Case Reference: 3239002

Appeal Decision
Inquiry held 4-6 and 11-13 February 2020
Accompanied site visit made on 7 February 2020
by Helen Heward BSc Hons MRTPI
an Inspector appointed by the Secretary of State
Decision date: 25 August 2020
Appeal Reference: APP/P1560/W/19/3239002
L and at Foots Farm, Thorpe Road, Clacton on Sea, Essex
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for outline planning permission.
• The appeal is made by [APPELLANT] against Tendring District Council.
• The application Ref:18/01499/OUT is dated 13 September 2018.
• The development proposed comprises “Outline planning permission for the erection of
up to 245 dwellings, provision of public open space and supporting site infrastructure
with some matters reserved to form access off Thorpe Road and pedestrian access off
Centenary Way”.
Decision
1. The appeal is dismissed and planning permission for the erection of up to 245
dwellings, provision of public open space and supporting site infrastructure with
some matters reserved to form access off Thorpe Road and pedestrian access
off Centenary Way is refused.
Preliminary and Procedural Matters
2. The application is in outline with all matters reserved except for site access. A
proposed vehicular access off Centenary Way has been deleted and all internal
details are reserved. At the Inquiry the parties agreed that the description of
development should be amended to that set out above.
3. The plans include Location Plan (CC010-LP-001 Rev 00), Feasibility for new
access off existing roundabout Thorpe Road (183903_GA_03 Rev B), Junction
Option 2 (83903_PHL_101) and Uncontrolled pedestrian/cycle crossing on
Centenary Way (183903_GA_04 Rev B). The parties agree that should the
appeal succeed it would be appropriate to condition that reserved matters
should be in general conformity with Parameters Plan (CC010- PL-003 Rev E)
and Storey Heights Plan (CC010-PL-005 Rev E). I have had regard to these
drawings as part of the illustrative materials.
4. There are two alternative proposals. One is that 74 of the 245 dwellings would
be affordable. The alternative is a contribution towards restoration of St Osyth’s
Priory and that all 245 dwellings would be unrestricted market dwellings.
5. A Pre-Inquiry Meeting (PIM) held in December 2019 was followed by on-going
resolution of final evidence and common ground positions up to, and during,
the Inquiry. Both parties shared progress updates and information, including
with third parties present at the Inquiry. Appended to this Decision is a list,
prepared by the Appellant and agreed by the Council as an accurate record of
all the documents submitted. The parties agreed that the information,
including an updated legal agreement, was helpful to the Inquiry and that no
party has been prejudiced by their late submission. I agree.
6. In 2018 the Examining Inspector (EI) for the North Essex Authorities Shared
Strategic Plan found the spatial strategy in the submitted Section 1 Plan
unsound. He outlined significant further work that needed to be undertaken
and set out three options for taking the Examination forward. The Councils
pursued Option 2 and produced additional evidence. The EI held further
hearing sessions in January 2020 focussing on the additional evidence and
responses to it. In a letter in May 2020 the EI advised of his latest findings. I
have taken comments on his findings relevant to this appeal into consideration.
Main Issues
7. Where strategic policies are more than five years old paragraph 73 of the
National Planning Policy Framework (the Framework) and associated footnote,
require that local planning authorities identify and update annually a supply of
specific deliverable sites sufficient to provide a minimum of five years’ worth of
housing against their Local Housing Need (LHN) calculated using the Standard
Method (SM) set out in the Planning Practice Guidance (PPG).
8. Prior to the Inquiry, it was common ground that, informed by the SM, the LHN
for Tendring was 863 dwellings calculated using 2014 based Sub-National
Household Projections (SNHPs) over 10 consecutive years. At the Inquiry,
using 2020 as the starting point1, the parties agreed that the annual LHN had
risen to 881 dwellings, that applying an affordability uplift of 31.9% yields a
five-year housing requirement of 5286 dwellings, and that the Council has a
Housing Land Supply (HLS) of 3.62 years. They further agreed that the
policies most important for determination of the appeal should be considered
as out-of-date and that the so called ‘tilted balance’ as set out at paragraph 11
of the Framework, is engaged and I agree.
9. Therefore the main issues are:-
1) Whether the policies of the Framework provide a clear reason for
refusing the development proposed, or any adverse impacts of granting
permission would significantly and demonstrably outweigh the benefits,
when assessed against the policies in the Framework taken as a
whole, with particular regard to the effect of the proposal upon:
a. The spatial strategy for the location of development and the weight
to be attached to any conflict with the provisions of saved Policy QL1
Tendring District Local Plan 2007 (TDLP) and Policy SPL2 of the
Emerging Tendring District Local Plan 2013-2033 and beyond (eLP);
b. Character and appearance, including landscape character, settlement
pattern, setting and separation, with particular regard to the
provisions of saved Policies EN1 and EN2 of the TDLP and eLP
Policies PPL3 and PPL6.
2) Whether or not factors, including Unattributable Population Change,
affect the weight to be attached to the extent of the HLS in the planning
balance.
1 As advised at Paragraph: 004 Reference ID: 2a-004-20190220 Revision date: 20 02 2019
Reasons
Spatial Strategy
10. The TDLP strategy seeks to create sustainable communities and applies a
sequential approach to the location of new development to make best use of
land and stimulate regeneration within existing urban areas. Policy QL1 Spatial
Strategy (QL1) defines the main focus for new sustainable patterns of
development, concentrating development at the larger towns of Clacton and
Harwich, where accessibility to employment, shops, and other facilities and
services is maximised, and there is a choice of means of transport. The Council
does not disagree that in these ways the site is sustainably located, and there
is little evidence to the contrary.
11. QL1 seeks to concentrate development within Settlement Development
Boundaries (SDB’s) defined on proposals maps. SDB’s were drawn to allow for
planned peripheral growth to the urban area of Clacton and to provide for
additional development which could not be accommodated within the existing
urban area. Outside SDB’s, and other specific allocations, only development
consistent with countryside policies will be permitted. Since the appeal site is
adjacent to, but outside of, the SDB for Clacton, the development proposed
would be contrary to QL1.
12. The general plan-led approach to the spatial strategy, namely, to manage
patterns of growth and to protect the intrinsic character of the countryside, is
consistent with broad aims of the Framework. However, the Council accepts
that the Framework provides a less prescriptive approach to countryside
protection than QL1 seeks to apply.
13. Whilst the TDLP strategy was adopted for the needs of a plan period long past,
Clacton remains a main centre of growth in the eLP, with the Council proposing
to extend the SDB in the locality of the appeal site. Even so, the site would
remain outside of the proposed boundary, but directly adjoin more of it than it
does in the TDLP. The eLP has yet to be approved but the proposed changes
highlight that QL1 and TDLP SDB’s no longer reflect current development
needs, with the Council recognising that it may be both necessary and
appropriate to allocate land on the northern edge of Clacton in the locality of
the appeal site. On that basis, I attach limited weight to the conflict with QL1.
14. eLP policies SPL1 (Managing Growth) and SPL2 (Settlement Development
Boundaries) adopt a similar approach. In the letter to the North Essex
Authorities, May 2020, the EI recommended the deletion of two of three
proposed garden communities, although not the one partially in Tendring.
Modifications will need to be prepared and more hearing sessions may be
required, before the EI can produce his final report and recommendations. The
weight I attach to conflict with SPL1 and SPL2 is very limited.
Character and appearance
15. TDLP Policy EN1 (EN1) seeks to protect and where possible enhance the quality
of the District’s landscape and its distinctive local character. It primarily
applies to development proposals in the countryside and on the edge of
settlements, as is the case here. Any development which would significantly
harm landscape character or quality is resisted and it seeks to conserve certain
natural and manmade features which contribute to local distinctiveness.
Amongst other things, these include the settings and character of settlements.
The need to recognise, protect and enhance distinctive landscape character is
broadly consistent with advice in the Framework, but the Council accepts that
EN1 is not fully reflective of the more selective approach to landscape
protection in the Framework. The weight I attach to EN1 is limited.
16. To prevent the coalescence of settlements, and to protect their rural settings,
Policy EN2 (EN2) seeks to keep Local Green Gaps (Gaps) open and essentially
free of development. The appeal site is located at the eastern end of a quite
distinct and roughly rectangular block of open land within the Gap between
Clacton and Little Clacton. This block of land is roughly bounded on three sides
by Centenary Way (south), Thorpe Road (east), and Holland Road (north). The
main function of this Gap is to safeguard the separate identity, character and
openness of the setting of Little Clacton, particularly by protecting the
undeveloped land either side of Centenary Way.
17. The Gap was defined at the time of the preparation of the TDLP and in light of
the development needs at that time. The Policy starts with the phrase “During
the plan period” which is long past. In order to meet future needs it may be
necessary to release land. EN2 is more preclusive of development outside of
settlement boundaries and within Gaps than advice in the Framework indicates.
Other Inspectors have found EN2 to be inflexible and to inhibit development.
Cases have been determined within different HLS contexts and/or under
different national planning policy guidance. Consistency is important but I do
not know all the details of all the cases drawn to my attention and it is not
always clear what weight has been attached and for what reason.
18. eLP Policy PPL6 (PPL6) proposes Strategic Green Gaps (SGGs), including one
between Clacton and Little Clacton. It would be much smaller than the Gap in
the TDLP. However, it would maintain a SGG in the locality of, and including,
the appeal site. Although the eLP is at an early stage, the intention to maintain
a SGG strengthens my conclusion that EN2 has a continuing effect in this area.
Paragraph 213 of the extant Framework advises that due weight should be
given to policies adopted or made prior to the publication of this Framework
according to their degree of consistency with this Framework. EN2 reflects the
objectives of a plan-led spatial strategy and the creation of well-designed
places, which are fundamental planning principles supported by the
Framework. The weight I attach to EN2 is moderate.
19. In the Essex Landscape Character Assessment 2003 the site is within the E3
Tendring Plain Landscape Character Area (LCA). The sensitivity for urban
extensions of 5ha+ is assessed as moderate, with possible opportunities for
change with new landscape frameworks noted. At a local level, the Tendring
District Landscape Character Assessment 2001 (TDLCA) the site is within the
Clacton and the Sokens Clay Plateau LCA (8B) described as a relatively densely
settled rural agricultural plateau landscape. With the loss of hedgerows and
ancient woodland, the condition has been declining over many years. The
TDCLA was also prepared roughly two decades ago. There have been changes
both in the urban fringe and at the settlement edges, but the main parties
agree that the findings are still relevant.
20. Within the urban fringe around Clacton, development has fragmented parcels
of agricultural land that have remained unmanaged/neglected or converted to
amenity uses/horse paddocks. Opportunities exist to absorb change and
overcome adverse impacts through appropriate siting, design and other
mitigation measures. The TDLCA notes that industrial estates have a strong
influence on the urban fringe character and appearance of this LCA.
21. The appeal site, and adjacent open land in this block, appear relatively intact
and comprise mostly of moderately attractive farmed countryside. The
presence of Clacton is felt but cannot be readily seen across the site and this
block of land. There is a staggered edge at Little Clacton and some detractors
including a ribbon of residential development, the back of other development,
caravan parks and paddocks.
22. A Landscape and Visual Appraisal (TGLVA)2 for the application noted that the
southern part of the site has some urban fringe characteristics. There is a
fallow field adjacent to a roundabout at the junction of Thorpe Road and
Centenary Way and commercial estates and other development to the south
and east. I found that, save for a farmhouse, the appeal site and nearby land
within this roughly rectangular block of land at the eastern side of the Gap
appears largely free of dwellings and buildings. It affords a break between
built form on the edge of the settlements of Clacton and Little Clacton and
contributes positively to their rural settings in this area.
23. Perceptions of the separateness of places and their settings can be appreciated
by travelling going ‘to and fro’. Although roads typically form a backbone of
development here Centenary Way, Thorpe Road and Holland Road surround the
appeal site and the rectangular block of open land on three sides. The TGLVA
noted that an established hedgerow spans the length of the boundary with
Thorpe Road providing a visual barrier to the countryside to the west. But one
is aware of an absence of development and of open countryside beyond.
24. On the east side of Thorpe Road the Council has accepted and encouraged
development over a number of years. As well as a proposed large allocation in
the eLP the Council has approved a number of schemes3. The design of
individual schemes and the extent of landscaping varies. This collage of
closed, rundown uses, and new/under construction residential development is
on the east side, away from the Gap. Aside from the fallow field fronting the
roundabout I saw little evidence of noticeable detracting elements on the Gap
side. The experience of travelling along Thorpe Road is generally one of
passing along the edge of a settlement, not within the urban fringe.
25. The appeal proposal would result in development to both sides of the road. A
linear landscape feature running alongside it would separate, not unify, urban
form. Enclosing this stretch of road with development to the west would not
materially change the character and appearance of existing and consented
development on the east side or how people value experiences of these areas.
Illustrative drawings, including the Parameters Plan and Landscape Strategy
Plan, indicate that travelling north on Thorpe Road that after the fallow field
there would be residential development interspersed with open spaces all the
way until past Reedlands Farmhouse on the Gap side.
26. The quality of built form might be high, with different character areas, and a
main open area in the style of a village green. Development would be edged
by a 10m buffer on one side and woodland belt to the other. But from Thorpe
Road and Holland Road, appreciation would largely be confined to a sequence
2 Tyler Grange, August 2018. CD5.4
3 E.g. 12/01262/OUT 250 dwellings; 16/00421/FUL 81 bungalows and 16/02107FUL 47 bungalows & 2 houses
of development cells. The open areas between could function as connections to
the countryside and Gap but they would be largely surrounded by development
and would not appear as countryside or breaks between settlements.
27. The clear break between Clacton and Little Clacton would be reduced to a small
section west of Reedlands Farmhouse, on Holland Road. A reduction in the
width of the Gap from roughly 500m to 300m. Settlements would not
physically coalesce, but there would be a perception of the settlements
becoming almost joined. The open rural setting of Clacton and Little Clacton
and the separate identity of Little Clacton would be eroded. The experience of
Little Clacton being set apart and in open countryside would be all but lost.
This physical proximity would harm the distinct and separate identities of
Clacton and Little Clacton. New woodland buffers and a small open space
adjacent to the Farmhouse would not fully mitigate the effects.
28. The Appellant’s Figure 3 Composite Zone of Theoretical Visibility (ZTV)
illustrates the likely extent of possible views of the proposed development. A
ZTV was also produced for consented schemes on land east of Thorpe Road
(Dwg No 12857/P11b). The area with potential for views is limited. The main
views would be from two footpaths north of the site (Viewpoints 15 and 16)
and two paths to the immediate southwest (Viewpoints 17 and 18). Visual
impact was not a putative reason for refusal. Rather these viewpoints offer
opportunities to consider landscape effects and effects on the Gap.
29. From Viewpoint 16 on the edge of Little Clacton there would be a distant view
looking toward Clacton. The southernmost part of the site is briefly visible in
the long-range view. The view is mainly of open countryside. It is visually
quite open with a sense of a moderately large-scale landscape. Built form on
the edge of the settlement beyond is not intrusive in the open farmland that
forms the Gap. The Appellant’s Landscape Architect agreed that views of
consented development would be limited.
30. From the same viewpoint, and from studying all of the evidence, including
“Accurate Visual Representations (Type 3, Level 1)” submitted at the Inquiry, I
found that housing on the southernmost part of the appeal site would appear to
stretch out across the Gap, appearing briefly to almost line up with the eastern
limit of development at Little Clacton. The slim, but almost continuous line of
built form would intrude into open countryside to the detriment of the
character and appearance of the countryside and the function of the Gap.
31. Even when mature, a 15m wide planted buffer would not fully mitigate those
effects. The presence of housing on the edge of Clacton and Little Clacton
influences the view, and the proposed development would be a small part of
the panorama. Changes in the views would not significantly change the
amenity of the public paths. Nonetheless, the landscape impacts would be
adverse.
32. A number of photographs illustrate views from Holland Road in the vicinity of
Viewpoints 9 and 10. Mature planting around the Farmhouse can be seen, with
views of existing development limited to partial glimpses of roofs close to the
roundabout, over layers of vegetation and beyond the Gap. Sections of the
western and north facing boundaries of the appeal site are visible. There are
no photomontages to illustrate this view and what could be seen from the site
visit, including the location of particular trees, was not certain. From my
observations it would seem that the already consented development would be
largely screened by existing vegetation, as would residential development on
the northern and central parts of the appeal site. However, proposed
development on the more southerly parts would be visible. It would introduce
built form, adversely affect the character and appearance of the countryside,
reduce the size of the Gap and erode the separation and setting of settlements.
33. Existing trees and hedgerows could be retained, and a substantial woodland
buffer planted following field boundaries on the Gap side. With appropriate
planting and a footpath running through, it could be an attractive feature,
enhancing vegetation and biodiversity, and creating a new attractive edge of
settlement walk. These aspects would strengthen some landscape
characteristics and comply with a requirement of EN1 to include suitable
measures for landscape conservation and enhancement.
34. But much of the proposed woodland belt would appear to be on the east side of
existing boundary trees and hedgerows at the Farmhouse. This already
provides substantial screening of existing development and would screen much
of the appeal site from the west. I did not find the two southernmost fields to
be particularly well contained. There would be a break in the proposed tree
belt adjacent to the access linking the two which would weaken the linear
woodland effect in the area closest to the edge of Clacton. Overall, the
woodland belt would not offer any substantial additional screening benefit for
existing, consented or proposed development on the edge of Clacton, and
would make only a limited contribution to the setting of Little Clacton.
35. To the north Centenary Way is largely flanked by hedgerows, occasional trees
and small thickets. On the accompanied site visit, a thin strip of development
to the north east beyond the appeal site was pointed out. Others drew
attention to glimpses of buildings such as Reedlands Farmhouse and parts of
dwellings on Thorpe Road, but long-range views across the Gap are limited,
filtered by intervening layers of vegetation. There are no significant views.
The general perception is of open countryside north of Centenary Way.
36. Viewpoint 18 is largely looking out from the edge of the settlement across open
countryside in the Gap. Built form across the Gap and beyond the appeal site
is quite difficult to discern in the existing view. A comparative photomontage
illustrates that the consented schemes would generally appear to be below the
height of the intervening layers of vegetation. The Appellant’s Landscape
Architect agreed that views of consented development in the area would be
limited. I find that it would have little effect on the Gap in this view.
37. In contrast, the photomontage of a residential scheme on the appeal site
(based on the illustrative materials submitted) shows that it would occupy a
noticeable amount of the view. The perceived scale of the open countryside in
the Gap would be reduced. The balance and composition of elements would be
changed significantly and the present clarity and distinct separateness of urban
and rural would be lost. Development would appear isolated from other urban
form and quite out of place. Even with mature landscape buffers up to 15m
wide there would be an awareness of housing.
38. Whilst the southernmost part of the site might reflect former historic field
boundaries it has, as one of the Appellant’s witnesses put it, been cut off by
Centenary Way. The inclusion might enable landscaping from Holland Road to
Centenary Way but that does not make development appropriate. Residential
development here would fragment the landscape and detract from the clear
separation of countryside and settlement edge. There would be an illogical
intrusion of built elements into an otherwise open and well-defined block of
open countryside.
39. There would be a reduction in the width of the Gap along Centenary Way from
roughly 1.4km to 1km. A landscape buffer would not fully mitigate effects.
The fallow field adjacent to the roundabout is outside of the Appellant’s control.
The severance of this field from other undeveloped land in the Gap would
exacerbate the fragmented settlement edge.
40. The layout and design concept could change from that illustrated but it is an
irregular shaped site with the southernmost section attached only by a very
narrow link. The potential limitations for landscaping of the narrow link
between the two main parts of the site only became clear at the Inquiry.
Adjacent fields in the Gap could become more, not less, vulnerable to
development pressure in this area. I am not persuaded that the proposal
offers an improved, stronger urban edge, or a more defined defensible western
boundary to Clacton and eastern boundary of the Gap. Nor am I persuaded
that a distinct ‘Clacton character’ within the development would have any
significant impact upon the perception of the separation of settlements.
41. The Gap is extensive. The proposal would reduce the area by approximately
4%. The area lost would not be substantial by comparison with the much
smaller SGG proposed under eLP PPL6. A greater separation between Clacton
and Little Clacton would be retained along both Holland Road and Centenary
Way than has been retained on the southern edge of Little Clacton between
consented and proposed development. Even so, the scheme would erode the
separate identity of settlements by virtue of closer proximity and would
compromise the function of the Gap.
42. On the site visit the Appellant’s witnesses drew attention to other areas where
rows of dwellings could be seen extending out into countryside, and a ‘ribbon’
of recently allowed dwellings on the eastern edge of Little Clacton. I do not
know the full details, but the appeal scheme is for in-depth development and
quite different. Recent development south of Holland Road appeared small in
scale and well connected to the settlement.
43. Development has been allowed in the Gap area south of Little Clacton. The
character and appearance of the area south of Little Clacton is quite different.
The TDLCA identified roughly two decades ago that development along the
B1441 had almost joined the settlements of Great Clacton, Little Clacton and
Weeley and has a negative influence on landscape character.
44. In another Gap at Sladbury Lane4 the Inspector found that development would
not have an effect on the separation of the two settlements, would not result in
the coalescence of settlements with different character and would not result in
an adverse impact on the intrinsic beauty of the countryside. The Inspector
also found that wider, larger scale tracts of arable land eastwards of the appeal
site to be more important for the purpose of maintaining the separation of
Burrsville Park and Holland-on-Sea. In the case I am determining the appeal
site is part of a relatively intact block of farmed countryside which affords a
clear break between Clacton and Little Clacton.
4 APP/P1560/W/17/3169220
45. Other appeal decisions are drawn to my attention, but this main issue turns on
the characteristics of the appeal site and the character and appearance of the
locality. I have considered the proposal on its own merits.
46. The explanatory text to EN2 explains that a main function of this Gap is
protecting the separate identity, character and appearance of Little Clacton
“particularly by protecting the undeveloped land either side of Centenary Way”.
The appeal proposal would not impact land either side of Centenary Way in the
area to the south of Little Clacton. Nonetheless, Policy EN2 states that “land
within Local Green Gaps will be kept open and essentially free of development”.
47. Clacton is adjacent to the sea which limits directions for potential growth. For
the eLP the Council has proposed that some Gaps should be changed, but not
in the locality of the appeal site. In this area, the proposed gap under Policy
PPL6 would be much smaller. But it would cover the area between Little
Clacton and Thorpe Road, including the appeal site. The Appellant informed
the Inquiry that objections have been lodged to PPL6 and the EIP has yet to
consider and conclude on these matters.
48. There is insufficient evidence that the need for new housing amounts to a
functional need for development to be in this specific location and cannot be
accommodated outside of a SGG. The Appellant drew my attention to a
number of other matters concerning PPL6 including that the Council proposes a
housing allocation between Little Clacton and Centenary Way at the narrowest
point of the Gap. But it is just that, a proposal, and comparative assessments
of sites, and about where Gaps/SGGs might need to be amended/proposed to
accommodate strategic development belong to the local plan process.
49. The site is not a valued landscape in relation to advice in the Framework.
Other LCA’s might have stronger character, be of higher value and more
sensitive. There were criticisms of the Council’s Landscape and Visual
Assessment. Guidelines for Landscape and Visual Impact Assessments, third
edition (GLVIA) are just that, and non-prescriptive.
50. The Council’s Landscape Architect found the landscape to be of local value. He
agreed that the presence of Clacton has the potential to limit the extent of
effects but assessed the landscape context to be susceptible to a development
of the type, scale and location proposed which would have only limited
compatibility with key characteristics. There was some consensus with the
Council’s assessment that overall the site is of moderate sensitivity to
residential development5. The Council concluded that harm to landscape
character would be moderately significant.
51. The Appellant’s Landscape Architect for the appeal found that overall there
would be an adverse effect on landscape character but considered it would not
be significant or materially harmful, there would be benefits and residual
effects would be beneficial. The TGLVA noted that development would
inevitably impact on the Gap and that after mitigation the impact upon arable
land and countryside to the west of the site would be medium adverse. It
concluded that development in its entirety doesn’t protect the character of the
separate and distinct settlements of Clacton on Sea and Little Clacton and that
impacts upon the relationship with both would be medium adverse. The
5 TGLVA CD 5.4
proposal is not EIA development and the TGLVA did not fully and systematically
and transparently assess the significance of the effects identified.
52. Ultimately, the conclusions in all of the landscape evidence before me are
based upon a series of judgements. I have made my own, having regard to all
of the evidence and my observations on my site visits.
53. Development of a greenfield site results in change. Change does not
necessarily cause harm. New woodland planting, hedgerows and open spaces
would strengthen aspects of landscape character. The scheme could provide
new public rights of way and green infrastructure. These are benefits. The
preamble to EN2 states that within Gaps the Council will encourage the
enhancement and improvement of public rights of way and existing leisure and
recreational facilities, where this does not prejudice the wider purpose and
function of Gaps. Proposals for long-term protection of open spaces and green
infrastructure add to the gains.
54. Notwithstanding the benefits, I conclude, for reasons given, that overall the
proposal would harm settlement pattern, the separation, setting and individual
identity of settlements, and the character and appearance of the countryside
between Clacton and Little Clacton. These harms attract very substantial
weight against the proposal.
55. I found little to say that the development would not conserve features listed in
criteria a, b, d, e or f of EN1. The overall effect on landscape character would
be moderate adverse. However the distinctive open countryside character of
the appeal site and the block of land to the east, and the setting of Clacton and
Little Clacton would not be conserved. In these ways the proposal would not
comply with EN1. Aspects of the scheme would accord with aims to encourage
the enhancement and improvement of public rights of way and existing leisure
and recreational facilities. But overall the scheme would be contrary to key
aims of EN2 to prevent the coalescence of settlements and to protect their
rural settings by keeping the Gap open and essentially free of development.
For reasons given, the weight I attach to conflict with EN1 is limited and
moderate for EN2.
56. The scheme would reinforce some aspects of landscape character, but the
harms would override the benefits and conflict with eLP PPL3. The proposal
would be contrary to aims of eLP PPL6 that development will not be permitted
which would result in the joining of settlements or neighbourhoods, or which
would erode their separate identities by virtue of their closer proximity. Due to
the status of the eLP, I attach limited weight to conflict with these policies.
57. The proposal would be contrary to advice at paragraph 127 of the Framework
for the creation of well-designed places that add to the overall quality of an
area, and are sympathetic to local character, including landscape setting.
These harms attract very substantial weight against the proposal.
Unattributable Population Change (UPC)
58. UPC is the unexplained difference between the Office of National Statistics
(ONS) projection of the population increase from 2001 to 2011 and the
recorded population change measured by the Censuses for those years. The
SM is based on the ONS 2014 population projections. If they roll forward
exaggerated population growth estimates, then the annual LHN of 881
dwellings predicted by the SM would be flawed.
59. In 2018 the EIP EI addressed the issue of UPC and the accuracy of the ONS
household projections. The EI found that UPC in Tendring was a figure of over
+10,000, one of the biggest of any LPA, and that factors that gave rise to UPC
continued to have a substantial distorting effect on the migration trend rates
used in the official population and household projections for Tendring. The EI
concluded that the scale of the difference and robustness of evidence justified a
departure from the official projections and that a figure of 550 dwellings per
annum for the objectively assessed housing need (OAHN) was soundly based.
60. The EI reserved the right to modify his views in the light of any further
evidence that may come forward. Separately he found that evidence to
support aspects of proposed garden communities and strategic highway
proposals was lacking. The EI held further hearing sessions in January 2020
focussing on the additional evidence and responses to it. At the Inquiry for this
appeal, the Appellant accepted that UPC remained an issue but there was much
debate about the issues behind UPC and the robustness of evidence, including
births and deaths, students, internal and international migration flows;
population and household projections, and completions data. The EIP is the
forum to scrutinise evidence and resolution of all of the issues relating to UPC.
61. In May 2020 the EI advised of his latest findings based on the new evidence.
He states that he has seen no evidence that since June 2018 the ONS has
addressed the specific errors in migration trend rates that gave rise to a
substantial part of the exceptional UPC for Tendring. He sums up that neither
the population and household projections and employment forecasts published
since June 2018 nor recent evidence from market signals indicate that there
has been a meaningful change in the housing situation that he considered
[previously]. Consequently the EI concluded that the Plan’s housing
requirement remains soundly based and the EI recommended no change to the
housing requirement; that is 550dpa.
62. The EI’s latest letter adds weight to a view that the annualised SM requirement
of 881 dwellings would likely be an overestimate. This does not mean that the
SM should not be used to calculate the requirement. But it is a material
consideration in determining the weight to be attached to the extent of the
shortfall. This would be broadly consistent with the approach taken in the
‘Edenside’ and Lawford 6 appeal decisions. The Appellant continues to take
issue with the EI’s findings. But this and whether or not the EI’s conclusions on
the Garden Communities have implications for Tendring’s strategic housing
requirements are for the EIP.
63. The Council was keen to stress that it is taking steps to increase supply.
However, the Council’s housing witness conceded that using their preferred
requirement of 550 dwellings per annum, the Council would have a 4.98-year
HLS. The decimal point could be rounded up, but even so the Council would
just scrape a five-year HLS. The Framework is clear that local authorities
should identify a supply of specific deliverable sites sufficient to provide a
minimum of five years’ worth of housing against their housing requirement.
64. The SM was introduced as part of the Government’s ‘Planning for the right
homes in the right places’ consultation. The Government’s aim being to
significantly boost the supply of housing. The SM is a mechanism to ensure
sufficient land is available to meet the number of homes needed in each area.
6 APP/P1560/W/18/3196412 and APP/P1560/W/18/3201067
To deliver 881 dwellings each year could, over time, lead to an excess of
houses in the wrong administrative area on account of methodological errors.
But given that the Council’s preferred figure of 550 dwellings would only yield a
4.98-year HLS presently, I am not persuaded that allowing the appeal proposal
would make this a likely scenario.
65. Appeal decisions relating to the SM and UPC were presented. Inspectors have
approached the matters differently and consistency is important. However, the
evidence presented to this Inquiry on the HLS situation leads me to conclude
that the weight to be attached to the Council’s five-year HLS shortfall should be
substantial, even after considering the EI’s latest conclusions.
Other Matters
Affordable Housing
66. TDLP Policy HG4 seeks 40% of affordable dwellings on sites of 15 or more
dwellings or residential sites of 9.5ha or more. Following the preparation of
evidence for the eLP and draft Policy LP5, the parties agree that a requirement
of a minimum of 30% affordable housing is evidence based and should be
afforded weight. I find no reason to disagree.
67. The Council exercised a quite flexible approach to provision of affordable
housing. Over the past six years only 87 affordable dwellings were delivered.
For the year 2018/19 the figure was just 16. The Council agrees that there is a
very substantial unmet need for affordable housing in the District and that
short-term supply is very limited. Just under half (784 of 1,766) households
on the housing register are seeking accommodation in Clacton as their
preferred area. Anticipated future delivery of affordable housing from
consented and allocated sites in Clacton/Little Clacton is less than 600 units.
68. The Council accept that supply and delivery in the Clacton area in the
foreseeable future are limited and that allocations in the eLP would not provide
all of the affordable housing required. The affordable housing scheme would
provide 74 (30%) affordable homes on site in a mix of dwelling types. 42 units
would be delivered within the next five years and a further 32 thereafter. This
would represent a significant contribution in relation to previous delivery rates,
anticipated supply and estimated need.
69. In order to ensure that the site would be brought forward quickly the Appellant
would accept a condition requiring development to be begun before the
expiration of two years from the date of approval of the last of the reserved
matters. The witnesses at the Inquiry were all in agreement, the situation is
dire and the provision of 74 on-site affordable dwellings would comply with the
Council’s Policy requirements. I agree and find that 74 on-site affordable
dwellings is a benefit that attracts significant weight.
Heritage Regeneration
70. The heritage alternative would be a financial contribution towards restoration of
St Osyth’s Priory in lieu of provision of affordable housing. The TDLP
recognises that St Osyth’s Priory is of national heritage importance and is the
most notable heritage site within the District. It contains an exceptional Grade
I, Grade II* and Grade II group of listed buildings, a scheduled ancient
monument and registered park and garden. Policy EN27a confirms that the
Council is committed to the conservation, preservation and restoration of
St Osyth’s Priory and to that end, will work in conjunction with the landowner
and English Heritage. Any application for enabling development will be judged
against the criteria set out in EN27. Notwithstanding a large amount of
evidence submitted regarding the Business Plan for St Osyth’s, there is
insufficient evidence to demonstrate that the amount of enabling development
proposed is the minimum necessary to secure the future of the heritage asset.
71. Regulation 122 of the Community Infrastructure Levy Regulations 2010 (CIL)
requires that a benefit has to be necessary to make the development
acceptable and fairly and reasonably related in scale and kind. The parties
agree that it would be necessary to compensate for the lack of provision of
affordable housing and that the financial contribution that would be made
towards heritage restoration would be the sum of 74 affordable housing plot
values. The Appellant additionally argues that, although initially of equivalent
value, the longer-term benefits of the heritage offer would “trump” the
affordable housing offer. However, there is limited evidence of what the long-
term wider benefits of the affordable housing would be.
72. The Council rejected a Business Strategy for St Osyth’s that the Appellant was
required to submit under other obligations and the parties were in dispute, one
concern of the Council being the deliverability of the Business Strategy and its
dependence on unidentified enabling development. The overall Priory project
requires substantial funding from multiple sources and there were unresolved
issues. There is some uncertainty as to when the heritage benefits from this
appeal scheme would be delivered. In any event, the contribution from the
appeal scheme would fund relatively small discreet elements. Thus, whilst
parts of the Priory project might be progressed, the contribution would not
enable the delivery of main elements for which funding has yet to be secured
and upon which the assessment of long-term regeneration and financial
benefits are made, such as renovation of the Tithe Barn.
73. From all of the evidence, including that of witnesses at the Inquiry, regarding
the woeful affordable housing situation in Tendring and the Clacton area
specifically, I could not prefer or weigh more heavily, the contribution towards
the heritage project than the provision of 74 affordable homes for households
in dire housing need. Even if I were satisfied that the proposal met ENV27 and
CIL requirements, the alternative offer would not be determinative, even
considering the harm from continuing risk to the heritage assets.
Setting of designated heritage assets
74. TDLP Policy EN23 (EN23) provides that proposals that would adversely affect
the setting of a Listed Building (LB) will not be permitted. This reflects the
considerable importance and weight to be given to the preservation of the
significance of LB’s under s66 of the Planning (Listed Buildings and
Conservation Areas) Act 1990. However, the approach does not reflect the
structured approach and balancing of public benefits in the Framework.
75. The parties agree that the proposal would lie within the setting of two Grade II
listed farm dwellings, namely Reedlands Farmhouse adjacent to the site on the
south side of Holland Road and Oak Farm on the east side of Thorpe Road.
Reedlands Farmhouse was part of a farm complex which formed part of the
historic farmed landscape within which it is set. It is now separated from the
farm buildings and occupied as a dwelling and has been surrounded by tall,
strong and mature hedgerow and tree lined boundaries on three sides.
Nevertheless, it does still appear as an isolated farmhouse in a rural setting
and the appeal site continues to contribute to an appreciation of its significance
in this regard. Residential development in the historic agrarian landscape
setting of the Farmhouse, albeit largely screened and set back, would further
diminish the contribution that setting makes to the heritage significance of the
listed Farmhouse. Given that the relationship is already diminished, the harm
that would be a consequence of the appeal scheme would be at the low end of
less than substantial.
76. Oak Farm is another isolated farm dwelling which once had a direct relationship
with the surrounding agricultural landscape. In its present form it has principal
windows with views across the appeal site. However, it is functionally and
physically separated from the appeal site and development constructed and
consented on the east side of Thorpe Road has already compromised its
setting. The appeal scheme would retain an open space in the area opposite.
Thorpe Road, a landscape buffer and a possible sustainable drainage area could
all be within the views from Oak Farm. But I am not persuaded that it would
satisfactorily reflect and preserve the open farmed landscape setting of the LB.
Nonetheless, the impact upon the significance of Oak Farm would be at the
lower end of less than substantial.
77. Inasmuch as there would be some harm, the scheme would conflict with EN23,
but the policy does not reflect the approach in the Framework. The weight that
I attach to the conflict is very limited. Policy PPL9 of the eLP refers to listed
buildings and better reflects the requirements in the Framework. Even so,
given the status of the eLP, the weight I attach to the conflict with PPL9 is also
very limited. The Framework advises that less than substantial harm must be
weighed against the public benefits of the scheme.
European Sites and biodiversity
78. The Conservation of Habitats and Species Regulations 2017 (‘the Habitats
Regulations’) transpose the Habitats Directive and the Birds Directive into
English and Welsh law. The aim of the Directives is to conserve key habitats
and species across the EU by creating and maintaining a network of sites.
Natural England advised that the appeal proposal was likely to have significant
effects on important features of sites of European importance, either alone or
in combination with other plans and projects, through increased recreational
pressure as a result of increased use by residents of new development within
walking or driving distance. They advised that a strategy of both on-site
informal open space and off-site visitor access management measures would
be required to mitigate the effects.
79. Information has been submitted to the Inquiry to demonstrate that the
proposals would address Natural England’s on-site requirements for Suitable
Natural Green Space with informal, semi-natural areas, circular dog walking
routes and dedicated dogs-off-lead areas. Contributions towards the Essex
Coast Recreation Avoidance and Mitigation Strategy would mitigate off-site
effects. Natural England concluded that with these mitigation measures the
proposal would not adversely affect the integrity of habitats sites and
confirmed they had no objection. The submitted legal agreement and proposed
planning conditions would secure the measures. On-site facilities would be
accessible to residents of the wider area.
80. Some of the areas provided are required for more than one reason, for
example neutral grassland areas that would act as attenuation basins. Without
the provision of some of the elements the scheme would fail to satisfy other
policy requirements. Even so, the extent of open space required on site to
meet all of the various requirements would also mean that there would be a
substantial net biodiversity gain of 27.69 habitat units (78.7%), greatly in
excess of policy objectives. Framework paragraph 170 promotes net gains for
biodiversity, including by establishing coherent ecological networks that are
more resilient to current and future pressures.
Transportation, Sustainability and access to services
81. Third parties raised a number of concerns. However the Council confirmed that
the s106 overcame concerns in these regards and submitted a CIL Regulation
Compliance Statement and extracts from relevant documents addressing the
necessity, relevance, proportionality and planning policy basis. There was little
other technical evidence to substantiate the concerns.
Benefits and Planning Balance
82. Policies most important for the determination of the appeal are out-of-date and
the ‘tilted balance’ applies. The proposal is outside of the SDB for Clacton in
the TDLP and eLP. Conflict with TDLP QL1 attracts limited weight and conflict
with eLP SPL1 and SPL2 attracts very limited weight against.
83. The proposal would exacerbate negative aspects of the urban fringe such as
framing a fallow field, creating fragmented isolated development and increasing
the perception of travelling through the built-up area between Clacton and little
Clacton. It would erode the setting and separate identities of Clacton and Little
Clacton and undermine the character and quality of the landscape. There
would be harm to settlement pattern and form, the separation, setting and
individual identity of settlements, and the character and appearance of the
countryside. These harms attract very substantial weight against the proposal.
84. The quality of the distinctive open countryside character of the appeal site and
the block of land to the east would be harmed, and the setting of Clacton and
Little Clacton would not be conserved. The proposal would not comply with
EN1. This attracts limited weight. The proposal would adversely affect the Gap
between Clacton and Little Clacton contrary to aims of EN2 to prevent the
coalescence of settlements and to protect their rural settings by keeping Gaps
open and essentially free of development. Conflict with EN2 attracts moderate
weight. Conflicts with eLP PPL3 and PPL6 attract limited weight.
85. Less than substantial, but irreparable harm to the heritage significance of the
two grade II LB’s adds some further, but limited, weight against and does not
provide a clear reason for refusing the development. Conflict with EN23 and
eLP PPL9 attract very limited weight.
86. Using the Council’s preferred method the HLS would be 4.98 years, but
Framework paragraph 73 indicates that the SM is to be used in this case. The
HLS using the SM is 3.62 years. UPC is an issue but the weight to be attached
to the Council’s five-year HLS shortfall is substantial, even after considering the
latest evidence on HLS and the EI’s conclusions on the housing requirement.
87. The 245 dwellings, on the edge of Clacton, in a mix of types and sizes to reflect
requirements would contribute to the HLS and assist the Government’s aim to
significantly boost the supply of housing. The provision of housing attracts
very substantial weight in favour. Provision of 74 affordable dwellings at
Clacton where there is substantial unmet need attracts significant weight.
88. Socio-economic benefits flowing from the delivery of all of the housing,
including construction employment and direct and indirect economic activity,
and the subsequent Council tax, spending and economic activity of occupants
would be broadly similar from any scheme contributing to the housing
requirement. However, a willingness to bring the site forward expediently adds
confidence and attracts some weight.
89. Contributions towards education and healthcare are necessary to make the
development acceptable and are therefore neutral in effect. Contributions
towards a scheme of restoration for St Osyth’s Priory would not attract any
more weight than on-site affordable housing, even taking account of potential
harm through non-delivery of even some restoration works at this stage.
90. Whilst not persuaded by some of the claimed aims and ambitions of parts of
the urban design and landscape strategies, the scheme would deliver beneficial
new green infrastructure, net biodiversity gains and the potential for increased
public access. The proposal was likely to have a significant effect (either alone
or in combination with other plans or projects), but that with specified
mitigation the proposal will not adversely affect the integrity of the habitats’
sites. Measures to address European Sites, Biodiversity and Green
Infrastructure include elements of necessity to make the development
acceptable, but it is evident that the total provision would be generous and
benefit the wider public and area. These benefits attract moderate weight.
91. There is ambivalence; important aspects of the scheme pulling in opposite
directions. Delivery of 245 dwellings weighs very heavily in favour, 74
affordable dwellings adds significant weight. The total benefits are many and
tip the scales further. The weight attached to conflict with the development
plan is reduced as the Policies are rendered out of date.
92. Nonetheless, the development proposed would conflict with the development
plan as a whole and the harms that would arise would undermine long held
principles of the planning system that seek to manage the pattern and location
of development and to protect the countryside. These harms attract very
substantial weight against the proposal and run contrary to the Framework’s
objective of achieving sustainable development by fostering well designed
environments and contributing to protecting and enhancing our natural and
built and historic environment and seeking the creation of high-quality places.
93. In the overall planning balance, I conclude that the adverse impacts of the
development proposed would significantly and demonstrably outweigh the
benefits, when assessed against the policies in the Framework as a whole.
Therefore the proposal does not benefit from the presumption in favour of
sustainable development and material considerations do not outweigh the
conflicts with the development plan. As I am dismissing the appeal it is not
necessary for me to undertake Habitats Regulation Assessment.
Conclusion
94. Having regard to all other matters raised, including by interested parties, I
conclude on balance that the appeal should be dismissed.
Helen Heward
PLANNING INSPECTOR
PARTICIPANTS AT THE INQUIRY
FOR THE APPELLANT
James Strachan QC.
He called:
Clare Brockhurst FLI, BSc (Hons),
Dip LA Director Leyton Place Ltd, (Landscape)
Michael Lowndes, BA(Hons) DipTP, MSC DipCons(AA) MRTPI,
Independent planning and urban design consultant, (Urban Design)
Colin James Robinson BA(Hons) MTP(Dist) MRTPI MIED,
Planning Director, Nathaniel Lichfield and Partners Ltd, (Housing)
Steven Butterworth BSc (Hons) MRTPI (Planning) Senior Director, Lichfield
Nick Bridgland MA (Hons), MA, FSA Scot, IHBC, Heritage Director, Nathaniel
Lichfield and Partners Ltd, (Heritage round table)
FOR THE COUNCIL
Simon Bird QC.
He called:
Philip Russell-Vick Dip LA CMLI,
Director of EnPlan (Landscape)
Cristina Howick MA MSc, Director at Stantec UK Ltd (formerly known as Peter
Brett Associates) (Housing)
Tim Murphy IHBC MCIfA,
Essex County Council (heritage round table)
Martin Carpenter BA (Hons) MRTPI,
Director of EnPlan (Planning)
INTERESTED PERSONS
Councillor John Cutting, of Little Clacton Parish Council but attending as a resident
of Little Clacton
Andrew Hanmore, resident of Little Clacton.
Documents received at the Inquiry
IQ.1 Joint HRA Statement, January 2020,
and emails to/from Natural England dated 28-31 January 2020
IQ.2 Council appeal notification letter dated 3rd January 2020
and list of consultees notified
IQ.3 Rebuttal Proof of Mrs Brockhurst Vol 3
& Appendix R1 & R2, 20 January 2020
IQ.4 Rebuttal Proof of C. Robinson 27 January 2020
IQ.5 Rebuttal Proof P. Russell-Vick, January 2020
IQ.6 Rebuttal Proof of Ms C. Howick, January 2020
IQ.7 Appellant’s Note for Heritage Round Table Session 30 January 2020
IQ.8 Signed Heritage Statement of Common Ground 8th Final,
03 February 2020
IQ.9 Updated draft legal agreement
and covering letter to Lloyds Bank 31 January 2020
IQ.10 Opening Statement Mr James Strachan QC
IQ.11 Opening Statement Mr Simon Bird QC
IQ.12 List of Inquiry Plans Updated 13 February 2020
IQ.13 Accurate Visual Representations (Type 2 Level 1) by Troopers Hill
IQ.14 Dwg. No. 12857/P11b GIS Zone of Theoretical Visibility Consented
Schemes (LiDAR)
IQ.15 Dwg. No. CC-0175-PSP01 Rev E St Oysth Priory Structures and
Listings Plan
IQ.16 Dwg. No. CMP Figure 20 Indicative Master Plan of St Oysth Priory
Estate Including Enabling Development
IQ.17 Delegated TDC Officer Report of the Business Plan dated 13 Jun 2019
IQ.18 McBains Cooper Cost Plan for Restoration Report Updated 3 Mar 12
IQ.19 ZTV lidar Mapping Replacement R1 Plan
IQ.20 A3 replacement R2 Appendix
IQ.21 Email dated 5 Feb 20 from N. McDonald to C. Howick
IQ.22 Additional Graphs by Stantec on behalf of the Council; Total Net
Migration Tendring 2001/02 – 2016/17; Number of households,
(i) Tendring & (ii) England
IQ.23 Agreed Position Statement Regarding Mrs Brockhurst Rebuttal
Appendices R1 and R2
IQ.24 Council Note on Public Access to St Osyth
IQ.25 Copy of Planning Permission and former Chicken Farm
(Ref.No 16/00421/FUL) plans
i. Proposed boundary treatments plan - 5075/PA100
ii. Soft landscape plan - DFCC_1157_L02
iii. Soft landscape masterplan - DFCC_1157_L01
iv. Tree protection plan - DFCP 3135 TPP
v. Tree survey plan - DFCP 3135 TSP
IQ.26 Extract from previous PPG “How should market signals be taken into
account” Paragraph: 020 Reference ID: 2a-020-20140306
IQ.27 Supplementary Planning Statement of Common Ground on Affordable
Housing, 12 Feb 2020
IQ.28 Appellant’s Note on Doctors’ Surgery Capacity in Clacton by Lichfields
12 February 2020
IQ.29 Appellant Open Space Calculations Note, 12 February 20, alongside
Dwg. No CC010-PL-006 Rev F Areas Plan (with area breakdown)
IQ.30 Updated Highway Plans, 12 February 2020
i. 183903_Ga_05 Rev A North / South Transport Link Priority
Narrowing (General Arrangement)
ii. 183903_Ga_06 Rev A Swept Path Analysis Refuse Vehicle And
Fire Tender
iii. 183903_Ga_07 North / South Transport Link Priority Narrowing
(Forward Visibility)
iv. 183903_Ga_04 B Uncontrolled Pedestrian /Cycle Crossing On
Centenary Way
v. North/South Transport Link Sketch for Landscape Treatment 10
Feb 20 C. Brockhurst
IQ.31 Foots’s Farm Access Note by Vectos 12 February 2020
IQ.32 TDC Note In Response to Heritage Round Table Statement
IQ.33 Appellant Response to TDC Comments
IQ.34 Updated List of Agreed Conditions 13 February 2020
IQ.35 Signed Unilateral Undertaking dated 13 February 2020
IQ.36 Letter from St Osyth Priory and Parish Trust 13 February 2020
IQ.37 Closing Submissions Simon Bird QC
IQ.38 Closing Submissions James Strachan QC