Case Reference: 3232099

Costs Decision
Hearing Held on 8 January 2020
Site visit made on 8 January 2020
by Graham Chamberlain, BA (Hons), MSc, MRTPI
an Inspector appointed by the Secretary of State
Decision date: 24th January 2020
Costs application in relation to Appeal Ref: APP/G2815/W/19/3232099
Land to the west of numbers 7 - 12 The Willows, Thrapston, NN14 4LY
• 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 [APPELLANT] Ltd. for a partial award of costs
against East Northamptonshire District Council.
• The hearing was in connection with an appeal against the refusal of planning permission
for a residential development of four dwellings.
Decision
1. The application for an award of costs is allowed in the terms set out below.
Reasons
2. 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. The applicant’s case, like the
Council’s rebuttal, was made in writing and supplemented orally at the hearing.
3. During the hearing the Council accepted that its first reason for refusal could
have been articulated in a clearer way. For example, it refers to the scheme
not being windfall development when it is1, and erroneously refers to Policy 11
1a of the JCS2 (which relates to Growth Towns rather than Market Towns such
as Thrapston). It also refers to Policy 2 of the RNOTP3, even though the
Officer’s report states that this policy is not relevant to the proposal. The
reason for refusal therefore included inaccuracies and was a little muddled.
4. Nevertheless, at the hearing the Council clarified its concern that, in its view,
the appeal site is in a rural area for the purposes of Policy 11 and that the
development would not adhere to the criteria in the policy that permits housing
in such areas. For the reasons given in my decision, I share the view of the
Council that the proposal is contrary to Policy 11. In making this case, the
Council had adequately addressed the points made by the applicant, including
the relevance of a development in Raunds and the emerging Local Plan. As
such, the first reason for refusal was not unjustified and the Council did not fail
to have regard to the material considerations advanced by the applicant.
1 The point being that it is not windfall development within a defined urban area
2 The North Northamptonshire Joint Core Strategy
3 Rural North, Oundle and Thrapston Plan
5. The Council’s third reason for refusal relates to the effect of the proposal on the
street scene of The Willows. The Council’s concerns were not vague and were
properly articulated, being the proposed backland location of the development
and the height of the dwellings. The acceptability of the height of the dwellings
and their proposed backland location involves an element of subjective
planning judgment. The Council reasonably exercised this judgment following a
demonstrable appraisal of the character and appearance of the area. It was
able to properly explain its concerns in the officer report, the appeal statement
and at the hearing. Accordingly, there was no substantive failing in respect of
this reason for refusal.
6. The Council’s fourth reason for refusal flowed from a recommendation in the
site specific preliminary ecological assessment submitted by the applicant that
further surveys are required. The Council also took expert advice on this
matter, which it followed. The applicant subsequently supplied these surveys,
which must be taken as an indication that they were necessary. Upon receipt of
these surveys, the Council reviewed them and withdrew the reason for refusal.
Accordingly, there was no substantive error by the Council.
7. At the time of making the decision the status of the appeal site as an open
space was justifiably unclear to the Council. This is because, although privately
owned the site was not fenced, thereby affording the public access to it.
Representations from members of the public explained that the site was used
for recreation by them. Moreover, there was an historic intention for the appeal
site to function as a public open space as part of The Willows development and
the status of the planning obligation relating to this was unclear. Given these
circumstances, the Council did not act unreasonably in refusing the application,
being of a genuinely held opinion that the evidence indicated the appeal site to
be an open space as defined by the National Planning Policy Framework. During
the hearing the Council reflected on the applicant’s submissions and verbal
evidence and withdrew the reason for refusal. They are to be commended for
reacting to the evidence once it was presented, as it demonstrates an objective
approach to the matter.
8. The ability of the Council to demonstrate a five-year housing land supply
became a significant matter in the appeal. The applicant challenged the
Council’s findings on this by submitting a statement specifically addressing this
point. The Council initially stated that it would respond to this at the hearing
but instead it subsequently referred the appellant to a recently published report
to the Planning Policy Committee, which set out the Council’s most up to date
position. They were right to do this rather than bring the information to the
hearing, which would likely have resulted in the need for an adjournment.
9. Nevertheless, the Council’s assessment of its five-year housing land supply
followed a deeply flawed methodology. In its list of deliverable sites, the
Council included sites in its emerging Local Plan as well as unallocated sites not
on a brownfield register and without planning permission. The Council also
failed to provide any evidence regarding the deliverability of small allocated
sites, regarding this to be disproportionate. This is at odds with the closed list
definition in the Framework of what is a deliverable site. The Council accepted
this at the hearing, which makes its position even more inexplicable. If the
Council had properly applied the definition of ‘deliverable’ in the Framework,
then it would have been very apparent that it is currently unable to
demonstrate a five-year housing land supply.
10. I accept that a debate could be had over whether there is clear evidence over
the deliverability of some of the ‘Category B’4 sites in the Council’s supply.
However, the inclusion of sites in the supply that clearly and knowingly fall
outside the definition was unreasonable. The Council’s ability to demonstrate a
five-year housing land supply was entirely reliant on such sites. Accordingly,
the Council should not have contested whether it could demonstrate a five-year
housing land supply. In so doing, it acted unreasonably and put the applicant
to the unnecessary expense of preparing evidence on this matter and
presenting it at the hearing through an expert. A lot of time was spent on this
matter at the hearing, which further compounded the unreasonable behaviour.
11. Accordingly, I find that unreasonable behaviour resulting in unnecessary or
wasted expense, as described in the Planning Practice Guidance, has been
demonstrated, but only in so far as it relates to the Council pursuing an
argument that it is able to demonstrate a five-year housing land supply.
Accordingly, a partial award of costs is justified.
Costs Order
12. 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
Northamptonshire District Council shall pay to [APPELLANT] Ltd the
costs of the appeal proceedings described in the heading of this decision in so
far as they relate to [APPELLANT] Ltd having to prepare a case
regarding five-year housing land supply; such costs to be assessed in the
Senior Courts Costs Office if not agreed.
13. [APPELLANT] Ltd is now invited to submit to East Northamptonshire
District Council, 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
4 Sites listed under point B of the definition of deliverable in the Framework


Costs Decision
Hearing Held on 8 January 2020
Site visit made on 8 January 2020
by Graham Chamberlain, BA (Hons), MSc, MRTPI
an Inspector appointed by the Secretary of State
Decision date: 24th January 2020
Costs application in relation to Appeal Ref: APP/G2815/W/19/3232099
Land rear of 7 - 12 The Willows, Thrapston, Northamptonshire, NN14 4LY
• 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 Northants District Council for a full award of costs
against [APPELLANT] Ltd.
• The hearing was in connection with an appeal against the refusal of planning permission
for a residential development to erect four homes.
Decision
1. The application for an award of costs is refused.
Reasons
2. 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.
3. The appellant submitted the planning application despite the unfavourable
opinion given at the pre application stage by Council Officers on the
acceptability of the proposal. Nevertheless, pre application advice is not binding
on the Council. As such, the appellant had every right to submit their planning
application in order to seek from the Council a formal determination on the
acceptability of the proposal.
4. Policy 11 of the North Northamptonshire Joint Core Strategy 2011 – 2031 (JCS)
is written in a way that requires the decision maker to determine whether a
site is in an urban or rural area. The policy does not define these areas with
reference to a settlement boundary, although the presence of a settlement
boundary for the purposes of the Rural North, Oundle and Thrapston Plan 2011
(RNOTP) is material. Therefore, a judgment is required as to whether a site is
in an urban or rural area. On this point, I share the view of the Council that the
site is not in an urban area but the appellant’s evidence that it is was cogent.
As such, the proposal is not clearly contrary to the development plan.
5. The appellant’s case was twofold, arguing that the proposal was consistent with
Policy 11 of the JCS but if that is not the case, there are material
considerations that indicate the proposal should be approved. This includes the
absence of a five-year housing land supply. The appellant suggested that this
should limit the weight attached to any conflict with Policy 11 and increase the
weight attached to the benefits to housing supply such that the adverse
impacts would not significantly and demonstrably outweigh the benefits.
6. To support this case, the appellant provided and presented detailed evidence
on five-year housing land supply, which in turn was supported by case law in
the form of other decisions made by Inspectors. As such, the appellant’s case
in respect of material considerations outweighing the development plan conflict
was supported by adequate evidence. Thus, the case was not substantively
flawed. In fact, it was well considered and therefore the appeal was not one
without any realistic prospect of success.
7. The appeal has been ‘twin tracked’ with a resubmitted planning application but
this is not unusual and is not an indication from the appellant that the scheme
subject to the appeal is unacceptable. It’s simply a pragmatic and time saving
measure in case the appeal was unsuccessful. Both applications fall to be
considered on their own merits.
8. The appellant’s appeal statement originally argued that the tilted balance in
Paragraph 11 of the National Planning Policy Framework should be applied
because the Council is relying on out of date settlement boundaries. The lack of
a five-year housing land supply was not part of the original case and the
Council’s 2018 Annual Monitoring Report was not challenged. The appellant
referred to a 3.37-year supply in their Statement of Case, but this was in
reference to the housing supply if sites outside settlement boundaries were
discounted. It was a point made to expand upon the argument that the Council
is relying on sites outside the settlement boundary to maintain a five-year
supply, thus rendering the settlement boundaries out of date.
9. The appellant began to develop a five-year housing land supply argument after
submitting their statement of case and subsequent to the Council submitting
its, which confirmed a five-year housing supply. Understandably the Council did
not supply detailed evidence to this effect as it did not appear to be a point in
dispute. The appellant’s challenge of the Council’s 2018 monitoring report,
published in October 2018, was therefore submitted unreasonably late as there
was no apparent reason for it not being submitted with their statement of case.
The Council were put to a disadvantage as they were unable to challenge,
through its statement of case, the appellant’s position.
10. However, matters got overtaken by events. The Planning Policy Committee
agreed a new housing land supply position on the 17 December 2019. This was
forwarded on to the appellant and represented the Council’s response to the
five-year housing land supply challenge. As such, dealing with the late evidence
did not put the Council to unnecessary additional expense. The appellant was
entitled to deal with the 2019 five-year housing land supply position because it
was a significant material consideration that could not have been addressed by
the appellant at the time of submitting their statement.
Conclusion
11. For the reasons given, I find that unreasonable behaviour resulting in
unnecessary or wasted expense, as described in the PPG, has not occurred.
Graham Chamberlain,
INSPECTOR


Appeal Decision
Site visit made on 1 December 2020
by Darren Hendley BA(Hons) MA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 17th December 2020
Appeal Ref: APP/G2815/W/19/3232099
Land rear of 7-12 The Willows, Thrapston, Northamptonshire NN14 4LY
• 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 [APPELLANT] against the decision of East
Northamptonshire District Council.
• The application Ref: 18/02459/OUT, dated 19 December 2018, was refused by notice
dated 28 February 2019.
• The development proposed was originally described as a ‘residential development’.
• This decision supersedes that issued on 24 January 2020. That decision on the appeal
was quashed by order of the High Court.”
Decision
1. The appeal is allowed and planning permission is granted for a residential
development to erect four dwellings at land rear of 7-12 The Willows,
Thrapston, Northamptonshire NN14 4LY in accordance with the terms of the
application, Ref: 18/02459/OUT, dated 19 December 2018, subject to the
conditions in the attached schedule.
Applications for Costs
2. An application for costs was made by [APPELLANT] Ltd against East
Northamptonshire District Council. This application will be the subject of a
separate Decision.
3. The Council also outlined an application for costs, albeit this was not followed
up with the claim itself. Nevertheless, I have considered it as such an
application and this will also be the subject of a separate Decision.
Procedural Matters
4. The description of development set out in the banner heading above is taken
from the planning application form. Both the descriptions on the Council’s
decision notice and the appeal form refer to a proposed residential
development to erect four dwellings on redundant land. As this more
accurately describes the proposal, I have considered the appeal on this basis,
excluding the superfluous elements. This is reflected in my decision paragraph.
5. The application is in outline form with all matters reserved for future
consideration apart from access and scale. I have dealt with the appeal on this
basis and I have treated any details not to be considered at this stage as being
illustrative only. To what extent scale1 is to be considered at this stage and
what should be considered under reserved matters is a matter of contention
between the main parties, with regard to height. The appellant has now
provided the details of the height of the proposed dwellings, which the Council
has had the opportunity to comment on. Scale in its entirety can now be dealt
with at this outline stage.
6. The appellant originally signed Certificate A on the application form which
stated that [APPELLANT] Ltd were the sole owner of the appeal site.
This was incorrect because there are two other freeholders. Accordingly, the
appellant served notice on the freeholders and so has discharged the relevant
provisions2 concerning the serving of notice.
7. The appellant submitted a revised indicative site layout plan with the appeal, as
well as a number of other plans which show how the proposal would relate to
the existing housing on adjoining land. I have considered these plans in my
decision on an indicative basis.
8. The Council has confirmed that it is no longer defending reasons for refusal 1,4
and 5 in its decision. This is due to a recent permission3 for a residential
development on the site for 4 dwellings, additional survey evidence related to
breeding birds and great crested newts, and evidence that demonstrates that
the site has not been public open space. As these issues no longer form
matters of dispute between the main parties, I have considered the appeal on
this basis. The main parties remain in disagreement over reasons for refusal 2
and 3 which concern, respectively, housing mix and character and appearance.
Main Issues
9. Based on the above, the main issues are the effect of the proposal on (i)
housing mix; and (ii) the character and appearance of the area.
Reasons
Housing Mix
10. Policy 30 of the North Northamptonshire Joint Core Strategy 2011 – 2031
(2016) (JCS) states that housing development should provide a mix of dwelling
sizes and tenures to cater for current and forecast accommodation needs and
to assist in the creation of sustainable mixed and inclusive communities. Part
a) sets out that the mix of house types within a development should
accommodate smaller households with an emphasis on the provision of small
and medium sized dwellings (1-3 bedrooms), amongst other considerations.
11. The approach which Policy 30 takes is based on the Council’s Strategic Housing
Market Assessment toolkit (2015) (SHMA), which is detailed in the supporting
text to the policy. The need is said to be for smaller dwellings. Around 70% of
new households are forecast to be of a size that ‘need’ 1 or 2 bedrooms, 30%
will need 3 bedrooms and very few will need 4 or more bedrooms.
12. However, there is also flexibility as regards accommodating some of the
demand for larger dwellings. This will be supported provided that
1 As defined by Article 2 of The Town and Country Planning (Development Management Procedure) (England)
Order 2015 (DMPO)
2 Articles 13 and 14 of the DMPO
3 Council ref: 19/01616/OUT
developments provide a significant proportion (generally at least 70%) of small
and medium sized properties (1-3 bedrooms), which will provide the more
affordable market housing options to meet identified needs. Proposals for a
higher proportion of larger (4+ bedroom) dwellings should be supported by
evidence in relation to the existing housing stock and the local housing market.
13. The relevant means by which Policy 30 seeks to ensure that an appropriate
housing mix would be provided in order to meet accommodation needs is
through the number of bedrooms that would be provided. The Council, though,
place emphasis on scale as a way of assessing housing mix. However, if Policy
30 considered that other ways were to be utilised, it would say so. It does not
and so the sole relevant way of assessing housing mix under the policy is the
number of bedrooms, rather than scale or other ways, such as the floor area.
14. With the application’s outline form, the details that have been provided as
regards the number of bedrooms is indicative. What is shown on the submitted
plans would not accord with the number of bedrooms which Policy 30 would
envisage that a housing development would provide. However, this would not
preclude properties with less bedrooms being provided for at the reserved
matters stage in order for the proposal to comply with the policy. This would
arise, simply, if 3 of the proposed 4 dwellings were 3 bedroom, when the
flexibility is applied. As an outline approval forms the planning permission for a
proposal, it would be reasonable and necessary to impose a condition to
ensure this is addressed at the reserved matters stage.
15. The Council also contest that the proposal would not constitute an efficient use
of land because of the low density and as a greater number of smaller homes
could be accommodated on the site. Having regard to the evidence before me,
Policy 30 is the appropriate way of assessing whether the proposal would make
such a use of land because it is based on the local market conditions, by virtue
of the SHMA. As I has set out above, the proposal is not inconsistent with
Policy 30.
16. Matters in relation to whether a greater number of proposed dwellings could be
accommodated with regard to access and the effect on the living conditions of
the occupiers of neighbouring properties have a limited bearing because this
does not constitute the proposal which is for my consideration.
17. I conclude that the proposal would not be unacceptable with regard to housing
mix, subject to the condition. Hence, it would comply with Policy 30a as
regards the mix of house types that a development should reflect and, on this
basis, it would assist in the creation of sustainable mixed and inclusive
communities.
Character and Appearance
18. The site comprises an area of open land which lies to the rear of a modern
residential development known as The Willows. The site benefits from a
defined access in between 2 of the neighbouring properties. The Willows is set
out in a planned layout around an access road and a number of cul-de-sacs.
The dwellings comprise uniform house types. They are fairly well proportioned
and of a 2 storey form. The remaining land around the site is of a more open
nature and reflects that it lies on the edge of the town and close to a river and
the open countryside.
19. The scale parameters are set out by virtue of the submitted floor plans for the
depths and widths (lengths) of the proposed dwellings. The depths of the
proposed dwellings would be similar to those found already on The Willows.
The lengths would be greater, but there is already variation with the existing
dwellings which are also positioned fairly close together to already give a built
up character. The proposed lengths would not be a determinative factor.
20. The appellant has confirmed that the height of the proposed dwellings would be
no higher than 7.2 metres from the finished floor levels. This is a precise way
of ascribing height because it provides a clear measurement. It would not be
achieved by utilising a vaguer description by way of the number of storeys,
whether it would be 2 or 3. The appellant has also provided evidence that the
height of at least one neighbouring property would be similar to the proposal.
The proposed height would not be discordant.
21. As a result, when the proportions of the proposed dwellings are taken together,
the scale would not appear out of keeping with the existing dwellings on The
Willows.
22. The Council does not now contest the location of the proposal. I see no reason
to disagree as it would effectively continue the existing pattern of residential
development to the rear of where it currently ends.
23. In respect of the visual impact, the proposal would also appear as a
continuation of The Willows. It would sit comfortably in its surroundings, in
particular due to the location on the edge of the town. The lower density of the
proposal would enable a transition between The Willows and the countryside
beyond.
24. There would also be likely limited visibility from the streetscene because of the
screening provided by the houses on The Willows, even with the proposed
access arrangements. The visual effect would also be contained as there is
already some landscaping and vegetation around the site boundaries and
towards the river corridor to the west. This is also ably demonstrated by the
appellant’s Baseline Landscape and Visual Impact Appraisal. The layout and
the landscaping, to be considered at the reserved matters stage, would also
provide some control and reassurance in this regard.
25. I conclude that the proposal would not have an unacceptable effect on the
character and appearance of the area. As such, it would comply with Policy 8D
of the JCS which sets out that development should create a distinctive local
character. This includes by way of responding to the site’s immediate and
wider context and local character, the overall form, and character and
landscape setting of the settlement, amidst other considerations. It would also
comply with the National Planning Policy Framework where it concerns
achieving well-designed places.
Other Matters
26. The site is located within 3 kilometres of the Upper Nene Valley Gravel Pits
Special Protection Area (SPA). The qualifying features for the SPA designation
are the concentrations of Great Bittern, Gadwall and European Golden Plover
bird species. The recreational presence of people and dog walking is a principle
threat to the birds by way of disturbance and thereby the qualifying features.
27. The proposal is located within the zone of influence around the SPA. Due to its
recreational value, the future residents of the proposal would be likely to visit
the SPA. This provides a pathway of effect for recreational disturbance. As a
consequence, and when applying the precautionary approach, the proposal
would be likely to have a significant effect on the SPA. Accordingly, I am
required to undertake an Appropriate Assessment as the competent authority
under the Conservation of Habitats and Species Regulations 2017.
28. The mitigation strategy for the SPA involves a financial contribution per
dwelling that is used for Strategic Access Management and Monitoring. This
involves measures such as fencing, screening and wardens to minimise the risk
of recreational disturbance on the qualifying features. Such an approach is
agreed by the Council and Natural England, as the Statutory Nature
Conservation Body. This financial contribution has already been paid to the
Council by the appellant and it is not in dispute that it would be used for the
intended mitigation purposes. On this basis, the proposal would not adversely
affect the integrity of the SPA.
29. With regard to the Council’s emerging local plan, this is still at a stage
relatively early on in the plan preparation process and so it attracts limited
weight in my decision. Concerning the use of the site, there is not substantive
evidence that public access has been anything other than informal and at the
discretion of the landowner. At the time of my visit, the site had largely been
fenced off. As a result, the proposal would not give rise to the loss of public
open space. I have dealt with matters related to visual impact earlier in my
decision.
30. Adequate visibility would be able to be achieved at the site access in
accordance with Highway Authority requirements, as would levels of
commensurate off-street car parking, together with refuse storage provision.
Construction impacts would be likely of a fairly short duration. These matters
would be adequately controlled through planning conditions. The same applies
as regards land contamination relating to the historical usage of the site.
31. Reserved matters, in particular layout, would ensure that satisfactory living
conditions for the occupants of the neighbouring properties is maintained.
Whilst I am mindful that these residents currently benefit from an open aspect
across the site, an appropriate layout would provide not unacceptable levels of
privacy, light and visual impact, as well as limiting overshadowing.
32. The Flood Risk Assessment (FRA) also ably demonstrates that the proposal
would be acceptable with regard to flood risk, while matters in relation to the
utilities infrastructure on the site are for the appellant and the operators.
33. The main parties have made reference to the previous Inspector’s decision. It
is my role, though, to redetermine the case and not review this decision.
Where matters are raised that are relevant to my decision, I have taken these
into account.
Conditions
34. I have imposed conditions by way of the reserved matters and the timescales
for submission and implementation. In the interests of certainty, I have also
imposed a condition concerning the approved plans as access and scale are
matters before me. For the same reason, I have imposed a condition
concerning the height of the proposed dwellings, based on the details that the
appellant has provided.
35. I have also imposed a condition in respect of the internal layout of the
proposed dwellings. This is in order that the housing mix assists in the creation
of mixed and inclusive communities. A condition is also imposed concerning
the finished floor levels, in the interests of protecting the character and
appearance of the area.
36. I have imposed a condition in relation to the mitigation measures set out in the
FRA, in the interests of minimising flood risk. I have also imposed conditions
concerning the construction period in the interests of protecting the living
conditions of the nearest residents. I have also imposed conditions involving
land contamination in the interests of public health and pollution control, and
the vehicular access and parking in the interests of highway safety.
Conclusion
37. For the reasons set out above and having regard to all matters that have been
raised, the appeal should be allowed subject to the conditions.
Darren Hendley
INSPECTOR
Schedule of Conditions
1) Details of the appearance, landscaping and layout, (hereinafter called
"the reserved matters") shall be submitted to and approved in writing by
the local planning authority before any development takes place and the
development shall be carried out as approved.
2) Application for approval of the reserved matters shall be made to the
local planning authority not later than 3 years from the date of this
permission.
3) The development hereby permitted shall take place not later than 2 years
from the date of approval of the last of the reserved matters to be
approved.
4) The development hereby permitted shall be carried out in accordance
with the following approved plans: 120-TA02 Revision A, 1544-SK02
Revision A, 1544-SK03, 1544-SK04, 1544-SK05 but only in respect of
those matters not reserved for later approval and excluding the internal
layout of the proposed dwellings.
5) The height of the proposed dwellings shall not exceed 7.2 metres from
the finished floor levels.
6) No development shall take place until a scheme for the internal layout of
the proposed dwellings has been submitted to and approved in writing by
the local planning authority as part of the reserved matters submission
required by condition 1. The scheme shall include the details of the
number of bedrooms in each proposed dwelling. The development shall
be implemented in accordance with the approved details.
7) No development shall take place until full details of the finished levels,
above ordnance datum, of the ground floors of the proposed dwellings, in
relation to existing ground levels have been submitted to and approved in
writing by the local planning authority as part of the reserved matters
submission required by condition 1. The development shall be carried out
in accordance with the approved levels.
8) The development shall be carried out in accordance with the submitted
flood risk assessment (FRA) (Ref: 120‐FRA‐01‐C) dated October 2018 and
the following mitigation measures it details:
• Finished floor levels shall be set no lower than 30.83 metres above
Ordnance Datum (AOD).
These mitigation measures shall be fully implemented prior to occupation
and subsequently in accordance with the scheme’s timing/phasing
arrangements. The measures detailed above shall be retained and
maintained thereafter throughout the lifetime of the development.
9) No demolition or construction work (including deliveries to or from the
site) that causes noise to be audible outside the site boundary shall take
place on the site outside the hours of 08:00 and 18:00 Mondays to
Fridays and 08:00 and 13:00 on Saturdays, and at no times on Sundays
or Bank or Public Holidays.
10) During site clearance and construction phases the developer shall
provide, maintain and use a supply of water and means of dispensing it,
to dampen dust in order to minimise its emission from the development
site. The developer shall not permit the processing or sweeping of any
dust or dusty material without effectively treating it with water or other
substance in order to minimise dust emission from the development site.
The developer shall provide and use suitably covered skips in order to
minimise dust emission to the atmosphere when materials and waste are
removed from the development site.
11) Prior to the commencement of piling operations, a scheme for the control
and mitigation of noise, including vibration, affecting surrounding
premises shall be submitted to, and approved in writing, by the local
planning authority. Such measures shall operate throughout the piling
operations in accordance with the approved details or amendments which
have been submitted to and approved in writing by the local planning
authority.
12) The development hereby permitted shall not be commenced until details
of a comprehensive contaminated land investigation has been submitted
to and approved by the local planning authority and until the scope of
works approved therein have been implemented where possible. The
assessment shall include all of the following measures unless the local
planning authority dispenses with any such requirements in writing:
a) A Phase I desk study carried out by a competent person to identify and
evaluate all potential sources of contamination and the impacts on land
and/or controlled waters, relevant to the site. The desk study shall
establish a 'conceptual model' of the site and identify all plausible
pollutant linkages. Furthermore, the assessment shall set objectives for
intrusive site investigation works/ Quantitative Risk Assessment (or state
if none required). Two full copies of the desk study and a non-technical
summary shall be submitted to the local planning authority without delay
upon completion.
b) A site investigation shall be carried out to fully and effectively
characterise the nature and extent of any land contamination and/or
pollution of controlled waters. It shall specifically include a risk
assessment that adopts the Source-Pathway-Receptor principle and takes
into account the sites existing status and proposed new use. Two full
copies of the site investigation and findings shall be forwarded to the
local planning authority.
This must be conducted in accordance with the Environment Agency's
'Model Procedures for the Management of Land Contamination, CLR11'.
13) Where the risk assessment identifies any unacceptable risk or risks, an
appraisal of remedial options and proposal of the preferred option to deal
with land contamination and/or pollution of controlled waters affecting
the site shall be submitted to and approved by the local planning
authority. No works, other than investigative works, shall be carried out
on the site prior to receipt and written approval of the preferred remedial
option by the local planning authority.
This must be conducted in accordance with DEFRA and the Environment
Agency's 'Model procedures for the Management of Land Contamination,
CLR11'.
14) Remediation of the site shall be carried out in accordance with the
approved remedial option.
15) On completion of remediation, two copies of a closure report shall be
submitted to the local planning authority. The report shall provide
verification that the required works regarding contamination have been
carried out in accordance with the approved Method Statement(s). Post
remediation sampling and monitoring results shall be included in the
closure report.
16) If, during development, contamination not previously considered is
identified, then the local planning authority shall be notified immediately,
and no further work shall be carried out until a method statement
detailing a scheme for dealing with the suspect contamination has been
submitted to and agreed in writing with the local planning authority .
17) a. Prior to first use or occupation of the development hereby permitted,
the means of access shall be paved with a hard-bound surface for at least
the first 10m from the highway boundary. Such surfacing shall thereafter
be retained and maintained in perpetuity. The maximum gradient over a
5m distance (from the highway boundary) shall not exceed 1 in 15.
b. Prior to first use or occupation of the development hereby permitted,
pedestrian visibility splays of at least 2m x 2m shall be provided on each
side of the vehicular access. These measurements shall be taken from
and along the highway boundary. The splays shall thereafter be
permanently retained and kept free of all obstacles to visibility over 0.6
metres in height above access/footway level.
c. Prior to first use or occupation, the proposed vehicular access and
parking facilities shall be provided in accordance with the approved plans
and shall thereafter be set aside and retained for those purposes.
d. Prior to first use or occupation, suitable drainage shall be provided at
the end of the driveway to ensure that surface water from the vehicular
access does not discharge onto the highway or adjacent land.
e. No gate(s), barriers or means of enclosure shall be erected within 8m
of the highway boundary. Any such feature erected beyond that distance
should be hung to open inwards only. The gates shall be retained as such
thereafter.


Costs Decisions
Site visit made on 1 December 2020
by Darren Hendley BA(Hons) MA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 29th December 2020
Application A: Costs application in relation to Appeal Ref:
APP/G2815/W/19/3232099
Land rear of 7-12 The Willows, Thrapston, Northamptonshire NN14 4LY
• 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 [APPELLANT] Ltd for a full award of costs against
East Northamptonshire District Council.
• The appeal was against the refusal of planning permission for a residential development
to erect four dwellings.
Application B: Costs application in relation to Appeal Ref:
APP/G2815/W/19/3232099
Land rear of 7-12 The Willows, Thrapston, Northamptonshire NN14 4LY
• 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 Northamptonshire District Council for a partial award of
costs against [APPELLANT] Ltd.
• The appeal was against the refusal of planning permission for a residential development
to erect four dwellings.
Decision
1. Application A for an award of costs is refused and Application B for an award of
costs is refused.
Procedural Matter
2. Both main parties also submitted costs claims prior to the original decision on
the appeal that was quashed by order of the High Court. The High Court also
quashed the partial costs decision that was awarded to the appellant. That
award was based on matters in relation to five-year housing land supply. This
is no longer in dispute between the main parties in so far as to what is now in
disagreement relates to housing mix and character and appearance. Hence, it
would not justify awarding costs against the Council. Accordingly, I have
focussed my deliberations on the matters that are contained in the costs
applications since the quashed decisions.
Reasons
3. The Planning Practice Guidance (PPG) advises that costs may 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 appeal
process.
Application A
4. The applicant’s (the appellant) costs claim is made on substantive grounds.
This includes a failure of the Council to produce evidence to substantiate each
reason for refusal on appeal; and, making vague, generalised or inaccurate
assertions about a proposal’s impact, which are unsupported by any objective
analysis. On both these counts, the applicant cites a lack of evidence from the
Council on the assertion that the height of the proposed dwellings at 7.2
metres would exceed that of the neighbouring properties.
5. I am not however persuaded this accurately represents the Council’s position.
In my view, what the Council is concerned with is more centred on a lack of
evidence about the height of the neighbouring dwellings in order to compare it
with that of the proposed dwellings.
6. In addition, when the applicant did put forward scaled evidence of the height of
a neighbouring property, this was after the Council had made its last appeal
submission. As a consequence, it was not in a position to respond further on
the height evidence. Whilst the Council should have access to this information
as it related to a planning permission, it is for the applicant to put forward
evidence to justify its position, rather than for an opposing party to seek it out.
7. More broadly, the Council’s evidence on character and appearance satisfactorily
amplifies the concerns that are set out in the related reason for refusal and the
Planning Officer Report. The Council explain what it considers are the
character qualities of the area and why the proposal would be in conflict. The
Council also withdrew its concerns over the backland location following a recent
grant of planning permission for a housing development on the site1.
8. As such, the Council’s position is not tantamount to one without evidence or
making vague, generalised or inaccurate assertions. It does not amount to
unreasonable behaviour.
9. The applicant also considers that the Council has acted unreasonably by
refusing planning permission on a planning ground capable of being dealt with
by conditions. This risks an award of costs, where it is concluded that suitable
conditions would enable the proposed development to go ahead. The applicant
refers to conditions related to housing mix and height.
10. Whether or not conditions can address these issues largely relates back to each
party’s established position. The Council consider that scale is a determinative
factor in the housing mix and raise broader concerns than height in relation to
the scale of the proposed dwellings. Whilst I disagree for the reasons that I
have set out in my appeal decision, it is not a position that is unjustified with
the evidence that the Council has presented. It is therefore understandable
why the Council considered that suitable conditions would not enable the
proposed development to go ahead.
11. The same applies with regard to the fallback position of the approved housing
development on the site, and what weight the main parties attach to it. The
parties’ views differ on how similar that scheme is with the proposal that is the
1 Council ref: 19/01616/OUT
subject of this appeal, and provide evidence to that effect. None of this
constitutes behaving unreasonably.
12. The applicant is also of the view that the Council has persisted in objections to
a scheme or elements of a scheme which an Inspector, as is relevant in this
case, has previously indicated to be acceptable. That decision has, however,
been quashed. Even on matters that were not subject of the quashing, they
are still for redetermination. To what extent they are taken into account is a
matter of judgement. The Council’s submissions adequately demonstrate why
it has taken a different tact to that of the Inspector in the quashed decision.
Hence, it is not simply persisting in objections, because it has set out in
evidence why it continues to have concerns. This does not amount to
unreasonable behaviour.
Application B
13. The applicant (the Council) has raised procedural grounds. This relates to a
lack of co-operation by the appellant by failing to respond to correspondence
regarding housing mix and scale, and introducing a new argument, or matter,
at the final submissions stage of the process.
14. With regard to housing mix and scale, the appellant’s position has been well-
versed through the various submissions that have been made during the
appeal. The confirmation of the maximum height of the proposed dwellings is
more recent, although the applicant has had the opportunity to respond on this
matter and has done so. Hence, there has not been a lack of co-operation on
housing mix and scale that corresponds to unreasonable behaviour.
15. The applicant considers that the appellant has raised a new point in relation to
that Policy 30(a) of the North Northamptonshire Joint Core Strategy 2011 –
2031 (2016) should be considered out of date. All parties were given the
opportunity to make representations with regard to any material change in
circumstances which may have arisen since the quashed decision. This also
does not amount to unreasonable behaviour.
Conclusion
16. I find that unreasonable behaviour resulting in unnecessary or wasted expense,
as described in the PPG, has not been demonstrated in relation to Application A
or Application B. An award of costs is not, therefore, justified in relation to
either application.
Darren Hendley
INSPECTOR