Case Reference: 3241879

Appeal Decision
Hearing Held on 29 June 2020
Site visit made on 1 July 2020
by David Richards BSocSci DipTP MRTPI
an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 23 July 2020
Appeal Ref: APP/H1840/W/19/3241879
Corner Mead, Newland Lane, Droitwich Spa, Worcestershire WR9 7JH
• 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 Wychavon District Council.
• The application Ref 19/01679/OUT, dated 22 July 2019, was refused by notice dated 25
September 2019.
• The development proposed is up to 9 self-build dwellings including new means of access
off Newland Lane.
Decision
1. The appeal is allowed and planning permission is granted for up to 9 self-build
dwellings at Corner Mead, Newland Lane, Droitwich Spa, Worcestershire WR9
7JH in accordance with the terms of the application, Ref 19/01679/OUT, dated
22 July 2019, subject to the conditions set out in the attached Schedule.
Application for costs
2. At the Hearing an application for costs was made by the Appellant against the
Council. This application is the subject of a separate Decision.
Main Issues
3. The main issues are the effect on the character and appearance of the
surrounding area, and whether the Council has made adequate provision for
the delivery of self-build dwellings in accordance with the requirements of the
Self Build and Custom Housebuilding Act 2015 (The Act).
Reasons
4. The application was made in outline and included provision of a new access,
with matters relating to appearance, landscaping, layout and scale reserved.
5. The development plan includes the South Worcestershire Development Plan
(SWDP) which was adopted in February 2016. Policy SWDP2 is concerned with
the Development Strategy and Settlement Hierarchy. The development
strategy and site allocations are based on a number of principles, including
provision for and facilitation of the delivery of objectively assessed needs to
2030, safeguarding of the open countryside, the effective use and reuse of
brownfield land. Most development is focussed on urban areas, which include
Droitwich Spa. Under criterion C, the open countryside is defined as land
beyond any development boundary, where development will be strictly
controlled and limited to a number of defined categories, none of which include
the construction of self-build housing. It is common ground that the appeal
proposal conflicts with Policy SWDP2 C as it is located outside of the defined
development boundary.
6. The SWDP is under review (SWDPR). However, as it as at an early stage of
preparation, it carries very little weight.
7. Section 5 of the NPPF sets out the Government’s objective of significantly
boosting the supply of homes and states that it is important that a sufficient
amount and variety of land can come forward where it is needed, that the
needs of groups with specific housing requirements are addressed and that
land with permission is developed without unnecessary delay. The size, type
and tenure of housing for different groups in the community should be
assessed and reflected in planning policies, including people who wish to
commission or build their own homes. Footnote 26 sets out the requirements of
the Self Build and Custom Housebuilding Act 2015 which are also explained in
Planning Practice Guidance (PPG).
8. Paragraph 023 of the PPG provides that relevant authorities must give suitable
development permission to enough suitable serviced plots of land to meet the
demand for self-build and custom housebuilding in their area. The level of
demand is established by reference to the number of entries added to an
authority’s register during a base period. The first base period begins on the
day on which the register is established and ends on 30 October 2016. Each
subsequent base period is the period of 12 months beginning immediately after
the end of the previous base period. At the end of each base period, relevant
local authorities have 3 years in which to permission an equivalent number of
plots of land, which are suitable for self-build and custom housebuilding, as
there are entries for that base period.
Effect on character and appearance of the area
9. The appeal site lies in the countryside on the outskirts of Droitwich Spa,
beyond the development boundary defined in the SWDP and detached from it
by a gap of some 110 metres. It is located in the Parish of Salwarpe but is
more closely related to the town of Droitwich Spa. The SWDP made provision
for a large urban extension (site allocation SWDP49/2) which is currently well
under construction and lies 110m from the appeal site
10. The site extends to about 0.68 hectares. It is bounded to the south by Newland
Lane and to the west by Newland Road. It is currently occupied by a dwelling
and part of the site is garden land, the remainder having last been in
agricultural or grazing use. Development in the immediate vicinity is sporadic
in nature and the area retains a rural character, albeit one that is now very
close to, and influenced by, the urban edge created by the new development.
Neither the Council’s refusal reason nor statement of case address the impact
on the character of the countryside in any detail.
11. The Council refers to the suburban appearance of the indicative layout but
notes that layout, scale and appearance are reserved matters, and suggests
means by which greater variety might be achieved to reflect the more organic
pattern of the area. With regard to effects on the landscape, the committee
report recorded no objection on landscape or visual impact grounds, subject to
the attachment of conditions addressing tree and hedgerow retention, new
planting and protection during construction. There are established trees and
planting which could provide effective screening, particularly on the Newland
Road frontage.
12. I accept that the development would lead to an intensification of built
development in an urban fringe location. I also agree that the site cannot
properly be described as adjacent to the settlement, (given the normal
meaning of ‘adjacent’ as adjoining or next to) as there are other low-density
properties and small fields intervening. However, while the area currently has a
pleasant semi-rural character, the countryside is very close to the urban edge,
and is not covered by any relevant landscape policy designation, nor does it lie
within the Green Belt, which lies to the south of Newland Lane. I conclude the
actual harm to the countryside setting of the current urban area of Droitwich
Spa would be very limited, and could be mitigated by careful design and
landscaping.
Whether the council has made adequate provision for self-build
dwellings in accordance with the provisions of the Self Build and
Custom Housebuilding Act 2015.
13. The Council’s position is that the development is in conflict with an up-to date
development plan (the SWDP). It considers that the SWDP policies are not
‘absent’ or ‘silent’ on the appeal proposal, which in the Council’s view entails
open market residential development in the open countryside, beyond the
development boundary.
14. The Appellant does not dispute that the Council can demonstrate a 5 year
Housing Land Supply (5YHLS). Footnote 7 to Paragraph 11 of the NPPF states
that policies for the provision of housing should not be considered up-to-date if
the local planning authority cannot demonstrate a 5YHLS. On this basis, the
Council considers that all SWDP policies concerning the provision of housing are
to be afforded full weight, and the appeal should be determined in accordance
with the Development Plan.
15. The Appellant accepts that the proposal conflicts with Policy SWDP2 C, but
considers this is no more than a technical breach of one criterion of one policy.
In the Appellant’s submission the proposal accords with the strategic objectives
and spirit of Policy SWDP2 and the development plan as a whole, and there are
significant material planning considerations which indicate that permission
should be granted. The Appellant believes that the provision of self-build and
custom housebuilding in what is a location with good accessibility to shops and
facilities is a fundamental material planning consideration which is clearly
capable of outweighing the technical conflict with the development plan.
16. This is so because the Appellant believes that the Council have not complied
with their duty under the 2015 Act to permit sufficient self-build and custom
housebuilding plots to meet the need as stipulated on the register.
17. The Council publishes an annual progress report for self-build and custom
housebuilding. The first base period for the local planning authority is 1 April
2016 – 31 Oct 2016. Data from the council’s Annual Progress Reports1 gives
the number of entries for each base period as follows:
1 Wychavon District Council Self Build and Custom Housebuilding Progress Reports December 2017, December
2018 and December 2019
Base Period Part 1 Part 2 Total
Entries Entries Entries
1 April 2016 – 31 Oct 2016 51
31 Oct 2016 – 31 Oct 2017 35 13 48
31 Oct 2017 – 31 Oct 2018 41 26 67
31 Oct 2018 – 31 Oct 2019 50 37 87
18. The Council’s position is that they have granted sufficient permissions to meet
the demand on the self-build register and that there are no exceptional
circumstances to justify determining the appeal other than in accordance with
the development plan.
19. In support of its position the Council referred to the SWDP Examination, where
the Inspector took the view that self-build and custom build should not be
specifically identified in housing allocations as they were considered to
represent another form of market housing which could come forward on the
numerous small sites allocated in villages for under 10 dwellings, or smaller
policy compliant sites that were ruled out as too small to meet the allocation
threshold of +5 dwellings. The Council cited a number of appeal decisions
which supported this approach2.
20. In the committee report and at the hearing, the Council referred to an
alternative requirement for the first base period of 11 dwellings. This is not
taken from the progress reports, which appear to be the only relevant publicly
available documents. It was explained at the hearing that the Council had
applied eligibility criteria to the gross figure. People who were on the register
were contacted and asked to provide details of local eligibility, to avoid a
situation where people interested in self-build could put themselves on a
number of different registers, thus potentially inflating overall demand for self-
build sites. Those who didn’t respond were not taken off the register but
retained in Part 2.
21. The Self-build and Custom Housebuilding Act 2015 was amended by the
Housing and Planning Act 2016 to enable local authorities to include up to two
optional local eligibility tests, only to be applied by local authorities where there
is strong justification for doing so. A local connection test should only be
applied in response to a recognised local issue. If a local authority chooses to
set a local eligibility test it is required to have two parts to the Register.
Individuals or Associations of individuals who apply for eligibility criteria must
be entered on Part 1. Those who meet all eligibility criteria except for a local
connection test must be entered on Part 2 of the Register. Only Part 1 entries
count towards the number of suitable serviced plots that they must grant
development permission for.
22. The Council’s states that the Register was established on 1 April 2016, but
went through an update period during May and June 2017 when the local
connection test was introduced. During this period, individuals already on the
Register were asked to provide an update to remain on the Register, and were
2 APP/H1840/W/17/3185471; APP/H1840/W/16/3151822;
automatically placed on Part 1 if such an update was provided irrespective of
whether or not they could meet the local connection test. During the update
period, a number of entries were removed from the Register if an update was
not provided. There were originally 51 entries on the Register during the first
base period, however, this figure dropped to 11 as only 11 of these provided an
update.
23. The Appellant says there is no justification for applying the local eligibility
criteria retrospectively to the first base period. Authority to split the register
into two parts was only introduced in 2016 through the Housing and Planning
Act and brought into force through the Self-build and Custom Housebuilding
Regulations 2016. The commencement date for these provisions was 31
October 2016 and the relevant Planning Practice Guidance was not updated in
2017 in this respect.
24. In view of the need for transparency in such matters I share the Appellant’s
concern that the reduction of the numbers on the register from 51 to 11 is
lacking in clear justification. There has been no opportunity to scrutinise the
further consultation undertaken by the Council, or whether people on the
register were aware of the implications of not establishing local eligibility in
relation to the Council’s duties in respect of granting planning permissions
relating to the first base period. No explanation of the need for eligibility
criteria to be applied in Wychavon was given or any indication of a recognised
local issue to justify it. A further 23 entrants were included in Part 1 of the
register in the second base period (01/11/16 – 31/10/17) according to the
table in the Council’s statement. It seems at least possible that some of these
were people included in the first base period who failed initially to respond to
the Council’s call for further information and so were excluded.
25. With regard to the supply of sites for self-build, the Council provides evidence
of planning permissions granted for 11 serviced plots in the period 1 April 2016
to 31 October 2019. All refer to self-build dwellings as part of the description of
development and supported by additional evidence in the form of references to
self-build in Design and Access or Planning Statements or self-build exemption
CIL claim forms. The Council considers that this provides clear evidence for
enough serviced plots to meet the demand in the District for the first base
period.
26. The Appellant disagrees and submits that a legal mechanism is required to
ensure that the permissions would be developed in a manner that accords with
the legal definition of self-build and custom housebuilding, as set out in the
2015 Act. The Appellant refers to the ‘I’m Your Man’ case to support the
proposition that the Council cannot rely on the description of development to
secure self-build homes. On this basis, it would be necessary for an express
condition or a s106 legal obligation to ensure that a permission is restricted to
self-build. I agree with the Council that this would be too restrictive and would
include situations such as infill plots where there would be no reason to insist
on an s106 obligation, for example policy compliant infill plots or developments
on small housing allocations which could be considered to satisfy a demand for
self-build if developed accordingly. The duties do not require a level of
completions to be achieved in a particular time frame.
27. In response to the Appellant’s claim that the Councils approach is ‘overly
optimistic’ the Council refers to an additional 27 planning permission which
have been granted in the period between 1 April 2016 to 31 October 2019 for a
total of 35 new dwellings where the planning application has been submitted
with a signed Community Infrastructure Levy Form Self Build Exemption Claim
Form (CIL Exemption Form), as detailed in latest Progress Report (December
2019). The Council contend that each of these can also be counted towards
meeting the requirement as the CIL Exemption Form is a legally binding
agreement whereby the applicant is required to declare that the project meets
the definition of self-build and will occupy the dwelling for at least three years
after its completion.
28. The Appellant cites a relevant recent Appeal Decision, dated 25 June 2019
concerning land off Hepworth Road, Woodville DE11 7DW3. The application was
for self and custom build residential development consisting of 30 plots with a
new access and supporting infrastructure. The site was outside the defined
limits to development as defined in the relevant Local Plan. As regards the
Council’s duties under the 2015 Act the Inspector had this to say:
22. The Council confirms that as at April 2019, there are 54 individuals on the
Council’s Self-Build and Custom Housebuilding Register and that as of April
2019, it has permitted 4 plots in the period since 31 October 2016. Since 31
October 2016 the Council has permitted an additional 133 single plot dwellings
which have been distributed across the District. However, the Council has not
provided any information to suggest that there are provisions in place to
ensure that any of the 133 single dwelling permissions would be developed in a
manner that accords with the legal definition of self-build and custom
housebuilding in the Self-Build and Custom Housebuilding 2015 (as amended).
23. To my mind this raises considerable doubts as to whether any of the single
dwelling permissions would count towards the number of planning permissions
the Council has granted for serviced plots and thus whether these consents
would actually contribute towards the delivery of self-build and custom
housebuilding in the District. Importantly, the S.106 Agreement submitted with
the appeal proposal contains provisions to ensure that the proposed dwellings
on the appeal site would meet the definition of self-build and custom
housebuilding. There is no evidence before me of a similar mechanism which
would secure the delivery of self-build and custom housebuilding on the plots
referred to in Appendix 3 of the Council’s Statement. I consider it would be
unreasonable to include any of the single dwelling permissions within the
calculation of self-build and custom housebuilding permissions granted in the
District.
29. The Inspector found in that case that only 4 plots identified by the Council
appeared to comply with the definition of self-build and custom build housing in
the 2015 Act. He discounted sites that were not subject to a planning condition
or a planning obligation requiring a self-build or custom build house to be built
on the site that accords with the statutory definition. He concluded on the
evidence available that there was a shortfall of permissions for at least 5
serviced plots to meet the demand identified from the first base period and
found that the ability of the appeal proposal to address the unmet demand for
serviced plots that arose in base period 1, base period 2 and part of base
period 3 in a comprehensively planned manner is a material consideration that
weighs strongly in favour of the appeal proposal, and that the appeal proposal
3 APP/G2435/W/18/3214451
was necessary to enable the Council to meet its statutory obligations with
respect to the duty under Section 2A of the 2015 Act (as amended), given that
there appeared to be an inadequate supply of serviced plots coming forward for
development in the District.
30. Notwithstanding the conclusions of this Inspector, I do not consider that only
those permissions subject to an express condition or s.106 obligation should be
counted towards meeting the Section 2A requirement, for reasons set out
above. To my mind his would be too onerous a requirement, and could lead to
the exclusion of self-build sites within development boundaries ever being
counted towards meeting Section 2A, which appears to me to conflict with the
objective of promoting self-build as a means of meeting identified housing
need, and in a wide range of circumstances. Both the Woodville site and the
site under consideration in this appeal were promoted as exceptions sites,
where such an arrangement would be necessary to justify making the
exception to the policies in an otherwise up-to-date development plan.
31. Nevertheless I do not consider that the evidence provided by the Council is
sufficiently reliable for me to conclude that the Council has met its duty under
Section 2A. To my mind, some further analysis of the raw data is necessary,
which as a minimum relates permissions granted to meeting the needs of
named individuals or groups identified in part 1 of the Register. It is not
sufficient to rely on CIL exemption forms without this type of further analysis,
which is lacking in the Council’s evidence. I conclude that the Council has not
satisfactorily demonstrated that it has granted enough permissions for serviced
plots to meet the demand for self-build and custom build plots in the first base
period.
Other matters
32. The parties agree that the site has a reasonable degree of accessibility to the
facilities and services available in the wider area of Droitwich Spa, and that the
site is locationally sustainable in this respect.
33. Local residents raised a number of issues in their representations, and at the
hearing. There was concern regarding the traffic impact of the proposal, and
the effect of the new access arrangements on road safety. The Appellant
argued that there would be a clear safety benefit, as the existing sub-standard
access would be replaced by a designed access that met all the relevant
visibility standards. A resident considered that this would be outweighed by the
significant increase in vehicle movements arising from 9 dwellings as opposed
to one. It was also stated that Newland Drive carried a lot of heavy traffic,
though it was acknowledged that some of this was temporary, being
attributable to the construction of the urban extension.
34. I note that the Highways consultee asked for a deferral of the application for
further information. However, a previous application, to which the consultee
had no objection, proposed a similar access arrangement4. The previous
application was for 10 dwellings, while this is for up to 9, with the existing
dwelling retained. However the difference is not material.
35. I acknowledge that extra traffic would be unwelcome to existing residents.
However, I do not consider that the increased number of trips would be
4 18/00906/OUT - Outline application for up to 10 self-build dwellings including a new means of access off
Newland Lane - Refused 7 August 2018.
significant in the context of existing usage of the local road network, and I
conclude that the proposed arrangement would be acceptable in terms of traffic
safety and effect on the living conditions of neighbours.
36. Residents were also concerned about the effect of development on their living
conditions, during the construction period and thereafter. Layout and
appearance are reserved matters, so that the detailed design of the new
development could ensure reasonable separation distances between the new
dwellings and neighbouring properties to protect the living conditions of
existing residents. With respect to the construction period, a site management
plan is proposed to address such concerns and in my view would be effective in
minimising potential noise and other disturbance to residents. In the event of
the appeal being allowed, this could be secured by a condition. I accept that
further disturbance would be unwelcome, particularly at a time when work on
the urban extension may be drawing to a close. However, I do not consider
these concerns would be sufficient to stand in the way of allowing the appeal in
the absence of other convincing reasons.
37. Another resident raised concerns with local flood risk, particularly on Newland
Road at its lowest point, which is reported to flood after heavy rain. The
Council’s drainage engineer commented at application stage that the site is in
flood zone 1 and in an area at low risk of surface water flooding. Surface water
drainage is proposed via soakaways and areas of hard standing will make use
of permeable materials or, if grounds conditions are unsuitable, an alternative
sustainable solution will be required. The principle of sustainable drainage is
that surface water is intercepted so that flows are no greater from a site as a
result of development than the current situation. Having regard to the drainage
engineer’s comments, there is no reason to suppose that an acceptable
drainage system cannot be achieved.
Conditions
38. A schedule of agreed conditions was included in the Statement of Common
Ground (SOCG). The Appellant expressly agreed to the inclusion of the
suggested pre-commencement conditions at the hearing. The application was
made in outline (except for the access arrangements) so reserved matters
conditions are necessary to ensure the development achieves a satisfactory
appearance, landscaping, layout and scale (Conditions 1, 2, 3, 5, 18, 20 and
23). Condition 4 is necessary to protect trees to be retained from damage
during construction. Condition 6 is necessary to avoid any risk of surface water
flooding. Conditions 7 and 11 are necessary to ensure satisfactory visibility in
the interests of highway safety. Conditions 8 and 9 are necessary to ensure
appropriate provision for cars and cycle parking. Conditions 10 and 12 are
necessary to encourage the use of sustainable transport, including provision for
the charging of electric vehicles. Condition 13 is necessary to protect the living
conditions of neighbours during construction and in the interests of highway
safety. Condition 14 is necessary to secure a programme of archaeological
work to ensure that any archaeological interest is investigated and
appropriately recorded.
39. Condition 15 sets out a requirement for a Construction Environment
Management Plan for Biodiversity (CEMP: Biodiversity) and is necessary to
ensure that areas of sensitive ecological importance are appropriately managed
and protected from damage during construction. Condition 16 requires the
preparation and implementation of a Biodiversity Enhancement Strategy, and is
necessary to ensure that biodiversity objectives for the development are met.
Condition 17 requires preparation of a Landscape and Ecological Management
Plan (LEMP) to identify responsibilities for on-going management of features of
landscape and ecological importance. I have amended the parties’ wording as it
is not within the Appellants’ control to secure the agreement of the local
planning authority within one month of the commencement of the
development. As this condition is concerned with ongoing management, I
consider it acceptable that the LEMP should be approved prior to first
occupation of the first dwelling. I have made other minor changes to the
wording in the interests of clarity.
40. Condition 19 (slab levels) is necessary to ensure that the development sits well
within the landscape and surroundings. Condition 21 is necessary to ensure
appropriate provision for refuse storage. Condition 22 is necessary to secure a
reduction in carbon emissions from the development.
41. Subject to the amendments I have made I consider these conditions to meet
the tests set out in the NPPF and PPG.
S106 obligation
42. The Appellants submitted a final signed version of a unilateral undertaking (UU)
dated 9 July 2020. The main provisions are: 1. The owners covenant that
each residential unit shall be constructed as a self-build dwelling; 2. The first
occupation of each unit shall be by a person or persons who had a primary
input into design and layout and who intends to live in it for at least 3 years
and who is included in Part 1 of the Register. 3. The Council shall be notified of
the persons who intend to take up first occupation at least two months prior to
first occupation.
43. Schedule 2 of the UU addresses an off-site affordable housing contribution of
£143,966.25 to be paid prior to the first occupation of the first dwelling.
44. The Council does not dispute the contribution figure but expressed a preference
for an on-site discount market self-build dwelling on site, in accordance with
Policy SWDP15, which requires that on sites of 5 – 9 dwellings, 20% of units
should be affordable and provided on site.
45. I note that in its appeal statement the Council did not take issue with the
Appellant’s approach of providing a commuted sum for off-site provision, but
introduced the request for on-site provision at a later stage. The policy allows
for the acceptance of off-site-contributions where a robust justification exists.
46. While I acknowledge the preference for on-site provision, I consider that the
provision of an agreed sum as a contribution to off-site provision would
satisfactorily address affordable housing provision in the circumstances of the
case. I note the difficulties encountered in reaching an agreed form of wording
in the context of a UU where it is not appropriate to place a requirement on the
Council to exercise its powers in a particular way, for example in respect of
nomination rights or marketing strategies. The site lies close to Droitwich Spa
where there are opportunities to address affordable needs arising in the
neighbouring parish of Salwarpe, in which the appeal site lies.
47. The 2015 Act and the NPPF/PPG guidance support provision for self-build as a
means of diversifying access to the housing market and allowing for self-
builders to contribute their skills and labour to reduce the costs of entry into
the market. In the circumstances, where the UU secures an appropriate off-site
contribution for affordable housing, I do not consider that the failure to make
on-site provision outweighs the benefits that would arise from the grant of
permission.
48. With regard to the CIL regulations, I conclude that the final UU is necessary to
make the development acceptable in planning terms, directly related to the
development and fairly and reasonably related to the development in scale and
kind.
Planning balance and conclusion
49. Planning law requires that applications for planning permission be determined
in accordance with the development plan, unless material considerations
indicate otherwise. It is not disputed that the proposed development would
conflict with Policy SWDP2 C as it lies outside the defined development
boundary and within an area identified as open countryside.
50. I have found that the harm to the character and appearance of the area would
be very limited, and capable of mitigation by careful design and landscaping.
Although other matters of concern were raised by residents, these would not
be of sufficient weight to stand in the way of granting permission. I consider
the effects on highway safety would be broadly neutral when balancing the
increase in trip generation against the improvement in visibility and geometry.
The parties agreed that, but for the conflict with the development plan, the
location is sustainable for the type of development proposed, having good
accessibility to a range of facilities.
51. While there is no dispute that the Council can demonstrate a 5-year supply of
housing land, I consider that the Development Plan is out-of-date in respect of
self-build housing. There is no reference to self-build housing within Policy
SWDP2. Policy SWDP14 addresses the mix and type of market housing to
ensure that a range of household demand and needs continue to be
accommodated, but does not say anything substantive about self-build
housing. In view of the importance attached to provision for self-build housing
in the NPPF and PPG, I do not accept the Council’s view that it should be
treated simply as a component of general market housing. The tilted balance
is therefore engaged in this case. The forthcoming review of the plan does
address self-build housing but is at an early stage and carries very little weight
at this time.
52. With regard to meeting the Council’s duty under the 2015 Act I have found that
the Council has not satisfactorily demonstrated that it has granted enough
permissions to meet the need identified in the first base period, for the reasons
set out above. The proposed development would make a significant
contribution to the supply of sites for self-build housing in Wychavon in
accordance with Section 5 of the NPPF and the associated PPG. There would be
an economic benefit during construction and from on-going support for local
facilities, and significant social benefit in terms of the diversity of housing type
which would contribute to meeting the Council’s duty under the 2015 Act. I
attach substantial weight to this benefit and conclude that the adverse impacts
of granting planning permission in this case would not significantly and
demonstrably outweigh the benefits, when assessed against the policies in the
NPPF taken as a whole. This is a material consideration of sufficient weight to
indicate that the appeal should be determined otherwise than in accordance
with the development plan.
53. I therefore conclude that planning permission should be granted subject to the
conditions set out in the attached schedule.
David Richards
INSPECTOR
APPEARANCES
For the Appellant
Neal Pearce Director, Avon Planning Services
Mark Donald Director, H2 Land
Chris Hughes Commercial Director, H2 Land
Jack Smyth of Counsel
For Wychavon District Council
Emma Worley Development Manager (North)
Denise Duggan Senior Planning Officer (Policy)
Interested Person
Mr Chris Everton Local resident
Appeal Ref: APP/H1840/W/19/3241879
Schedule of conditions:
1) Application for the approval of reserved matters shall be made to the
local planning authority before the expiration of three years from the date
of this permission. The development hereby permitted shall be begun
before the expiration of two years from the date of approval of the last of
the reserved matters to be approved.
2) Approval of the details of the appearance, landscaping, layout and scale
(hereinafter called "the reserved matters") shall be obtained from the
local planning authority in writing before any development is commenced.
The development shall be carried out in accordance with approved
reserved matter details.
3) The following details shall be submitted for approval as part of the
landscaping reserved matters:-
1. Survey information of all existing trees and hedges on the application
site, and branches from trees on adjacent land that overhang the site.
The survey shall include for each tree/hedge:
a) the accurate position, canopy spread and species plotted on a plan;
b) an assessment of its general health and stability;
c) an indication of any proposals for felling or pruning;
d) details of any proposed changes in ground level, or other works to
be carried out, within the canopy spread.
2. A landscape scheme which shall include:
a) a plan(s) showing the planting layout of proposed tree, hedge,
shrub and grass areas;
b) a schedule of proposed planting – indicating species, size at time of
planting and numbers/densities of plants;
c) a written specification outlining cultivation and others operations
associated with plant and grass establishment;
d) a schedule of maintenance, including watering and the control of
competitive weed growth, for a minimum period of five years from
first planting.
The landscaping shall be provided and maintained in accordance with the
approved details within the first planting season following completion of
the development hereby permitted.
4) Temporary fencing for the protection of all retained trees/hedges on site
and trees outside the site whose Root Protection Areas fall within the site
shall be erected in accordance with BS 5837:2012 (Trees in Relation to
Design, Demolition and Construction) before development of any type
commences, including site clearance, demolition, materials delivery,
vehicular movement and erection of site huts. Any alternative fencing
type or position not strictly in accordance with BS 5837 (2012) must be
agreed in writing by the local planning authority prior to the
commencement of development.
Protective fencing shall remain in place until the completion of
development unless otherwise agreed in writing with the local planning
authority. Nothing should be stored or placed (including soil), nor shall
any ground levels be altered, within the fenced area without the previous
written consent of the local planning authority. There shall be no burning
of any material within 10 metres of the extent of the canopy of any
retained tree/hedge.
5) Details of any walls, fences, surface treatments to drives, cycle and
footways and an implementation timetable shall be submitted for
approval as part of the landscaping reserved matters.
6) Prior to the first use/occupation of each plot hereby permitted, the details
set out in the submitted Water Management Statement shall be fully
implemented and retained thereafter.
7) Notwithstanding the approved plans no part of the development shall be
occupied until visibility splays have been provided from a point 0.6m
above carriageway level at the centre of the footway / cycleway access to
the application site and 2.0 metres back from the near side edge of the
adjoining carriageway, (measured perpendicularly), for a distance of 25
metres in each direction measured along the nearside edge of the
adjoining carriageway and offset a distance of 0.6m from the edge of the
carriageway. Nothing shall be planted, erected and/or allowed to grow on
the triangular area of land so formed which would obstruct the visibility
described above.
8) No dwelling shall be occupied until an area has been laid out within the
curtilage of that dwelling for the parking of cars in accordance with
County standards. The parking area shall thereafter be retained for the
purpose of vehicle parking only.
9) No dwelling shall be occupied until sheltered and secure cycle parking to
comply with the Council’s standards has been provided for that dwelling
in accordance with details which shall be submitted to and approved in
writing by the local planning authority and thereafter the approved cycle
parking shall be kept available for the parking of bicycles only.
10) Appropriate cabling and an outside electrical socket must be supplied for
each property to enable ease of installation of an electric vehicle charging
point (houses with dedicated parking). The charging point must comply
with BS7671. The socket should comply with BS1363, and must be
provided with a locking weatherproof cover if located externally to the
building. As a minimum, charge points should comply with Worcestershire
County Council Design Guide which requires 7kw charging points for
residential developments.
11) The development hereby approved shall not commence until drawings of
the site access works comprising:
• The vehicular site access to Newland Lane, and
• The footway / cycleway access to Newland Road
generally in accordance with, but not limited in detail to, the application
drawings have been submitted to and approved in writing by the local
planning authority and no part of the development shall be occupied until
those works have been constructed in accordance with the approved
details.
12) Each dwelling hereby approved shall not be occupied until the applicant
has submitted in writing to and had approval in writing from the local
planning authority a residential welcome pack promoting sustainable
forms of access to the development. The approved pack shall be
delivered to each dwelling upon its first occupation.
13) The development hereby approved shall not commence until a
Construction Environmental Management Plan (CEMP) has been
submitted to and approved in by the Local Planning Authority. This shall
include but not be limited to the following:
• Measures to ensure that vehicles leaving the site do not deposit mud
or other detritus on the public highway;
• Details of site operative parking areas, material storage areas and
the location of site operatives facilities (offices, toilets etc);
• The hours that delivery vehicles will be permitted to arrive and
depart, and arrangements for unloading and manoeuvring;
• Details of any temporary construction accesses and their
reinstatement; and
• Details of any site boundary hoarding / fencing set back clear of
visibility splays.
The measures set out in the approved CEMP shall be carried out and
complied with in full during the construction of the development hereby
approved. Site operatives' parking, material storage and the positioning
of operatives' facilities shall only take place on the site in locations
approved by in writing by the local planning authority.
14) A) No development shall take place until a programme of archaeological
work, including a Written Scheme of Investigation, has been submitted to
and approved by the local planning authority in writing. The scheme shall
include an assessment of significance and research questions; and:
1) The programme and methodology of site investigation and
recording.
2) The programme for post investigation assessment.
3) Provision to be made for analysis of the site investigation and
recording.
4) Provision to be made for publication and dissemination of the
analysis and records of the site investigation.
5) Provision to be made for archive deposition of the analysis and
records of the site investigation.
6) Nomination of a competent person or persons/organisation to
undertake the works set out within the Written Scheme of
Investigation.
(B) The development shall not be occupied until the site investigation and
post investigation assessment has been completed in accordance with the
programme set out in the Written Scheme of Investigation approved
under clause (A) of this condition and the provision made for analysis,
publication and dissemination of results and archive deposition has been
secured.
15) No development shall take place (including any site clearance, ground
works or demolition) until a Construction Environmental Management
Plan (CEMP: Biodiversity) has been submitted to and approved in writing
by the local planning authority. The CEMP: Biodiversity shall be based on
the findings of the Tree Survey, Preliminary Ecological Appraisal and
Reptile Survey submitted with the outline application as well as the
findings of an updated Preliminary Ecological Appraisal include the
following:
a. Risk assessment of potentially damaging construction activities;
b. Identification of “biodiversity protection zones”;
c. Practical measures (both physical measures and sensitive working
practices) to avoid or reduce impacts during construction (may be
provided as a set of method statements and should include details
of appropriate protective fencing of retained trees’ root protection
zone);
d. The location and timing of sensitive works to avoid harm to
biodiversity features;
e. The times during construction when specialist ecologists need to be
present;
f. Responsible persons and lines of communication;
g. The role and responsibilities on site of an ecological clerk of works
(ECoW) or similarly competent person;
h. Use of protective fences, exclusion barriers and warning signs.
The approved CEMP shall be adhered to and implemented throughout the
construction period strictly in accordance with the approved details.
16) No development shall take place until a Biodiversity Enhancement
Strategy (BES) has been submitted to and approved in writing by the
local planning authority. The strategy shall include the following:
a. Purpose and conservation objectives for the proposed works;
b. Review of site potential and constraints;
c. Detailed designs and working methods to achieve stated objectives
(including, where relevant, type and source of materials to be
used);
d. Extent and location of proposed works shown on appropriate scale
maps and plans;
e. Timetable for implementation, demonstrating that works are
aligned with the proposed phasing of development;
f. Persons responsible for implementing the works;
g. Initial aftercare;
h. Details for disposal of any wastes arising from works.
The BES shall be implemented in accordance with the approved details
and all features be retained in that manner thereafter. On completion of
the ecological mitigation and enhancement works, a statement of
compliance shall be submitted to the local planning authority by the
Ecological Clerk of Works (or similarly competent person) confirming that
specified and consented measures have been implemented.
17) A Landscape and Ecological Management Plan (LEMP) shall be submitted
to and be approved in writing by the local planning authority before the
first occupation of the first dwelling. The content of the LEMP shall include
the following:
a. Description and evaluation of the features to be managed;
b. Ecological trends and constraints on site that might influence
management.
c. Aims and objectives of management;
d. Appropriate management options for achieving aims and
objectives;
e. Prescriptions for management actions;
f. Preparation of a work schedule, including an annual work plan
capable of being rolled forward over a five-year period and longer
term thereafter;
g. Details of the body or organisation responsible for implementation
of the plan;
h. Ongoing monitoring and remedial measures.
The plan shall also set out how contingencies and/or remedial action shall
be identified, agreed and implemented where the results of the
monitoring show that conservation aims and objectives of the LEMP are
not being met, so that the development still delivers the fully functioning
biodiversity objectives of the originally approved scheme. The LEMP shall
be implemented as approved.
18) Details of any external lighting to be provided in association with the
development shall be submitted with each reserved matters application.
Only external lighting in accordance with approved details shall be
provided on the application site. Notwithstanding the provisions of the
Town and Country Planning (General Permitted Development) Order 2015
(or any Order revoking or re-enacting that Order with or without
modification) there shall be no other external lighting provided on the
application site.
19) The construction work on the buildings hereby approved shall not be
commenced until the precise floor slab levels of each new building,
relative to the existing development on the boundary of the application
site have been submitted to and approved in writing by the local planning
authority. Thereafter the new buildings shall be constructed at the
approved floor slab levels.
20) Each reserved matters application relating to appearance shall include
details of the materials to be used in the construction of the external
surfaces of any building. Development shall be carried out in accordance
with the approved details.
21) Each reserved matters application relating to the appearance and layout
of the development shall include details of the facilities for the storage of
refuse for all proposed dwellings. No individual dwelling shall be occupied
until refuse storage facilities to serve that dwelling have been constructed
in accordance with approved details. The facilities shall thereafter be
retained.
22) Prior to the first occupation of any dwelling hereby approved, the
renewable energy generating facilities set out in the Energy Assessment
by Reports4Planning dated July 2019 to be incorporated as part of the
development shall be fully implemented. The renewable energy
generating facilities shall provide at least 10% of the predicted energy
requirements of the development and shall remain operational for the
lifetime of the development.
23) Each reserved matters application relating to the appearance, scale and
layout shall be broadly in accordance with the principles of the Design &
Access Statement (dated 11 July 2019) submitted as part of the
application. All reserved matters applications shall include a statement
providing an explanation as to how the design of the development
responds to the details submitted as part of the outline application.


Costs Decision
Hearing Held on 29 June 2020
Site visit made on 1 July 2020
by David Richards BSocSci DipTP MRTPI
an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 23 July 2020
Costs application in relation to Appeal Ref: APP/H1840/W/19/3241879
Corner Mead, Newland Lane, Droitwich Spa, Worcestershire WR9 7JH
• 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] for a full award of costs against Wychavon District
Council.
• The hearing was in connection with an appeal against the refusal of outline planning
permission for up to 9 self-build dwellings including new means of access off Newland
Lane.
Decision
1. The application for an award of costs is refused.
The submissions for [APPELLANT]
2. The Appellant submits that the Council has acted unreasonably in refusing
planning application ref 19/01679/OUT for the reasons set out in this letter and
an application for a full award of costs is therefore made.
1. Failure to have regard to a material planning consideration
3. The Appellant has submitted up-to-date evidence in the form of very recent
appeal decisions on the correct interpretation of the way in which planning
permissions can be counted towards the supply of self-build plots. These
appeal decisions were submitted to the Council in the original Planning
Statement dated July 2019 (see Appendix 3 of APS Statement of Case) and
again with the Appeal Statement of Case. These appeal decisions are
compelling, they are directly relevant to this appeal on a point of principle and
they clearly supersede the very dated decisions the Council continues to seek
to rely upon.
4. The Council have failed to even acknowledge the appeal decisions provided by
the Appellant or provide any up-to-date evidence or explanation as to why
these decisions are not relevant to this appeal. They have simply ignored them.
5. It is unreasonable for the Council to continue to maintain that the permissions
granted can be counted towards the supply of self-build when they have
confirmed that none of those permissions have any secure mechanism in place
to ensure that they are delivered in a way that meets the legal definition of
self-build and custom housebuilding as defined in the 2015 Act.
6. This unreasonable behaviour has led to costs being incurred by the Appellant
through the instruction of a Planning Consultant to produce additional evidence
and attend the appeal hearing.
2. Providing information that is manifestly inaccurate or untrue
7. In accordance with the relevant regulations, the Council publishes an Annual
Progress Report (APR) at the end of each year in respect of self-build and
custom housebuilding. This is published on the Council’s website for members
of the public and officers of the Council to use in respect of preparing relevant
planning applications and determining such applications.
8. The 2019 APR clearly states “In the first base period between 1st April 2016
and 30th October 2016, there were 51 entries on the Register”. It goes on to
say that a Local Eligibility Condition was introduced in June 2017 i.e. during the
second base period.
9. The Council then state that all those on the register prior to 30th May 2017
were automatically allowed onto Part 1 of the register if they provided an
update form with the relevant additional information. No further information or
detail is provided in the APR. The APR is the go to piece of evidence for
applicants, self-builders and the Council itself when assessing applications of
this nature. The Appellant has spent a considerable sum of money promoting
this site on the basis of the information in the published APR’s.
10. The Council have very recently deviated from their own published APR which
has consistently and as recently as December 2019 confirmed that the correct
figure for the first base period is 51 entries. Nowhere in the 2019 APR (or the
previous two APR’s) does it mention that this figure has dropped to 11 as the
Council now claim.
11. If the Councils recent claim that there are only 11 entries on the Part 1 register
is found to be correct, which the Appellant submits most strongly that it is not,
then false and misleading information has been published for the last 4 years in
the APR’s. If the Appellant’s position is correct, then false and misleading
information has been presented to this Appeal.
12. The planning application was submitted in good faith on the premise of the
figure of 51 so to now change this without justification is wholly unreasonable.
3. Deliberately concealing relevant evidence at appeal
13. The Appellant is aware that the Council is deliberately concealing important
evidence in relation to need which is pertinent to this appeal. The Council has
sought to obtain a legal opinion on whether they can legitimately count
permissions without any secure mechanism in place to ensure dwellings meet
the legal definition of self-build and custom housebuilding.
14. The Appellant has also obtained a legal opinion which confirms the Appellant’s
position is the correct one. The Appellant has offered to exchange opinions
however the Council has refused to do so citing that their legal opinion
constitutes “privileged legal advice”.
15. The only conclusion one can draw from this is that the Council’s legal opinion
does not support their position. There is no other logical reason why they would
withhold this information.
16. The Appellant has submitted their legal opinion and the Inspector is invited to
have regard to it. The withholding of evidence by the Council has prevented the
Appellant and the Inspector from being able to properly assess the allegations
made by the Council on the subject of how to correctly count planning
permissions.
4. Introducing fresh evidence at a late stage
17. The Council provided the Appellant with new figures on self-build demand on
19 June. These figures have never been disclosed before and they directly
contradict the official published figures contained in the APR’s for 2017, 2018
and 2019 on self-build and custom housebuilding. This information has clearly
been available to the Council for a considerable period of time but has not been
previously disclosed. This has not afforded the Appellant with sufficient time to
interrogate the new evidence prior to the hearing.
5. Not agreeing a Statement of Common Ground in a timely manner
18. The Council has failed to respond in a timely manner to the draft Statements of
Common Ground submitted to them. The Council has consistently left their
review of the SoCG to the last minute with a 10-week hiatus between 2 April
and 10 June despite several requests for feedback. The Council have also
sought to query matters in the most recent draft statement which they have
not queried in earlier versions. At the time of writing the Council was still
refusing to agree to matters of fact.
6. Appellant’s Conclusion
19. The Council has continued to maintain a position which is untenable, is based
on out-of-date appeal decisions and has failed to recognise or have regard to
more up-to-date evidence and appeal decisions on the correct way to count
planning permissions for the provision of self-build and custom housebuilding.
20. In light of the above and having regard to the PPG a full award of costs against
the Council’s unreasonable behaviour is requested.
The response by Wychavon District Council
1. Failure to have regard to a material planning consideration
21. It is the council’s view that the appeal decision letters submitted on behalf of
the applicant (at appendices 3, 7 and 8 of the of the appellants Statement of
Case) are not directly relevant to this appeal and are therefore not compelling.
Appeal Decision Ref: APP/X2220/W/17/3176895 - Land to the west (beyond)
Strathfleet, Victoria Road, Kingsdown
22. The main issue in this appeal is the fact that the appeal site was just outside
development boundary. The Inspector considered that settlement boundaries
are not necessary determinative in themselves and should be informed by the
facts on the ground. This differs from the council’s position, in that the site
immediately adjoined the development boundary for Kingsdown, whereas the
appeal site is some distance from the development boundary for Droitwich.
Appeal Decision Ref: APP/G2435/W/18/3214451 Land off Hepworth Road,
Woodville DE11 7DW
23. This appeal addresses how North West Leicestershire Council (NWLC)
suggested planning permissions granted could be counted towards the number
of consents for self build, which differs from the council’s approach in this case.
The council have only included planning approvals which have specified self
build in their description; this amounts to 6 consents for 11 self build plots. In
addition, the council are of the view that the 27 planning permissions granted
for 35 new dwellings are also counted towards meeting the demand for self
build units because they are accompanied by a signed CIL Self-Build exemption
form.
24. Conversely, NWLC included all single new dwellings and although admitted that
not all of them would be for self-build, suggested that at least some of them
would be – but did not quantify how many. The Appellant’s counsel opinion
helpfully explains that ‘neither the NPPF not the NPG provides guidance on the
proper approach to be taken to this issue’ (para 18) – therefore, the council
contends that it is for the Inspector to consider whether the council have taken
the right approach.
25. The Appellant’s Statement of Case sets out that this appeal decision supports
the contention that in order for a permission to legitimately count as a self-
build serviced plot under the legal definition; secure arrangements must be in
place to ensure the development meets the definition. In the absence of any
other mechanism, based on the facts of the appeal the Inspector concluded
that it was necessary to have some mechanism in place, concluding that a legal
agreement was the only way of meeting the need for self-build dwellings. This
differs from the council’s position in relation to the permissions that have been
granted in the District.
26. Paragraph 8.7 of the council’s Statement of Case responds directly to this
matter, setting out its’ view that it is not unreasonable to conclude that the
permissions set out above would meet the identified demand despite the lack
of a section 106 legal obligation as the permissions could, based on the facts of
the case include self-build and custom housebuilding. They would therefore
meet the definition of a plot which the applicant has indicated “could include
self-build and custom housebuilding” in accordance with s2A(6)(c).
27. These would include situations where relevant policies relating to the location
of development (for example policy SWDP2) meant it was not appropriate to
insist on a s106 obligation, but the proposal was clearly intended to be self-
build. For example a full planning application where the applicant had shown
that the intended occupant had already acquired the land, as a serviced plot,
and played a full part in the design of the dwelling. In such cases it would be
likely that a CIL self-build exemption would also be claimed.
28. It is a matter of planning judgement as to whether the permissions granted for
self-build units in the District would meet the need reflected on the register. As
the permissions granted could be relied upon by a person on Part 1 of the
register it is perfectly reasonable to assume the permissions would meet the
demand for self-build housing.
APP/W0530/W/19/3230103 - Green End/Heath Road, Gamlingay - Allowed 23
September 2019
29. It is the council’s view that this appeal decision is not directly comparable to
the appeal to which is the subject of this hearing. In the case of Gamlingay the
purported shortfall in the delivery of self-build housing was uncontested by the
LPA. South Cambridgeshire DC was one of the Right to Build Vanguard
Authorities and at the time of the appeal had 400 people on the SB Register.
The Inspector considered the shortfall to be significant.
30. This differs to the council’s position now in that officers have contested the
view that there is a shortfall in self build housing provision. The council has
granted sufficient permissions to meet the need of 11 self build dwellings in the
first base period – i.e. 6 planning consents for 11 new self/custom build
dwellings and 27 planning permissions for 35 new dwellings accompanied by a
CIL self build exemption form, which can be counted towards meeting the
demand.
31. Furthermore, the relevant development plan policies were silent on the matter
of self-build housing strategy. This is not the case here as policy SWDP14 of
the South Worcestershire Development Plan covers the matter of self-build
housing provision.
32. APP/P1615/W/18/3213122 - The Meadows, Bromsberrow Heath, Ledbury -
Allowed 17 April 2019
33. Whilst the site was outside the settlement boundary the Inspector noted that;
‘Moreover, neither national nor CS policy imposes an outright restriction on
development outside defined boundaries, but each case would have to be
considered on its own particular circumstances.’ The site is adjacent to
development boundary on 3 of its 4 sides and at least half of the site is classed
as PDL. The Self Build Register included 73 households registered between 1
April 2016 and 30 October 2018. The Council indicated that by 30 October
2018, it had granted permission for 42 self-build plots, although the appellants
dispute whether 2 of the cited permissions relate to self-build houses secured
by legal agreement. According to the information contained in the Council’s
table, 63 permissions are required by 30 October 2020, of which 42 have been
given. Even accepting that disputed figure, it would still mean that a further 21
need to be granted by 30 October 2020, with 10 more by 30 October 2021 and
not, as suggested in paragraph 5.11 of the Council’s appeal statement, by 30
October 2022. Moreover, of the 42 plots which the Council says it has granted
permission for, it is relevant that 41 of them appear to have been granted via
the appeal process.
34. Therefore, and given the lack of any clear policy within the development plan
regarding such housing or evidence of local initiatives to promote it, the
Inspector did not share the Council’s apparent confidence that the requirement
would be met. This differs to the position in Wychavon in that the council has
contested the appellants view, as the council has granted sufficient permissions
to meet the need of 11 self-build dwellings in the first base period – i.e. 6
planning consents for 11 new self/custom build dwellings and 27 planning
permissions for 35 new dwellings accompanied by a CIL self build exemption
form, so they can be counted towards meeting the demand.
2. Providing information that is manifestly inaccurate or untrue
35. The council produces an annual progress report on self build – which includes
both a summary position on the number of people/groups registered on the self
build register and the number of relevant planning permissions to help meet
the demand. The Progress Report is misquoted by the appellants agent. The
latest version (Dec 2019) states, in full,:
36. The Wychavon District Self-Build and Custom Housebuilding Register was
established on 1st April 2016 and has been available ever since for individuals
and organisations to complete the online form. In the first base period between
1st April 2016 and 30th October 2016, there were 51 entries on the Register.
Since the first base period and the introduction of the Self-Build and Custom
Housebuilding Regulations 2016, the Register went through an update in May
and June 2017 in order to introduce a Local Eligibility Condition to enable
entries to be split into Part 1 and Part 2. All those already on the Register prior
to 30th May 2017 were automatically allowed on to Part 1 of the Register if
they provided an update form with the relevant additional information by 30th
June 2017.
37. The council clarified the position in their original appeal statement that 11
people submitted an update before 30 June 2017, therefore this is the number
of people who were on part 1 of the self-build register for the first base period.
38. The reason for the reduction from 51 to 11 has been conveyed to the agent on
a number of occasions and is not therefore without justification as suggested in
the application for costs. The figure of 11 is not a recent claim as suggested by
the appellant, in fact the matter was discussed with the appellant’s agent as
early as August 2019.
3. Deliberately concealing relevant evidence at appeal
39. The legal opinion referred to is deemed by the council to be legally privileged
information and is not submitted as part of the council’s case. In any case the
counsel’s advice was sought in relation to an earlier planning application
elsewhere in the district and not the appeal proposal. Prior to the council
seeking this advice (in January 2020) the appellant’s agent had previously
advised that they too had a legal opinion but to date has not disclosed this.
40. Counsel’s Advice dated 16 February 2020 was subsequently submitted by the
appellant on the 19 June, just days before the hearing.
41. The council is under no obligation to share a legal opinion and generally does
not do so –this is no different to any other appeal.
4. Introducing fresh evidence at a late stage
42. If this refers to the copy of the Register (date of registration and identification
numbers only) provided to the appellants on 19 June, this is not fresh evidence
but rather then this is the latest position regarding the self build register at 18
June. This reflects advice provided by the council to the appellant throughout
the planning application process and subsequent appeal.
43. This showed that for the first 4 base periods (i.e. up to 30/10/2019) 85 people
were on the register, of which 49 were on part 1 – the figure had reduced from
87 (50 Part 1 and 37 Part 2) because 2 people had requested to be removed
from the register since 30 Oct 2019. The difference is therefore negligible
between the Dec 2019 report and the updated June 2020 report. It is not new
evidence it merely backs up the council’s figures.
5. Not agreeing a Statement of Common Ground in a timely manner
44. The drafting of the SoGC has been a matter of on-going discussion between the
appellant and the council since the submission of the appeal in January; with
the council providing their initial comments in relation to the first draft on 11
February. An amended draft was submitted by the appellant on 6 March, to
which the council responded on 16 March. A subsequent draft was then
submitted by the appellant on 2 April.
45. There was a pause in the negotiations however when the appeal hearing
scheduled for 31 March was postponed, due to the extraordinary circumstances
of Covid-19, with no timeframe for when or indeed how the appeal would
proceed. Whilst unfortunate, this delay on the council’s behalf was in part due
to other more urgent work commitments including supporting the entire
planning department staff in setting up working from home and the logistics of
a virtual Planning Committee, to name but a few, due to matters beyond the
control of officers. Without a rescheduled hearing date the matter was not
deemed a priority under the circumstances.
46. Upon receipt of notification of the re-scheduled appeal on the 9 June, the
council provided further comments to the appellant in relation to the SoCG the
following day (10 June). At this stage the final amendments were very minor in
nature.
47. The council provided final comments in relation to the draft Statement of
Common Ground on 19 June, in response to a further amended draft which was
received on 16 June, to enable a signed copy to be submitted to the Inspector
prior to the hearing on 29 June.
48. The council first highlighted the inaccuracies within the figures at paragraph
2.30 of the SoCG in an email to the appellant on 11 February, which reflected
the council’s Statement of Case. The council’s concerns were re-iterated in an
email to the appellant on 10 June, which set out the main matters of
disagreement, which included again the fact that the council do not agree with
the figures in para 2.30 of the SoCG. It was suggested that, should the
appellant not agree, that the matter would need to go to ‘Matters in Dispute’.
The appellant’s subsequent draft of the SoCG highlighted again the
disagreement with the figures.
49. Officers have queried the origins of one of the statements under the heading
self-build definition, which cannot be found in the regulations or NPPG, namely:
2.25 - In order to comply with the legal definition of self-build and custom
housebuilding, permission must be subject to the following obligations:
a) the self-build dwelling must be occupied only by a person registered by the
Council and recorded on the Self-Build Register pursuant to Section 1 of the
2015 Act;
At the time of writing the appellant’s agent has not been able to clarify the
origins of this statement.
50. It is clear that the council has endeavoured to work with the appellant to agree
a SoCG and has responded in a timely manner in so far as it was able to do so.
51. The council has at no point refused to agree to matters of fact.
Reasons
52. Paragraph 030 of the Planning Practice Guidance (the PPG) advises that,
irrespective of the outcome of the appeal, costs may only be awarded where:
• a party has behaved unreasonably; and
• the unreasonable behaviour has directly caused another party to incur
unnecessary or wasted expense in the appeal process.
53. Paragraph 031 of the PPG confirms that the word “unreasonable” is to be used
in its ordinary meaning. It then goes on to categorise unreasonable behaviour
as either being; procedural, or substantive.
54. I have considered the points raised by the Appellant in turn.
55. With regard to the allegation that the Council has simply ignored relevant
appeal decisions, the Appellant places great reliance on the decision concerning
land off Hepworth Road, Woodville DE11 7DW1. While it is important that like
cases are decided in a like manner, an appeal decision provides a reasoned
response to the specific evidence presented. It does not have the force of case
law. For reasons set out in the appeal decision to which this claim relates,
insofar as the cited decision is intended to substantiate the Appellants’
proposition that only those permissions which are subject to an obligation
securing the delivery of self-build and custom housebuilding should count
towards meeting the duty under the 2015 Act, I consider that this is an unduly
restrictive interpretation for which I can find no support in the NPPF or
associated PPG. There are many policy compliant sites which could contribute
to self-build needs where it would be inappropriate to require an obligation to
be entered into. In the Woodville decision, the need for an obligation derives
from it being an exception site, where the justification for departing from the
development plan requires that secure arrangements are in place. The same is
true of the appeal proposal. However, that is not to say that an obligation is
necessary in all circumstances.
56. I now turn to consider the accusation that the Council has provided information
that is manifestly inaccurate or untrue.
57. I have accepted that the Council’s analysis is deficient, and in my view further
analysis is necessary to relate permissions granted to data from Part 1 of the
register. I have also agreed that the Council has not sufficiently justified
revisiting the 2016 Register and omitting those who did not respond to a
request for further information. However, the Council has submitted an
arguable case, supported by evidence which was set out in the Appeal
statement. The discrepancy between the need figure of 51 included in the
Annual Progress reports, and the figure of 11 relied on by the Council as being
the extent of need in the first base period was explained at the hearing, and
conveyed to the Appellant at an early stage. While I found the discrepancy
somewhat confusing and have disagreed with the Council’s analysis, I do not
consider that it has crossed the threshold of unreasonable behaviour. This is a
case where conflict with the development plan is clearly acknowledged. The
Council’s position that the SWDP is up to date in the light of an undisputed 5-
1 APP/G2435/W/18/3214451
year housing land supply is at the very least arguable, and in the
circumstances it is not surprising that it should seek to defend an area defined
as open countryside from development.
58. With regard to the allegation of deliberate concealment of relevant evidence,
this refers to undisclosed Counsel’s opinion which the Council said supported its
case that it was legitimate to count planning permissions unsupported by a
restrictive obligation towards meeting the need for self-build dwellings. The
Appellant surmises that the only reason the Council did not share the opinion
was that it did not, in fact, support the Council’s case. This amounts to
speculation on which I am unable to comment. It is not incumbent on the
Council to share legal advice. It is not unusual for Appellants to commission
their own legal advice in support of their key propositions.
59. That advice (dated 16 February 2020) was heavily reliant on the precedent of
the Woodville case discussed above. It recognised that that decision is not
binding, though it is an important material consideration. I have explained why
I do not consider it is necessary in all circumstances to have a binding
mechanism in place to secure the development as self-build, all though in other
respects the decision I have reached on the appeal reflects aspects of the
argument advanced by Counsel. However, I do not consider that the Appellants
recourse to legal advice was occasioned by unreasonable behaviour on the part
of the local planning authority, but was part of the evidence base which the
Appellant chose to bring in support of its case.
60. With regard to the matter of introducing fresh evidence at a late stage, the
Council responds that this was simply an update on the register as it currently
stands, which did not materially affect the outcome of the appeal. As I have
found in the Appellant’s favour on the planning issues, I agree that the new
information di not materially prejudice the Appellant and can be seen as an
example of an on-going dialogue between the Appellant and Council in the run
up to the Hearing.
61. Finally, I have considered whether the Council acted unreasonably in failing to
agree the Statement of Common Ground (SoCG) in a timely manner. To my
mind, a considerable measure of agreement was established at an early stage,
and there was agreement on such matters as relevant planning policies,
physical impacts of the development, locational sustainability and conditions in
the event of the appeal being allowed. It is however, in my experience,
unrealistic to expect that all matters can be agreed, particularly where the
interpretation of policy is contested. There appears nothing unusual or
unreasonable in the Council’s behaviour in respect of the Statement of
Common Ground.
62. For all these reasons I find that unreasonable behaviour leading to unnecessary
or wasted expenditure has not been established, and an award of costs is not
justified.
David Richards
INSPECTOR