Case Reference: 3213834

Appeal Decisions
Hearing (Virtual) Held on 9 - 10 March 2021
Site Visit made on 10 March 2021
by Graham Chamberlain BA(Hons) MSC MRTPI
an Inspector appointed by the Secretary of State
Decision date: 21st April 2021
Appeal A - APP/V0510/W/18/3213834
Land South of Main Street, Main Street Witchford, Cambridgeshire
CB6 2HQ
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant outline planning permission.
• The appeal is made by Abbey Properties Cambridgeshire Ltd, P. Seymour, M. Seymour,
N. Holdsworth and J. Holdsworth against the decision of East Cambridgeshire District
Council.
• The application Ref 17/02217/OUM, dated 21 December 2017, was refused by notice
dated 12 April 2018.
• The development proposed is described as ‘residential development of 31 dwellings,
proposed access arrangement and associated works together with the setting aside of
land for educational use by the Rackham Church of England Primary School’.
• This decision supersedes that issued on 16 July 2020. That decision on the appeal was
quashed by order of the High Court.
Appeal B - APP/V0510/W/19/3227487
Land South and West of Nos 85 to 97 Main Street, Main Street, Witchford,
Cambridgeshire CB6 2HT
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant outline planning permission.
• The appeal is made by Abbey Properties Cambridgeshire Ltd, P. Seymour, M. Seymour,
N. Holdsworth and J. Holdsworth against the decision of East Cambridgeshire District
Council.
• The application Ref 18/01611/OUM, dated 9 November 2018, was refused by notice
dated 12 February 2019.
• The development proposed is described as ‘residential development involving the
erection of 33 dwellings, proposed access arrangements and associated works’.
• This decision supersedes that issued on 16 July 2020. That decision on the appeal was
quashed by order of the High Court.
Decision
1. Appeal A - The appeal is dismissed.
2. Appeal B - The appeal is dismissed
Applications for costs
3. Applications for an award of costs were made by Abbey Properties
Cambridgeshire Ltd, P. Seymour, M. Seymour, N. Holdsworth and J Holdsworth
against East Cambridgeshire District Council and by East Cambridgeshire
District Council against Abbey Properties Cambridgeshire Ltd, P. Seymour, M.
Seymour, N. Holdsworth and J Holdsworth. These applications will be the
subject of separate Decisions.
Preliminary Matters
4. The planning applications were submitted in outline with all matters of detail
reserved for future consideration save for access into the site. I have assessed
the appeals on this basis and treated the drawings as an illustration of how the
proposals could ultimately be configured (apart from the site access from Main
Street). I have considered the two appeals concurrently, but on their own
merits, because there are common matters between them.
5. At the hearing the Council sought to submit additional evidence addressing
five-year housing land supply calculations. It was at my request and relevant to
my considerations and therefore I accepted it. The appellants were afforded an
opportunity to address the submissions in writing after the hearing. Similarly,
the applications for costs were responded to in writing after the hearing. The
planning obligation for Appeal B was also submitted after the hearing following
its engrossment by the Council. I share the view of the parties for the reasons
given in the submissions that the planning obligations submitted in both
appeals meet the relevant tests1 and can be taken into account.
6. At the outset of the hearing the Council confirmed that it had withdrawn from
the previously agreed Statement of Common Ground (SOCG) as, in their view,
it has been overtaken by events. The parties were unable to agree a new
SOCG. At my request Historic England (HE) were consulted on both appeals
because the appeal sites are in the setting of the Grade II* listed St Andrews
Church. Historic England did not submit substantive comments.
7. The draft East Cambridgeshire Local Plan was withdrawn by the Council in 2019
and therefore the emerging policies referred to in the Council’s reasons for
refusal are no longer relevant. Since the decisions were issued the Witchford
Neighbourhood Plan (NP) was made on the 21 May 2020 and now forms part of
the development plan. It is incumbent upon me to base my decision upon the
most up to date planning policy and this is what I have done. The parties
confirmed that the judicial review of the NP brought by Abbey Properties
Cambridgeshire Ltd was unsuccessful.
Main Issues
8. The main issues in these appeals are:
• The effect of the proposals on Local Green Space:
• Whether the appeal sites would be suitable locations for the proposed
developments, with particular reference to the spatial and locational
strategies in the development plan;
• The effect of the proposed developments on the character and appearance
of the area;
• Whether the proposed developments would preserve the settings of St
Andrews Church, which is a Grade II* listed building and 89, 91, 93 Main
Street, which is a Grade II listed building; and
1 That the obligations are necessary to make the developments acceptable, directly related to the developments
and fairly and reasonably related in scale and kind to the developments
• Whether the development proposed in Appeal A would make adequate
provision for affordable housing.
Reasons
The effect of the proposals on Local Green Space
9. Policy GI2 of the NP designates ‘The Horsefield’ as a Local Green Space (LGS).
The extent of the designation is identified on Policy Map 11. The red line site
area in respect of Appeal A includes the whole of the Horsefield LGS. The
access road in Appeal A would be within the LGS and it is highly likely that
housing would be positioned in The Horsefield behind 105-119 Main Street.
Appeal A would therefore have a direct physical impact upon the LGS. The
housing proposed in Appeal B would be accommodated entirely outside the
LGS. However, the access road would need to go through The Horsefield and
therefore Appeal B would also have a direct physical impact on the LGS.
10. Policy GI2 states that development on LGSs will not be acceptable other than in
very special circumstances in line with national policy, or where it will enhance
the function of the space without compromising the primary function of the
space as a LGS. Accordingly, it is not necessary to demonstrate very special
circumstances if the second test in the policy is adhered to. The second test in
Policy GI2 has two limbs, that there must be an enhancement of the function of
the LGS, but that enhancement should be achieved without compromising its
primary function. The phrase ‘without compromising’ in this context means
without weakening or harming the primary function of the LGS. The Policy does
not state that any potential enhancement should be balanced against any
compromise of the LGS’s primary function.
11. The supporting text to Policy GI2 explains that the LGS designations in the NP
are underpinned by evidence, which includes a local green space report2 (‘LGS
Report’). This document, which was scrutinised by the NP Examiner, articulates
the primary value and function of The Horsefield as a LGS with reference to the
Witchford Landscape Appraisal (WLA). It explains that the Horsefield is an area
of countryside that reaches into the village and reinforces its rural character
and status as a rural community. It is one of the few remaining tracks of land
in the village that does this and has a pleasant and historic strip field character.
12. The Horsefield is also part of a network of LGSs which collectively provide the
context for a pleasant circular walk around the countryside just outside the
village and a sense of relative tranquillity. In this respect its primary function is
spatial, being a pastoral track of land that strengthens local distinctiveness.
Thus, the rural character and appearance of The Horsefield is inextricably
linked with its primary function as an LGS. The views towards the fen
landscape is an important ancillary benefit of this primary function.
13. Both schemes make provision for the provision of public open space in The
Horsefield through the submitted planning obligations. This has the potential to
enhance the function of The Horsefield as it could become a multi-purpose
space with open access instead of a paddock crossed by footpaths. It would
therefore become more than a space to pass through. However, Appeal A
would result in an engineered access road cutting into the site. This alone
would harmfully erode the rural character of the LGS and thus compromise its
2 Witchford Neighbourhood Plan Local Green Space Designations Report May 2019
primary function as a track of countryside that strengthens local
distinctiveness. This impact would be replicated in Appeal B. Appeal A would
also result in housing being erected in the LGS and this would inherently harm
its rural character.
14. The housing in both schemes would not directly impede the view from Main
Street because it would be positioned to the side of the main visual corridor
from the road. However, the housing in Appeal A, especially if located broadly
in the position of Plots 1-3 and 11-13, would be very apparent and thus
harmfully narrow the view from Main Street and change the foreground
context. The housing in Appeal B would have less of a presence in this view
and therefore the harmful impact would be less pronounced. That said, the
housing in Appeal B would seriously urbanise the setting of the public footpaths
that pass through the LGS to the detriment of its rural context and character.
This would also be the case in Appeal A. Thus, the enhancement of the function
of The Horsefield would not be achieved in either scheme without
compromising its primary function as a LGS.
15. The previous Inspector came to a different view on this matter when
considering the proposals. His decisions were quashed and are not capable of
having legal effect, but his findings may still be material to my deliberations.
Nevertheless, on this matter they carry very limited weight for two reasons.
Firstly, he appears to suggest that Appeal B would only affect the setting of the
LGS, when it would have a direct physical impact due to the access. Secondly,
he seems to have found that the proposals would compromise the primary
function of the LGS, but not to an ‘unacceptable degree’. However, this is not
the test in the Policy for reasons I have already set out.
16. In conclusion, the proposals would not enhance the function of The Horsefield
without compromising its primary function as a LGS. Therefore, for the
development to be acceptable within the terms of Policy GI2, the appellants will
need to demonstrate that there are very special circumstances in line with
national policy. This is a matter to which I will return.
The spatial and locational strategy
17. To promote sustainable patterns of growth, Policy Growth 2 of the East
Cambridgeshire Local Plan 2015 (LP) sets out a locational strategy for
development. It states that most development will be focussed on the larger
market towns of Ely, Soham and Littleport and that more minor development
will take place in villages which have a defined envelope. The Policy then goes
on to explain that outside the defined envelopes, development will be restricted
to a list of categories provided it would have no significant adverse impact on
the character of the countryside. The appeal schemes would not fall within any
of the categories of development listed in Policy Growth 2. The corollary being
that the proposals would be at odds with this policy.
18. Policy SS1 of the NP sets out the spatial strategy for the area covered by the
NP. It states that development within the defined envelope of the village, which
has been expanded through the NP, will be supported provided it adheres to
the other provisions of the plan. Outside the village envelope, development will
be restricted to three broad categories. The appeal schemes would sit outside
these categories. Again, the corollary being that the proposals would be at
odds with Policy SS1.
19. In conclusion, the proposals would be at odds with, and harmfully undermine,
the spatial and locational strategies for housing in the development plan and
the public interest in having a planning system that is genuinely plan led. In
this respect the appeal sites would not be suitable locations for the proposals.
The effect on the character and appearance of the area
20. Witchford is an old settlement set on top of a ‘fen island’. It was originally a
modest village but has been subject to a significant amount of estate housing
development in more recent times. That said, the southern side of Main Street
between Mill Lane and Grunty Fen Road has broadly retained a linear character
with a verdant tract of land behind. This parcel of land is a significant core
component of the distinct and discernible ‘Witchford Strip Pasture’ landscape
character area (LCA) identified in the WLA. This assessment identifies
landscape character at a more local level than national or county assessments3.
21. Much of the LCA is perceived as a broadly continuous, intimate, and verdant
track of land divided into small linear parcels. This is unusual in the context of
the open fenland landscape around the village. The LCA is also perceived and
experienced in the setting of historic buildings such as the church and this
provides it with a tangible historic character. The remnants of the strip fields
require some interpretation4, but once this has been explained their presence is
clear on the ground and this reinforces the sense of being in the historic core of
the village. The LCA is therefore of medium to high landscape value.
22. The appeal sites are positioned towards the centre of the LCA and have a
pleasant rural character. They are a point of transition between the built-up
character of Main Street and the open countryside to the south of the village.
The perception of leaving the settlement and entering countryside happens
quite quickly due to the slope of the land, the generous levels of soft
landscaping, the rural context of the footpaths and the single depth nature of
the development along the southern side of Main Street. Map 8 in the NP
identifies the Horsefield as part of the landscape extending into the settlement
with specific views identified5. There is also an attractive view from Main Street
looking out of the settlement across the Horsefield towards open countryside.
23. That said, the Horsefield is not in itself a strip field, although it is smaller than
is typical in the area. The Horsefield is currently poached and divided in an ad
hoc manner by fencing. This can be easily remedied, but the condition of the
site does currently detract from its overall scenic quality. The eastern part of
the sites is a strip field with an intimate character but is overgrown. Moreover,
a verdant village edge is apparently not unusual on a Fen island settlement.
24. Given these points, I share the view of the landscape experts present at the
hearing that the appeal sites are not valued landscapes when applying the
factors set out in GLVIA36. However, they nevertheless have attributes that
provide intrinsic character, beauty and value, principally the intimate pastoral
appearance that is untypical in the local context of Witchford and atypical of
the wider Fens landscape. The appeal sites also have some scenic value due to
the contribution to local views into and out of the settlement, as well as cultural
3 National Character Area 49: The Fens and the Cambridgeshire Landscape Guidelines 1991, LCA 8: Fenland
4 Usefully provided by historic maps in the appellant’s Built Heritage Statement
5 These broadly correspond to Viewpoints (VPs) 6, 9/10 and 11 in the appellants Landscape and Visual Impact
Assessment (LVIA)
6 Guide to Landscape and Visual Impact Assessment third addition, Landscape Institute
value from being a surviving remnant of an earlier landscape and settlement
pattern. Thus, the sites contribute to the value of the LCA and the setting of
the village and are sensitive to change.
25. Both appeal schemes would physically alter the sites through a significant
suburbanising impact. This would adversely affect their rural character and the
way the landscape flows into the village when viewed and experienced from
Main Street, the Millennium Wood (in Appeal A) and the public rights of way.
The in-depth nature of the development would jar with the linear character of
that part of Main Street in the LCA and meaningfully delay the sense of arrival
into open countryside, especially in Appeal B. The presence of the housing
would also harmfully disrupt the continuity of the LCA as a recognisable track
of verdant land. In this respect the proposals would be discordant interlopers in
the LCA. An impact that would be compounded by the loss of established
vegetation, the provision of lighting and activity from vehicles coming and
going. The developments would also erode the strip field character and views
of the church tower, thereby diluting the historic value of the LCA. As a result,
both of the schemes would significantly harm landscape character and the
special qualities of Witchford.
26. A sensitive design would provide some mitigation. For example, additional
planting could offset, over time, some of that lost. A meadow and orchard
could be attractive features and the highway access could be designed to be
flanked by planting and finished in rustic materials. However, the proposals
would still have inherently negative impacts on the values and rural character
of the sites and the LCA, particularly the discordantly located bodies of
housing. Accordingly, there would remain a significant net adverse impact
despite the possible mitigation outlined by the appellants. Public access could
improve the recreational value of the sites but would not mitigate the physical
and perceptual impacts on landscape character.
27. The visual impacts of the proposals would be reasonably contained in the wider
landscape with only partial views of the development possible from vantage
points outside the village, such as Edna’s Wood or Grunty Fen Road (VPs 10
and 11 in the appellant’s LVIA). However, the localised impact would be
significant adverse with the developments being very harmfully apparent from
several VPs, including VPs 5 and 6 in the appellant’s LVIA, the latter
corresponding with a key view identified in the NP. The housing in Appeal B
would have a particularly undesirable impact in this view. Overall, the
proposals would significantly harm the character and appearance of the area.
28. Thus, the proposals would not protect, conserve or enhance key views (set out
in the NP) or the contribution the appeal site makes to the character of the
settlement edge or the pattern of traditional landscape features (the strip
fields). As a result, the proposals would be contrary to Policy ENV1 of the LP.
29. Policy LC1 of the NP states that development proposals shall respect and not
adversely impact the key views identified on Map 8. The proposal would not
achieve this for the reasons already set out. Moreover, the proposal would not
conserve the valued setting of the historic core of the village and would
undermine the strong connection between the settlement and countryside. The
proposals would therefore be at odds with this policy as well as Policy H3 of the
NP, which seeks to secure developments that complement local distinctiveness
and character by retaining or enhancing the special qualities of Witchford as
described in the WLA.
30. In some respects, my findings are consistent with the previous Inspector, who
found that the proposals would have local effects that could be considered
significant but wider effects that would not be. He therefore found no conflict
with Policy ENV1 of the LP. I have come to a different view because the
evidence before me was different. Ms Farmer, who is the author of the WLA,
represented the Council at the hearing and was able to articulate the evidence
underpinning the NP as well as provide her own expert views. This evidence
demonstrates that a local effect would be of consequence in this instance and
contrary to Policy ENV1. It was not evidence before the previous Inspector, and
I found it to be persuasive and compelling given what I later observed during
my site visit. Moreover, the previous Inspector did not overtly consider the
proposals against Policies LC1 and H3 of the NP, whereas I have.
Whether the proposals would preserve the setting of listed buildings
31. The Church of St Andrew was listed Grade II* in 1952. It has Norman origins
and is constructed from field rubble stone and limestone dressings with
eighteenth century gault brick repairs. Several layers of development are
evident from the medieval period right up to the nineteenth century. It is
therefore of considerable architectural and aesthetic value and this is
experienced predominately from close range or medium distance views directly
to the south (usefully illustrated on Page 33 of the NP).
32. The church tower is an important part of the building and reinforces its status
and provides legibility in the landscape. As such, there is some historical and
evidential value in experiencing the church tower in views from the surrounding
landscape. The church tower is visible from the appeal sites, but it is heavily
screened to the point that only a small part can be seen. Due to the distance
between the appeal sites and the church, the appeal schemes would not
interfere with how its architectural detailing, materials and construction
techniques are experienced and appreciated. Moreover, the proposed
developments would not obscure views of the church from the south and
therefore the way its architectural and aesthetic value/setting is experienced in
the landscape and village scape would be preserved and thus not harmed.
33. As a long-standing focal point in village life the church is important to the
area’s social history. It has been a feature of a rural fenland community for
centuries and would have had a standing as a place of worship. This results in
communal and evidential value. There is also a particularly important historical
link with Reverend Hanworth Edward Rackham who served as minister for forty
years and is associated with the development of the village, including the
nearby school. This provides further historical value. The evidence before me
does not suggest the spatial and visual relationships between the appeal sites
and the church are especially important to how this evidential, communal, or
historical value of the church is experienced. The appeal schemes would
therefore preserve the setting/value of the church.
34. Nos 89, 91, 93 Main Street (Nos 89-93) was listed Grade II in 1988 and is
currently a small terrace that probably dates from the seventeenth century.
Historic mapping indicates that they were previously a single property that has
subsequently been subdivided. The building is thatched and faced in local
bricks. Being of the rural vernacular it is a building intrinsically linked to the
local landscape and derives historic and aesthetic value and significance from
being experienced with a verdant rural backdrop.
35. The verdant rural character of the land behind Nos 89-93 allows an impression
to be gained of how the cottages once stood in a sparsely arranged linear
settlement atop a fen island. However, this contribution to significance should
not be overstated, as the immediate context has altered over time and the
building’s principal value rests in the vernacular design, the construction
materials and the craftmanship. Nevertheless, the eastern part of the site in
Appeal A, and most of the site in Appeal B, contribute modestly to the
experience and understanding of the building and its setting.
36. The construction of housing to the immediate south of Nos 89-93 would
introduce some development within part of the rural area which forms
foreground views to and from the listed building. The effect could be
moderated by controlling the height and design of properties at the reserved
matters stage, but this would not address the inherent urbanisation that would
still occur. This urbanisation of the land behind the listed building would
interrupt and thus harm the long standing spatial and visual connectivity
evident between the listed building and the rural landscape behind them.
37. In conclusion, the proposals would not harm the setting of St Andrews Church,
but they would modestly harm the setting and significance of Nos 89-93. The
setting of this listed building would not be preserved. Overall, the proposals
would therefore be at odds with Policy LP12 of the LP, which seeks to secure
developments that preserve a listed building’s setting.
Whether Appeal A would make adequate provision for affordable housing
38. Policy HOU3 of the LP states that in the north of the district a minimum of 30%
of the total number of dwellings to be provided should be affordable housing.
Appeal B would meet this requirement through the submitted planning
obligations. However, the appellants have provided two separate planning
obligations in respect of Appeal A. One would provide 16% affordable housing
(five homes) and the other none.
39. The appellants submit that this level of provision is policy compliant because
Policy HOU3 states that the proportion of affordable housing will be the subject
of negotiation. As part of this, consideration will be given to financial viability
including exceptional costs. Therefore, the appellants are correct to state that a
proposal can provide less than 30% affordable housing and adhere to Policy
HOU3. That said, for an assessment of financial viability and exceptional costs
to be robust, consistent and transparent, it would be necessary for a financial
viability assessment to be submitted as part of a planning application, and this
is exactly what the fourth bullet point in Policy HOU3 requires.
40. The appellants have not provided a financial viability assessment. Instead,
during the hearing I was advised that Appeal A would be subject to two
exceptional costs. These being the provision of services to the parcel of land
which would be transferred to the County Council for a school expansion and
the ‘opportunity cost’ of ‘gifting’ (not selling) that land to the County Council.
However, nothing of substance has been submitted demonstrating that it would
be inherently impractical to place a financial value on these development costs
and then undertake a viability assessment to ascertain whether the scheme can
afford them alongside the provision of affordable housing.
41. In conclusion, the appellants have failed to adequately demonstrate that either
of the levels of affordable housing proposed in Appeal A, which would both be
below that required in Policy HOU3, is appropriate in this instance. Appeal A
would therefore be at odds with Policy HOU3.
Other Considerations
Whether the Council can demonstrate a five-year housing land supply
42. The Council has presented what it considers to be the current five-year housing
land supply position in a document titled ‘Five Year Land Supply Report 1 April
2020 to 1 April 2025’ (FYLSR). The FYLSR was prepared to inform the Council’s
Annual Monitoring Report and address the requirement in Paragraph 73 of the
National Planning Policy Framework (the ‘Framework’) that a local planning
authority should identify and update annually a supply of specific deliverable
sites sufficient to provide a minimum of five years’ worth of housing against
their housing requirement. The appellant’s have reviewed the FYLSR and
provided their own findings. It was agreed at the hearing that the relative
positions of the parties would roll over for a short period past 1 April 2021.
43. Paragraph 74 of the Framework sets out one mechanism for demonstrating a
five-year housing land supply - an Annual Position Statement (APS). The use of
the term ‘can be’ rather than ‘must’ or ‘shall’ in Paragraph 74 results in the
mechanism being optional. Thus, the Council are not required to have a
recently adopted plan or a subsequent annual position statement in order to
demonstrate a five-year housing land supply.
44. The above is reinforced by guidance in the Planning Practice Guide7, which
states that for decision taking purposes, an authority will need to be able to
demonstrate a five year housing land supply when dealing with applications
and appeals and can do this in one of two ways. The two options available are
to use the latest available evidence, such as annual monitoring reports, or
confirming the supply in the way set out in Paragraph 74 of the Framework.
45. There is no requirement upon the Council to formally consult stakeholders on
the FYLSR or have it tested. Such requirements are engaged if the Council
seeks to demonstrate/confirm its supply through an annual position
statement8. It is therefore unnecessary to reduce the weight attached to the
FYLSR simply because the final document has not been consulted upon or
formally tested. In any event, the Council have engaged with stakeholders in
the preparation of the FYLSR with a view to amassing the ‘clear evidence’ of
deliverability it needs to include some of the sites in the supply.
46. The FYLSR sets out the latest available evidence as the Council sees it. It is
therefore in accordance with the guidance in the PPG and is an acceptable
means of seeking to demonstrate a five-year housing land supply as required
by Paragraph 73 of the Framework. The FYLSR is a starting point and it is open
to any party to challenge and test it in the context of an application or appeal.
This is what the appellants have done with reference to the buffer to be applied
to the housing requirement and whether all the sites in the Council’s
anticipated supply are ‘deliverable’ within the meaning of the Framework.
7 Planning Practice Guide (PPG) Paragraph: 004 Reference ID: 68-004-20190722
8 PPG - Paragraph: 015 Reference ID: 68-015-20190722
47. Paragraph 73 of the Framework explains that a buffer must be applied to the
five-year housing land supply calculations. The buffer can be 5%, 10% or 20%
depending on specified circumstances. A buffer must be applied in all
instances. There is no indication that planning judgement is involved in
ascertaining which one is relevant. In this respect Paragraph 73 is instructional.
48. A 20% buffer is required if the Council’s housing delivery is below 85% of the
housing requirement. This is calculated by central government following a
prescribed methodology. The most recently published Housing Delivery Test
calculations confirmed that delivery in East Cambridgeshire was 87% of its
requirement. As a result, a 20% buffer should not be applied. A 10% buffer
should not be applied either because the Council are not seeking to
demonstrate a five-year supply through an APS or recently adopted plan.
49. The PPG9 states that the 5% buffer applies where an authority is not seeking to
demonstrate a five-year housing land supply. The appellants submit that as the
Council are seeking to demonstrate a five-year supply through the FYLSR, the
5% buffer cannot be applied. However, I do not read the PPG in that way. In
my view it is simply saying that the 5% buffer applies when a Council is not
seeking to demonstrate a five-year housing land supply through Paragraph 74
of the Framework. In any event, even if there is an inconsistency between the
Framework and PPG, this can be resolved in favour of the Framework which is
national policy rather than guidance. Paragraph 73 of the Framework is
unambiguous in instructing which buffer to apply. As neither a 20% nor 10%
buffer is relevant in this instance, the only option is a 5% buffer.
50. Although the appellants expressed some frustration with the use of the
standard methodology for calculating the Council’s housing requirement, they
do not seek to advance a different figure. It is therefore a point of agreement
between the Council and appellants that the basic five-year housing
requirement is 2961 homes. The application of a 5% buffer brings this up to
3109 homes. Therefore, when using the appellants’ estimate of deliverable
supply10 as the most up to date evidence, the Council can demonstrate a five-
year housing land supply covering 5.11 years. An Inspector in another recent
appeal decision also identified a supply over five years11. Accordingly,
Paragraph 11d) of the Framework is not relevant on account of the Council’s
housing land supply position.
Are the ‘most important’ policies out of date
51. The original Statement of Common Ground listed those policies that were
considered to be relevant to the appeals and ‘most important’ for determining
them. Although the Council has withdrawn from this document it is
nevertheless a useful starting point given what I heard at the hearing. I agree
with the list of most important policies therein save for the inclusion of Policy
GROWTH 4, which allocates land for development. This policy flows from the
locational strategy set out in Policy GROWTH 2, which in turn flows from Policy
Growth 1. Policy GROWTH 4 is relevant to my considerations as part of the
spatial strategy in the LP, but it is not a ‘most important’ policy because it does
not set out a housing requirement, a locational strategy for growth or provide
specific guidance on how to consider development proposals at Witchford.
9 PPG - Paragraph: 023 Reference ID: 68-023-20190722
10 Which is 3177 homes over the five-year period
11 APP/V0510/W/20/3245551
52. Policies HOU3 and ENV1 both relate to matters directly relevant to the
proposals and are most important. Policy ENV7 is relevant, but not most
important as there is no allegation its provisions would be breached by the
proposals subject to the imposition of a condition. ENV12 is ‘most important’ as
it provides guidance on considering the effect on the setting of listed buildings.
Thus, the most important policies from the LP are:
• Policies GROWTH 1, GROWTH 2, HOU3, ENV1 and ENV12
53. To this list it is necessary to add policies from the recently adopted NP. Policy
SS1 sets out the spatial strategy for the NP area, Policy LC1 is concerned with
landscape character, Policy GI2 is relevant to proposals effecting LGS and
Policy H3 sets out criteria against which housing schemes should be assessed.
All these matters are important in gauging the acceptability of the proposals.
The most important policies from the NP are therefore:
• Policies SS1, LC1, GI2 and H3
54. Policy GROWTH 1 is out of date because the housing requirement it specifies is
out of date. This may have infected the entire spatial strategy, including Policy
GROWTH 2, because settlement boundaries may be too tightly drawn, housing
may be directed to too few settlements and there may not be enough
allocations. The Council are in the process of reviewing Policy GROWTH 1 to
assess this. The Council are currently able to demonstrate a five-year housing
land supply, but that is probably despite, instead of, Policies GROWTH 1 and 2.
55. As a result, and based on the evidence before me, Policy GROWTH 2 does not
carry full weight. However, Policy GROWTH 2 is about more than just delivering
housing numbers. Its sets out a locational strategy that seeks to guide the
majority of development to the larger settlements where the greatest range of
services and facilities are available. This approach does not preclude some
housing at Witchford and supports service provision and retention, economic
growth and sustainable transport and is therefore consistent with the
Framework in respect of these matters.
56. Moreover, the aim in Policy GROWTH 2 of seeking to restrict development
beyond settlement boundaries is consistent with the objective in the
Framework of development recognising the intrinsic character and beauty of
the countryside. Furthermore, the restrictions imposed by the policy are not
overly stringent due to a comprehensive list of exceptions. These exceptions
provide a degree of flexibility and are consistent with the Framework. On
balance, Policy Growth 2 is up to date. Inspectors have reached differing
conclusions on this point and therefore I have reached the conclusion I have
based on the evidence before me. In so doing I note that it is consistent with
the recent findings of another Inspector who considered the same point and
apparently had similar evidence and submissions before her12.
57. Policy SS1 of the NP also directs development to sites within a defined
settlement envelope. The settlement envelope of Witchford was expanded to
accommodate land where permissions have recently been granted for
residential development. As such, the NP makes provision for around 330
homes, albeit without allocating sites (although that was the original intention).
This level of growth exceeds the indicative housing requirement by some way
12 APP/V0510/W/20/3245551
and would result in around a 33% increase in the number of dwellings in the
village. In this context, the strategy of directing development to sites in the
settlement envelope of Witchford is not out of date and was found acceptable
by the NP Examiner. As such, Policy SS1 is not out of date. Again, this finding
is consistent with those of the Inspector referred to in the preceding paragraph,
who found that the policy is ‘clearly not out of date’.
58. In reaching this view I have considered the Council’s approval of an application
for housing outside the settlement boundary at 225-239 Main Street. However,
this was a proposal for 100% affordable housing and therefore the Council took
the view that it adhered to Policy SS1. The approval is not therefore, an
indicator that Policy SS1 is out of date.
59. Policy ENV1 is consistent with the aims of Paragraph 127 and 170 of the
Framework and is therefore up to date. Similarly, the evidence before me
indicates it is still necessary to deliver affordable housing and at the scale
sought by Policy HOU3. The approach it advocates is consistent with Paragraph
62 of the Framework. It is also an up to date policy. Policy ENV12 does not
include the ‘heritage balance’ set out in Paragraphs 195-197 of the Framework
and therefore it is out of date. However, a conflict with this policy is not
inconsequential as it sets out policy for conserving listed buildings which is
otherwise consistent with the expectations in Paragraphs 184 and 193 of the
Framework. Policies LC1, GI2 and H3 have recently been examined prior to the
NP being ‘made’ and were found to be consistent with the Framework, a
conclusion I share.
60. To sum up, of the list of most important policies identified, only Policies
GROWTH 1 and ENV12 are out of date. I therefore find that the most important
policies for determining the applications are not out of date when considered as
a collective basket. Thus, Paragraph 11d) of the Framework is not engaged.
The benefits of the proposal
61. The housing delivered in both appeals would support housing choice and
supply. This would be at a point in time when Policy Growth 1 is out of date
and the Council has underperformed in respect of the Housing Delivery Test
such that an Action Plan is required. It may be that the Council will ultimately
need to identify further housing sites when preparing the Action Plan.
Moreover, the HDT calculation being above 85% may be down to a short-term
adjustment to account for the Covid-19 pandemic and an understanding with
Peterborough City Council. This is all in the context of a widely fluctuating
housing land supply position over recent years.
62. However, at this point in time the Council are currently able to demonstrate a
five-year housing land supply, albeit marginal. This is not a ceiling but is
nevertheless an indication that the Council are currently in the process of
significantly boosting the supply of housing as promoted by Paragraph 59 of
the Framework. Moreover, the HDT results confirm that in present
circumstances there has not been significant under delivery. The Council has
also suggested that its delivery figures are conservative due to a significant
number of new homes in the pipeline. That said, the fact that they have not
progressed may indicate that they are in the wrong place or that there are
other issues with delivery.
63. At a local level the recently made NP makes provision for a significant increase
in the number of homes by expanding the settlement boundary and directing
housing to sites within it. Planning permission has already been granted for
significant growth in the village. The indicative housing requirement would be
exceeded if the sites with planning permission come forward. Overall, the
delivery of housing is a moderate benefit in favour of each appeal.
64. Both proposals would increase the population of the village and thus support
the local economy. They would also support the vitality and viability of the local
community as future residents could use local services and join clubs and
organisations. However, I was advised at the hearing that local services and
facilities are not suffering for lack of patronage and substantive evidence to the
contrary is not before me. Moreover, the village is already likely to grow by
33% in the short to medium term given the number of extant permissions and
therefore additional economic and social benefits from extra housing beyond
this would not be a significant benefit. It would be a matter of moderate
weight. To this there would be modest benefits from a 10% net gain in
biodiversity and the short-term benefits to the construction industry.
65. As explained earlier, the appellants have failed to demonstrate in respect of
Appeal A that 0% or 16% affordable housing would be appropriate. The 16%
offer is nearer to policy compliance and therefore I have considered this. The
provision of any affordable housing would be a benefit of the scheme given the
local need and high house prices. However, five homes would be a modest
contribution and would be significantly below policy compliance. Affordable
housing is also being delivered as part of recently approved development in the
village. Based on the evidence before me the delivery of affordable housing in
Appeal A would be a limited benefit. Appeal B would provide a policy compliant
30% affordable housing, which is approximately 10 homes. This is a moderate
contribution that caries middling weight as a benefit.
66. The appeal schemes would deliver large amounts of public open space well in
excess of that usually required by the Council through its Developer
Contributions Supplementary Planning Document. The reference to public open
spaces in the planning obligations would suggest unfettered public access. The
planning obligations also include mechanisms that would enable these spaces
to be publicly owned and managed, although there is no guarantee of this and
therefore the spaces may ultimately be run by a management company in line
with an approved scheme. The delivery of public open space is a high order
benefit of both proposals, although it is qualified to a modest extent by the lack
of evidence demonstrating any quantitative deficit in public open space.
67. Appeal A includes provision to transfer a parcel of land to the County Council
for a possible school extension, which would include early years facilities and a
new access. The extent to which this is a benefit was a matter discussed at
length at the hearing. The County Council commissioned a feasibility report13 to
look at the options available for a significant school expansion. However, it was
based on the premise of seeking to accommodate 420 pupils by September
2021. No party is suggesting this is still currently the case and therefore the
report is somewhat dated. It has also been superseded by the NP, which sets
out a mechanism for reviewing primary school and early years capacity. The
appellants suggest the Examiner’s findings on the NP in respect of this were
13 The Mile Stage 1 report
not based on the full picture, but the Examiner fact checked matters with the
County Council and there has been no successful legal challenge on this point.
68. The Parish Council’s plausible analysis demonstrates that by 2025/26 there
would be a forecast shortfall of 1 primary school place if all currently approved
development is constructed. Being a forecast, this could be an under or
overestimate. That said, a likely shortfall of one space in five years’ time does
not suggest a pressing need to expand the school in the way suggested in the
Mile Stage 1 report. It would be development beyond that provided for in the
NP, such as the appeal schemes, that will place pressure on the capacity of the
primary school and result in the ‘tipping point’ referred to by the County
Council. The review of the NP would provide a mechanism for any notable
tipping point to be addressed were it the materialise in the future.
69. The County Council has not objected to Appeal B even though this scheme
would not make a land gift, block any opportunity for a westward expansion of
the school and increase the demand for school places. This is a strong indicator
that the land gift is not currently essential for managing school capacity, with
financial contributions being adequate in this regard. Similarly, the County
Council has confirmed that the shortfall in early years provision could be met
through expanding the school or from contributions towards an alternative
project if the land for a school expansion did not become available.
70. It is also important to note that a school expansion is not currently in the
County Council’s capital programme and there is no guarantee planning
permission would be forthcoming given the requirements of Policy LC1 of the
NP. Policy SS1 permits, in principle, essential education infrastructure outside
the settlement boundary of the village, but the evidence does not suggest the
expansion is currently essential or will be soon. For all these points, the gift of
land would not be a compelling or ‘great’ benefit.
71. That said, the County Council have confirmed that a school expansion is the
preferred long-term solution to addressing primary and early years capacity.
Its approach in this respect is an understandably prudent and precautionary.
The land gift would facilitate a cost-effective solution were a school expansion
required in the long term. For this reason, the land gift is still a matter of
significant weight in favour of Appeal A.
72. The planning obligations submitted pursuant to both appeals make provision
for financial contributions towards infrastructure. These contributions are
required to mitigate the impacts of the proposal and are therefore neutral
matters rather than benefits.
Planning Balance
73. In this instance Policy GI2 would only permit development within a LGS if there
are very special circumstances in line with national policy. The Council and
appellants agreed at the hearing that the basis for this assessment should be
the application of Paragraphs 143 – 144 of the Framework. I share this view
because Paragraph 101 of the Framework states that policies for managing
development within a LGS should be consistent with those for Green Belts.
74. In effect, both developments should be regarded as being tantamount to
‘inappropriate development’ within a LGS because they would both result in the
primary function of the LGS being harmfully compromised. Such development
should not be approved except in very special circumstances. Very special
circumstances will not exist unless the potential harm to the LGS, and any
other harm, is clearly outweighed by other considerations.
75. Paragraph 144 of the Framework requires substantial weight to be given to any
harm to the Green Belt and I consider this is also the level of weight that
should be given to harm to a LGS. In addition, the proposals would result in
significant localised harm to the character and appearance of the area sufficient
to result in a conflict with Policies ENV1 of the LP and Policies LC1 and H3 of
the NP. This is a matter of significant weight. The proposals would also be at
odds with the locational strategy in Policy GROWTH 2. This conflict carries
moderate weight because of Policy GROWTH 2’s links with the out of date
Policy GROWTH 1. That said, the conflict with Policy SS1 is of significant weight
as it is up to date and part of a recently made NP. In addition, both schemes
would modestly harm the setting of a listed building. Considerable importance
and weight must be given to the desirability of preserving the setting of a listed
building. Appeal A would also be at odds with Policy HOU3.
76. The benefits of the proposal in Appeal A carry more weight than those in
Appeal B due to the land gift for a school extension. That said, the benefits that
would be provided by each of the appeal schemes would not cumulatively
exceed significant weight.
77. In conclusion, in either appeal the harm to the LGS, and any other harm, would
not be clearly outweighed by the other considerations identified and therefore
the very special circumstances necessary to justify the developments do not
exist. Both proposals would therefore be at odds with Policy GI2 of the NP.
Given this conclusion there is no need to undertake a separate heritage balance
as usually required by Paragraph 196 of the Framework. Even if I am wrong in
respect of attaching substantial weight to the harm to the LGS, the combined
force of the harm I have identified, and the subsequent conflict with the
development plan as a whole, including the up to date NP, would still outweigh
the collective benefits in each of the proposals.
Conclusion
78. Both appeals would be contrary to the development plan and there are no
other considerations which outweigh these findings. Accordingly, for the
reasons given, the appeals have not succeeded.
Graham Chamberlain
INSPECTOR
APPEARANCES
FOR THE APPELLANT
Mark Buxton MRTPI RPS
Paul Ellis AMLI RPS
Hannah Hamilton-Rutter RPS
BA(Hons) PGDip MA AssocIHBC
Andy Brand MRTPI Abbey Properties Cambs Ltd
FOR THE LOCAL PLANNING AUTHORITY
Jack Smyth No 5 Chambers
Barbara Greengrass BSc MSc MRTPI East Cambs District Council
Richard Kay BA(Hons) MSC MRTPI East Cambs District Council
Alison Farmer BA(Hons) MLC CMLI Alison Farmer Associates
INTERESTED PARTIES
Natalie Blaken
Cllr Ian Allen
Jan King
DOCUMENTS SUBMITTED AT OR AFTER THE HEARING
1. My Kay’s updated five-year housing land supply table.
2. Appellant’s written response to the above.
3. Completed planning obligation in respect of Appeal B.
4. Rebuttals and final comments relating to the applications for costs.


Costs Decisions
Hearing Held on 9 – 10 March 2021
Site visit made on 10 March 2021
by Graham Chamberlain BA (Hons) MSc MRTPI
an Inspector appointed by the Secretary of State
Decision date: 21st April 2021
Costs Application A in relation to Appeal Ref: APP/V0510/W/18/3213834
Land south of Main Street, Main Street, Witchford, Cambridgeshire
CB6 2HQ
• The application is made under the Town and Country Planning Act 1990, Sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by Abbey Properties Cambridgeshire Ltd, P. Seymour, M.
Seymour, N. Holdsworth and J. Holdsworth against the decision of East Cambridgeshire
District Council.
• The appeal is in connection with an appeal against the refusal of planning permission for
a proposal described as ‘residential development of 31 dwellings, proposed access
arrangement and associated works together with the setting aside of land for
educational use by the Rackham Church of England Primary School’.
• This decision supersedes that issued on 16 July 2020. That decision on the application
was quashed by order of the High Court.
Costs Application B in relation to Appeal Ref: APP/V0510/W/19/3227487
Land South and West of Nos 85 to 97 Main Street, Main Street, Witchford,
Cambridgeshire CB6 2HQ
• The application is made under the Town and Country Planning Act 1990, Sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by Abbey Properties Cambridgeshire Ltd, P. Seymour, M.
Seymour, N. Holdsworth and J. Holdsworth against the decision of East Cambridgeshire
District Council.
• The appeal is in connection with an appeal against the refusal of planning permission for
a proposal described as ‘residential development involving the erection of 33 dwellings,
proposed access arrangements and associated works’.
• This decision supersedes that issued on 16 July 2020. That decision on the application
was quashed by order of the High Court.
Decisions
1. Application A - The application for a partial award of costs is allowed in the
terms set out below.
2. Application B - The application for a partial award of costs is allowed in the
terms set out below.
Reasons
3. Irrespective of the outcome of the appeal, the Planning Practice Guidance
(PPG) states that an award of costs may only be made against a party who has
behaved unreasonably and thereby caused the party applying for costs to incur
unnecessary expense in the appeal process.
4. The Council’s second reason for refusal in respect of application 18/01611/OUM
was predicated on draft Policy LP29 of the Submitted Local Plan 2018 (SLP).
This emerging policy sought to allocate land as Local Green Space (LGS) and
set criteria for assessing applications on land covered by this designation.
However, the SLP had not been adopted when the application was determined
on the 12 February 2019 and therefore the Horsefield was not a LGS. The
weight to be attached to Policy LP29 is informed by Paragraph 48 of the
National Planning Policy Framework (previously Paragraph 216). When applying
these tests, an Inspector had afforded the SLP only limited weight when
determining an appeal1 on the 18 November 2018. This was due to it not being
at an advanced stage of preparation, it still being the subject of examination.
5. More significantly, the Inspector examining the SLP had proposed main
modifications (in a letter dated the 19 December 2019) that included removing
the LGS designation from the Horsefield. The Council would have been aware of
this when determining application 18/01611/OUM only a couple of months
later. The decision makers at the Council would probably also have been aware
when making their decision on the application (12 February 2019) that a
recommendation to withdraw the SLP was in the pipeline. The decision to do
this was taken less than a fortnight later by full Council (on 21 February 2019).
It would have been a prudent course of action for the Council to have delayed
determining application 18/01611/OUM until after the meeting of full Council
given the implications for the second reason for refusal.
6. In responding to an email from the applicants, Officers conceded on the 16
April 2019 that the SLP policies referred to in the reasons for refusal, including
Policy LP29, carried no weight. But it was not made clear whether the Council
would still pursue its concerns regarding LGS, even though the applicants had
requested such confirmation in their letter of the 2 April 2019. The Council
should have been much clearer from an earlier stage that the second reason
for refusal in application 18/01611/OUM and the third in application
17/02217/OUM were unsustainable at that time given the course of events.
7. I therefore share the view of Inspector Phillips that the Council acted
unreasonably in refusing application 18/01611/OUM on the LGS issue and then
failing to promptly and clearly confirm that it would not defend both this reason
for refusal and that attached to 17/02217/OUM. The appellants were put to the
unnecessary expense of dealing with this matter. In coming to this view, I
accept that The Horsefield is now a LGS following the Witchford Neighbourhood
Plan (NP) being made on the 21 May 2020. This is a significant change in
circumstances since 12 February 2019, but it does not alter the fact that the
Council had already acted unreasonably.
8. A fair reading of the Council’s submissions demonstrates that it erroneously
took the view that footnote 6 of the Framework excludes LGS from the ‘tilted
balance’. In effect, the LGS designation in itself provides a ‘clear reason’ for
refusing development in the context of Paragraph 11 of the Framework.
However, this is not the case because Paragraph 11 d) i) of the Framework
states that it is the application of policies relating to the designation, not the
designation itself, that can provide a clear reason for refusal.
1 APP/V0510/W/18/3200980
9. That said, the Council clarified the correct approach at the hearing. Moreover,
the applicants would have needed to explain the interaction between Paragraph
11 d) i), Footnote 6 and the LGS designation in any event given the potential
implications to my assessment. On balance, the Council’s actions in this respect
did not result in unnecessary expense.
10. Similarly, the Council in its written submissions appeared to only partially apply
Policy GI2 of the NP, seemingly taking the view that very special circumstances
(VSC) must be demonstrated in all instances. The Council did not overtly
consider first whether the proposal would enhance the LGS without
compromising its primary function as a LGS. The applicants were put to the
expense of dealing with this. However, again the Council corrected its approach
at the hearing and it ultimately transpired that VSC needed to be demonstrated
by the applicants. Thus, no unreasonable expense was incurred.
11. In April 2020 the Council submitted it Five-Year Housing Land Supply Report 1
April 2019 to 31 March 2024 (FYHLSR). This was after the first hearing on the
15 January 2020 had closed. The document is reasonably self-explanatory and
therefore would not have required much more additional commentary. The
FYHLSR is used by the Council to inform its Annual Monitoring Report and was
not prepared as discrete evidence to inform the appeals. The publication of this
document was an important material consideration and a change in
circumstances that the Council correctly and reasonably brought to the
previous Inspector’s attention. Similarly, the NP being ‘made’ was a significant
change in circumstances that necessitated additional evidence being adduced.
12. The Council were entitled to change its position in respect of housing land
supply on the back of the FYHLSR being completed and published as this was
its most up to date evidence. The fact that the FYHLSR had not been subject to
formal testing or consultation was not in itself a significant flaw given the fact
that the applicants were afforded a chance to review it. Furthermore, there is
no requirement in national policy or guidance for such a document to be
formally tested and consulted upon unless the Council is seeking to confirm the
supply through an Annual Position Statement.
13. This situation occurred again when the Council published its Five-Year Housing
Land Supply Report 1 April 2020 to 31 March 2025 in December 2020. Again, it
was reasonable of the Council to submit this document as it details the most up
to date evidence as it sees it. The applicants were afforded ample time to
review this document before the hearing opened. Given the history involved in
these appeals it would have been helpful if the Council had made the applicants
aware of its intention to publish the new FYHLSR, but I accept there is no
requirement to do so and it may not be practical to inform every interested
party. Accordingly, the Council did not unreasonably withhold information.
14. In preparation for the first hearing on the 15 January 2020 the Council entered
into a Statement of Common Ground (SOCG), which agreed several matters
including those policies that are most important to determining the appeals and
whether they were out of date. The Council’s position on this has change but
such alterations flowed from changes in circumstance, such as a different five-
year housing land supply position or the findings of an Inspector in a
subsequent appeal decision2.
2 APP/V0510/W/20/3245551
15. The applicants have led on the preparation of the SOCG in the run up to the
first hearing and subsequently before the second. It is evident that this was a
difficult process which, perhaps, the Council could have been more engaged in.
However, it is not unusual for an appellant to lead on the preparation of a
SOCG. Moreover, there is nothing of substance before me demonstrating the
Council deliberately dragged its heels to intentionally frustrate the appeal
proceedings. It appears that discussions simply broke down before the second
hearing because agreement could not be reached in the time available.
16. The Council submitted its questionnaire in respect of Appeal B
(APP/V0510/W/19/3227487) outside of the prescribed timetable, but there is
nothing of substance before me to demonstrate this resulted in unnecessary
expense in the appeal process.
17. In response to the Inspectorate’s letter of the 5 November 2020, the Council re
issued its Statement of Case in December 2020. The Council were not invited
to do this but nor was it informed that it could not. The new Statement of Case
raised additional concerns relating to biodiversity net gain and re-visited
heritage and landscape matters. The statement set out the Council’s concerns
in adequate detail and referred to the relevant development plan policies.
18. The Council were correct in raising the matter of net gain given the introduction
of a new Supplementary Planning Document. It was subsequently agreed by
the Council and appellant that this is a matter that could be addressed through
a planning condition and therefore it was a substantive point that needed to be
aired and resolved by the parties.
19. The quashed appeal decisions are material considerations that were before me
and evidently not before Inspector Phillips. I accepted the Council’s new
Statement of Case because it addressed this material consideration. In the
interests of natural justice, the Council (and the applicants as it transpired)
were entitled to re-visit their submissions seek to address any perceived flaws.
The Council had not previously involved a landscape expert but chose to do so
given the findings of Inspector Phillips. Given that the appeals were to be
redetermined I see no problem with this, especially as the applicants were
afforded a chance to respond to the evidence from Ms Farmer and did so.
20. In February 2021 the Council changed its position regarding the impact on
heritage from that set out in its December 2020 Statement of Case. The
Council confirmed that it shared the view of Inspector Phillips and did not wish
to revisit heritage matters as originally inferred. Although this was somewhat
belated and only occurred following requests for clarification from the
applicants, it was ultimately helpful in narrowing down the matters in dispute.
Such dialogue is not unusual during the course of an appeal and therefore, on
balance, the Council did not act unreasonably.
21. The weight to be afforded to the proposed education benefits is a matter of
planning judgment and therefore the Council has not acted unreasonably in not
sharing the applicants view on this point. Furthermore, for the reasons I go
into in my formal decision, there are legitimate reasons to question the extent
to which the gift of land would be a benefit.
Conclusion
22. In conclusion, the Council acted unreasonably in pursuing a LGS refusal initially
predicated on emerging Policy LP29 and then failing to clearly clarify its
position once the SLP was withdrawn. This unreasonable behaviour resulted in
the applicants incurring unnecessary costs in rebutting the points made. Thus,
unreasonable behaviour resulting in unnecessary or wasted expense, as
described in the PPG, has occurred and a partial award of costs is justified.
Costs Order
23. In exercise of the powers under section 250(5) of the Local Government Act
1972 and Schedule 6 of the Town and Country Planning Act 1990 as amended,
and all other enabling powers in that behalf, IT IS HEREBY ORDERED that East
Cambridgeshire District Council shall pay to Abby Properties Cambridgeshire
Ltd, P. Seymour, M. Seymour, N. Holdsworth and J. Holdsworth the costs of the
appeal proceedings described in the heading of this decision in so far as they
relate to addressing the matters summarised in Paragraph 22 of this decision;
such costs to be assessed in the Senior Courts Costs Office if not agreed.
24. The applicants are now invited to submit to East Cambridgeshire District
Council, to which a copy of this decision has been sent, details of those costs
with a view to reaching agreement as to the amount.
Graham Chamberlain,
INSPECTOR


Costs Decisions
Hearing Held on 9 – 10 March 2021
Site visit made on 10 March 2021
by Graham Chamberlain BA (Hons) MSc MRTPI
an Inspector appointed by the Secretary of State
Decision date: 21st April 2021
Costs Application A in relation to Appeal Ref: APP/V0510/W/18/3213834
Land south of Main Street, Main Street, Witchford, Cambridgeshire
CB6 2HQ
• The application is made under the Town and Country Planning Act 1990, Sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by East Cambridgeshire District Council for a partial award of
costs against Abbey Properties Cambridgeshire Ltd, P. Seymour, M. Seymour, N.
Holdsworth and J. Holdsworth.
• The appeal is in connection with an appeal against the refusal of planning permission for
a proposal described as ‘residential development of 31 dwellings, proposed access
arrangement and associated works together with the setting aside of land for
educational use by the Rackham Church of England Primary School’.
Costs Application B in relation to Appeal Ref: APP/V0510/W/19/3227487
Land South and West of Nos 85 to 97 Main Street, Main Street, Witchford,
Cambridgeshire CB6 2HQ
• The application is made under the Town and Country Planning Act 1990, Sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by East Cambridgeshire District Council for a partial award of
costs against Abbey Properties Cambridgeshire Ltd, P. Seymour, M. Seymour, N.
Holdsworth and J. Holdsworth.
• The appeal is in connection with an appeal against the refusal of planning permission for
a proposal described as ‘residential development involving the erection of 33 dwellings,
proposed access arrangements and associated works’.
Decisions
1. Application A - The application for a partial award of costs is allowed in the
terms set out below.
2. Application B - The application for a partial award of costs is allowed in the
terms set out below.
Reasons
3. Irrespective of the outcome of the appeal, the Planning Practice Guidance
(PPG) states that an award of costs may only be made against a party who has
behaved unreasonably and thereby caused the party applying for costs to incur
unnecessary expense in the appeal process.
4. Before and during the hearing the appellants submitted that a 20% buffer
should be applied to the Council’s five-year housing land supply calculations.
This position was previously accurate given earlier Housing Delivery Test (HDT)
calculations. However, the most recent HDT calculations confirm that the
Council has approved enough development to assist in the delivery of 87% of
the prescribed housing requirement over the last three years. Thus, there has
not been significant under delivery as defined in the National Planning Policy
Framework (the ‘Framework’) and therefore a 20% buffer is not appropriate
when applying the clear requirements of Paragraph 73 of the Framework.
5. Nevertheless, the appellants pursued an argument that a 20% buffer should be
applied, submitting that none of the buffers in Paragraph 73 of the Framework
are relevant in this instance and therefore a default 20% buffer should be
imposed as a matter of planning judgment. However, for the reasons I go into
in my formal decision neither a 20% or 10% buffer is appropriate and the
guidance in the PPG pertaining to this matter does not support the appellants’
case. Paragraph 73 of the Framework is clearly written and gives three options,
with a 5% buffer being the default position unless the circumstances in
Paragraph 73 b) or c) are engaged. In this instance it is clear that they are not.
6. Therefore, the argument that a 20% buffer (or 10% buffer) should be applied
had no reasonable prospect of succeeding. This is important because if the
appellants had applied a 5% buffer then their own calculations, using their own
assessment of deliverable sites in its entirety, would have established that
there is currently a five-year housing land supply, albeit marginal.
7. As a result, the Council were put to unnecessary and wasted expense in
addressing matters relating to how the five-year housing land supply should be
calculated, including the buffer to be applied and a largely academic
deliverability discussion. This included written submissions and fielding an
expert at the hearing. A lot of time was spent on this matter at the hearing,
which further compounded the unreasonable behaviour. Thus, unreasonable
behaviour resulting in unnecessary or wasted expense, as described in the PPG,
has occurred and a partial award of costs is justified.
Costs Order
8. In exercise of the powers under section 250(5) of the Local Government Act
1972 and Schedule 6 of the Town and Country Planning Act 1990 as amended,
and all other enabling powers in that behalf, IT IS HEREBY ORDERED that Abby
Properties Cambridgeshire Ltd, P. Seymour, M. Seymour, N. Holdsworth and J.
Holdsworth shall pay to East Cambridgeshire District Council the costs of the
appeal proceedings described in the heading of this decision in so far as they
relate to addressing the appellants’ submissions relating to the calculation of
the five year housing land supply; such costs to be assessed in the Senior
Courts Costs Office if not agreed.
9. East Cambridgeshire District Council is now invited to submit to Abbey
Properties Cambridgeshire Ltd, P. Seymour, M. Seymour, N. Holdsworth and J.
Holdsworth, to whom a copy of this decision has been sent, details of those
costs with a view to reaching agreement as to the amount.
Graham Chamberlain,
INSPECTOR