule 7.
196 Wolborough Barton Section 106 Compliance Statement – attached to Inquiry Doc 42.
197 Inquiry Doc 42.
198 LP Policy WE2 also mirrors the requirement for 20% affordable housing within the
settlement of Newton Abbot. This would also deliver the requirements of LP Policy NA3 c).
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• Neighbourhood hub and community building – justified to meet the day to
day shopping needs of the future residents of the development and in the
interests of reducing car usage and improving air quality – justified by LP
Policy NA3 d).
• Community building – serviced land and finished building shell to be
provided to meet the needs for a community space – justified LP Policy
NA3 d).
367. A signed Unilateral Undertaking under section 106 of the Town and Country
Planning Act 1990199 making promises to Devon County Council has been
submitted covering the following matters:
• Land for a primary school - to be transferred to Devon County Council –
justified by the requirement of LP Policy NA3 d).
• Travel Plan contributions including off-site pedestrian and Cycle
Improvements Contribution – to fund the requirements of a detailed Travel
Plan and off-site works - justified to assist in a modal shift away from the
private car to alternative modes of travel (Framework Section 9 –
promoting sustainable transport and LP Policy S9).
• Bus contribution – provide financial support for up to 3 years to fund a new
bus service running through the site - justified to assist in a modal shift
away from the private car to alternative modes of travel (Framework
Section 9 – promoting sustainable transport and LP Policy S9). Option 2
of the agreement should be adopted allowing for the first instalment to be
paid before no more than 300 dwellings are occupied to secure the early
establishment of the new half hourly circular bus running in both directions
between Newton Abbot town centre, the railway station, the Penn Inn
roundabout, Wolborough, Ogwell Cross and back to Newton Abbot town
centre. For the benefits of the Travel Plan to bite and establish behaviours
in the future residents of using the bus service, it should be provided as
soon as possible. This is necessary to secure its long-term commercial
viability without subsidy200.
All of the above provisions in both agreements are considered to be necessary, in
order to make the development acceptable taking into account the terms of the
CIL Compliance Statement.
Inspector’s reasons201
368. At the outset it is clear that the proposal for full planning permission for the
conversion of existing agricultural buildings to hotel, restaurant and bar/drinking
199 Inquiry Doc 43.
200 It is noted once the bus service proves viable any additional payments from the developer
would not be required. Therefore, it is in the interests of the developer to get the bus
service established at an early stage to move towards a position of viability.
201The following conclusions are based on the submitted evidence, that given at the Inquiry,
the written representations made and my inspection of the site and its surroundings. The
numbers in square brackets [] denote earlier paragraphs in this report from which these
conclusions are drawn. This is not an exhaustive list but highlights particular paragraphs.
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establishment does not attract the opposition of the parties in policy terms nor
are any other matters raised in the evidence which would lead to a conclusion
that permission specific to this part of the appeal proposal should be withheld.
The only reason I have to question the position of the parties on this matter is
that the decision-maker202 has a statutory duty to have special regard to the
desirability of preserving listed buildings or their settings or any features of
special architectural or historic interest which they possess. The farmyard to be
converted lies immediately adjacent to a Grade I listed church and it is
undeniable that it is within the setting of the Church. This matter will need to be
considered and I will return to it later in the report.
369. The principle of the larger mixed-use development is not a matter of dispute
between the Council and the appellants [81]. The Council is keen to see the
benefits that would be delivered by that development both for new homes and for
new employment floor space, as well as related physical, social and community
infrastructure, realised in line with the LP’s strategy for sustainable development.
The Council accept the scope for disagreements is relatively narrow203, but
nonetheless critical.
370. With the Rule 6 Party in-principle objection in mind, I clarify my position.
371. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that
applications for planning permission must be determined in accordance with the
Development Plan unless material considerations indicate otherwise.
372. As already highlighted the Development Plan for the District includes the
Teignbridge Local Plan204. LP Policy NA3-Wolborough identifies the allocation of
which the appeal site forms a large part205. It is identified as an opportunity to
create a sustainable neighbourhood for Newton Abbot. The allocation was shaped
by green infrastructure corridors, topography and a design led master planning
workshop. As part of LP Policy NA3 an indicative masterplan was settled upon
within the LP itself206, although I recognise this is a conceptual plan to inform the
interpretation of the Policy and the need for a comprehensive landscape and design
led masterplan for the strategic site allocation, produced with meaningful and
continued input and engagement from stakeholders was also a policy
requirement207.
373. I have no doubt that the appeal proposal seeks to comply with the terms of LP
Policy NA3. The delivery of the specified outcomes of this Development Plan policy
lies at the heart of this case and the degree to which it does comply with policy is a
matter for consideration but the principle of a mixed-use development in this
202 In this case the Secretary of State.
203 Inquiry Doc 8 paras 1-3.
204 Adopted 2014.
205 I am aware there are some comparatively small sections of the site outside of the
allocation area, but this is inconsequential and should not colour the consideration of this
proposal particularly as it partly assists in the accommodation of a realignment of the
Spine Road and access to the development and the following of an existing field boundary
which seems logical in terms of the physical features of the site – See SofCG (CD15a)
para 4.10 and plan following.
206 CD8a page 88.
207 LP Policy NA3 a).
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location is not in question208. To question this principle would fundamentally
undermine the strategies and objectives of the Development Plan which has already
been open to public scrutiny through consultation and examination and final
adoption by the Council. The delivery of the required outcomes of the LP would also
be placed in jeopardy particularly in respect of the provision of housing.
374. Therefore, taking into account the primacy of the Development Plan I do not
intend to question the principle of the development of the site further, it being clear
it has been long established through appropriate and thorough planning processes.
375. What does need to be considered is whether, in the circumstances of this
proposal being in outline only, the requirement of LP Policy NA3 a), that being the
inclusion of a comprehensive landscape and design led masterplan for the strategic
site allocation, produced with meaningful and continued input and engagement from
stakeholders forms part of this proposal and can be meaningfully assessed at this
stage in the design process. To conclude on this matter, it is necessary to consider
the impacts of the proposal. So, I will go on to consider main matters raised by the
opposing parties in respect of impacts before coming to a view on this specific
matter. These are all matters which were considered by the LP Examining Inspector
and I draw attention to his conclusions where appropriate.
Heritage – Outline and full proposals [27-28, 66-74, 151, 232, 257-261]
376. Section 16(2), 66(1) and 72(1) of the Planning (Listed Buildings and
Conservation Areas) Act 1990, which require that special regard shall be had to the
desirability of preserving listed buildings or their settings or any features of special
architectural or historic interest which they possess, and special attention shall be
paid to the desirability of preserving or enhancing the character or appearance of
conservation areas are the statutory duties placed upon the decision-maker in this
appeal. I do appreciate that heritage issues have been considered by the
Examining Inspector at the LP stage. However, whilst his conclusions are a material
consideration, in this instance, they do not excuse the decision-maker from
undertaking his statutory duty as set out above.
377. Part of Wolborough Hill, to the east of the appeal site, is a Conservation Area,
sitting on the steep south sloping valley side characterised by tiered development of
substantial homes set in mature gardens of varying ages and designs which
contribute to the sylvan quality of this designated heritage asset. From Coach Road
and more particularly from Stonemans Hill and local footpaths in this area the visual
dominance and suburban character and appearance of the homes within the
Conservation Area are of particular prominence and do dilute the immediate rural
character of the appeal site as the residential development of the Town spills down
towards the pastural fields to the south.
378. Immediately to the north of the agricultural buildings intended for change of
use to a hotel and restaurant, on the other side of Coach Road is the parish church
of St Mary the Virgin, a Grade I listed building and its lynch gate. It is prominently
located on rising ground and is an important landmark in the wider landscape. Its
prominence is accentuated by the nature of the immediately adjoining land to the
north, south and west which lies at a lower level, sloping away. Whilst it sits close
208 As I go through my conclusions, I will make reference to the criteria within LP Policy NA3
as appropriate.
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to the suburban development on Wolborough Hill it is set apart by means of the
intervening associated graveyard which benefits from a strong sense of separation
and definition by means of stone boundary walls, dotting of mature trees between
the graves and a sloping down from the residential streets, but a setting up from
the sunken level of Coach Road and the appeal site beyond.
379. Apart from the quality and state of preservation of the Church209, which is
clearly a much loved heritage asset in the locality, the Church and its immediate
setting within its graveyard, which is equally elevated on ground above its
surroundings210, forms part of its significance in that the close association of the two
elements of this spiritual medieval heart to the rural hinterland expresses a linkage
with a bygone age of likely agricultural settlement. The appellants in the Heritage
Appraisal211 accept that based on archaeological outcomes in the vicinity, it is likely
that the appeal site would include evidence of early settlement. The location and
magnificence of St Mary the Virgin would bear that out. Even the encroachment of
the Town from the east into the setting of the Church has not diminished its
prominence in the landscape as a landmark212 and a once important religious
beacon.
380. I have noted that there would be some sense of intended separation between
new built development and Coach Road and the Church with landscaped belts along
the peripheral edge. In addition, the site for the school would also be close to
Coach Road and it may be possible to design the layout with playing fields close to
the road which would certainly increase some sense of separation. However, this
would just be tinkering at the edges to my mind. The appeal proposal would
change the setting of the Church to the south to one of suburban development,
albeit interspersed with landscaping both peripherally and within the areas of
volume house building.
381. The location of the proposed Spine Road and its access point onto Old Totness
Road as indicated on the illustrative masterplan, is not dissimilar to that associated
with LP Policy NA3 and considered by the LP Examining Inspector. As an indication
of the Spine Road location and access point it would not create any greater urban
influence on the significance or setting of the Church than the proposed
development in general, so I do not consider it increases any level of harm yet to be
identified.
382. The proposed change of use of agricultural buildings213, which does include
some new build, whilst changing the character of the use of this farmyard, a lone
expression of the wider agricultural use of the appeal site and setting of the Church,
would not greatly change its appearance. If anything it would improve the setting
of the Church by the removal of some unsympathetic more modern buildings and
the preservation and enhancement of those more traditional farm buildings, albeit
to move into a new period of use and character of this farmyard as a centre for
leisure where some appreciation of the buildings and its agricultural past can be
209 I was lucky enough to visit the interior of the Church.
210 Other than to the east.
211 Binder 4 of 7 Environmental Statement Volume 3A.
212 This is particularly so when approaching from the west, in more distant views from
Stonemans Hill, from views from approaching footpaths in several directions and more
distant views to the north.
213 Full planning proposal.
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experienced by guests. The relationship with the Church in respect of significance
and setting would be preserved and enhanced and would not add to any identified
harm in heritage terms214.
383. In respect of the impact on the character or appearance of the Conservation
Area, in the context of the existing development having a strong urbanising
influence on the fields within the valley, the introduction of further residential
development of a similar character, that being sylvan in nature, accentuating the
topography of the site would have only a neutral impact on the character and
appearance of this particular designated heritage asset.
384. In addition, off to the south of the appeal site, beyond Stonemans Hill is St
Augustine’s Priory a Grade II listed building, of mid-19th century origins. It was
returned to its original residential use in recent times when the intervening
monastic use was changed to a retirement village. In essence the Priory lies behind
high stonewalls which are listed by association. Its significance lies within the
enclosed nature of the Priory hidden behind its high walls. The rural setting is an
expression of the Priory’s relationship with the surrounding lands which, in all
likelihood, historically served to support the Priory. However, the proposed
development would sit down slope from the Priory, minimising the inter-visibility of
the two elements and the rural context of the Priory would still persist with the
retention of green space adjacent to Priory Road to the north and the wide expanse
of countryside to the south and beyond. In this way the significance and setting of
the Priory would be preserved215.
385. That all said, without doubt for the reasons set out above, the appeal proposal
would erode the setting of the Church and to a lesser degree it’s significance by
reason of diminishing the association of the pastural land upon which the appeal
development would be built.
386. So, the identified impact on heritage would be centred on the harm to the
setting and significance of the Grade I Church. I am satisfied that the submitted
evidence within the Heritage Appraisal, along with the evidence to the Inquiry, as
well as professional judgement, are sufficient information for the decision-maker to
make the required assessment on impact of this outline proposal in accordance with
the statutory duty216 and the Framework.
387. Taking all the identified evidence into account there would not be a total loss
of significance and so the appeal proposal, as a totality, would lead to less than
substantial harm to the significance of a designated heritage asset217. That said the
degree of less than substantial harm would be at the mid to upper level of a sliding
scale of less than substantial harm218.
214 Heritage impacts specific to the full planning proposal would not then be a barrier to the
grant of planning permission.
215 This reflects the conclusion of the LP Examining Inspector at para 71 of his Report.
216 Section 66 (1) of the Planning (Listed Building and Conservation Area) Act 1990.
217 The enhancement in respect of the conversion of the farmyard buildings although not
particularly weighty has been used to off-set some of the harm identified but makes only
a negligible difference.
218 Framework paragraph 196.
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388. Having reached this view, the less than substantial harm to the significance of
the designated heritage asset should be weighed against the public benefits of the
proposal219. This balance will be returned to later in this decision.
Highway matters [29-31, 75-79, 154]
389. LP Policy NA3 sets out the broad requirements of the approximately 120
hectares site allocated at Wolborough of which the appeal site forms a large part.
Criteria e) requires the provision of a vehicular route connecting the A380 South
Devon Link Road with the A381. This road linkage is identified as being key
infrastructure which requires safeguarding220 as well as being critical to the creation
of a sustainable transport network through the overall site and to improve the
overall movement corridors across the Town221. It is also recognised that
development would be brought forward in smaller parcels but that edge of site
locations that have existing access to the road network may be able to come
forward earlier subject to acceptable solutions being found for the impact on the
road network222.
390. The Council’s concern initially centred on the early delivery of the Spine Road.
The road would be funded through the proposed development providing 82% of the
Spine Road through the appeal site. The road would end to the east at the
boundary of land owned by the Council and the final section of the Spine Road
would be delivered through the remaining parcels of the NA3 allocation.
391. As already indicated the Council has resolved to grant planning permission for
a smaller parcel of development of the NA3 allocation at Langford Bridge223 which
would link through from the Kingskerswell Road to the proposed Spine Road, and
with Kingskerswell Road then linking into the A380, the policy requirement e) of LP
Policy NA3 would be achieved.
392. The Examining Inspector in his Report224 confirmed that the Spine Road was
not intended as a major distributor road and that a 6 metres width would suffice.
This was with the agreement of the HA. Both the proposed Spine Road and the Link
Road through the Langford Bridge site are being promoted on this basis. The
proposed access points onto Old Totnes Road and that onto Kingskerswell Road are
in broad alignment with that indicated on the conceptual plan associated with Policy
NA3 225. There was concern from third parties that traffic generated by future
residents of the development as well as those travelling between the A381 and the
A380 would cause congestion at the pinch point of the Kingskerswell Road at
Langford Bridge. However, there are traffic controls at the Bridge which could
control the flow of traffic at any given time. This undoubtedly has been taken into
consideration in the decision to allocate the NA3 site and I don’t see any need to
consider it further.
219 Paragraph 196 of the Framework requires that the identified harm in the less than
substantial category should be weighed against the public benefits of the proposal.
220 LP para 7.26.
221 LP para 7.34.
222 LP paras 7.26 & 7.36
223 Inquiry Doc 63.
224 CD1d Appendix 2 -para 74
225 The line of the road within the LP is indicative not definitive.
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393. The Council is committed to the delivery of the Spine Road/Link Road and
albeit that land does lie within differing ownerships, including the Council, the
Allocation as a whole relies on the co-operation of landowners to deliver this key
piece of infrastructure.
394. The provision of the Spine Road to the eastern boundary ready to link in with
the Link Road would be secured by reason of a condition requiring its provision to
enable its continuation through to Kingskerswell Road and the A380 prior to the
occupation of the 500th dwelling226. This has proved an acceptable means of
securing the Spine Road to both the Council227 and to the HA. I see no reason to
disagree228. Obviously, the detailed design of the road would form part of the
reserved matters application. Its implication in respect of the drainage of the site
will be considered elsewhere in this report.
395. Third parties were concerned that there would be significant congestion prior
to the Spine Road being constructed (ie before the 500th house was built).
However, the Transport Assessment sets out that all of the traffic movements
associated with the development could be accommodated through the Ogwell
roundabout. The 500th house would be less than 50% of the development. Further
there is no evidenced suggestion that the proposal would result in residual
cumulative impacts on the road network which could be considered severe229.
396. Further the LP Examining Inspector in his report described the overall LP NA3
allocation, including the appeal site, as being a sustainable urban extension to
Newton Abbot in a highly sustainable location230. This gives some confirmation that
resultant traffic generated by the new development would be tempered by the
number of residents using the new bus service as well as walking/cycling into Town.
The Allocation also includes employment opportunities which may allow those
working there to live nearby in one of the new homes and walk to work.
Ecological impacts [26, 43-74]
397. Given the size of the appeal site, the nature and scale of the proposed
development and the potential impact on environmental resources, an
Environmental Statement (ES)231 was produced for the proposed development. It
sprang from previous work included in the environmental assessment relevant to
the LP232, although was more detailed in respect of being site specific. Various
226 Condition 11.
227 Inquiry Doc 52 para 58.
228 In this way the requirement of LP Policy NA3 e) would be achieved in so far as this part of
Allocation can contribute towards that end.
229 Framework para 109.
230 CD1d Appendix 2 para 75.
231 Folders 3, 4, 5 ,6 & 7.
232 Following the adoption of the LP by the Council Abbotskerswell Parish Council (part of the
Rule 6 Party) challenged that adoption on the primary ground that the LP had been
adopted in breach of the Habitats Directive as it failed to ensure strategic level protection
for a protected site which hosts GHBs, and alleged the Claimants and others were
particularly affected by the proposed housing development (NA3) and wished it to be
located elsewhere. The Claim was dismissed (Mason Appendix 13 – Approved
Judgement).
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inadequacies have been alleged in respect of the content and coverage of the ES. It
has been supplemented through this appeal with additional clarification and
evidence. A further Addendum233 was submitted partly dealing with Air Quality and
this too has been taken into account in the consideration of this appeal. I am also
conscious that this is a site which has already been through a LP Examination and
subjected to a raft of environmental testing, at that stage, for the Allocation to be
adopted. The ES should not be used as a means of delaying already tested
development by tying it up in legal knots. The ES should be a proportionate
response to the scale and nature of development, its location, as well as considering
what has gone before in respect of environmental assessment and decisions taken.
The Council did not allege any deficiency in the generality of the environmental
assessments submitted and subsequently supplemented. They were able to come
to reasoned conclusions on the environmental effects of the appeal proposal save
for the impact upon the GHBs which this Report will come to. I too consider the
submitted environmental assessments to be sufficient to appropriately inform this
decision.
- Impact on Wolborough Fen SSSI [82, 198, 233-235, 262-263]
398. Wolborough Fen SSSI lies within Decoy Country Park234. The Illustrative
Masterplan shows the proposed development adjoining the Country Park but with
considerable existing green space and woodland between the proposed
development areas and the Fen itself. The over-riding concern is for the well-being
of the Fen, particularly for its delicate hydrological balance which could impact on
water quality or quantity discharging from the development site, which could
adversely affect discharge into the Fen and ultimately could put flora and fauna at
risk. This is not a new concern by any means. At present, in the context of the
existing pastural fields which are grazed by over-wintering cattle235 and the arable
fields, actively cultivated, current Fen management is affected by nutrient
enrichment linked to fertiliser application. This can lead to enhancement of the
nutrient status of the Fen leading to an increased succession to scrub and woodland
communities which could impact and egress on the balance of the constituent parts
of the Fen itself. The run-off from fields and woodland tracks also can lead to
sources of surface water run-off and sediment deposition which can negatively
impact on the Fen236.
399. The Flood Risk Assessment (FRA) indicates that some 46.5 hectares of the
surroundings make up the catchment area of the Fen237. Only 8% of that
catchment area would change from permeable to impermeable area238. The
magnitude of change in this regard would be limited were development to proceed.
233 CD16 d.
234 It does not form part of the South Hams SAC.
235 They also graze within the woodland adjoining the Fen.
236 The appellants have indicated that it is the intention to change farming practices to move
away from using inappropriate fertiliser which might damage the Fen and in any event
were the appeal site to be developed this would move agricultural land further away from
the Fen itself.
237 This reflects the varying topography of the appeal site.
238 Binder 7 of 7 Rev B, Para 5.20 page 26.
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400. The FRA does acknowledge that the most important source of water is
groundwater from Aller Gravels239 and possibly the underlying Upper Greensand.
Direct surface water runoff and rainfall are less important sources both in
quantitative and ecohydrological terms.
401. The appeal proposal does not include mineral extraction or significant cut and
fill, so the impact on underlying geology would be indiscernible.
402. In adopting a precautionary approach, a condition would be imposed that
requires detailed hydrological and hydrogeological investigations covering seasonal
fluctuations to be undertaken, the findings of which would inform and guide the
design of the SUDS.
403. The LP Examining Inspector acknowledges that there is concern about the
impact of new hard surfaces within the area on the level of run-off feeding into the
Fen. He goes on that it is standard practice for a SUDS to be designed in order to
regulate all surface water within development sites240. In this case the
investigations into the hydrology and hydrogeology of the relevant part of the
catchment area would appropriately inform the SUDS design such that the Fen SSSI
would be protected. It would be enhanced by reason of the current position of
unchecked pollutant run-off being stemmed with the development of the
surrounding fields as the source241. A properly managed drainage system would
have a beneficial impact. The imposition of a condition in relation to the design and
securing of the SUDS would be sufficient at this stage of the evolution of the
strategic, policy committed development to safeguard the well-being of the Fen242.
This was also the conclusion of the Council243 and Natural England in this regard.
- Air Quality [92-94, 170-178]
404. The Rule 6 Party raised concern that the appeal proposal represents a
significant risk to the Air Quality Management Area (AQMA) within Newton Abbot244,
including the Kingskerswell AQMA.
405. An initial air quality assessment was undertaken and formed part of the
Environmental Statement245(ES) including a further assessment within the
Addendum ES December 2017246. Both DEFRA and IAQM guidance were used in the
undertaking of the additional assessment work using worst-case assumptions to
predict future concentrations and this work was all agreed with the Air Quality
Officer of the Council.
406. The appeal site is not within an AQMA. The AQMAS lie in the centre of Newton
Abbot and Kingskerswell and have been designated due to exceedances of the
annual mean nitrogen dioxide objective at locations of relevant exposure.
239 The main conduit for groundwater entering the Fen.
240 LP Examining Inspector’s Report para 73.
241 LP Policy NA3 i) in so far as it relates to the well-being of the Fen would remain
uncompromised.
242 Condition 10.
243 Inquiry Doc 52 para 54.
244 The Council did not pursue this matter.
245 CD16a -Section 12.
246 CD16b.
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407. There is potential for traffic generated by the construction phase of the
development to impact air quality within the AQMA. The majority of construction
traffic would access the appeal site through the Town. It is likely this added traffic
movement within the Town would result in a major adverse impact adding to
nitrogen dioxide levels. However, through the Construction Environmental
Management Plan (CEMP) it is proposed, with the agreement of the Council, to
include mitigating measures which would serve to reduce the anticipated impact
down to minor adverse. These would include imposition of agreed haulage routes,
use of low emission construction vehicles, and timetabling of the movements of
construction vehicles to ensure they do not travel through the AQMA during peak
traffic periods. In addition, appropriate dust and pollution control measures such as
damping down, identification of all dust generating activities and their timetabling
and details of the emission methods to be used shall be agreed with the Council.
These matters would all be secured by condition247 and this is not an uncommon
means of mitigating such impacts particularly taking into account the construction
phase is not forever.
408. The overall development of the appeal site and the wider NA3 allocation is
dependent on the delivery of the Spine Road. It has been agreed that this key
piece of infrastructure linking the A380 and the A381 would come forward before
the 500th house was built248. The Spine Road would take traffic out of the centre of
Town, providing the opportunity for alternative routes between important distributor
roads. This would in the long-term likely improve air quality within the AQMA by
facilitating a reduction in traffic passing through the town centre, both that
generated by the operation of the development (ie vehicular movements of future
residents) and those travellers moving between the A381 and A380 as an
alternative route to the current town centre one.
409. Prior to the completion of the Spine Road there would be some increase in
town centre traffic generated by the new development which would impact on air
quality within the AQMA249. However, the required Travel Plan and relevant
promises within the S106 agreement, would present the opportunity to encourage
the use of non-car modes of transport such as the extended bus services, use of
cycle ways and, being in a highly sustainable location250, future residents are more
likely to walk to the facilities and services of the Town. Further as this proposal is
for mixed use development, including employment opportunities, it would offer the
possibility that future residents could walk to work, as well as to school, local shops
and community facilities, including a local hostelry, it all being included within the
parameters of the new development. This would serve to reduced traffic
movements generated by the operation of the development in the long term across
the Newton Abbot network of roads, improve travel management and green
infrastructure provision and enhancement251.
410. In the assessment of operational emissions, the likely traffic generated by
other committed development in the area was factored in. However, taking into
account the importance of the Spine Road as a key piece of strategic infrastructure
247 Condition 14.
248 Condition 11.
249 Moderate adverse impact.
250 Examining Inspector’s Report on the LP para 75.
251 Framework para 181.
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required to deliver growth within the Town and District, serving not just the
proposed development but also the rest of the NA3 allocation, and as a relief road
to ease traffic congestion within the Town, the long-term effect on the AQMA would
be a positive one. It would reduce through movements of traffic on the southern
side of Newton Abbot thereby diminishing nitrogen oxide levels within the AQMA
and minimising pollution252. In accordance with Framework paragraph 170(e) the
proposed development would help to improve local environmental conditions in
respect of air quality, neither new nor existing homes being put at unacceptable risk
from unacceptable levels of air pollution, thereby contributing to and enhancing the
natural local environment.
411. Air quality within the SSSI was the subject of consideration within the ES
Addendum. Natural England was nervous that some significant impacts may not
have been identified. The roads immediately adjacent to the SSSI, as shown on the
Illustrative Masterplan and the Parameters Plan would all be likely to be small
residential streets of a minor nature which would be unlikely to generate annual
average daily trips (AADT) of more than 1000 per day. Even the Spine Road would
be located more than 200 metres from the SSSI253 and so in either case these
elements were screened out of the relevant air quality assessment. I am conscious
that this proposal is in outline form which reflects the extent of development
committed to in the LP and to which Natural England did not raise a concern at the
Examination stage of the LP in respect of air quality. In these circumstances I am
satisfied that the in-combination impact of the proposal on the air quality on the
SSSI would not reach unacceptable levels.
412. LP Policy EN6254 sets out that the Council should act to improve the air quality
of the District. Sufficient information to assess the impact of the proposal on the
AQMA has been submitted through the Sustainability Appraisal/Strategic
Environmental Assessment for the LP255, ES256, the ES Addendum- Air Quality
Reassessment257 and the Air Quality Position Statement of Ms Kirk258. This presents
a robust prediction of potential impact sufficient for a decision-maker to come to a
view in this matter. None of this evidence has been challenged by the Council nor
any other matters are left outstanding for statutory consultees in respect of air
quality. From the submitted evidence it is plain that the proposal would overall
serve to minimise harm to public health and improve the air of the District. In this
way the terms of LP Policies EN6 and S11 would not be offended.
- Greater Horseshoe Bats and impact on the South Hams Special Area of
Conservation [43-65, 179-197, 264]
413. The European site which requires consideration is the South Hams Special Area
of Conservation (SAC). Its designation is in part due to the accommodation/hosting
of GHBs, which are qualifying Annex II species, at the SAC although other bat
252 Framework 8 (c).
253 These parameters are set out within the screening criteria of the Highways Agency’s
Design Manual for Roads and Bridges.
254 CD8 a.
255 CD16 c.
256 CD16 a.
257 CD16 b.
258 Seaton Proof Appendix 3.
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species are present259. The NA3 allocation area has relevance to the SAC due to the
regular use of the site by individual GHBs that are likely to comprise part of the
wider SAC GHB population.
414. GHBs are among the rarest and most threatened bats in Europe. South
Devon represents an international stronghold for the species in the context of
decline elsewhere.
415. The SAC comprises five sites dispersed across South Devon (the distances in
brackets are the sites distance to the appeal site as the crow flies. GHBs tend to
follow linear features such as wood edges and hedgerows so actual flight distance
could be significantly greater)260:
- Berry Head to Sharkham Point SSSI (14 km)
- Buckfastleigh Caves SSSI (11 km)
- Bulkamore Iron Mine SSSI (12km)
- Chudleigh Caves and Woods (7.2 km)
- Haytor and Smallacombe Iron Mines SSSI (10 km)
416. These component parts include the significant roosts for summer maternity
colonies and winter hibernation. The GHBs of the framented SAC form part of a
larger meta-population which combines a number of main colonies and outlying
roosts. GHBs are known to be roost faithful but their long-term conservation status
relies on genetic flow between colonies and the availability of suitable transitional
roosts as the species increases its range.
417. GHBs feed in different habitats during the year as availability of their prey
changes. Foraging habitats can include grazed pastures, edge of woodland, stream
corridors, tree lines, tall thick hedges and wetlands. Adult GHBs using maternity
roosts largely forage within 4 km of the roost while juveniles hunt mainly within 1
km of the roost and are highly dependent on grazed pasture261. That said GHBs
have been recorded at distances between 14-20 km from their known roost. They
fly between feeding sites and their roosts via a network of commuting routes.
418. The appeal site is located outside of and some distance from the SSSI
component parts of the SAC sites (between 7 km and 20 km)262.
419. A feature of interest is the known presence of an adjacent GHB roost at
Conitor Copse cave263 which provides year-round day and night roosts for a small
number of individual bats, although the movement of bats between this cave roost
and the component locations of the SAC is unknown.
259 CD1B Appendix 1 - Citation
260 Mason Proof para 3.7.
261 Mason proof para 3.15 + CD17 d.
262 The appeal site does not include any of the qualifying habitats listed in the citation of the
South Hams SAC - CD1 b Appendix 1. It is not protected by the Habitats Directive for its
own sake.
263 Lies to the west of the appeal site beyond the A381.
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420. The appellants’ bat surveys264 indicate that the areas of wooded edge and
hedgerow habitats together with areas of grazed pasture are likely to be used on
occasion by individual GHBs. However, based on the normal foraging range of
some 4 km, the distance between the component SAC parts and the appeal site,
and the nature of the GHB actual flight distances, it places any claimed importance
of the site as a likely foraging area in doubt265. Therefore, it is reasonable to
conclude that the appeal site does not lie within any defined sustenance zone in
relation to any European designated site.
421. The concept of Strategic Flyways (SF)266 was considered by the parties and
one was identified running westwards along the southern boundary of the appeal
site. However, the identification of this SF was not based on site-specific radio-
tracking data, but on assumed occurrences. This reduces the reliance which can be
placed on any value which could be ascribed to the SF for the GHB population
specific to the SAC267. More recent guidance identifies that outside of sustenance
zones GHBs are dispersed widely and in low numbers using a complex network of
commuting routes, rather than just a few key SFs268. New draft guidance269 will
replace SF with Landscape Connectivity Zones which coalesces the entire network of
flyways in recognition of the need to maintain permeability across the SAC
landscape and is based on a better understanding that GHBs are widely dispersed.
The appeal site would be outside of the 4 km Sustenance Zone but within the
Landscape Connectivity Zone so would still trigger a detailed assessment. This
emerging guidance would further reduce any reliance on SF as a restrictive feature
in development terms.
422. It seems to me that currently the value of the appeal site for GHBs is as part
of a more extensive network of ‘pathways’ which allows the bats to travel between
roost sites across the South Devon countryside which could include journeys to and
from the five component parts of the SAC from more distant roosts such as Conitor
Copse.
423. One of the main issues for the Council and Natural England in respect of the
body of evidence already submitted by the appellants to comply with the Habitats
Directive and requirements of the Habitat Regulations270, was that the bat survey
264 Environmental Statement Appendix 8.1.
265 Natural England guidance introduces the concept of sustenance zones, of importance in
terms of foraging and strategic flyways – CD11 b.
266 Strategic Flyways were developed using radio tracking data and collective local knowledge
on bat activity and records. The South Hams SAC Strategic Flyways were made 500
metres wide (an arbitrary figure) to offer several pathways and provide alternative routes.
the Natural England Consultation Zone Planning Guidance for the South Hams SAC
(CD11b) identifies the SFs, including that which includes part of the appeal site.
267 Both the Council and Natural England placed little or no emphasis on the concept of SF.
268 CD11 e page 24, para 1 (a).
269 The South Hams SAC Planning Guidance SPD – Mason Appendix 12.
270 The GHB/SAC issue was informed at the plan-making stage through the Habitats
Regulations Assessment and supplementary report (CD9f & CD9 g respectively). The
various documents submitted identify, describe and assess the significant effects of the
proposed development at this outline stage in its design progression - Appropriate
Assessment Considerations CD1b set out the relevant informative material which includes
the ES along with 2019 Bat Survey Inquiry Doc 58. A large body of ecological
information informed by scoping requests, followed by habitat surveys, an Ecological
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work dated back to 2013-2014 and was considered insufficient to inform a Habitat
Regulation Assessment. However, the Council had commissioned in 2019 their own
Bat Survey dated November 2019, which was submitted in evidence271 and can be
considered a reliable and up to date GHB survey based upon best practice. Natural
England was consulted on survey scope and methodology.
424. The most recent Bat Survey dated November 2019 concludes that bats were
observed to favour substantial hedgerows and tree lines (especially adjacent to
pasture), woodland edge and dark lane habitats. Key areas included Stonemans Hill
to the west of the appeal site, Priory Road to the south and hedgerow networks
linking these with Wolborough Barton and Decoy Brake woodland. The fields and
hedgerows between the woodland and the industrial estate off Kingskerswell Road
is a current key area and beyond the boundaries of the appeal site. These areas
mainly bound the appeal site but are established routes upon which the proposed
development would not impact. No GHB roosts were identified on the appeal site in
this recent survey and this confirms the outcome in this regard of the 2013-2014
survey272. The Illustrative Masterplan has incorporated a route along the southern
boundary which would allow for a number of pathways along hedgerows and lanes
along which the GHBs can fly and forage273. The ability of bats to fly along the
identified main route within the Bat Survey 2019 would be retained. Green
corridors could also be incorporated to enable GHBs and other bats to access
transient foraging areas within Wolborough Fen and the woodland of Decoy Country
Park. This would allow bats to continue to move through the landscape unimpeded
and with access to impromptu feeding areas.
425. At the time the LP Examining Inspector was considering LP Policy NA3 the
concept of the SF was unchallenged. The Examining Inspector reported that whilst
a bat flyway ran along the southern boundary of the site the Council’s expert
witness indicated that a buffer of green space did not necessarily have to be 500m
wide to be effective and that there would be adequate space for the flyway to be
properly protected. Natural England at the LP Examination stage stated that the
Plan proposals would provide for satisfactory protection of the bats and raised no
objection to the allocation.
426. The Examining Inspector’s conclusions set out that the network of commuting
routes/pathways should be wide enough to allow for sufficient habitat along its path
which GHBs can traverse274. The 250 metres wide main pathway achievable within
the development parameters would serve as an effective bat highway.
427. On the basis of the outcomes of the most recent bat survey the Council is
content that in so far as assessing if the competent authority now has sufficient
information to be satisfied that no development likely to adversely affect the
integrity of the South Hams SAC can be carried out under the outline permission
consistent with the provisions of the Habitats Regulations. Natural England’s
position has been that in the absence of an up to date bat survey there would be
Impact Assessment, an Illustrative Masterplan and a GHB mitigation plan need also to be
considered.
271 Inquiry Doc 58.
272 Since the 2013/2014 surveys were undertaken the South Devon Link Road has opened.
273 The main pathway would have a width of some 250 metres.
274 The GHB/SAC issue was informed at the plan-making stage through the Habitats
Regulations Assessment and supplementary report – CD9f & CD9g.
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insufficient information on which to complete an assessment to conclude that there
would be no adverse effect on the integrity of the site275. Having evaluated the Bat
Survey 2019 Natural England considered some comparison work necessary between
the surveys from 2013-2014 and that of 2019 to ascertain whether the mitigation
measures proffered in the GHB Mitigation Plan would still stand as being relevant.
However, as the Council highlight276 there are some variations in the survey
protocol/analysis between the surveys which make such a comparison of limited
value. The overall results of the 2019 survey, in the context of the results from the
2013-2014 survey would be sufficiently robust to inform an AA and mitigation at
outline stage.
428. The approach of the GHB Mitigation Plan277 is to establish networks of
connected and continuous habitat corridors extending across the appeal site and to
the wider landscape. The retention and enhancement of green space is also key to
the strategy. The Plan includes the retention of a green corridor of some 250
metres in width which would preserve the permeability across the landscape for the
GHBs allowing commuting between the parts of the SAC and outlying roosts. The
corridors within the scheme include reinforced hedgerows which are valuable
commuting features for GHBs as well as providing habitats for foraging. The
wetland SUDS habitat, including a marshy/meadow grassland and orchard areas,
would also provide valuable foraging habitat. The detailed lighting strategy to be
included at reserved matters stage would ensure minimal disturbance to GHB
foraging and commuting habitat as a result of light spill.
429. The up to date Bat Survey has allowed the Council to move their position to
one of agreeing that matters in respect of the following can be agreed at reserved
matters stage with the imposition of conditions on any grant of outline permission
to secure those details which would in essence only come about through the
detailed design of the scheme: route of the new Spine Road, lighting assessment,
identification and retention of GHB corridors and other GHB habitats278 to be
overlaid with the finalised Masterplan279. The Council are now content that the
competent authority has sufficient information to be satisfied that no development
likely to adversely affect the integrity of the South Hams SAC could be carried out
at this outline stage consistent with the provisions of the Habitats Regulations.
430. I have noted that the Langford Bridge development, recently resolved to be
granted by the Council, included outline permission for residential led mixed-use
development for up to 450 dwellings280. The Council identified that the Langford
Bridge scheme would represent a permanent and irreversible change to the
functioning of the Landscape Connectivity Zone with the potential to further
fragment commuting habitats used by GHBs moving between the South Hams SAC
designated roosts, and other supporting roosts. The relevant Bat Survey work for
Langford Bridge found that whilst the site was used by commuting GHBs, it is not a
key foraging area for this species. This is not a dissimilar conclusion to that
reached in this Report in respect of the appeal proposal. The Council has then
275 Natural England Letter dated 15 March 2019
276 Inquiry Doc 61 – Table 1.
277 CD1b) Appendix 3.
278 In the context of Figure 4.2 of the 2019 Bat Survey.
279 Inquiry Doc 61 – requirements incorporated into the relevant planning conditions.
280 Inquiry Doc 63.
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concluded that subject to mitigation measures which mirror those proposed in this
appeal281, there would be no adverse effect on the integrity of the SAC.
431. The Langford Bridge scheme in addition to the appeal proposal represents the
larger part of the NA3 allocation. Survey evidence along with complementing
mitigation measures present a clear picture of the ‘in combination’ impacts of
development in the immediate locality as representing change for the GHBs, but
which would be mitigated across both parts of the NA3 allocation.
432. That all said and not withstanding my favourable conclusions in respect of the
way that the GHBs could be accommodated within the landscape, alongside the new
development, there is no doubt nor argument between the parties that the appeal
proposal represents a permanent and irreversible change to the functioning of this
part of the landscape for the GHBs who commute through it. Those GHBs may well
be just passing through but are likely to have come from the various main roosts
within the SAC. So, taking a precautionary approach it is an agreed point between
the parties that an Appropriate Assessment would be required.
- Overall conclusion on ecology [203]
433. Under the precautionary terms of the Habitats Directive, as implemented by
the Conservation of Habitats and Species Regulations 2017, where a plan or project
is likely to result in a significant effect as absent mitigation, a competent authority
is required to make an Appropriate Assessment (AA) of the implications of that plan
or project on the integrity of the European site in view of the site’s conservation
objectives. In particular, an assessment is required as to whether a development
proposed is likely to have a significant effect upon a European site, either
individually or in combination with other plans and projects.
434. Following the Court of Justice of the European Court (CJEU) ruling in People
over Wind v Coillte Toranta it is not appropriate, at the screening stage, to take
account of measures intended to avoid or reduce the harmful effects of a project on
a European Site. Such measures should only be considered as part of an AA. The AA
is required to consider whether the proposals, including any mitigation measures,
alone or in combination with other proposals, would adversely affect the integrity of
the SAC. There is agreement that an AA is required in this instance. It is also clear
that the competent authority for conducting the AA here is the Secretary of State.
435. The matters I have set out under the heading Ecological impacts serve to
assist the competent authority in making his assessment but do not in themselves
equate to an AA in their own right as part of this Report282. However, in reaching
my recommendation I have taken account of this evidence.
436. For the above reasons I consider in so a far as my conclusions are relevant to
the recommendation within this Report, that the above measures of mitigation
would be sufficient to ensure that the proposed development would not, beyond
scientific doubt, have an adverse effect on the integrity of the South Hams SAC, nor
would it result in a diminishing of the quality and importance of the SSSI as an
281 Inquiry Doc 63.
282 The following documents should also assist the competent authority in making an AA – the
Appendices of Ms Mason, CD1b) AA considerations, LP Examining Inspector’s Report, LP
Policy NA3 and Inquiry Doc 58.
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ecological habitat283[158]. I consider it reasonable to deal with these matters at an
outline stage in the knowledge of the various survey work outcomes, the
conclusions of the LP Examining Inspector, the terms of the proffered mitigation and
securing conditions and obligations, and the opportunity to re-visit the assessment
at the reserved matters stage. These measures, to be delivered through conditions
and the S106 obligations, would comply with LP Policy NA3 i) and n) which seek to
protect the relevant ecologically important habitats, along with Policies EN8, EN9
and EN10, the objective of which is the maintenance and enhancement of
biodiversity as a key element of sustainable development.
Public benefits284
437. Delivery of market housing – As already highlighted the NA3 allocation is a key
part of proposals to meet the adopted strategy of the Council for the distribution
and level of development and supporting infrastructure, to achieve economic
prosperity, quality environment and the wellbeing of the community285 up until
2033. This must carry significant weight in any balancing exercise particularly as
the delivery of the housing has been factored into the Council’s response to its
housing need through the LP.
438. In addition, it is also a response to Government’s objective of significantly
boosting the supply of homes with a sufficient amount and variety of land coming
forward where it is needed, and that land with permission is developed without
unnecessary delay286. Whilst the appeal site has yet to be granted planning
permission, it is within an allocated site which has been deemed suitable for mixed-
use including housing through the LP process of allocation. This plays heavily in
favour of the proposal.
439. Delivery of affordable housing (AH) – The proposal would include 20% AH which
would be policy compliant, and the Council through the LP identify meeting the
needs for housing, including a significant proportion of the AH requirements as a
key issue to ensure that communities are better as a result of implementing the
LP287. The NA3 allocation being integral to the LP would make a significant
contribution to the Council achieving that objective and so adds considerably to the
positive side of the balance.
440. Provision of two care homes would respond to the needs of people as they reach
different stages of their lives providing appropriate accommodation options.
441. The provision of a youth centre, local shops, community facilities and primary
school could be seen to just mitigate for the needs of future residents of the
development. However, such facilities would have a benefit to existing local
residents offering facilities to a wider catchment.
442. Future residents would support the services and shops in the centre of Newton
Abbot. Construction jobs would form part of the short-term benefits as well as
283 I am aware that there are other bats, and flora and fauna of interest within the SSSI. The
impact on these elements has been considered in the overall response.
284 This is not an exhaustive list – the evidence of Mr Seaton set them out in more detail in his
proof Section 7.
285 LP paras 1.2 & 1.6.
286 Framework para 59.
287 LP para 1.7.
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increased economic input into the local economy. In addition, the employment
land, local shops, the school and care homes would offer employment opportunities
in the Town. The employment land and care homes would present possibilities for
new businesses to become established or existing businesses to relocate with the
possibility of growth, supporting the economic prosperity objective of the LP288.
Cumulatively this presents a weighty benefit to add to the balance.
443. It has been concluded that the appeal site is in a location accessible to services
and facilities described as highly sustainable. The encouragement of cycling,
walking, implementation of the Travel Plan, along with the provision of the new
circular bus route would provide options for other modes of transport other than the
car. The proposed highway improvements, whilst being mitigating measures for the
impact of the proposed development, would benefit the wider population in respect
of improving highway safety.
444. All of these benefits weigh positively in favour of the proposal in the balance of
this decision. That planning balance will be applied shortly.
Heritage balance
445. Having assessed the impact of the proposal in heritage terms it is necessary to
undertake a separate heritage balance in accordance with the Framework paragraph
196. In doing so I am conscious that great weight and considerable importance
should be given to the conservation of assets289. With this already in the balance
having found that there would be less than substantial harm at the mid to upper
end of the sliding scale to the Grade I listed Church as a designated heritage asset,
this too needs to be weighed in. However, the identified public benefits of the
appeal proposal do present cumulatively significant weight in the heritage balance.
446. I am satisfied that the public benefits set out above are cumulatively of such
considerable weight, particularly taking into account the importance of the NA3
allocation to the Council’s strategy for future growth and economic prosperity, that
the heritage balance tips in favour of the proposal, the public benefits outweighing
the identified heritage harm.
Planning balance [98-101, 253]
447. Proposal for full planning permission – As already indicated there are no
identified harms in respect of the impact of this aspect of the appeal proposal.
Therefore, there are no barriers either in respect of conflict with the Development
Plan policy or Government guidance which should stand in the way of planning
permission being granted subject to the identified conditions.
448. Proposal for outline planning permission - LP Policy NA3 a) seeks the
submission of a comprehensive landscape and design led masterplan for the
strategic site allocation, produced with meaningful and continued input and
engagement from stakeholders. The submitted Illustrative Masterplan290, in the
context of an outline planning proposal which, essentially seeks to confirm the LP
allocation for mixed use development covering the appeal site, as the largest
section of that strategic commitment to growth, enshrined in the Development Plan,
288 LP para 1.6.
289 Framework para 193.
290 Dwg no 141204l 02 02 K.
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has come forward as a result of some pre-application consultation with the Council
as well as the community. This appeal, and the consideration of the planning
application before that, also gave an opportunity for parties to consider the
conceptual development criteria and impacts. By the very evidence to the Inquiry
stakeholders have engaged on the basis of the Illustrative Masterplan as an
informing resource. The Design and Access Statement291 presents a direction of
travel for the more detailed design of the scheme which, through a process of
design evolution in which stakeholders should continue to be involved, would
become apparent at the reserved matters stage. I consider that the spirit of LP
Policy NA3 a) has been responded to and for this development to be delivered in a
timely fashion to make the contribution that the Council anticipates from it in
respect of the economic and social well-being of the District, progress forward must
be made.
449. The duty in section 38(6) of The Planning and Compulsory Purchase Act
2004 enshrines in statute the primacy of the Development Plan. As an
essential component of the ‘plan-led’ system, it is also reiterated in the
Framework which is of course a material consideration to which substantial
weight should be attached. [220-225]
450. Framework paragraph 11 c) sets out that a presumption in favour of
sustainable development should apply when approving development proposals that
accord with an up-to-date development plan without delay.
451. Having established that the appeal site lies almost wholly within the LP NA3
allocation, part of the urban extension to Newton Abbot promoted through the
adopted LP, and having considered how the appeal proposal measures up to the
policy requirements of LP Policy NA3 as well as of the Development Plan as a whole,
the only offense I have found is in heritage terms in respect of the impact on the
significance and setting of the Grade I listed Church. Harm has been identified.
That harm could be considered to be an offence to LP Policy NA3 g). However,
when considered in a flat planning balance the specific heritage harm in the
negative side of the balance does not outweigh the already identified benefits of the
development which will contribute to the achievement of sustainable development
and Government’s objective of significantly boosting the supply of both market and
affordable homes.
Recommendations
452. Consequently, it is recommended that planning permission be granted for both
the full and outline proposals.
Frances Mahoney
Inspector
291 CD1c.
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Annex A – Schedule of recommended conditions
Full Permission
Full proposal for a change of use of existing agricultural buildings to hotel
(C1), restaurant (A3) and bar/drinking establishment (A4) uses, involving
erection of new build structures, construction of an access road and
parking, plus other associated conversion and minor works.
1) The development hereby permitted must be begun not later than the
expiration of three years from the date on which this permission is granted.
2) The development hereby permitted shall be carried out in accordance with the
following approved plans:
• Site Location Plan (160107 L 01 01)
• Proposed General Arrangement Plan (160107 L 02 01 A + Rev C)
• Proposed floor plans – Buildings 2 and 4 (160107 L 04 01 A)
• Proposed floor plans – Buildings 3, 5 and 6 (160107 L 04 02 A)
• Proposed elevations – Buildings 2 and 4 (160107 E 05 01 A)
• Proposed elevations – Building 5 (160107 E 05 02)
• Proposed elevations – Buildings 3 and 6 (160107 E 05 03)
• Proposed sections (160107 Se 02 01)
• Building retention and demolition plan (160107 L 06 01)
• External works (160107 L 07 01 B)
• Timber pergola detail (160107 DE 05 01)
• Farm buildings parking layout (4035-021 Rev B)
3) No development shall take place until details of sustainable surface and
ground water drainage have been submitted to and approved in writing by
the local planning authority (such details to be in general conformity with the
submitted Flood Risk Assessment). Development shall be carried out in
accordance with the approved details and the surface water drainage
infrastructure shall be retained and maintained in functioning order as such
thereafter.
4) No windows, doors and other glazed or timber panels shall be installed
until details of joinery have been submitted to and approved in writing by
the Local Planning Authority. Such details shall include cross sections,
profiles, reveal, surrounds, materials, finish and colour in respect of new
windows and doors. The work shall thereafter be carried out and retained
in accordance with the approved details.
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5) Notwithstanding the details of the materials shown on the submitted
drawings, the roofing materials to be used in the development shall be
submitted to and approved in writing by the local planning authority prior
to their installation. The work shall then be carried out and retained in
accordance with the agreed details.
6) Any areas identified as stonework on the approved plans shall be
constructed of a natural stone, a sample of which including construction
details and mortar specification shall be submitted to and agreed in
writing by the local planning authority, prior to works to any areas of
stonework commencing. The stonework shall thereafter be carried out as
approved.
7) No building shall be constructed above damp proof course until details of
the proposed render type and colours have been submitted to and
approved in writing by the local planning authority. The work shall then be
carried out in accordance with the agreed details.
8) Prior to the laying of setts/paviours and other surface materials to be used
as part of the hard-surfacing scheme, precise details of the form and
colour shall be submitted to and approved in writing by the local planning
authority and shall thereafter be laid out on site in accordance with the
agreed details.
9) No building shall be constructed above damp proof course until details of the
external colour and finish of the timber to be used have been submitted to
and agreed in writing with the local planning authority. The work shall then
be carried out in accordance with the agreed details.
10) No building shall be constructed above damp proof course until details of both
hard and soft landscape works have been submitted to and approved in
writing by the local planning authority and these works shall be carried out as
approved.
These details shall include proposed finished levels or contours; means of
enclosure; car parking layouts; other vehicle and pedestrian access and
circulation areas; hard surfacing materials; minor artefacts and structures
(e.g. furniture, refuse or other storage units, signs, lighting etc.); proposed
and existing functional services above and below ground (e.g. drainage
power, communications cables, pipelines etc. indicating lines, manholes,
supports etc.); retained historic landscape features and proposals for
restoration, where relevant.
Soft landscape works shall include planting plans; written specifications
(including cultivation and other operations associated with plant and grass
establishment); schedules of plants (noting species, plant sizes and proposed
numbers/densities); implementation and management programme.
The development shall be carried out in accordance with the agreed details.
11) No development shall take place until highway details have been submitted to
and approved in writing by the local planning authority. These shall include
details of the proposed road(s), cycleways, footways, verges, junctions,
street lighting, sewers, drains, retaining walls, service routes, surface water
outfall, road maintenance/vehicle overhang margins, embankments, visibility
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splays, accesses, car parking, and street furniture. Development shall be
carried out in accordance with the approved details.
12) Prior to the installation of any external lighting a lighting strategy, including
details of all external lighting, shall have been submitted to and approved in
writing by the local planning authority. Development shall be carried out in
accordance with the approved details. No external light sources shall be
installed other than those external light sources permitted by the local
planning authority.
13) No development shall take place until a Construction Environmental
Management Plan (CEMP) has been submitted to and approved in writing by
the local planning authority. The CEMP shall include a summary of the work
to be carried out; a description of the site layout and access including
proposed haul routes and parking facilities and the location of site equipment
including the supply of water for damping down; an inventory and timetable
of all dust generating activities; a list of dust and emission control methods to
be used; the identification of an authorised responsible person on site for air
quality; a summary of monitoring protocols and an agreed procedure for
notification to the local authority Environment & Safety Services Department;
a site log book to record details and action taken in response to incidences of
the air quality objectives being exceeded and any exceptional incidents;
proposed hours of work (including construction, piling, deliveries and other
movements to and from the site). All vehicles leaving the site must be wheel-
washed if there is any risk of affecting nearby properties. There should be a
paved area between the wheel-wash and the main road. The development
shall be carried out in accordance with the approved CEMP.
14) No building shall be occupied until works for the disposal of foul sewage have
been provided in accordance with details submitted to and approved in
writing by the local planning authority for the relevant building.
15) No development shall take place, or any equipment, machinery or
materials be brought onto the site for the purpose of development until
fencing to delineate a Protection Zone to protect retained hedges has
been constructed in accordance with location and construction details
shown on plans and particulars including in relation to retention and
removal timetables that have been submitted to and approved in writing
by the local planning authority. Within the Protection Zone nothing shall
be stored or placed, nor any works take place, nor shall any changes in
ground levels or excavations take place unless a method statement for
such works has also been submitted to and approved in writing by the
local planning authority.
16) No development shall take place until the applicant has secured the
implementation of an agreed programme of archaeological work in
accordance with a written scheme of investigation which has been
submitted and approved in writing by the local planning authority. The
development shall be carried out at all times in strict accordance with the
approved scheme.
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17) No development other than that required to be carried out as part of an
approved scheme of remediation shall take place until sections 1 to 3 of this
condition have been complied with. If unexpected contamination is found
after development has begun, development must be halted on that part of
the site affected by the unexpected contamination to the extent specified by
the local planning authority in writing until section 4 of this condition has
been complied with in relation to that contamination.
Section 1. Site Characterisation
An investigation and risk assessment, in addition to any assessment provided
with the planning application, shall be completed in accordance with a
scheme to assess the nature and extent of any contamination on the site,
whether or not it originates on the site. The contents of the scheme are
subject to the approval in writing of the Local Planning Authority. The
investigation and risk assessment must be undertaken by competent persons
and a written report of the findings must be produced.
The written report is subject to the approval in writing of the local planning
authority. The report of the findings must include:
(i) a survey of the extent, scale and nature of contamination;
(ii) an assessment of the potential risks to:
o human health
o property (existing or proposed) including buildings, crops, livestock,
pets, woodland and service lines and pipes
o adjoining land
o groundwaters and surface waters
o ecological systems
o archaeological sites and ancient monuments;
(iii) an appraisal of remedial options, and proposal of the preferred option(s).
This must be conducted in accordance with DEFRA and the Environment
Agency's 'Model Procedures for the Management of Land Contamination, CLR
11'.
Section 2. Submission of Remediation Scheme
A detailed remediation scheme to bring the site to a condition suitable for the
intended use by removing unacceptable risks to human health, buildings and
other property and the natural and historical environment shall be prepared
and is subject to the approval in writing of the local planning authority. The
scheme must include all works to be undertaken, proposed remediation
objectives and remediation criteria, timetable of works and site management
procedures. The scheme must ensure that the site will not qualify as
contaminated land under Part 2A of the Environmental Protection Act 1990 in
relation to the intended use of the land after remediation.
Section 3. Implementation of Approved Remediation Scheme
The approved remediation scheme shall be carried out in accordance with its
terms prior to the commencement of the development other than that
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required to carry out remediation, unless otherwise agreed in writing by the
local planning authority. The local planning authority must be given two
weeks written notification of commencement of the remediation scheme
works. Following completion of measures identified in the approved
remediation scheme, a verification report (referred to in the replaced PPS23
as a validation report) that demonstrates the effectiveness of the remediation
carried out must be produced and is subject to the approval in writing of the
local planning authority.
Section 4. Reporting of Unexpected Contamination
In the event that contamination is found at any time when carrying out the
approved development that was not previously identified it shall be reported
in writing immediately to the local planning authority. An investigation and
risk assessment must be undertaken in accordance with the requirements of
section 1 of this condition, and where remediation is necessary a remediation
scheme must be prepared in accordance with the requirements of section 2,
which is subject to the approval in writing of the local planning authority.
Following completion of measures identified in the approved remediation
scheme a verification report must be prepared, which is subject to the
approval in writing of the local planning authority in accordance with section
3.
18) No building comprised shall be built above damp-proof course unless and
until details of the proposed finished floor levels of each building have been
submitted to and approved in writing by the local planning authority. The
development shall be carried out in accordance with the approved details.
19) No development shall take place until an ecological mitigation strategy, in so
far as it relates to this proposal, has been submitted to, and approved in
writing by, the local planning authority. The strategy shall be based on the
proposed mitigation in the Chapter 8 of Volume 2 of the Environmental
Statement submitted as part of the planning application and the submitted
GHB mitigation plan (and addendum dated 8 March 2019). The Development
shall be carried out and maintained in accordance with the approved strategy.
Outline Permission
Outline proposal for mixed use development comprising circa 1210
dwellings (C3), a primary school (D1), up to 12650 sq m of employment
floorspace (B1), two care homes (C2) providing up to 5,500 sq m of
floorspace, up to 1250 sq m of community facilities (D1), a local centre
(A1/A3/A4/A5) providing up to 1250 sq m of floorspace, open space
(including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only)
1) Details of the appearance, layout, scale and landscaping (hereinafter called
"the reserved matters") for each phase shall be submitted to and approved in
writing by the local planning authority before any development takes place on
the relevant phase and the development shall be carried out as approved.
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2) Application for approval of the reserved matters for the first phase approved
pursuant to condition 5 shall be made to the local planning authority not later
than three years from the date of this permission. Application for approval of
all of the reserved matters shall be made to the local planning not later than
12 years from the date of this permission.
3) The development of each phase hereby permitted shall take place not later
than two years from the date of approval of the last of the reserved matters to
be approved for the relevant phase.
4) Outline planning permission is hereby granted for no more than:
a. 1,210 dwellings (including custom build), house and flats and other uses
within Class C3
b. A Primary School
c. 12,650 sq m gross of Employment floorspace within Use Class B1
d. 5,500 sq m gross of Care Home floorspace within Use Class C2 in no
more than two individual facilities
e. 1,250 sq m gross of community facilities floorspace within Use Class D1
f. 1,250 sq m gross of Retail / Local Centre floorspace within Use Classes
A1/A3/A4 and/or A5 (cumulative)
g. Car parking and other miscellaneous uses including public bicycle
interchange / storage facilities, substations, waste storage and recycling
facilities
The development hereby permitted shall be carried out in accordance with the
following approved plans:
• Site Location Plan (Reference:141204 L01 01 G)
• Proposed access drawings (References: 4035-010 D; 4035-011 E – 4035-
018 Rev B; 4035-012 C - 4035-017 Rev B)
5) As part of the first application for the approval of reserved matters, a detailed
phasing plan shall be submitted to and approved in writing by the local
planning authority. The phasing plan shall specify the proposed timing for the
delivery of the areas of public open space/green infrastructure on each phase
as well as the construction programme for the housing (including self or
custom build housing) and other built elements of the development. The
development hereby approved shall be carried out in accordance with the
approved phasing plan.
6) Prior to the submission of any reserved matters application in relation to any
phase, a Masterplan and Design Code shall be submitted to and approved in
writing by the Local Planning Authority. The Masterplan and Design Code shall
be formulated broadly in accordance with the submitted Design and Access
Statement and Illustrative Masterplan (141204 L02 02 k) and Parameter Plan
(14 204 P01 rev B) and shall include the following details:
(a) The proposed movement network delineating the primary, secondary
and tertiary streets and pedestrian and cycleway connections, setting
out the approach to estate design, treatment of non-vehicular routes
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and car and cycle parking including connection into the existing
pedestrian and cycleway routes shown on drawing no 4035 020 Rev
A. These details shall include and take account of design principles to
be agreed with the local planning authority in respect of crossing
points of bat commuting routes in relation to the road network.
(b) The proposed layout use and function of all open space within the
development.
(c) The approach to and design principles applied to car parking (on
street and off-street).
(d) Phased layout principles to include urban structure, form and layout of
the built environment, building heights, densities, legibility, means of
enclosure, key gateways, landmark buildings, key frontages and key
groups.
(e) The design approach for areas within the public realm including
landscaping and hard surface treatments, lighting, street trees,
boundary treatments, street furniture and play equipment including
an explanation of how the design approach and layout will achieve the
proposed mitigation as set out in the Chapter 8 of Volume 2 of the
Environmental Statement submitted as part of the planning
application and the submitted Greater Horseshoe Bat (GHB) Mitigation
Plan (and addendum dated 8 March 2019)
(f) Servicing, including utilities, design for the storage and collection of
waste and recyclable materials.
(g) External materials, to include a palette of wall and roof finishes,
windows, doors, porches, heads, cills, chimneys, eaves and verges
and rainwater goods.
(h) The design principles that will be applied to the development to
encourage security and community safety.
(i) The specific design principles that will be applied to the Local Centre.
(j) The design principles for the incorporation of a Sustainable Urban
Drainage System (SUDS) throughout the development. This should
include the defining of the Wolborough Fen catchment area and the
results of a detailed hydrological and hydrogeological investigation
(covering seasonal fluctuations) which should inform the design of the
SUDS.
k) The location and accommodation of existing GHB corridors which
cross the site along with the creation of additional GHB habitat with
linkages to existing GHB routes shall form part of the general design
code.
Thereafter any application for the approval of reserved matters shall comply
with the approved Design Code.
7) No development shall take place within an approved phase of the development
hereby permitted until an ecological mitigation strategy for that phase has
been submitted to, and approved in writing by, the local planning authority.
The strategy shall be based on the proposed mitigation in the Chapter 8 of
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Volume 2 of the Environmental Statement submitted as part of the planning
application and the submitted GHB mitigation plan (and addendum dated 8
March 2019). The Development shall be carried out and maintained in
accordance with the approved strategy.
8) No development shall take place on any phase of the development until a
Landscape and Ecology Implementation and Management Plan (LEMP) for that
phase has been submitted to and approved in writing by the local planning
authority. The LEMP shall include a timetable for implementation of the
landscaping and ecology work and details of the management regime. The
LEMP shall be implemented in accordance with the approved details.
9) No development shall commence on any phase until a low emissions strategy
for mitigating the air quality impacts of the relevant phase (including the
construction of the relevant phase) has been submitted to and approved in
writing by the local planning authority. The approved strategy shall be
implemented in accordance with the timescales set out therein. Any measures
which are required to be retained shall be maintained throughout the life of the
development.
10) No development shall take place until details of a strategy for sustainable
surface water and ground water drainage (SUDS) (including temporary
drainage provision during construction) including mechanisms for ongoing
management has been submitted to and approved in writing by the local
planning authority. No development on any individual phase shall take place
until details of sustainable surface water and ground water drainage (including
temporary drainage provision during construction) for that phase to accord
with the submitted Flood Risk Assessment have been submitted to and
approved in writing by the local planning authority. Development shall be
carried out in accordance with the approved details and the surface water
drainage infrastructure shall be retained and maintained in operational order
thereafter.
11) The delivery of the spine road through the site shall be provided to the eastern
boundary of the site at a location to be agreed with the local planning
authority (to enable its continuation through to Kingskerswell Road and the
A380) prior to the occupation of the 500th dwelling.
12) Prior to the installation of any external lighting on the site, within any phase of
development, a lighting strategy for that particular phase, including full details
of all external lighting (heights, mounting, cowling, and lamp bulb details
should be included), including that serving individual plots (non-domestic),
must be submitted to and approved in writing by the local planning authority.
A dark areas/corridor map where lighting levels of less than 0.5 lux would
persist shall be included within the details to be agreed by the local planning
authority (GHB commuting routes). The impact of house height, orientation
and screening of roads and turning heads to retain darkness in corridors shall
be considered and incorporated in the lighting strategy. The detailed
assessment shall include contour lux modelling. No external light sources shall
be permitted on those areas shown coloured green on Drawing 141204 P 01
Rev D. No external light sources shall be installed at the site other than those
external light sources permitted by the local planning authority.
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13) No building in any phase shall be occupied until works for the disposal of foul
sewage from that phase have been provided, in accordance with details first
submitted to and approved in writing by the local planning authority.
14) No development shall take place on any phase of the development until a
Construction Environment Management Plan (CEMP) has been submitted to
and approved in writing by the local planning authority for that phase. The
CEMP shall include a summary of the work to be carried out; a description of
the site layout and access including proposed haul routes and parking facilities
and the location of site equipment including the supply of water for damping
down; an inventory and timetable of all dust generating activities; a list of dust
and emission control methods to be used; details of timetabling for
movements of construction vehicles to avoid the AQMA during peak traffic
periods; details of timetabling or means for construction vehicles to visit the
construction site to avoid queuing traffic; the identification of an authorised
responsible person on site for air quality; a summary of monitoring protocols
and an agreed procedure for notification to the local authority Environment &
Safety Services Department; a site log book to record details and action taken
in response to incidences of the air quality objectives being exceeded and any
exceptional incidents; proposed hours of work (including construction, piling,
deliveries and other movements to and from the site); and an Ecological
Construction Method Statement including how GHB identified corridors will be
protected during the construction phase as well minimising light spill (no more
than 0.5 lux in corridors). Construction vehicles must be low emission which
comply with current Euro emission standards. All vehicles leaving the site
must be wheel-washed if there is any risk of affecting nearby properties. There
should be a paved area between the wheel-wash and the main road. The
development shall be carried out in accordance with the approved CEMP.
15) No development shall take place on a phase of the development until full
highway details for that phase have been submitted to and approved in writing
by the local planning authority. These shall include details of the proposed
estate road(s), cycleways, footways, verges, junctions, street lighting, sewers,
drains, retaining walls, service routes, surface water outfall, road
maintenance/vehicle overhang margins, embankments, visibility splays,
accesses, car parking, and street furniture. Development shall be carried out in
accordance with the approved details.
16) No development shall take place on any phase, or any equipment,
machinery or materials be brought onto any part of the relevant phase for
the purpose of development until fencing to delineate a Protection Zone to
protect retained hedges has been constructed in accordance with location
and construction details shown on plans and particulars including in relation
to retention and removal timetables that have been submitted to and
approved in writing by the local planning authority. Within the Protection
Zone nothing shall be stored or placed, nor any works take place, nor shall
any changes in ground levels or excavations take place unless a method
statement for such works has also been submitted to and approved in
writing by the local planning authority.
17) Notwithstanding the Arboricultural Impact Assessment (ES Technical Appendix
8.6) no development shall take place on any phase of the development until a
detailed tree survey has been carried out on that phase and a plan submitted
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and approved by the local planning authority that clearly identified those trees
to be retained and those removed. In relation to those trees identified to be
retained no development shall take place within an approved phase of the
development hereby permitted until details of tree and hedgerow protection
measures for that phase during construction have been submitted to, and
approved in writing by, the local planning authority. The measures shall accord
with BS 5837:2012 Trees in relation to design, demolition and construction –
Recommendations and shall indicate exactly how and when the trees will be
protected throughout the construction period. The measures shall include
provision for the supervision of tree protection works by a suitably qualified
arboricultural consultant. The development shall be carried out in accordance
with the approved details and protection measures.
18) No development shall take place on a phase of the development until the
applicant has secured the implementation of a programme of archaeological
work in accordance with a written scheme of investigation for that phase,
which has been submitted by the applicant and approved in writing by the
local planning authority. The development shall be carried out at all times in
strict accordance with the approved scheme.
19) Unless otherwise agreed by the local planning authority, development on any
phase of the development other than that required to be carried out as part of
an approved scheme of remediation shall not take place until sections 1 to 3 of
this condition have been complied with in respect of that phase of the
development. If unexpected contamination is found after development has
begun, development must be halted on that part of the site affected by the
unexpected contamination to the extent specified by the local planning
authority in writing until section 4 of this condition has been complied with in
relation to that contamination.
Section 1. Site Characterisation
An investigation and risk assessment, in addition to any assessment provided
with the planning application, shall be completed in accordance with a scheme
to assess the nature and extent of any contamination on the site, whether or
not it originates on the site. The contents of the scheme are subject to the
approval in writing of the Local Planning Authority. The investigation and risk
assessment must be undertaken by competent persons and a written report of
the findings must be produced.
The written report is subject to the approval in writing of the local planning
authority. The report of the findings must include:
(i) a survey of the extent, scale and nature of contamination;
(ii) an assessment of the potential risks to:
o human health
o property (existing or proposed) including buildings, crops, livestock,
pets, woodland and service lines and pipes
o adjoining land
o groundwaters and surface waters
o ecological systems
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o archaeological sites and ancient monuments;
(iii) an appraisal of remedial options, and proposal of the preferred option(s).
This must be conducted in accordance with DEFRA and the Environment
Agency's 'Model Procedures for the Management of Land Contamination, CLR
11'.
Section 2. Submission of Remediation Scheme
A detailed remediation scheme to bring the site to a condition suitable for the
intended use by removing unacceptable risks to human health, buildings and
other property and the natural and historical environment shall be prepared
and is subject to the approval in writing of the local planning authority. The
scheme must include all works to be undertaken, proposed remediation
objectives and remediation criteria, timetable of works and site management
procedures. The scheme must ensure that the site will not qualify as
contaminated land under Part 2A of the Environmental Protection Act 1990 in
relation to the intended use of the land after remediation.
Section 3. Implementation of Approved Remediation Scheme
The approved remediation scheme shall be carried out in accordance with its
terms prior to the commencement of any phase of the development other than
that required to carry out remediation, unless otherwise agreed in writing by
the local planning authority. The local planning authority must be given two
weeks written notification of commencement of the remediation scheme
works. Following completion of measures identified in the approved
remediation scheme, a verification report (referred to in the replaced PPS23 as
a validation report) that demonstrates the effectiveness of the remediation
carried out must be produced and is subject to the approval in writing of the
local planning authority.
Section 4. Reporting of Unexpected Contamination
In the event that contamination is found at any time when carrying out the
approved development that was not previously identified it shall be reported in
writing immediately to the local planning authority. An investigation and risk
assessment must be undertaken in accordance with the requirements of
section 1 of this condition, and where remediation is necessary a remediation
scheme must be prepared in accordance with the requirements of section 2,
which is subject to the approval in writing of the local planning authority.
Following completion of measures identified in the approved remediation
scheme a verification report must be prepared, which is subject to the
approval in writing of the local planning authority in accordance with section 3.
20) No development shall take place within the Wolborough Fen SSSI hydrological
catchment unless and until a Scheme (based upon an evidence base agreed
with the local planning authority in consultation with Natural England) has
been submitted to and approved by the local planning authority in consultation
with Natural England which sets out detailed measures to ensure that the
development does not have an adverse impact on the integrity of the
Wolborough Fen SSSI during the construction or operation of the development
The development shall thereafter proceed in accordance with the approved
details.
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21) No commercial buildings shall be occupied or otherwise brought into use until
provision for the loading and unloading of goods vehicles for that building has
been made in accordance with details which shall have been submitted to and
approved in writing by the Local Planning Authority.
22) The total use class A (A1/A3/A4/A5) (as defined in the Town and Country
Planning (Use Classes) Order 1987 (as amended) or any other instrument that
replaces it words) floorspace hereby approved shall not exceed 1,250 sq.m
gross external area. No more than 100 sq.m gross external area of the total
floorspace approved shall be used for hot food takeaway purposes (use class
A5) and no single unit of A1 use shall exceed 500 sq.m (gross external area)
floor area.
23) No more than 300 of the dwellings permitted hereby shall be occupied unless
and until the works to the Ogwell Cross Roundabout (shown on drawing nos
4035-012 E, 4035-017 B) and Firestone Lane (shown on drawing no 4035-011
E) have been completed.
24) No more than 600 dwellings to be occupied until the further works to the
improvement of the Ogwell Roundabout (shown on drawing number drawing
4035 003 Rev B) have been fully implemented.
25) A design code for the custom build dwellings within each relevant phase shall
be submitted to and approved by the local planning authority prior to the
submission of the first reserved matters application for any phase including a
custom build dwelling. The reserved matters applications for the custom-build
dwellings shall accord with the requirements of the approved design code.
26) The Community Building shall be completed prior to the occupation of more
than 50% of the Dwellings comprised in Area 2 in accordance with a
specification which shall include details of the size (which shall be no less than
500m2 Gross External Area), location and proposed range of uses of a
Community Building which has first been submitted to and approved by the
local planning authority. The Community Building shall be considered to have
been completed when it meets the following criteria:
a. The building is wind and water tight which may include temporary
provision/arrangement pending finally agreed fit out works
b. All services have been provided to the boundary and/or the external
envelope of the building and there is proper and safe access to the
building
c. In respect of those parts of the building which are to be fitted by a tenant
the relevant parts of the building are ready for the tenant to fit out
d. In respect of those parts of the building which are not to be fitted out by
a tenant the relevant parts of the building are ready for beneficial use and
occupation
e. The building has been constructed and substantially completed in all
respects to shell standard
27) A building located in Neighbourhood Area 2 to provide floorspace of not less
than 500sqm (Gross Internal Floor Area) for Use Class A retail purposes shall
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be constructed to shell and core specification prior to the occupation of 50% of
the dwellings in Neighbourhood Area 2. The building shall be marketed for
such purposes in accordance with a strategy to be submitted to and approved
in writing by the local planning authority prior to any such marketing
commencing. For the avoidance of doubt, this may comprise multiple lettable
units.
28) 1.8 hectares of land to be used for the provision of education shall be serviced,
accessible and made available prior to the occupation of no more than 400
dwellings. The land shall be provided in the location shown on the submitted
illustrative framework plan (141204 L02 02 J) or other such location as may be
first submitted to and approved in writing by the local planning authority. The
serviced land shall be kept available solely for education purposes for 10 years
from the date of planning approval or the Occupation of the 600th Dwelling,
whichever is the later.
29) No building comprised in any phase shall be built above damp-proof course
unless and until details of the proposed finished floor levels of each building
comprised in that phase have been submitted to and approved by the local
planning authority. The development shall be carried out in accordance with
the approved details.
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APPEARANCES
FOR THE LOCAL PLANNING AUTHORITY:
Michael Bedford QC Instructed by Karen Trickey Head of Legal
Services
He called
Christine Mason Senior Ecologist
Samantha Taylor Senior Transport Planner Devon County Council
Ian Perry Principal Planning Officer
Fergus Pate Principal Delivery Officer – Conditions and S106
session only
FOR ABBOTSKERSWELL PARISH COUNCIL & WOLBOROUGH RESIDENTS’
ASSOCIATION – RULE 6 PARTY:
Dr Stookes Solicitor Advocate Instructed by Chris Watts
He called
Chris Watts Secretary of the Wolborough Residents
Association
Samuel Watson Principal Ecologist Bioscan (UK)
Dr Kevin Page Geo-diversity
Dr Claire Holman Air Quality
FOR THE APPELLANT:
Charles Banner QC Instructed by David Seaton PCL Planning Ltd
He called
Dr Stephen Holloway Director of South West Ecology Ltd
David Seaton Managing Director PCL Planning Ltd
David Lock QC Landmark Chambers – NHS law
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THE TORBAY AND SOUTH DEVON NHS TRUST
Annabel Graham Paul of Counsel Instructed by Malcolm Dicken Head of
Commercial Development
She called
George Grute Commercial Development Manager of the Trust
Paul Cooper Finance Director of the Trust
Malcolm Dicken Head of Commercial Development
INTERESTED PERSONS:
Rhiannon Rhys Historic England Inspector of Historic Buildings
and Area Planning SW
Dr Paul Melling General Practitioner Kingskerswell & Ipplepen
Health Centres
Peter Finch Chairman of the CPRE Teignbridge, Devon
Branch
Mr Sampson Newton Says No campaign member
Michael Martyn North Devon Civic Trust
Kelvin Shantry Local resident
Richard Daws Local resident
Jeffery Collman Local resident
Iestyn John Partner Bell Cornwell – representing Mr Glynn
adjacent land owner
Jonathan Lloyd Representing Mr Glynn adjacent land owner
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Inquiry Documents
1) Supplementary Proof of Mrs Chrissy Mason
2) Holohan Judgment
3) Rebuttal Evidence of Mr Watson (March 2019)
4) Rebuttal Evidence of Mr Lacey (March 2019)
5) Further Rebuttal Evidence of Mr Seaton (March 2019)
6) Stagecoach Bus Services New Residential Developments (2017)
7) Guidelines for Providing for Journeys on Foot (IHT)
8) Opening – Mr Bedford (Council)
9) Opening – Mr Stookes (Rule 6 Party)
10) Opening – Mr Banner (Appellant)
11) Notes of Dr Paul Melling
12) Notes of Mr Peter Finch, CPRE Devon
13) Notes of Mr Sampson
14) Notes of Mr Shantry
15) Statement of Mr Daws
16) Bundle including correspondence with Historic England (PCL letters
18/07/18, 22/03/19 and Options Appraisal, HE letter dated 14/03/19)
17) Notes of Mr John
18) Notes of Mr Martyn
19) Historic England’s Summary of Written Statement
20) Local Development Scheme (February 2019)
21) Wolborough DPD Milestones
22) Statement of Mr Collman
23) 24/04/19 PCL Planning ES Addendum & ES Non-Technical Summary
24) 02/05/19 Email from Leanne Palmer enclosing Agreement between CCG
and the Torbay and South Devon NHS Foundation Trust, and Financial
Statement
25) 23/05/19 Email from Jessica Duck enclosing Financial Funding
Statement, Risk-Share Agreement, Letter to Clarke Willmott, CGC
allocations and NHS standard contract
26) 16/05/19, Letters from Richard Buxton Solicitors in response to ES
Addendum and letter dated 29/05/19 from Richard Buxton Solicitors
27) 31/05/19 Email from Caroline Waller enclosing TDC’s S106 Reg 123
Compliance Statement and accompanying spreadsheet in addition to the
Council’s note on the NHS requests
28) 04/06/19 PCL Planning Ltd letter to Leanne Palmer, NHS response and
copy of Counsel Advice
29) 04/06/19 PCL Planning Ltd letter to Leanne Palmer, additional matters
enclosing additional SoCG and Letter from SLR Consulting.
30) 10/06/19 – Email to Leanne Palmer enclosing S106 Commentary
31) Christine Mason – Notes on Habitat Regulations Assessment References
32) 10/06/19 - NHS documents
33) Langford Bridge Farm plan
34) Habitats Directive extract
35) Extract from Environmental Statement re. ecology
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36) 22/05/19 Email from C. Brookes, Historic England
37) 30/05/19 Letter from Clarke Willmott to Leanne Palmer
38) 04/06/19 PCL letter to Shakespeare Martineau
39) 22/03/19 letter from Ian Perry to Caroline Waller
40) Securing Section 106 and Community Infrastructure Levy Funds – A
Guide (September 2018)
41) Agreed schedule of conditions
42) Certified copy of the completed Unilateral Undertaking given to
Teignbridge District Council – attached is the Council’s S106 compliance
statement.
43) Certified copy of completed Unilateral Undertaking given to Devon
County Council – attached to it the Council’s comments on the Unilateral
Undertaking and the position statement of Devon County Council.
44) Appellants’ costs application against the Council
45) Council’s response to appellants’ cost application
46) Rule 6 Party costs application against the appellants
47) Appellants’ response to Rule 6 Party cost application
48) Appellants’ cost application against the Torbay and South Devon NHS
Trust
49) The Torbay and South Devon NHS Trust response to appellants’ cost
application
50) The Torbay and South Devon NHS Trust cost application against the
appellants
51) Appellants response to the Torbay and South Devon NHS Trust cost
application
52) Closing submissions of the Council
53) Closing submissions of the Rule 6 Party
54) Note of the Torbay and South Devon NHS Trust case
55) Closing submissions of the Appellants’ including Appendix 1 -
Submissions by the appellants in response to the Torbay and South
Devon NHS Trust application for NHS funding
56) Extract from Local Air Quality Management Technical Guidance (TG16)
57) Note of David Lock QC’s qualifications and experience
58) NA3 Wolborough 2019 Bat Activity Survey dated 22 November 2019
(Geckoelle Report)
59) Response to Geckoella Report by appellants.
60) Comments of Rule 6 Party on the Geckoella Report
61) Comments of the Council (Christine Mason) on Geckoelle Report.
62) Email final response from appellants to Geckoella Report
63) Agenda, Report to Planning Committee and the Minutes of the meeting
of the 21 January 2020 in respect of resolution to grant planning
permission for Langford Bridge Farm development.
64) Response by the Rule 6 Party to resolution of the Council to grant
permission for the Langford Bridge Farm development
65) Response of appellants to Housing Delivery Test Results 2019
66) Response of Rule 6 party to Housing Delivery Test Results 2019
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www.gov.uk/mhclg
RIGHT TO CHALLENGE THE DECISION IN THE HIGH COURT
These notes are provided for guidance only and apply only to challenges under the
legislation specified. If you require further advice on making any High Court challenge, or
making an application for Judicial Review, you should consult a solicitor or other advisor or
contact the Crown Office at the Royal Courts of Justice, Queens Bench Division,
Strand,London,WC2 2LL (0207 947 6000).
The attached decision is final unless it is successfully challenged in the Courts. The Secretary of
State cannot amend or interpret the decision. It may be redetermined by the Secretary of State only
if the decision is quashed by the Courts. However, if it is redetermined, it does not necessarily follow
that the original decision will be reversed.
SECTION 1: PLANNING APPEALS AND CALLED-IN PLANNING APPLICATIONS
The decision may be challenged by making an application for permission to the High Court
under section 288 of the Town and Country Planning Act 1990 (the TCP Act).
Challenges under Section 288 of the TCP Act
With the permission of the High Court under section 288 of the TCP Act, decisions on called-in
applications under section 77 of the TCP Act (planning), appeals under section 78 (planning) may
be challenged. Any person aggrieved by the decision may question the validity of the decision on
the grounds that it is not within the powers of the Act or that any of the relevant requirements have
not been complied with in relation to the decision. An application for leave under this section must
be made within six weeks from the day after the date of the decision.
SECTION 2: ENFORCEMENT APPEALS
Challenges under Section 289 of the TCP Act
Decisions on recovered enforcement appeals under all grounds can be challenged under section 289
of the TCP Act. To challenge the enforcement decision, permission must first be obtained from the
Court. If the Court does not consider that there is an arguable case, it may refuse permission.
Application for leave to make a challenge must be received by the Administrative Court within 28 days
of the decision, unless the Court extends this period.
SECTION 3: AWARDS OF COSTS
A challenge to the decision on an application for an award of costs which is connected with a
decision under section 77 or 78 of the TCP Act can be made under section 288 of the TCP Act if
permission of the High Court is granted.
SECTION 4: INSPECTION OF DOCUMENTS
Where an inquiry or hearing has been held any person who is entitled to be notified of the decision
has a statutory right to view the documents, photographs and plans listed in the appendix to the
Inspector’s report of the inquiry or hearing within 6 weeks of the day after the date of the decision. If
you are such a person and you wish to view the documents you should get in touch with the office at
the address from which the decision was issued, as shown on the letterhead on the decision letter,
quoting the reference number and stating the day and time you wish to visit. At least 3 days notice
should be given, if possible.


David Seaton Our ref: APP/P1133/W/18/3205558
Managing Director
PCL Planning
13a-15a Old Park Avenue 3 June 2020
Exeter
Devon
EX1 3WD
Dear Sir,
LOCAL GOVERNMENT ACT 1972 – SECTION 250(5)
TOWN AND COUNTRY PLANNING ACT 1990 – SECTIONS 78 AND 320
APPEAL BY ANTHONY, STEVEN & JILL REW
LAND AT WOLBOROUGH BARTON, COACH ROAD, NEWTON ABBOT, TQ12
1EJ
APPLICATION REF: 17/01542/MAJ
APPLICATION FOR AN AWARD OF COSTS
1. I am directed by the Secretary of State to refer to the enclosed letter notifying his
decision on the appeal as listed above.
2. This letter deals with your client’s applications for:
i. a full or partial award of costs against the Council; and
ii. a partial award of costs against the Torbay and South Devon NHS
Trust
The application as submitted and responses by the Council and by the Torbay
and South Devon NHS Trust are recorded in the Inspector’s Costs Report, a copy
of which is enclosed.
3. In planning inquiries, the parties are normally expected to meet their own
expenses, and costs are awarded only on grounds of unreasonable behaviour
resulting in unnecessary or wasted expense in the appeal process. The
application for costs has been considered in the light of the Planning Practice
Andrew Lynch, Decision Officer Tel 0303 444 3594
Planning Casework Unit Email: PCC@communities.gov.uk
Ministry of Housing, Communities & Local Government
3rd Floor, Fry Building
2 Marsham Street
Guidance, the Inspector’s Costs Report, the parties’ submissions on costs, the
inquiry papers and all the relevant circumstances.
4. For the application for full or partial costs against the Council, the Inspector’s
conclusions are stated at CR28–39. She recommended that your client’s
application for a full or partial award of costs be refused.
5. Having considered all the available evidence, and having particular regard to the
Planning Practice Guidance, the Secretary of State agrees with the Inspector’s
conclusions in her report and accepts her recommendation. Accordingly, he has
decided that a full or partial award of costs against the Council, on grounds of
'unreasonable behaviour', is not justified in the particular circumstances. The
application is therefore refused.
6. For the application for partial costs against the Torbay and South Devon NHS
Trust, the Inspector’s conclusions are stated at CR72-77. She recommended that
your client’s application for a partial award of costs be refused.
7. Having considered all the available evidence, and having particular regard to the
Planning Practice Guidance, the Secretary of State agrees with the Inspector’s
conclusions in her report and accepts her recommendation. Accordingly, he has
decided that a partial award of costs against the Torbay and South Devon NHS
Trust, on grounds of 'unreasonable behaviour', is not justified in the particular
circumstances. The application is therefore refused.
8. These decisions on your applications for awards of costs can be challenged
under section 288 of the Town and Country Planning Act 1990 if permission of
the High Court is granted. The procedure to follow is identical to that for
challenging the substantive decision on this case and any such application must
be made within six weeks from the day after the date of the Costs decision.
9. Copies of this letter have been sent to the Council and the Torbay and South
Devon NHS Trust.
Yours faithfully,
Andrew Lynch
Andrew Lynch
Authorised by the Secretary of State to sign in that behalf
Paul Stookes Our ref: APP/P1133/W/18/3205558
Richard Buxton Solicitors
19B Victoria Street
Cambridge 3 June 2020
CB1 1JP
Dear Sir,
LOCAL GOVERNMENT ACT 1972 – SECTION 250(5)
TOWN AND COUNTRY PLANNING ACT 1990 – SECTIONS 78 AND 320
APPEAL BY ANTHONY, STEVEN & JILL REW
LAND AT WOLBOROUGH BARTON, COACH ROAD, NEWTON ABBOT, TQ12
1EJ
APPLICATION REF: 17/01542/MAJ
APPLICATION FOR AN AWARD OF COSTS
1. I am directed by the Secretary of State to refer to the enclosed letter notifying his
decision on the appeal as listed above.
2. This letter deals with your client’s application for a full award of costs against the
appellant. The application as submitted and the appellant’s response are
recorded in the Inspector’s Costs Report, a copy of which is enclosed.
3. In planning inquiries, the parties are normally expected to meet their own
expenses, and costs are awarded only on grounds of unreasonable behaviour
resulting in unnecessary or wasted expense in the appeal process. The
application for costs has been considered in the light of the Planning Practice
Guidance, the Inspector’s Costs Report, the parties’ submissions on costs, the
inquiry papers and all the relevant circumstances.
4. The Inspector’s conclusions are stated at CR50-59. She recommended that your
client’s application for a full award of costs be refused.
5. Having considered all the available evidence, and having particular regard to the
Planning Practice Guidance, the Secretary of State agrees with the Inspector’s
conclusions in her report and accepts her recommendation. Accordingly, he has
decided that a full award of costs against the appellant, on grounds of
Andrew Lynch, Decision Officer Tel 0303 444 3594
Planning Casework Unit Email: PCC@communities.gov.uk
Ministry of Housing, Communities & Local Government
3rd Floor, Fry Building
2 Marsham Street
'unreasonable behaviour', is not justified in the particular circumstances. The
application is therefore refused.
6. This decision on your application for an award of costs can be challenged under
section 288 of the Town and Country Planning Act 1990 if permission of the High
Court is granted. The procedure to follow is identical to that for challenging the
substantive decision on this case and any such application must be made within
six weeks from the day after the date of the Costs decision.
7. A copy of this letter has been sent to the appellant.
Yours faithfully,
Andrew Lynch
Andrew Lynch
Authorised by the Secretary of State to sign in that behalf
Leenamari Aantaa-Collier Our ref: APP/P1133/W/18/3205558
Legal Director
Shakespeare Martineau
No 1 Colmore Square 3 June 2020
Birmingham
B4 6AA
Dear Madam,
LOCAL GOVERNMENT ACT 1972 – SECTION 250(5)
TOWN AND COUNTRY PLANNING ACT 1990 – SECTIONS 78 AND 320
APPEAL BY ANTHONY, STEVEN & JILL REW
LAND AT WOLBOROUGH BARTON, COACH ROAD, NEWTON ABBOT, TQ12
1EJ
APPLICATION REF: 17/01542/MAJ
APPLICATION FOR AN AWARD OF COSTS
1. I am directed by the Secretary of State to refer to the enclosed letter notifying his
decision on the appeal as listed above.
2. This letter deals with your application for a partial award of costs against the
appellant. The application as submitted and appellant’s response are recorded in
the Inspector’s Costs Report, a copy of which is enclosed.
3. In planning inquiries, the parties are normally expected to meet their own
expenses, and costs are awarded only on grounds of unreasonable behaviour
resulting in unnecessary or wasted expense in the appeal process. The
application for costs has been considered in the light of the Planning Practice
Guidance, the Inspector’s Costs Report, the parties’ submissions on costs, the
inquiry papers and all the relevant circumstances.
4. The Inspector’s conclusions are stated at CR105–109. She recommended that
your application for a partial award of costs be refused.
5. Having considered all the available evidence, and having particular regard to the
Planning Practice Guidance, the Secretary of State agrees with the Inspector’s
Andrew Lynch, Decision Officer Tel 0303 444 3594
Planning Casework Unit Email: PCC@communities.gov.uk
Ministry of Housing, Communities & Local Government
3rd Floor, Fry Building
2 Marsham Street
conclusions in her report and accepts her recommendation. Accordingly, he has
decided that a partial award of costs against the appellant, on grounds of
'unreasonable behaviour', is not justified in the particular circumstances. The
application is therefore refused.
6. This decision on your application for an award of costs can be challenged under
section 288 of the Town and Country Planning Act 1990 if permission of the High
Court is granted. The procedure to follow is identical to that for challenging the
substantive decision on this case and any such application must be made within
six weeks from the day after the date of the Costs decision.
7. A copy of this letter has been sent to the appellant.
Yours faithfully,
Andrew Lynch
Andrew Lynch
Authorised by the Secretary of State to sign in that behalf
Costs Reports to the Secretary of State
for Housing, Communities and Local
Government
by Frances Mahoney MRTPI IHBC
an Inspector appointed by the Secretary of State for Communities and Local Government
Date 2 April 2020
TOWN & COUNTRY PLANNING ACT 1990
LOCAL GOVERNMENT ACT 1972
TEIGNBRIDGE DISTRICT COUNCIL
APPEAL BY ANTHONY, STEVEN & JILL REW
Inquiry commenced on 26 March 2019
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
File Ref: APP/P1133/W/18/3205558
https://www.gov.uk/planning-inspectorate
Cost application A
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by Anthony, Steven & Jill Rew for a full/partial award of costs
against Teignbridge District Council.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for both a full and a partial award of costs be refused.
___________________________________________________________________
Cost application B
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by the Abbotskerswell Parish Council & Wolborough Residents’
Association for a full award of costs against Anthony, Steven & Jill Rew.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for a full award of costs be refused.
____________________________________________________________________
https://www.gov.uk/planning-inspectorate Page 1
Cost application C
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by Anthony, Steven & Jill Rew for a partial award of costs
against Torbay and South Devon NHS Trust.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for a partial award of costs be refused.
____________________________________________________________________
Cost application D
File Ref: APP/P1133/W/18/3205558
Land at Wolborough Barton, Coach Road, Newton Abbot TQ12 1EJ
• The application is made under the Town and Country Planning Act 1990, sections 78
and 320, and the Local Government Act 1972, section 250(5).
• The application is made by Torbay and South Devon NHS Trust for a partial award of
costs against Anthony, Steven & Jill Rew.
• The inquiry was in connection with an appeal against the failure of the Council to issue a
notice of their decision within the prescribed period on an application for planning
permission for:
Outline proposal for mixed use development comprising circa 1210 dwellings (C3), a
primary school (D1), up to 12650 sq m of employment floorspace (B1), two care
homes (C2) providing up to 5,500 sq m of floorspace, up to 1250 sq m of community
facilities (D1), a local centre (A1/A3/A4/A5) providing up to 1250 sq m of floorspace,
open space (including play areas, allotments, MUGA) and associated infrastructure
(Means of Access to be determined only); and
Full proposal for a change of use of existing agricultural buildings to hotel (C1),
restaurant (A3) and bar/drinking establishment (A4) uses, involving erection of new
build structures, construction of an access road and parking, plus other associated
conversion and minor works.
Summary of Recommendation:
The application for a partial award of costs be refused.
https://www.gov.uk/planning-inspectorate Page 2
Cost application A
The submissions for the appellants1
1. The appellants seek both a full award of costs2 against the Council3 and in the
alternative a partial award in relation to the defence of amongst other matters,
heritage, highway impact, and air quality.
2. Firstly, the Council failed to determine the application within the required time
limit. Planning Practice Guidance (PPG) sets out at 16-0484 that:
If it is clear that the local planning authority will fail to determine an application
within the time limits, it should give the applicant a proper explanation. In any
appeal against non-determination, the local planning authority should explain
their reasons for not reaching a decision within the relevant time limit, and why
permission would not have been granted had the application been determined
within the relevant period.
3. The Council has not provided any proper explanation for not reaching a decision
within the relevant time limit nor did they provide putative reasons for refusal.
Its statement of case repeated various comments made by statutory consultees
and others, without providing clarity as to what it was the Council itself was
saying were tenable reasons for refusal as opposed to matters for
conditions/obligations.
4. Secondly, the Council’s withholding of planning permission falls within the first
example of LPA substantive unreasonableness in PPG para. 16-049: preventing or
delaying development which should clearly be permitted, having regard to its
accordance with the development plan, national policy and any other material
considerations.
5. The Council’s Statement of Case gave the impression that it may take a broader
range of points against the appeal, including heritage and the absence of a Local
Planning Authority led development framework plan for the NA3 allocation (albeit
the opaqueness of the Statement of Case meant that the nature of the Council’s
case on these points was unclear). When proofs were exchanged Ms Taylor‘s5
proof added the further contention that there would, after 300 dwellings, be a
‘severe’ impact on highway capacity in the absence of a link road (Council officers
having recommended a 500 dwelling trigger for the link road in relation to the
duplicate application, which the appellants did not and do not contest), as well as
making associated points on air quality.
1 Inquiry Doc 44.
2 If a full award of costs is not made, a partial award of costs is sought in the alternative in relation to the
matters set out at paras 5-6 of this Report.
3 Minus any costs awarded against the Torbay and South Devon NHS Trusts for its procedurally
unreasonable conduct during the appeal.
4 PPG Appeals – Advice on planning appeals and the award of costs.
5 Senior Transport Planner Devon County Council.
https://www.gov.uk/planning-inspectorate Page 3
6. The appellants had to produce evidence to deal with all these points: contained in
Mr Seaton’s main proof and the appended reports on design/master planning
(including how heritage was taken into account) and air quality, and Mr Lacey’s
rebuttal. Time was taken up at the Inquiry too on these points, eg in cross-
examination of Ms Taylor.
7. During the Inquiry the Council’s case retreated to the Greater Horseshoe Bat
(GHB)/Special Area of Conversation (SAC) issue. Mr Perry accepted in cross-
examination that save in relation to this issue, the appeal scheme on an allocated
site is in accordance with the development plan.
8. The Council’s case on the GHB/SAC issue is substantively unreasonable. The
appellants rely on their closing submissions6 in this regard and highlights in
particular the following:
a. It was unreasonable for the Council to have failed to appreciate that the
critical question for Habitats Directive/Regulations compliance is that
posed at paragraph 33 of the appellants’ closing submissions, namely:
having regard to the safeguards that can be imposed by way of planning
conditions and the ability of the Council to scrutinise the details of the
development at the reserved matters stage (to which Regulation 70(3)
of the Habitats Regulations expressly says regard must be had), can the
Secretary of State be satisfied beyond reasonable scientific doubt that
the appeal scheme would not harm the ability of GHBs to continue to
travel between the component parts of the SAC “at low levels” in a
“broadly dispersed” manner (descriptions with which the Council’s
witness Mrs Mason agreed) across the wider landscape within which the
appeal site lies?
b. In answering this question, it was unreasonable of the Council to insist,
at this outline stage, on the provision and/or assessment of details
which have been entirely legitimately left until the reserved matters
stage7. In cross-examination she said that she wanted to know now, at
this outline stage, the details of how adverse effects can be ruled out at
the reserved matters stage. That is simply not a requirement of the
Habitats Directive or Regulations. It would require the submission of a
full planning application in all but name, rendering the concept of outline
planning permission of no practical purpose. It is also inexplicably
inconsistent with the Council’s failure to exercise its power under Article
5(2) of the Town and Country Planning (Development Management
Procedure) Order 2015 which allows a Council if so presented with an
outline application to require the submission of further details before the
application is determined.
6 Inquiry Doc 55.
7 See for example paras 6.16-6.16 and 7.4 of Mrs Mason’s proof, which require an
assessment of collision impacts and severance impacts, and mitigation thereof, in relation to
the internal roads of the development; para 7.5 which requires mapping and assessment of
lighting within the site, the location and details of which is inextricably linked to the final
layout; and the details referred to at paras 7.6(a)-(k) which also all relate to matters left
over for subsequent approval by the Council (as she accepted in cross-examination).
https://www.gov.uk/planning-inspectorate Page 4
c. As for the Council’s allegation that further bat surveys need to be
undertaken before permission can be granted due to the passage of
time since the original surveys, it is important to bear in mind at the
outset that this issue has only arisen because of the delay caused by the
Council refusing to determine the application. At the time when the
application was before the Council, the surveys were up to date.
Therefore, this issue cannot excuse the Council’s non-determination of
the original planning application, now the subject of this appeal.
d. The Council’s evidence and submissions fail to grasp that, given (i) the
agreed certainty that the bats use the site as part of a wider landscape
through which they travel between the component parts of the SAC in a
manner that is widely dispersed and at low levels and (ii) the ability of
the Council at the reserved matters stage to ensure that the final form
of the development will enable this function to continue, is what
matters, not the precise number of bats using the site on any particular
survey day(s) or the precise part(s) of the site that they used on those
day(s).
e. It is no justification for the Council to say that it was relying on Natural
England (NE), since NE had at the Local Plan Examination not had any
issue with the principle of the development (and the outline application
here is again only concerned with the principle of the development).
The Council’s witness Mrs Mason did not know, and had not sought to
find out, what had prompted NE to change its stance. If the Council
didn’t know why NE had changed its stance, that change of stance
cannot have provided a reasonable basis for the Council to withhold
permission. NE’s position was untested at the Inquiry and was also
misconceived for the same reasons as the Council’s position was.
Response for the Council8
9. The Council does not accept that its conduct amounts to unreasonable behaviour
and, in any event, its actions have not caused the appellants to incur any
unnecessary expense.
10. The Costs Application is put on three grounds:
a. it is contended that the Council has failed to provide any explanation (or
proper explanation) for its non-determination of the appeal application;
b. that the Council was substantively unreasonable in not granting
planning permission; and
c. that if a full award is not justified then a partial award is justified in
relation to non-GHB matters.
11. The PPG9 sets out that an application for costs will need to clearly demonstrate
how any alleged unreasonable behaviour has resulted in unnecessary or wasted
8 Inquiry Doc 45.
9 PPG Appeals – Advice on planning appeals and the award of costs.
https://www.gov.uk/planning-inspectorate Page 5
expense10. This reflects the need for both conditions to be satisfied in order for
an award of costs to be justified11. The Costs Application heavily focuses on the
first condition and, in so far as it addresses the second condition at all, proceeds
on the premise that not only will the substantive appeal inevitably succeed but
that no other outcome could be reasonably contemplated by the decision maker.
12. If, as the Council has maintained in its Closing Submissions12, the substantive
appeal is dismissed because the appellants have failed to provide sufficient
information to enable a grant of permission to satisfy the Habitats Directive and
the Habitats Regulations, it will be that failure which has resulted in the
appellants incurring all of the costs of the appeal to no good effect, and the
essential basis for the Costs Application will fall away. However, even if the
Council’s case is not accepted, it by no means follows that the Council has acted
unreasonably in putting it forward. At all stages the Council has acted with the
benefit of professional advice when dealing with the appeal proposal and it was
entirely reasonable for the Council to put forward a case based on that advice.
a. Explanation for non-determination
13. The appellants have quoted from part of ID16-048-20140306 but have not
quoted the most relevant part:
If an appeal in such cases [ie non-determination cases] is allowed, the local
planning authority may be at risk of an award of costs, if the Inspector or
Secretary of State concludes that there were no substantive reasons to justify
delaying the determination and better communication would have enabled the
appeal to be avoided altogether.
14. In the present case, the principal parties have a fundamental disagreement about
the proper operation of the Habitats Directive and the Habitats Regulations,
having regard to the scope of the contentious outline planning permission
element of the hybrid appeal application. This disagreement, based on the
advice of the respective parties’ ecological advisers and legal advisers, is
rehearsed in full detail in the respective Closing Submissions of the principal
parties13. The Council maintains its position, that the grant of planning
permission (even recognising the subsequent controls at the reserved matters
stage) is not a legally permissible or Habitats Directive/Regulations-compliant
option. If the Secretary of State agrees with the Council there is no question of
the appeal being allowed, and the case will not fall within the ambit of the advice
at ID16-048-20140306 at all.
15. However, even if the Secretary of State ultimately concludes that a planning
permission can be lawfully granted, it cannot be said that the Council’s contrary
case (which is, of course, fully supported in this regard by Natural England as the
Government’s statutory advisor on Habitats Directive/Regulations matters), does
not set out or provide substantive reasons to justify delaying the determination
10 ID16-032-20140306.
11 ID16-030-20140306.
12 Inquiry Doc 52.
13 Inquiry Docs 52, 53 and 55.
https://www.gov.uk/planning-inspectorate Page 6
until the provision of the required information which the Council contends is
needed to show that the appeal proposal will not have an adverse effect on the
integrity of the South Hams SAC. The Council has fully articulated those reasons,
both by reference to the relevant case law and by reference to the specific facts
concerning the appeal site and the relationships between the GHBs using the site
and the South Hams SAC. Whether or not those reasons are ultimately accepted
by the Secretary of State, it cannot be argued that they provide no substantive
reasons to explain the Council’s stance. Thus, even in this scenario, there is no
basis for an award of costs.
16. With specific reference to the Council’s provision of an explanation of the reasons
for the non-determination, this is set out in section 3 of the Proof of Ian Perry,
which rehearses the application history, including the changes made to the
appeal proposals during the course of its consideration by the Council, the views
expressed by consultees, and the extent to which the Council sought to resolve
outstanding issues through consideration of a duplicate application. Whilst
officers were prepared to support that application, it was made clear that even
this could only be on the basis of the provision of further information in relation
to GHBs (both survey data and an adequate GHB mitigation plan informed by
such survey data). In other words, the Council has never taken the view that a
planning permission could be granted on the state of knowledge about the effects
of the proposals on the SAC up until the close of the Inquiry.
17. However, even if the view were to be taken that, instead of seeking to resolve
issues by requesting further information (either on the appeal application or on
the duplicate application), the Council should have proceeded to determine the
appeal application, it remains the case that, based on the professional advice
received by the Council from its ecological and legal advisers, the appropriate
course in any such determination would have been to refuse planning permission.
That would have meant that, if the appellants had wished to challenge the
Council’s position, an appeal would have been inevitable. Better communication
between the parties would not have avoided the appeal because of the
fundamental disagreement between the parties on the substantive GHB/SAC
issue. It is therefore not possible to conclude that the Council’s non-
determination, even if thought to be unreasonable in the circumstances (which
the Council does not accept), has been causative of any unnecessary expense.
b. Substantive unreasonableness
18. It is not tenable for the appellants to argue that the Council’s position is one of
substantive unreasonableness. As set out in the Council’s Closing Submissions,
the appellants accept that the proposal needs to satisfy the tests in the Habitats
Directive and the Habitats Regulations in order to be granted planning
permission, and that if the proposal cannot satisfy those tests it cannot comply
with Policy NA3(n) of the adopted Local Plan, or be in accordance with the
development plan, or be consistent with national policy (para 177 of the National
Planning Policy Framework (the Framework)).
19. Without repeating its Closing Submissions, the Council does not accept that it has
misunderstood the key questions that need to be considered. Rather, it is the
appellants who have wrongly elided (i) the principle of development established
(without the benefit of any site surveys) by the allocation of the NA3 site at the
https://www.gov.uk/planning-inspectorate Page 7
plan-making stage, but expressly conditional upon and subject to the subsequent
provision of an appropriate bespoke GHB mitigation plan (which would need to be
informed by adequate site surveys) prior to any grant of permission, in order to
satisfy Policy NA3(n), with (ii) the principle of development in relation to the
quantum of 1210 dwellings (and associated development) on the particular
application site that would be established by any grant of planning permission as
sought in the present appeal. Despite the appellants’ repeated endeavours to
treat the two positions as the same, it is abundantly clear that they are different
and require different levels of evidence in order to satisfactorily discharge the
requirements of the Habitats Directive and the Habitats Regulations. This is
reinforced by the terms of Policy NA3(n) which expressly requires more at the
planning permission stage than was needed to support the Local Plan allocation.
20. The Council’s approach does not render the concept of an outline planning
permission and reserved matters otiose, as claimed by the appellants. It simply
means that, in the context of a case where the Habitats Directive and the
Habitats Regulations are undoubtedly engaged, and Policy NA3(n) is very explicit
about its requirement for a bespoke GHB mitigation plan prior to any grant of
planning permission, an applicant/appellant has to provide more specificity on
matters that are germane to how the development would impact on GHBs than in
a bare outline case. That is neither surprising (given the rigours of the HRA
tests) nor inconsistent with Regulation 70(3) of the Habitats Regulations.
21. It is noted that the Costs Application (para 8 c14) tacitly concedes that the
available GHB survey data is no longer up-to-date, but then seeks to blame the
Council for this state of affairs. This is, of course, a complete red herring. The
obligations of the Habitats Directive and the Habitats Regulations are required to
be satisfied in the light of the actual circumstances of the case. If there is
inadequate survey evidence to allow those obligations to be met, it does not
matter whether that is due to the applicant’s default or due to another party. In
any event, the Council does not accept that its non-determination can be
regarded as wrong-doing, and furthermore it is quite clear from Regulation 63(2)
of the Habitats Regulations that it is for the applicant/appellant to provide the
necessary information to the competent authority to enable an appropriate
assessment to be undertaken. It is also abundantly clear that since 2017 both
the Council and Natural England have consistently advised the appellants of the
need to provide further and up-to-date survey data. The fact that the appellants
have chosen not to do so cannot be laid at the Council’s door.
22. However, even if the Secretary of State is ultimately satisfied that he has
sufficient information to grant planning permission, it cannot be said to be
substantively unreasonable for the Council to have taken a contrary view. Its
position was supported by its expert ecological advice, by the advice of Natural
England, and by its legal advisers, having regard to the relevant regulatory
provisions and the applicable European and domestic case law. For the Council
to act on that professional advice cannot be said to be unreasonable.
23. It is quite clear that the claim in the Costs application for a full award of costs is
misconceived. There has been no unreasonable behaviour by the Council and in
14 Inquiry Doc 44.
https://www.gov.uk/planning-inspectorate Page 8
any event, given the regulatory requirements imposed by the Habitats Directive
and the Habitats Regulations, its actions have not caused any unnecessary
expense to be incurred by the appellants. The appellants have incurred expense
because they chose to appeal but without providing the information needed to
allow an appropriate assessment to be properly undertaken by the competent
authority.
24. Partial Award - This application would seem to relate to the non-GHB elements of
the case. The Council does not accept that its conduct of its case in relation to
heritage, highways, or master-planning was unreasonable. In relation to
heritage, the Council had justified concerns about the adequacy of the heritage
assessment undertaken by the appellants, and commissioned its own heritage
assessment, and in the light of that latter assessment was able to conclude that
heritage matters could be adequately addressed by the proposed conditions. All
of this is explained in the Proof of Ian Perry and the supporting appendices
provided by Maureen Pearce. No Inquiry time was taken on heritage matters by
the Council (obviously there was a separate heritage case raised by Historic
England that the appellants had to deal with in any event).
25. In relation to highways, it will be recalled that, after the submission of the main
proofs (in line with the Inquiry timetable) the appellants submitted (via rebuttal
evidence on 20 March 2019) new traffic data and junction capacity assessments,
and it was only in the light of this new evidence that Devon County Council, as
highway authority, was able to revise its position on the timing of the provision of
the link road. It cannot be unreasonable for a party’s position to change in the
light of the receipt of new technical information. The revised position was
explained by Ms Taylor in her evidence, together with the reasons for it. The
Council, and its highways witness, reacted promptly to the receipt of the new
information and there was no unreasonable behaviour.
26. In relation to master-planning, this had been the subject of lengthy discussions
and negotiations during the application process, with iterations of a masterplan
evolving during the consideration of the application. Given the requirements of
Policy NA3(a) and the importance of the document to the proposed development,
it was not unreasonable for the Council to give close scrutiny to its contents, and
to the processes that led to its production. The Council also undertook its own
master-planning exercise, as explained in paras 6.6 to 6.16 of the Proof of Ian
Perry, seeking to pro-actively test sustainable options for overall delivery of the
allocated site. In the event, the Council was satisfied that the final iteration of
the appellants’ masterplan was sufficiently close to its aspirations for the site that
further matters could be left as reserved matters. This was a reasonable stance
to take. It will also be noted that no time was spent at the Inquiry on this
matter.
27. The Council does not therefore accept that any partial award of costs is
warranted.
https://www.gov.uk/planning-inspectorate Page 9
Conclusions- The appellant’s Costs application against the Council15
28. The Planning Practice Guidance states that irrespective of the outcome of an
appeal, costs may only be awarded against a party who has behaved
unreasonably and thereby caused the party applying for costs to incur
unnecessary or wasted expense in the associated appeal process. The same
guidance makes it clear that it is necessary for local planning authorities, when
failing to determine an application for planning permission, to give the applicant a
proper explanation, and further in any appeal against non-determination, the
local planning authority should explain their reasons for not reaching a decision
within the relevant time limit, and why permission would not have been granted
had the application been determined within the relevant period. If they have
failed to do so they are at risk of an award of costs if they behave unreasonably
with respect to the substance of the matter under appeal. Failing to produce
evidence to substantiate a reason for refusal on appeal, or making vague,
generalised or inaccurate assertions about a proposal’s impact which are
unsupported by any objective analysis, are cited as examples16.
29. The appellants’ claim centres on the following grounds:
• whether the Council has provided a proper explanation for not reaching a
decision, and
• reasons why permission would not have been granted (putative reasons for
refusal).
30. The reason for the non-determination of the planning application stem from the
fundamental disagreement between the parties of the proper operation of the
Habitats Directive and the Habitats Regulations. This disagreement was based on
expert advice on both sides. This dispute was maintained going forward into the
Inquiry and was examined over the course of the consideration of evidence
leading to the Competent Authority17 making his decision.
31. Such disputes are not uncommon and when, what at face value appear to be
intransigent positions are maintained, so progress forward becomes stifled. In
such circumstances applicants often feel they have no alternative but to move
onto the next stage of the process, that being an appeal. However, those
entrenched positions were on both sides in this case and it was by means of the
process of evidential examination at the Inquiry that a decision could be reached.
32. The Council has made it clear that the principle of development is not a matter of
dispute between the Council and the appellants18. It is also accepted that the
appeal site forms the largest part of the mixed-use allocation NA3 in the adopted
Teignbridge Local Plan (2014)19.
15 Inquiry Doc 44, 45 – the Costs claim solely relates to the Outline part of this hybrid appeal
proposal.
16 Paragraph: 049 Reference ID: 16-049-20140306
17 In this case the SofS.
18 Inquiry Doc 8 para 1.
19 Both the Council and Devon County Council supported the allocation at the LP stage.
https://www.gov.uk/planning-inspectorate Page 10
33. The Council’s Statement of Case20 refers to reasons for non-determination
centred on the Link Road delivery in the context of timing and creation of a
sustainable transport network, the impact on the GHBs in the context of whether
there was sufficient information to make that assessment under the Habitat
Regulations, heritage impacts, whether the promoted Masterplan fulfils the
requirements of LP Policy NA3, and finally, in the then absence of a mechanism
for delivery whether the proposal would deliver the obligations required in order
to make the development acceptable (S106 agreement). The Council’s
Statement of Case makes it quite clear the reasons why permission would not
have been granted and the Proof of Mr Perry picks up the same themes at section
3.
34. Following the submission of the parties’ Statements of Case, through mutual
negotiations those disputed matters were narrowed, and various Statements of
Common Ground produced which re-focused the Council’s case to a reduced
number of issues between the parties. At the opening of the Inquiry the Council
made it clear what their concerns were as expressed in their Opening21. Through
the examination of evidence, as the Inquiry progressed, the submission of an
acceptable and completed S106 agreement, and the final submission of survey
work in relation to GHBs, submitted by the Council after the close of the Inquiry,
some matters in dispute were dealt with.
35. In these circumstances the Council did not prevent or delay development which
should clearly be permitted. As already indicated the proposal was in step with
the LP NA3 allocation, but the Council were entitled to find that at the time of
consideration of the proposal, insufficient evidence had been submitted to enable
them, as the then Competent Authority, to make a determination as to whether
the proposal would have an adverse effect on the integrity of the South Hams
SAC.
36. The appellants highlight the Council’s initial promoted position on heritage
matters, as expressed in the Council’s Statement of Case, which indicates some
concern in relation to the level of detail within the application being insufficient to
determine the level of harm to the range of heritage assets affected by the
proposal, more particularly by the means of access. The Council also aligns itself
to some extent with the considerations of Historic England. However, by the time
the parties had reached the Inquiry room, the Council was no longer associating
itself with any opposition on heritage grounds, considering these matters could
be resolved through conditions and at reserved matters stage.
37. It could be said that the movement of the Council from promoting a heritage
concern, to disassociating itself from the Historic England position, could be
considered tentatively unreasonable. However, in this appeal special regard to
the desirability of preserving listed buildings or their settings or any features of
special architectural or historic interest which they possess, and special attention
being paid to the desirability of preserving or enhancing the character or
appearance of conservation areas, had to be considered due to the statutory duty
20 Submitted Oct 2018 – on appeal file-green folder.
21 Inquiry Doc 8.
https://www.gov.uk/planning-inspectorate Page 11
placed upon the decision-maker22. Therefore, the heritage case presented by
the appellants to answer the case of Historic England and initially the Council was
required to be examined in any case to enable the decision-maker23 to come to a
view in this regard. Therefore, the appellants were not put to any wasted
expense in this regard.
38. Both highway and air quality matters were similarly initially raised by the Council.
Air quality was a major concern for the Rule 6 party and evidence was heard in
this regard. Therefore, the appellant had to offer a defence on this ground in any
event. Similarly, highways matters were pursued by both the Rule 6 party and
third parties and were aired by means of a round table discussion. The position
of the County Council did shift during the examination of the evidence in relation
to the provision of the bus service and to some extent the timing for the delivery
of the Link Road. This was as a result of a mutual examination of the evidence
and an acceptance and realisation of an opposing position. I do not consider this
to be unreasonable behaviour, more the outcome of skilful examination of
evidence in the Inquiry setting leading to the resolution of disputed issues.
39. For all of the above reasons I conclude that the Council has not behaved in such
a manner as to substantiate a finding of unreasonable behaviour which has
directly caused another party to incur unnecessary or wasted expense in the
appeal process sufficient to justify either a full or a partial award of costs.
Cost application B
Submissions of the Abbotskerswell Parish Council & Wolborough Residents’
Association24
40. Abbotskerswell Parish Council and Wolborough Residents’ Association (Rule 6
Party) were granted Rule 6 status on 19 February 2019. They have participated
in the appeal throughout and have incurred significant costs in employing
professional legal and expert advice in doing so.
41. They have maintained the position throughout the appeal and expressed the
point clearly in Closing submissions25 that the appellants have provided
insufficient environmental information for the appeal to be determined. The Rule
6 Party also made submissions that the significant adverse effects of the proposal
on for instance air quality, biodiversity, heritage and other environmental effects
were such that planning permission should be refused in any event; there was an
overriding concern that there was a fundamental lack of information being
provided by the appellants. The failure to provide either sufficient and/or
adequate information is such that if the Secretary of State were to grant
permission on the evidence presented, that decision would inevitably be unlawful
22 Section 16(2), 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas)
Act 1990.
23 Secretary of State.
24 Inquiry Doc 46.
25 Inquiry Doc 53.
https://www.gov.uk/planning-inspectorate Page 12
by, amongst other things, a breach of the EIA Directive 2011/92/EU, the EIA
Regulations 2011 and the Habitats Regulations 2017.
42. The Rule 6 Party has made it clear to the appellants throughout the Inquiry that
the information provided is insufficient and inadequate. This included:
1) Their letter to the Inspectorate of 26.2.19, copied to the appellants;
2) A further letter on 18.3.19 again expressing concern that there was too
much critical information that had not been made available;
3) In their Opening submissions26 highlighting in yet more detail where
there was an absence of information; and
4) In their response to the publication of the ES Addendum (April 2019)
and Revised NTS (April 2019).
43. On each occasion, the Rule 6 Party suggested that the appeal should be
withdrawn or adjourned until satisfactory information would be provided. They
considered that the appellants’ agreement to submit further information on the
ES in March 2019 may address the critical concerns. However, the information
provided was superficial in nature, at best.
44. Moreover, the appellants were reminded of the need to provide relevant
information in the Inspectorate’s letter to them of 21.12.18 which noted: … court
cases which have stressed the need for all the relevant environmental
information in an ES to be comprehensive and easily accessible.
45. The Rule 6 Party recognise the normal costs rules in relation to Inquiry costs.
However, they submit that the appellants’ persistent failure to acknowledge and
address the significant lack of environmental information provided in the Appeal
is not only contrary to their obligations under the EIA Directive it is unreasonable
and has put the Rule 6 Party to considerable unnecessary expense. Most, if not
all the costs incurred by the Rule 6 Party could have been avoided had the
appellants acknowledged, as early as 21.12.18, that they were not in fact
providing the information that was lawfully required in legislation and which has
been underlined as necessary by the Courts.
46. In the light of the above, and having regard to the closing submissions of Rule 6
Party27, which highlights in detail the lack of information, the Rule 6 Party invite
the Secretary of State to make a full costs award in their favour such that the
appellants pay the costs arising out of and incidental to this appeal.
Response by the appellants28
47. The Rule 6 Party’s application is wholly misconceived. It does not identify any
substantive or procedural unreasonableness by the appellants in the conduct of
26 Inquiry Doc 9.
27 Inquiry Doc 53.
28 Inquiry Doc 47.
https://www.gov.uk/planning-inspectorate Page 13
its appeal or at the Inquiry. It is founded on alleged shortcomings in the
appellants’ Environmental Statement and Addenda, and the costs that the Rule 6
Party says it has incurred in pointing out those alleged shortcomings. However,
there is nothing unusual about a third party pointing out alleged shortcomings in
an Environmental Statement. That is inherent in the process of consultation
under the EIA Regulations. See R (Blewett) v. Derbyshire County Council [2004]
Env. L.R. 29 per Sullivan. at paragraph 41 (emphasis added):
The Regulations should be interpreted as a whole and in a common-sense way. The
requirement that 'an EIA application' (as defined in the Regulations) must be
accompanied by an environmental statement is not intended to obstruct such
development. As Lord Hoffmann said in R v North Yorkshire County Council ex
parte Brown [2000] 1 A.C. 397 at page 404, the purpose is 'to ensure that
planning decisions which may affect the environment are made on the basis of
full information'. In an imperfect world it is an unrealistic counsel of perfection to
expect that an applicant's environmental statement will always contain the 'full
information' about the environmental impact of a project. The Regulations are
not based upon such an unrealistic expectation. They recognise that an
environmental statement may well be deficient and make provision through the
publicity and consultation processes for any deficiencies to be identified so that
the resulting 'environmental information' provides the local planning authority
with as full a picture as possible. There will be cases where the document
purporting to be an environmental statement is so deficient that it could not
reasonably be described as an environmental statement as defined by the
Regulations…, but they are likely to be few and far between.
48. As is clear from the above paragraph, even if (which is strongly denied) there is
any merit in the Rule 6 Party’s criticisms of the Environmental Statement and
Addenda, the fact that shortcomings have been identified in the Environmental
Statement is illustrative not of something having gone wrong in the EIA process,
but of the process operating as it is intended to operate.
49. For the reasons given in the appellants’ closings29, the Rule 6 Party’s criticisms
are without merit; and there is no clear and convincing explanation of how any
alleged unreasonableness has caused the Rule 6 Party undue expense. As noted
in the appellants’ closing submissions, the EIA process is not an obstacle course -
even if the Planning Inspectorate had agreed before the Inquiry with the Rule 6
Party that the current Environmental Statement and Addenda were inadequate,
this was always remediable and could never ultimately have prevented the
appeal and Inquiry proceeding. Therefore, the suggestion in the Rule 6 Party’s
Costs application that their entire Inquiry costs would have been avoided is
manifestly incorrect.
Conclusions- The Rule 6 Party’s Costs application against the appellants30
50. The Planning Practice Guidance31 states that irrespective of the outcome of an
appeal, costs may only be awarded against a party who has behaved
29 Inquiry Doc 55.
30 Inquiry Doc 46, 47 – the Costs claim solely relates to the Outline part of this hybrid appeal
proposal.
31 Planning Practice Guidance: Appeals – ID:16.
https://www.gov.uk/planning-inspectorate Page 14
unreasonably and thereby caused the party applying for costs to incur
unnecessary or wasted expense in the associated appeal process. The same
guidance makes it clear that it is necessary for parties to follow good practice,
both in terms of timeliness and in the presentation of full and detailed evidence
to support their case. If they have failed to do so they are at risk of an award of
costs if they behave unreasonably with respect to the substance of the matter
under appeal or the procedure of the appeal. Failing to produce evidence to
substantiate a reason for refusal on appeal, or making vague, generalised or
inaccurate assertions about a proposal’s impact which are unsupported by any
objective analysis, are cited as examples32.
51. The Rule 6 Party are seeking a full award of Costs from the appellants, taking the
position that the appellants have provided insufficient environmental information
for the appeal to be determined. This is in particular respect of a need, in their
view, to submit further information on the Environmental Statement which should
be comprehensive and easily accessible.
52. The consultation process under the EIA Regulations does allow for clarification,
omissions and the need to submit further detail to be highlighted. This, in my
view, is a fundamental part of the securing of a body of evidence which can
appropriately inform a decision-maker.
53. In my experience it is not uncommon for Environmental Statements to be less
than perfect. Through the consultation process they do, however, start
conversations between interested parties such as Natural England, which inform
further evidential submissions. Perfection is something we can all strive for but
sometimes, taking a common-sense approach, being good enough is what is
realistic.
54. In this case other than the impact on the GHBs (SAC) only the Rule 6 Party made
any allegations of deficiency in the generality of the environmental assessments
submitted and subsequently supplemented33. The Council and other statutory
consultees were able to come to reasoned conclusions on the environmental
effects of the appeal proposal34.
55. The Rule 6 Party were right to highlight any concerns they might have with the
Environmental Statement. They chose to continue to pursue their concerns that
the Environmental Statement was deficient through the appeal process, which is
their right. They also made submissions upon and offered evidence in other
matters such as the prematurity of the development, impact on local services and
resources, air quality, biodiversity and heritage.
56. To avoid the delay of development identified within an adopted Local Plan which
has already been tested through a Local Plan Examination and subjected to a raft
of environmental testing at that stage, the body of environmental evidence
should be considered in the round, including the Environmental Statement and
Addenda. In the case of this appeal this includes the evidence submitted both
32 Paragraph: 049 Reference ID: 16-049-20140306
33 At the appeal stage.
34 Save for the impact upon the GHBs (SAC).
https://www.gov.uk/planning-inspectorate Page 15
before, at and after the Inquiry. It is the totality of this environmental evidence
which will be considered by the decision-maker to evaluate the proposal in this
context and move forward to a decision, taking into account the relevant
Directives and Regulations. However, it is for the decision-maker to decide
whether the quality and extent of the Environmental Statement and other
informative material is good enough to allow for an appropriately informed
decision. This matter will be resolved by the Secretary of State.
57. The associated Appeal Report reaches a recommendation that there is sufficient
environmental information for the appeal to be determined. Whether this is
accepted by the decision-maker is another matter, but whilst a perceived
deficiency in information was identified by the Rule 6 Party, which they felt
compelled to pursue through the appeal process, the appellants were continuing
to work with the Council and other statutory consultees to expand on the
environmental evidential base information. The Council also contributed to this
through their own evidence, including the up to date GHB survey. From the
questioning of some Inquiry witnesses it was clear that some of the extended
submitted appeal evidence was not familiar to them.
58. I do not consider that the appellants did not respond when the possible
deficiencies in the submitted environmental information was raised.
Supplementary information/evidence was submitted. The issue of whether the
environmental information was sufficient to test the proposal against the Habitats
Directive and the Habitats Regulations, in order to be granted planning
permission, was a narrowing point before, during and after the Inquiry. I am
satisfied the proposal would have ended up in the Inquiry room in any event due
to the dispute between experts on the impact on the GHBs alluded to in Costs
application A above. The Rule 6 Party continued their opposition, in the main, to
the totality of the environmental information, even in the face of relevant
additional information/evidence.
59. Therefore, for all of the above reasons I conclude that the appellants have not
behaved in such a manner as to substantiate a finding of unreasonable behaviour
which has directly caused another party to incur unnecessary or wasted expense
in the appeal process sufficient to justify a full award of costs.
Cost application C
Submissions of the appellants35
60. The National Health Service Financial Trust (NHSFT) is not a statutory consultee,
nor is it a Rule 6 Party.
61. PPG 16-056 provides:
Interested parties who choose to be recognised as Rule 6 parties under the
inquiry procedure rules, may be liable to an award of costs if they behave
unreasonably…
35 Inquiry Doc 48.
https://www.gov.uk/planning-inspectorate Page 16
It is not anticipated that awards of costs will be made in favour of, or against,
other interested parties, other than in exceptional circumstances. An award will
not be made in favour of, or against interested parties, where a finding of
unreasonable behaviour by one of the principal parties relates to the merits of
the appeal. However an award may be made in favour of, or against, an
interested party on procedural grounds, for example where an appeal has been
withdrawn without good reason or where an unnecessary adjournment of a
hearing or inquiry is caused by unreasonable conduct.
62. In accordance with this guidance, this costs application is directed at the
procedural unreasonableness of the NHSFT.
63. Despite being a substantial body and being professionally represented by
solicitors and counsel, and despite its request for a contribution being a seven-
figure sum, the NHSFT’s first participation in this application/appeal came without
warning only days before the Inquiry started, well after the time limits for
comments on the application and appeal had expired. No satisfactory
explanation has been provided.
64. The way the NHSFT’s case was then presented was highly irregular and
unsatisfactory. At the March session of the Inquiry oral evidence was given by
Mr Grute and representations were made by counsel, but relevant documentation
was not provided (such as the governing contractual arrangements or the
legislative framework under which the NHSFT operated). The appellants
responded during the adjournment between the March and June sessions of the
Inquiry, as it was plainly entitled to do, both in accordance with the general
principle that the appellants have the last word, and in light of the belated nature
of the NHSFT’s objection and Mr Grute’s evidence. Amongst other things, that
response pointed out that the NHSFT’s evidence and representations had not
presented an accurate and complete picture of its obligations and its relationship
with other NHS bodies. Despite the principle that the appellants have the last
word at inquiries, the NHSFT then produced in response – provided to the
appellants at 16:12 the day before the Inquiry resumed in June – 20 pages of
further material including a ‘Witness Statement’ from a new witness, Mr Cooper,
and further representations apparently drafted by counsel and/or solicitors.
There was then a session in the order of half a day on the final day of the Inquiry
where once again the Trust sought to elaborate its position and for which the
appellant needed to have Mr Lock QC in attendance.
65. Had the NHSFT made representations within the relevant time limits, or even
after the time limits, but in a single comprehensive fashion in good time prior to
the Inquiry, rather than advance its case in this belated and piecemeal fashion,
this lengthy, time consuming and costly exchange could have been avoided. The
matter could, in that situation, have been dealt with as part of the ordinary S106
session, based upon the written material. Instead, the appellants have been put
to the unnecessary and considerable expense of two standalone Inquiry sessions
on this point as well as having to consider (with the advice of its professional
team, at cost) and respond to the drip-feed of material that came from the
NHSFT. The NHSFT has manipulated the inquiry process to obtain most, if not all,
of the benefit of Rule 6 party status – in terms of inquiry time, representation
and submissions by counsel, provision of a ‘Witness Statement’ i.e. a proof of
evidence, calling witnesses through counsel – but with none of the
https://www.gov.uk/planning-inspectorate Page 17
responsibilities, including in particular in relation to the timing of its
representations and evidence. That was procedurally unreasonable.
66. The appellants therefore seeks their costs of the two standalone sessions on the
contribution sought by the NHSFT as well as the professional costs associated
with considering and responding to the NHSFT’s written material.
Response of NHSFT36
67. The complaint of unreasonable behaviour appears to be that the appellants
had insufficient opportunity to understand the NHSFT's case before its
appearance at the Inquiry in March and, consequently, it had to request
further documents and participate in a second Inquiry session to deal with
the S106 request. It says that it has incurred wasted expense in the form
of responding to the material it requested, providing the advice of David
Lock QC and two standalone sessions at the Inquiry.
68. It is denied that the NHSFT has behaved unreasonably and, in any event,
the appellant has not incurred any wasted expense.
69. As set out in the witness statement of Leenamari Aantaa-Collier, solicitor
for the NHSFT, the NHSFT provided written material (with full appendices)
to the Inquiry. This written material is in a similar form to that which has
been provided to previous inquiries. It was submitted to the Planning
Inspectorate and served on the appellants on 20 February 2019, over a
month before the NHSFT appeared at the Inquiry on 28 March 2019.
Accordingly, there was ample time for the appellants to digest it and
request any further documents they wished from the NHSFT in light of it.
Instead, what appears to have happened is that the appellants did not
really get to grips with it until after the NHSFT appeared at the Inquiry and
the appellants said they were not in a position to respond, they would do
so through their Planning Witness, the NHSFT therefore needed to return
when the appellants’ case was being presented, and they also asked for
additional documents from the NHSFT.
70. The appellants’ 'reactive' stance was entirely down to it not having
prepared sufficiently for the March session; rather than due to any
unreasonable behaviour on the part of the NHSFT. Indeed, the
documents were provided a day after they were requested. Then the
appellants submitted, without warning, a lengthy opinion from leading
counsel (rather than dealing with the matter through its Planning Witness,
as had been said in the March session). It was only fair that the NHSFT
had the right to respond to that and it did so as promptly as possible.
36 Inquiry Doc 49.
https://www.gov.uk/planning-inspectorate Page 18
71. In any event, it is not clear what wasted expense has been incurred by the
appellants. It is completely unrealistic to suggest that the NHSFT
contribution (being so actively disputed) could be dealt with in the normal
S106 session on the papers without counsel for the NHSFT and witness
attendance. Given the scrutiny being applied to the contribution, it was
inevitable there would have to be Inquiry time taken up with oral
submissions. Furthermore, the appellants would have wanted to put in
David Lock QC' s opinion irrespective of timing and would have requested
the NHS contract etc. and needed to respond to that. Therefore, the
appellants did not incur any wasted expense due to anything done by the
NHS Trust in any event.
Conclusions - The appellants’ Costs application against the NHSFT37
72. The Planning Practice Guidance sets out38 that it is not anticipated that
awards of costs will be made in favour of, or against, other interested
parties39, other than in exceptional circumstances. The appellants are
seeking a partial award of costs against the NHSFT in respect of the
Inquiry sessions dealing with this matter along with the associated
professional fees for considering and responding to the NHSFT written
material.
73. The NHSFT is not a statutory consultee nor did they have Rule 6 party
status. They were however an interested party. They were included in the
Inquiry process on that basis. Whilst presentation by counsel for
interested parties outside of the designation of Rule 6 Parties, is unusual at
Inquiry, it is at the discretion of the Inspector. Some latitude was afforded
to the NHSFT in respect of the presentation of their case, as well as the
cross questioning of their evidence and that of the appellants in this
regard. This was on the basis that this was the most efficient and
appropriate way to examine the case of the NHSFT, allowing the appellants
to explore and challenge that case, and for the Inspector to fully
understand and question the opposing cases in this regard. That
examination of evidence took up about half a day of Inquiry time. It was
not prolonged and the questioning of all parties was pertinent and focused.
It was also dealt with as a discrete session under the umbrella of the S106
obligations. It was a useful and necessary part of the examination of the
evidence in relation to the impact of the appeal proposal. This matter was
always going to take up Inquiry time there being a fundamental difference
in approach between the parties. In the interest of fairness and
transparency this matter needed to be aired within the Inquiry room.
74. The NHSFT became involved in the appeal process in February 2012?,
about a month before the Inquiry opened. This may have been somewhat
37 Inquiry Doc 48 & 49.
38 At ID: 16-056-20161210.
39 Other than the Rule 6 Party.
https://www.gov.uk/planning-inspectorate Page 19
eleventh hour, but I consider this was in the main due to the confusion
within the hierarchy of the NHS as to who and where the responsibility lies
for exploring and pursuing such funding streams in a measured and logical
way40. The NHSFT should not be penalised for their late awakening to the
appeal process already moving into the station.
75. I do agree with the appellants that it was unfortunate that the NHSFT’s
additional evidence was not submitted until close to the resumption of the
Inquiry in June. However, the appellants were aware of the essence of the
NHSFT case. The matter was also not dealt with until the final throws of
the Inquiry and this did give several days for very experienced advocates
to examine evidence and prepare questions. The appellants’ witness in
this matter was also a very experienced QC who, in participating in the
Inquiry session, appeared well prepared and there was no suggestion the
appellants were disadvantaged by the squeeze on preparation time.
76. There is no evidence that the NHSFT manipulated the Inquiry process to
obtain a status akin to a Rule 6 party. Their status was given at the
discretion of the Inspector to facilitate the workings of the Inquiry and
assist in obtaining the information required to appropriately advise the
Secretary of State. These are not exceptional circumstances.
77. Therefore, for all of the above reasons I conclude that there are no procedural
grounds relating to the behaviour of the NHSFT which have directly caused the
appellants to incur unnecessary or wasted expense in the appeal process
sufficient to justify a partial award of costs.
Cost application D
Submission of the NHSFT41
78. The Torbay and South Devon NHSFT makes an application for a partial award of
costs against the appellants. The basis for the application is as follows.
79. The NHSFT is an interested party who has taken part in the appeal process and
thus has standing to apply for an award of costs42.
80. The Planning Practice Guidance states that: It is not anticipated that awards of
costs will be made in favour of, or against, other interested parties, other than in
exceptional circumstances. An award will not be made in favour of, or against
interested parties, where a finding of unreasonable behaviour by one of the
principal parties relates to the merits of the appeal43. This application does not
relate to the merits of the appeal, but rather the way in which the appellants
chose to argue its case in relation to the NHSFT’s S106 contribution request.
40 Confirmed through Inspector’s questions.
41 Inquiry Docs 50 & 32.
42 PPG 029 Ref ID: 16-029-20140306.
43 PPG para 056 Ref ID: 16-056-20161210.
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81. The appellants have behaved unreasonably in submitting the advice of David
Lock QC dated 1 June 2019. That behaviour has resulted in unnecessary
expense to the NHSFT who have had to respond and correct that advice through
the production of its Response and the Witness Statement of Paul Cooper,
Finance Director of the Trust44 on 10 June 2019.
82. The Advice is unreasonable because it misunderstands and misrepresents the
relevant facts and law. The extent of the errors of law and inaccuracies is such
that ‘exceptional circumstances’ are made out.
83. It is unclear from the Advice what instructions Mr Lock was given by Mr Rew or
what documents he was provided with, but it is apparent throughout the Advice
that there are fundamental misunderstandings of the law and facts. There is no
expert evidence provided to support the many paragraphs which purport to
explain the complex system of NHS funding. A number of assumptions are made
and the law applied does not accurately reflect the position.
84. One clear indicator that Mr Lock is not properly cognisant of the NHSFT request is
apparent from the first paragraph of the Advice where he states that he is asked
to advise Mr Anthony Rew concerning a request which has been made by Torbay
and South Devon NHS Foundation Trust to a planning inspector that a condition
should be imposed in any planning consent. There is no request for a condition
to be imposed. The NHSFT requests a financial contribution under S106 of the
Town and Country Planning Act 1990. Mr Lock goes on to apply the law relating
to planning conditions in Newbury (see eg summary of advice in paragraph 2).
This is simply wrong.
85. His statement that: the requests made by NHSFT for funding linked to a proposed
planning consent does not appear to me to have any proper basis within planning
law ignores the fact that contributions for hospital running costs have regularly
been made by the Secretary of State and the Secretary of State has agreed in
the context of High Court proceedings as well as on appeal that such
contributions meet the CIL tests in principle. Mr Lock does not refer (perhaps
because he was under the misunderstanding that he was advising on a condition)
to the House of Lords decision in Tesco Stores or, in fact, to S106 itself at all. Mr
Lock appears to combine references to the tests for the imposition of conditions
(in Newbury) with Regulation 122 of the CIL Regulations, which has nothing
whatsoever to do with conditions. This betrays a fundamental misunderstanding
of the relevant law, which the NHSFT has been obliged to correct.
86. In respect of Mr Lock’s portrayal of the NHS funding regime, there is no expert
evidence to support his statements and assumptions. Throughout the advice
there are numerous factual matters and assumptions which the Trust has been
obliged to correct through the evidence of Paul Cooper. This costs application
does not set out each and every one which can be found in the witness statement
of Paul Cooper and the Trust’s response. However, by way of example, Mr Lock
assumes that the financial contribution will be used to reduce deficit rather than
44 Inquiry Doc 32.
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go towards running costs, where there is in fact no current deficit at all. He
speculates that the funding shortfall only arises because of the type of
contractual arrangement the Trust has chosen, which is not the case.
87. He furthermore does not appear to have any regard to the previous Inspector’s
decisions where contributions have been awarded to another NHS Trust and
sought in any way to distinguish them. He does not appear to have been aware
of the appellant’s own evidence, for example that the development will increase
population by 2,805 people and seems to be unaware that the calculation takes
into consideration an activity rate derived from LSOA (which estimates a
percentage of use of services).
88. All of these sorts of matters are not simply differences of opinion which go to the
merits of the case, but unreasonable behaviour in failing to ensure that the
instructions given to leading counsel, the information available to him and his
particular expertise are accurate and relevant to the appeal. They have
necessitated substantial work on the part of the Trust to correct them to ensure
that the Inspector is not seriously mislead.
89. For these reasons, the Trusts seeks its costs associated with the production of its
written response to that Advice and the witness statement of Paul Cooper.
Response of the appellants45
90. The Trust is not a statutory consultee, nor is it a Rule 6 Party.
91. PPG 16-056 provides the Interested parties who choose to be recognised as Rule
6 parties under the inquiry procedure rules, may be liable to an award of costs if
they behave unreasonably… It is not anticipated that awards of costs will be
made in favour of, or against, other interested parties, other than in exceptional
circumstances. An award will not be made in favour of, or against interested
parties, where a finding of unreasonable behaviour by one of the principal parties
relates to the merits of the appeal. However an award may be made in favour
of, or against, an interested party on procedural grounds, for example where an
appeal has been withdrawn without good reason or where an unnecessary
adjournment of a hearing or inquiry is caused by unreasonable conduct.
92. Therefore, in order for the NHSFT to obtain an award of costs it must
demonstrate exceptional circumstances and procedural unreasonableness by the
appellants (as opposed to criticising the substance of the appellants’ case against
the NHSFT).
93. The NHSFT’s costs application does not come close to demonstrating exceptional
circumstances. It is based upon the NHSFT’s view that the critique of its position
by Mr Lock QC46 was misplaced. Mere disagreement with another party’s
position, no matter how strongly held, does not comprise exceptional
circumstances.
45 Inquiry Docs 51 & 28.
46 Inquiry Doc 28.
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94. Further, whilst being dressed up as a claim of procedural unreasonableness, the
NHSFT costs application is patently directed at the substance of the appellant’s
case against the NHSFT, and in particular the substance of Mr Lock QC’s analysis.
95. Either of these points is of itself fatal to the NHSFT’s costs application.
96. Further, it was plainly procedurally reasonable for the appellants to seek to
respond to the belated and unforeshadowed evidence and submissions of the
NHSFT provided only days before the Inquiry and then elaborated orally at the
March session of the Inquiry. Mr Lock’s advice was that response. Procedurally,
it could not have been provided any earlier and its provision between the March
and June sessions of the Inquiry was in keeping with the timetable set by the
Inspector at the end of the March session.
97. For the reasons set out in Annex 1 of the Appellants’ closing submissions47, Mr Lock
QC’s critique of the Trust’s case for the contribution was well founded.
98. In any event, it must be remembered that the application for costs is against,
and thus the unreasonable conduct must be attributable to, the appellants. It
was plainly reasonable for the appellants to rely on the advice of leading counsel
(Mr Lock QC). To the extent that the NHSFT’s costs application seeks to make
inferences about the instructions given to Mr Lock QC, that is a wholly
inappropriate and unlawful attempt to violate legal privilege.
99. For the reasons set out in Annex 1 of the Appellants’ closing submissions and the
appellant’s cost application against the NHSFT48, the proper analysis of the
chronology relating to the dispute between the NHSFT and the appellant is that
the party guilty of procedural unreasonableness is, unquestionably, the NHSFT.
100. For any or all the above reasons the NHSFT’s application for costs should be
refused.
101. Finally, the appellants have received the NHSFT’s Response to the appellant’s
Costs Application. The NHSFT’s Response is accompanied by a further Witness
Statement (a new evidential Inquiry Document). It is wholly inappropriate for
the Trust to seek to introduce a new Witness Statement at this extraordinarily
late stage of the proceedings.
102. Further, the content of both the NHSFT’s Response and the Witness Statement
is factually inaccurate. As explained in the letter from Clarke Willmott to the
Planning Inspectorate dated 24 May 2019, despite having promised to provide a
copy of the contract within a week of 28 March 2019, the NHSFT did not provide
a copy until 23 May 2019 (and then, only after several prompts and the provision
of documents other than the contract). Clarke Willmott’s letter of 24 May 2019
was copied to the NHSFT. The chronology set out in that letter has never been
challenged by the NHSFT.
47 Inquiry Doc 55.
48 Inquiry Doc 48.
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103. The only document requested on 28 March and provided on 29 March was the
NHS Improvement publication. This was requested by Clarke Willmott for
general information (not as an Inquiry document). The NHS Improvement
publication was not introduced by the NHSFT as an Inquiry document until 12
June 2019.
104. The NHSFT has had little or no regard to the Inquiry Procedure rules
throughout this appeal. The NHSFT’s Costs Response and Witness Statement is a
further example.
Conclusions - The NHSFT’s Costs application against the appellants49
105. The NHSFT are seeking a partial award of costs claiming exceptional
circumstances50 on the basis of the way in which the appellants chose to argue
their case in respect of the NHSFT requested S106 contribution. The NHSFT
allege the appellants behaved unreasonably in submitting the advice of David
Lock QC with which they diametrically disagreed, and they then had to respond
through the statement of Paul Cooper, Finance Director of the Trust.
106. It is for the particular party to decide how they present their case and respond
to opposing evidence. Their instructions to the expert witnesses they chose to
call is a matter for that party. The context in which Mr Lock was called as a
witness was made plain to the Inquiry and his experience and qualifications were
submitted51.
107. The focus and relevance of Mr Lock’s evidence was a matter for the appellants
who presented him as their expert witness. The NHSFT may not have agreed with
Mr Lock but they did have the opportunity to provide explanatory and correcting
evidence (in their view) via Mr Cooper’s submission and as part of the relevant
Inquiry session. As in all examinations of appeal evidence, whether through
Inquiries or other recognised means, the decision-maker must come to a
judgement based upon everything that has been written, read, seen and heard.
The submission, answering of evidence and offering alternative perspectives,
interpretations and contradictory evidence is the normal churn of the Inquiry and
disagreement the reason why we all gather in the Inquiry room to work.
108. A disagreement over the instruction, content, focus and quality of the advice
given by a party to the Inquiry cannot be considered exceptional circumstances.
This is not unreasonable behaviour on the part of the appellants, but just part of
the workings of the Inquiry.
109. Therefore, for all of the above reasons I conclude that there are no procedural
grounds52 relating to the behaviour of the appellants which have directly caused
the NHSFT to incur unnecessary or wasted expense in the appeal process
sufficient to justify a partial award of costs.
49 Inquiry Doc 50 & 51.
50 PPG para 056 Ref ID: 16-056-20161210.
51 Inquiry Doc 57.
52 Related to the way in which the appellants chose to argue their case.
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Recommendations
The appellants Costs application against the Council
110. I recommend that no award of costs is made.
The Rule 6 Party Costs application against the appellants
111. I recommend that no award of costs is made.
The appellants Costs application against the NHSFT
112. I recommend that no award of costs is made.
The NHSFT Cost application against the appellants
113. I recommend that no award of costs is made.
Frances Mahoney
Inspector
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