Case Reference: 3253661

Appeal Decision
Inquiry Held on 17 to 20 and 24 November 2020
Site visit made on 23 November 2020
by G D Jones BSc(Hons) DipTP DMS MRTPI
an Inspector appointed by the Secretary of State
Decision date: 14th December 2020
Appeal Ref: APP/Z1510/W/20/3253661
Land between Braintree Road and Long Green, Cressing, Braintree
• 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 Braintree District
Council.
• The application Ref 18/00549/OUT, dated 20 April 2018, was refused by notice dated
5 December 2019.
• The development proposed is described as outline application for residential
development of up to 250 dwellings with access considered.
Decision
1. The appeal is allowed and outline planning permission is granted for residential
development of up to 250 dwellings with access at Land between Braintree
Road and Long Green, Cressing, Braintree in accordance with the terms of the
application, Ref 18/00549/OUT, dated 20 April 2018, subject to the conditions
contained within the Schedule at the end of this decision.
Preliminary Matters
2. The proposal is for outline planning permission with access only to be
determined at this stage and with appearance, landscaping, layout and scale
reserved for future approval. Whilst not formally part of the scheme, I have
treated the submitted details relating to these reserved matters as a guide as
to how the site might be developed.
3. As outlined in the Addendum Statement of Common Ground, I have been
asked to consider and determine the appeal on the basis of a proposed access
drawing, reference 17126-012-A, that was not formally before the Council
when it determined the appeal planning application. Nonetheless, its contents
reflect what is shown in the indicative site layout plans that were the subject of
the public consultation and before the Council at that time. Moreover, this
revised proposed access plan has also been the subject of a separate,
subsequent consultation exercise. Accordingly, I can see no reason why any
party might be unreasonably deprived of the opportunity to be consulted on
the changes or prejudiced as a result of accepting it. I have, therefore,
assessed and determined the appeal on the basis of this revised drawing.
4. As a consequence of these revisions to the proposed access arrangements, at
the Inquiry, the Council did not defend its fourth reason for refusal, concerning
highways matters. During the Inquiry the Council also confirmed that, subject
to the completion of a legal agreement, which while agreed between the main
parties, had yet to be completed at the time the Inquiry closed, it would not
defend its fifth refusal reason concerning infrastructure, affordable housing and
other mitigation. A legal agreement made under S106 of the Town and
Country Planning Act 1990 (the S106 Agreement) has now been completed.
5. The reasons for refusal refer to the Publication Draft Braintree Local Plan (the
emerging Local Plan). Nonetheless, as it is not yet part of the development
plan and may be subject to change, including in respect to the policies cited in
the refusal reasons, it carries limited weight only at this stage.
Main Issues
6. In light of the foregoing, the main issues are:
• Whether the location of the proposed development outside of the settlement
boundaries is acceptable in principle, having regard to the relevant
development plan policies, including those of the Cressing Neighbourhood
Plan;
• The effect of the proposed development on the living conditions of future
residents, with particular regard to noise and odour;
• Its effect on the character and appearance of the countryside between
Braintree and Tye Green / Cressing; and
• Whether any development plan conflict and harm arising, would be
outweighed by any other considerations, including that the Council cannot
currently demonstrate a Framework compliant supply of housing land.
Reasons
Location
7. I deal with the first main issue identified above broadly in two parts. Firstly,
here under this subheading, largely in respect to how the proposed
development sits, as a matter of principle, with the adopted strategy for the
location of new housing in Braintree District. And secondly, drawing on my
conclusions in respect to all three other main issues, as part of the fourth main
issue concerning the planning balance, which is where I come to an overall
conclusion on whether the site is a suitable location for housing.
8. The strategy for the location of new development in the District, including
housing, is set out in the development plan, notably for the purposes of this
appeal in Policy RLP 2 of the Braintree District Local Plan Review 2005 (the
Local Plan), Policy CS 5 of the Braintree Core Strategy 2011 (the Core
Strategy) and, within the Parish of Cressing, Policy 7 of the Cressing Parish
Neighbourhood Plan 2017-2033 (the CNP).
9. The appeal site is located beyond the boundaries of the nearest settlements,
Braintree to the north and the village of Tye Green roughly to the south, as
identified in the development plan. The defined settlement boundary of
Braintree closest to the site runs to the north of the A120, a heavily trafficked
dual carriageway, while the closest point of Tye Green’s defined boundary is on
the western side of the B1018 Braintree Road.
10. Local Plan Policy RLP 2 states that, with some exceptions, new development
will be confined to within such settlement boundaries. Similarly, Core Strategy
Policy CS 5 states that development outside the designated settlement
boundaries will be strictly controlled to uses appropriate to the countryside.
Additionally, CNP Policy 7C states that new housing outside settlement
boundaries should be an exception and comprise small-scale self-build or
custom-build schemes. There is nothing to suggest that any of the exception
criteria of these Policies would be met in this case.
11. Consequently, the appeal proposals conflict with Policies RLP 2 of the Local
Plan, CS 5 of the Core Strategy and 7C of the CNP in this regard, such that the
development would be at odds with the area’s strategy for the location of new
housing.
Living Conditions
12. A large proportion of the site’s northern boundary abuts and, to an extent,
wraps around an area of established commercial development, which has a
waste transfer station (the WTS) located on its southernmost edge,
immediately adjacent to the appeal site. Due to this relationship, chiefly in
terms of the respective uses and their proximity, the existing commercial uses
would have the potential to affect the living conditions of residents of the
proposed development, particularly due to noise and odour.
13. The respective witnesses of the main parties have each undertaken their own
assessments in respect to noise and to odour. Of these various assessments I
favour those of the appellant’s witnesses in respect to both noise and odour.
There are a number of reasons for this, most notably because they appear to
make reasonable assumptions, based on sufficiently comprehensive evidence,
including reasonably extensive site surveys, applying appropriate methodology
to the site’s context and the development proposed.
14. In contrast, the Council’s witness’s evidence is based, at least in part, on very
much less extensive survey information. Moreover, while the approaches
advocated by the Council on these matters would be likely to result in a better
residential environment for occupants of the appeal development, for instance
due to their application of LA for calculating noise impact, they do not
max
appear to be necessary in order to secure sufficiently good living conditions
having regard to the wider evidence.
15. In making this assessment I have taken into account that it might be necessary
for some residents of the development to close windows of their homes to
maintain satisfactory living conditions. Nonetheless, if this were to happen, it
seems likely that it would only be occasionally.
16. I am also mindful of a number of other considerations which support the
appellant’s evidence in this regard. For instance, while the appeal site is
undeveloped, there are existing residential uses in the vicinity of this
neighbouring commercial area, the closest of which is a gypsy and traveller
site, which also abuts the appeal site. Nonetheless, there is no clear history of
noise or odour complaints resulting from the commercial uses, including
the WTS.
17. Additionally, past assessments of the potential effects of the WTS on the living
conditions of neighbours have not concluded that there would be a significant
effect on residents’ living conditions. Indeed, planning permission for
development at the WTS, concerning its hours of operation, appears to have
been granted on this basis as recently as December 2019.
18. On the evidence before me, therefore, there is no good reason to conclude
that, subject to controls that could be secured by planning conditions and to
the careful consideration of reserved matters, the appeal development would
not provide its residents with acceptable living conditions, including in terms of
noise and odour, nor that use and enjoyment of the proposed open space
would be significantly affected by neighbouring uses. On this basis it would
accord with para 180 of the National Planning Policy Framework (the
Framework) and Policy LPP 73 (Minimising Pollution and Safeguarding from
Hazards) of the emerging Local Plan.
Character and Appearance
19. The appeal site lies in the countryside. Although it does not adjoin any defined
settlement boundary, a substantial part of its zig-zagging northern boundary
directly abuts part of the developed southern fringe of Braintree that lies to the
south of the A120. In broad terms, the site is contained to the west by the
B1018 Braintree Road, which leads to Tye Green, and to the east by Long
Green Road. There are open fields to the south beyond which lies Tye Green.
A public footpath crosses the central part of the site, running roughly
north-south, and which continues within the site along part of its boundary with
the commercial area to the north.
20. The site itself covers some 12ha, comprising three large arable
fields / improved grassland and an area of semi-natural scrub woodland
adjoining Braintree Road. Existing field boundaries within and around the
edges of the site are, in the main, well defined by hedgerows. Overhead
electricity lines cross the southern part of the site, while an associated pylon
stands within it.
21. Although ‘siting’ would be reserved for future consideration, an indicative
proposed layout has been provided by the appellant. Having regard to the
living conditions evidence, the current version of the indicative layout makes
provision for a ‘buffer’ area that sweeps around the WTS, within which there
are no proposed dwellings shown. Rather, the buffer area is shown mainly to
be used as open space, planting and landscaping, and as part of the route of
the proposed access link road.
22. Notwithstanding any such likely separation between the built form of the
developed site and that of the adjoining commercial area and its location to the
south of the A120, subject to careful consideration of the layout and wider
reserved matters, the proposed development need not appear as or have the
feel of anything other than a part of Braintree as a settlement.
23. This is principally because of the site’s very close proximity to the adjoining
uses and buildings to the north and to the extent of the shared boundary
between the site and the existing built up area. It is not unusual for new
housing areas within a settlement not to abut an existing or proposed
residential area. The fact that most of these nearby existing uses are
commercial in nature rather than residential is of limited significance as the
developed site would read as a continuation of the built form of the greater
settlement due to its proximity. Furthermore, given its modest size, location
and evident functional relationship with the homes that it would primarily
serve, the proposed open space and associated planting would be seen as an
integral part of the residential development rather than a feature that would
segregate the developed site from Braintree.
24. There would also be a functional linked given that residents of the development
would be likely to use at least some of those very nearby uses, such as the pub
and garden centre, and do so using the range of travel options that would be
available to them, including pedestrian, cycle and vehicular. Although a little
more distant and separated by major roads, including in most instances by the
A120, residents of the development would also be likely to use the range of
facilities at Galley’s Corner and those a little to the north of the A120 at
Braintree Freeport and further north within and near to the town centre. This
would further establish the development’s functional relationship with
Braintree.
25. There are also other factors that would add to the sense that the appeal
scheme would look and feel a part of Braintree. For instance, the housing
proposed to the Long Green frontage could be designed to sit comfortably
within an existing, undeveloped gap between the gypsy and traveller site and a
pair of bungalows to the south that also abut the site. Furthermore, land to
the north west, a little beyond Braintree Road, has planning permission to be
developed as a DIY store. There is no reason to believe that that planning
permission will not be implemented. If it were to be, as seems likely, it would
deliver an even stronger urban context for the appeal development, further
strengthening the physical relationship with this southern part of Braintree,
notwithstanding the alignment of the designated settlement boundary.
26. Due to the foregoing factors and subject to its detailed design, the developed
site would appear as and function as a part of Braintree. This in itself would
help ensure that it would not be seen as part of Tye Green, in spite of the site’s
reasonably close proximity to this village. I recognise that there would be
some constraints on new planting within the site, including those associated
with the overhead powerlines and with the sight lines required for the proposed
roads. Nonetheless, the intervening open fields and retained existing planting,
which could be supplemented by some new planting within the site, would also
contribute to ensuring that the development would look and feel part of
Braintree, distinct and separate from Tye Green.
27. For these reasons, although the proposed development would reduce the
physical gap between Braintree and Tye Green and its presence would be
evident, particularly while traveling through the site along the realigned B1018
and on the right of way, and while not entirely consistent with the historic
settlement pattern, it would not result in coalescence. On this basis, it would
not conflict with Part D of CNP Policy 3.
28. Nonetheless, it would fail to maintain ‘the’ physical gap between Braintree and
Tye Green within the Open Countryside Buffer Area identified in Part Aii of CNP
Policy 3. It is important to note that the Policy refers to ‘the gap’ rather
than ‘a gap’. Consequently, in this regard, the development would conflict with
CNP Policy 3.
29. The appeal site is located within the Silver End Farmland Plateau Landscape
Character Area (the SEFPLCA), which covers a very substantial area to the
south east of Braintree, extending as far south as Witham. The SEFPLCA also
covers the significant majority of Cressing Parish. The site manifests several
characteristics of the SEFPLCA, as does much of the surrounding land within
the SEFPLCA to the south of Braintree in the vicinity of Tye Green. These
characteristics include gently undulating farmland, irregular predominantly
large arable fields marked by sinuous hedgerows, small woods and copses
providing structure and edges in the landscape, mostly tranquil character away
from the major roads, and scattered settlement pattern, with frequent small
villages.
30. Development of the appeal site as proposed would inevitably change its
character and appearance resulting in the harmful loss of many of those
characteristic features within the site, including the self-seeded woodland. Nor
would the development itself be small scale. Nonetheless, given the site’s
relative small size in the context of the very much larger SEFPLCA, be it its full
extent or its extent within the Parish, and its fairly contained nature, the appeal
development would not have a significant effect on the SEFPLCA at large or at
the Parish level. Consequently, the appeal scheme does not conflict with CNP
Policy 2.
31. At the Inquiry, it was put to me that, even if the ‘impact’ of a proposed
development on the SEFPLCA within the Parish were not ‘significant’, the three
criteria of CNP Policy 2 would still need to be met in order to comply with the
Policy. However, that is not how Policy 2 is worded and as such, in this case,
those criteria do not have a bearing on whether the appeal development would
accord with it or not.
32. In summary, for the reasons outlined above, the appeal development would,
with careful control of the matters that would be reserved, appear as a part of
Braintree and have a limited and largely localised effect on the area in the
vicinity of the site. Nonetheless, it would diminish the physical gap between
Tye Green and Braintree in conflict with the CNP and also alter the settlement
pattern and result in the harmful loss of countryside that is characteristic of the
area, that would, to a limited extent, be perceived from beyond the site,
particularly while traveling along the B1018 and Long Green.
33. Consequently, while the appeal development would harm the character and
appearance of the countryside between Braintree and Tye Green / Cressing,
that harm would be moderate. Therefore, it would conflict, in this regard and
in the other respects outlined above, with Policy RLP 2 of the Local Plan,
Policies CS 5, CS 8 and CS 9 of the Core Strategy, and Policy 3A of the CNP.
Other Issues and Planning Balance
34. As outlined above, the appeal development would be at odds with the local
adopted strategy for the location of new housing and would cause moderate
harm to the character and appearance of the countryside of Cressing Parish
between Braintree and Tye Green. It would also lead to the loss of Grade 2
agricultural land, which is identified as being ‘best and most versatile’ (BMV).
As a consequence, the proposals conflict in these respects with Policy RLP 2 of
the Local Plan, Policies CS 5, CS 8 and CS 9 of the Core Strategy, and
Policies 3A and 7C of the CNP.
35. Bearing in mind para 213 of the Framework, although Policies CS 8 and CS 9 of
the Core Strategy may not be entirely consistent with the Framework, purely
as a benchmark for the purposes of making my decision, I have treated them,
along with CNP Policy 3, as having undiminished weight.
36. The Council cannot currently demonstrate a Framework compliant supply of
housing land. Although the main parties have differing views on the extent of
the housing delivery shortfall, they have jointly asked me to determine the
appeal on the basis that supply lies in the range of 3.72 to 4.52 years. As a
consequence, the fact that the appeal development would be at odds with the
local strategy for the location of new housing and conflict, in that regard, with
the development plan, including with CNP Policy 7C, currently carries no more
than moderate weight. In this regard, I note and agree with the other appeal
decisions that have been put to me that indicate that the conflict with
Policies RLP 2 and CS5 should attract no more than moderate weight in
comparable circumstances.
37. Policy 7C applies only within Cressing Parish and as such it does not affect
housing delivery elsewhere in the District. Nonetheless, its weight is also
constrained at present as it has the potential to substantially restrict housing
delivery in Cressing Parish on land that is located beyond the settlement
boundaries and that does not already have planning permission for residential
development, such that it could have a significant influence on housing delivery
within the District overall. In addition to the absence of a five years’ supply of
housing land, this is in the related context of a Local Plan that planned for the
District’s development needs to 2011 only and where there appears to be little
prospect of the emerging Local Plan being adopted in the near future.
38. In these circumstances the so-called tilted balance, as set out in para 11 of the
Framework, applies to the assessment and determination of appeals of this
nature. With reference to this, para 14 of the Framework adds that the
adverse impact of allowing development that conflicts with a neighbourhood
plan is likely to significantly and demonstrably outweigh the benefits, provided
that four of its criteria apply. There is disagreement between the main parties
over whether or not one of these criteria is met, criterion (b), concerning
whether the CNP contains policies and allocations to meet its identified housing
requirement.
39. Irrespective of whether criterion (b) is met, as a benchmark for the purposes of
making my decision, I have worked on the basis that all four criteria are met. I
recognise that the CNP is recently adopted and that it went through the
required statutory process and was examined against the basic conditions and
other legal requirements. Nonetheless, in the particular circumstances of the
case, para 14 of the Framework has a limited effect on the weight carried by
the identified conflict with the CNP. There are a number of reasons for this, the
most significant of which are outlined in the following three paragraphs.
40. The Framework does not define how the housing requirement referred to in its
para 14(b) is to be derived. Although it differed at the time that the CNP was
prepared and submitted, the government’s Planning Practice Guidance (the
PPG) does provide guidance to this end. Consistent with the PPG, the Parish
Council requested a figure from the Council. However, no figure was provided.
41. In such circumstances, the PPG says that relevant policies, existing and
emerging spatial strategy, and characteristics of the neighbourhood area can
be taken into account, yet it appears that the CNP considered only the
requirements of Cressing Parish as a proportion of the whole District’s housing
need, without clear regard to the wider needs of the District. In this context,
the PPG refers to the use of the neighbourhood planning toolkit on housing
needs assessment, but it appears that that toolkit was not used for the CNP.
42. Overall, the housing requirement figure in the CNP, while having been through
the examination process, does not appear to have been tested in any
significant way as part of that process.
43. In this context, given that the appeal scheme would bring a range of benefits,
most notably the delivery of a substantial amount of market and affordable
housing in an area which currently has issues with housing delivery, which
together carry considerable weight in its favour, the identified harm and
development plan conflict carries modest1, comparative weight bearing in mind
the matters outlined above, and that the harm to the character and appearance
of the area would be moderate and that the loss of BMV land carries limited
weight given the large amount of such land in the District combined with the
need to find sites for new housing.
44. Consequently, notwithstanding Framework para 14, in the current
circumstances the adverse impacts of the appeal development would not
significantly and demonstrably outweigh the benefits, when assessed against
the policies in the Framework taken as a whole. Accordingly, it would be
sustainable development in the terms of the Framework for which there is a
presumption in its favour, such that the site is a suitable location for housing.
Other Matters
45. In the event that planning permission were to be granted and implemented the
S106 Agreement, dated 9 December 2020, would secure the provision of
on-site affordable housing at a rate of 40%; payments towards the provision
of off-site outdoor and indoor sports facilities, allotments, healthcare services,
early years and childcare provision, and visitor management measures in
relation to Essex Coast Natura 2000 European Designations, and also support
for the delivery of a travel plan for the appeal development; and the provision,
maintenance and delivery of on-site public open space.
46. The Council has submitted a detailed statement (the CIL Statement), which
addresses the application of statutory requirements to the planning obligations
within the S106 Agreement and also sets out the relevant planning policy
support / justification. I have considered the S106 Agreement in light of
Regulation 122 of The Community Infrastructure Levy (CIL) Regulations 2010
(as amended) and government policy and guidance on the use of planning
obligations. Having done so, I am satisfied that the obligations therein would
be required by and accord with the policies set out in the CIL Statement.
Overall, I am satisfied that all of those obligations are directly related to the
proposed development, fairly and reasonably related to it and necessary to
make it acceptable in planning terms.
47. The site is located within the Zone of Influence of the Blackwater Estuary
Special Protection Area (the SPA). Consequently, the appeal development
would be likely to have a detrimental effect on the SPA through unmitigated
additional recreational use. The Council has completed a ‘Habitat Regulations
Assessment’, which has been reviewed by Natural England resulting in no
objection to the appeal proposals subject to mitigation. As outlined above,
1 ‘Modest’ only in relative terms compared to the combined weight of the benefits.
such mitigation could be secured via the S106 Agreement. It is for me, as
decision-taker and competent authority, to undertake an Appropriate
Assessment of the appeal development under The Conservation of Habitats and
Species Regulations 2017 (as amended). Having reviewed all of the evidence
before me, I am content that mitigation would be required, as identified by the
Council, and that it would be secured by the S106 Agreement, such that the
proposed development would not have an adverse effect on the integrity of
the SPA.
48. I have also been provided with a range of decision letters in respect to other
planning appeals. While I am mindful of the need for consistency in
decision-making, each application for planning permission must be determined
on its individual merits and none of those decision letters have had a significant
bearing on my decision.
49. In addition to the foregoing matters, concern has been expressed locally,
including by Cressing Parish Council, in respect to local infrastructure, services
and facilities as existing and proposed; the effects of the development on
hedgerows, possible ridge and furrow field systems, biodiversity and the
historic environment; car parking capacity at local stations; pedestrian / cycle
links, including improvements to the right of way that crosses the site;
employment opportunities in the area, including the potential for residents to
have to commute outside the District; site contamination; the wider living
conditions of residents; the usability of the proposed open space and absence
of allotments; the cumulative effect of the development with other planned
development; it may be premature / prejudicial to the local plan-making
process and to the route of the A120; there should now be adequate housing
land supply given recent consents and lack of need; the social effects on the
community; highway safety, congestion and on-site parking; drainage and
flooding; and that powerlines cross the site.
50. These matters are largely identified and considered within the Council officer’s
report on the appeal development. They were also before the Council when it
prepared its evidence and when it submitted its case at the Inquiry and are
largely addressed in its evidence and in the various statements of common
ground. Other than as set out above, the Council did not conclude that they
would amount to reasons to justify withholding planning permission. I have
been provided with no substantiated evidence which would prompt me to
disagree with the Council’s conclusions in these respects subject to the S106
Agreement and the imposition of planning conditions.
Conditions and Conclusion
51. The Council and the appellant jointly prepared a list of draft conditions, which
include the standard time limit / implementation conditions. I have considered
these in the light of government guidance on the use of conditions in planning
permissions and made amendments accordingly.
52. In order to provide certainty in respect to the matters that are not reserved for
future consideration, a condition requiring that the development is carried out
in accordance with the approved plans would be necessary. For that reason
and to protect the character and appearance of the area, a condition limiting
the number of dwellings permitted would also be necessary.
53. Conditions would be necessary to secure biodiversity and arboricultural
mitigation, including details of lighting, to protect the character and appearance
of the area, as well as wildlife and their habitat. Conditions to control ground
floor levels of the permitted buildings, the provision of bin storage and further
landscaping details would be necessary to help the development harmonise
with its context. Conditions to control the details of surface and foul water
drainage would also be necessary to reduce flood risk, to control surface water
run-off and in the interests of public health.
54. Conditions would also be necessary to ensure that features of archaeological
interest are properly examined, recorded and, where necessary, preserved. In
the interests of highway safety and to safeguard residents’ living conditions,
conditions would also be necessary to ensure that the construction works
proceed in accordance with a Construction Method Statement. Conditions
requiring adequate remediation of any contamination affecting the site would
be necessary to safeguard the health and well-being of future occupiers.
55. To promote sustainable modes of transport, reduce the need for travel and in
the interests of highway safety, conditions to secure the implementation of a
Residential Travel Plan, improvements to the right of way that crosses the site,
and the upgrading of two existing nearby bus stops would be necessary. For
these reasons, conditions would also be necessary to control the detail and
provision of the proposed site access arrangements. With regard to the
associated stopping sight visibility envelopes and control of any planting
therein, the parameters suggested by the appellant, as informed by the Essex
Design Guide, would be sufficient bearing in mind that those of the Design
Manual for Roads and Bridges generally relate to the trunk road network.
56. A condition would also be necessary to secure, where needed, noise mitigation
measures. In this regard, for the reasons outlined in the Living Conditions
section above, the approach suggested by the appellant would suffice.
However, a condition specifically to control facing materials to be used on the
proposed buildings, as identified by the main parties, would be unnecessary
given that ‘appearance’ would be a matter reserved for future consideration.
57. In conclusion, the proposed development would be at odds with the local
strategy for the location of new housing, cause moderate harm to the character
and appearance of the area and lead to the loss of BMV land in conflict with the
development plan. However, in the current circumstances, notwithstanding
Framework para 14, these adverse impacts would not significantly and
demonstrably outweigh the benefits, when assessed against the policies in the
Framework taken as a whole. On that basis, the appeal scheme would
represent sustainable development in the terms of the Framework, which is a
material consideration that, in the particular circumstances of the case,
outweighs the conflict with the development plan as a whole. Accordingly,
subject to the identified conditions, the appeal is allowed.
G D Jones
INSPECTOR
APPEARANCES2
FOR THE LOCAL PLANNING AUTHORITY:
Emma Dring of Counsel Instructed by Legal Services, Braintree
District Council
She called
Michelle Bolger CMLI, Dip Director of Michelle Bolger Expert Landscape
LA, BA, PGCE, BA Consultancy
Pamela Sharp BSc (Hons), Environmental Health Officer, Braintree
MCIEH District Council
Timothy Havers BA, MSc, Principal Development Management Planner,
RTPI Braintree District Council
FOR THE APPELLANT:
Paul Tucker of Queens Counsel3 Instructed by Rawdon Gascoigne, Emery
Planning
He called
Simon Laws, DipLA, CMLI Managing Member of ADP LLP
Donald Quinn, BSc (Hons), Managing Director of Hepworth Acoustics Ltd
FIOA
Katrina Early Hawkins, BSc Chairman of Smith Grant LLP
(Hons), MSc, MIAQM, CEnv
Rawdon Gascoigne, MRTPI, Director of Emery Planning
BA Hons
INTERESTED PERSONS:
Cllr Susan Simpson Cressing Parish Council
Tony Perkins Local Resident
2 Although by the time the Inquiry opened highways matters were substantially a matter of common ground, a
round table session on highways matters was held in order for the main parties to explain their respective
positions on this matter and for them to field any questions. The session was attended by Harry Flexman,
MSc (Hons), Associate Transport Planner of Connect Consultants on behalf of the appellant and by Martin Mason of
Essex County Council as local highway authority.
3 Mr Tucker was assisted by Freddie Humphreys of Counsel, however, he did not act as advocate for the appellant
and attended primarily on the basis that Mr Tucker may not have been able to attend had the Inquiry extended
into a sixth day, in which case he would have taken over as advocate on behalf of the appellant.
SCHEDULE OF CONDITIONS FOR APPEAL REF APP/Z1510/W/20/3253661:
1. Details of the scale, appearance and layout of the building(s), and the
landscaping of the site, hereinafter referred to as "the reserved matters", shall
be submitted to and approved in writing by the Local Planning Authority (LPA)
before any development takes place and the development shall be carried out
as approved.
Application for approval of the reserved matters shall be made to the LPA not
later than 3 years from the date of this permission.
The development hereby permitted shall take place not later than 2 years
from the date of approval of the last of the reserved matters to be approved.
2. The submission of reserved matter applications pursuant to this outline
planning permission shall together provide for no more than 250 dwellings.
3. The development hereby approved shall be carried out in accordance with the
following approved plans:
• Site Location Plan P01 REV05; and
• Proposed Highway Layout 17126-012-A.
4. Any reserved matters application shall be supported by a Biodiversity
Enhancement Strategy for Protected and Priority Species, which shall include:
• Purpose and conservation objectives for the proposed enhancement
measures;
• Detailed designs to achieve stated objectives;
• Locations of proposed enhancement measures by appropriate maps and
plans;
• Persons responsible for implementing the enhancement measures;
• Details of initial aftercare and long-term maintenance (where relevant);
and
• A timetable for implementation.
The development shall be carried out in accordance with the approved
Strategy.
5. Any reserved matters application that seeks approval of appearance, layout or
scale of the building(s) shall be accompanied by full details of the location and
design of the refuse bins and recycling materials separation, storage areas
and collection points, including a timetable for the provision of these facilities.
The development shall be carried out in accordance with the approved details.
6. Any reserved matters application relating to scale or layout shall be
accompanied by full details of the finished levels, above ordnance datum, of
the ground floor(s) of the proposed building(s), in relation to existing ground
levels. The development shall be carried out in accordance with the approved
details.
7. Any reserved matters application relating to layout shall be accompanied by
an Arboricultural Report for approval by the Local Planning Authority detailing
existing trees, shrubs and hedges on the site to be retained and those to be
removed. The Report shall also detail protection measures for trees, shrubs
and hedges identified as being retained and the development shall be carried
out in accordance with the approved Report.
8. Development shall not be commenced until the above approved details of the
means of protecting all of the existing trees, shrubs and hedges to be retained
on the site from damage during the carrying out of the development have
been installed and such measures shall remain in place throughout the
construction phase of development.
No materials, goods or articles of any description shall be stacked, stored or
placed at any time within the limits of the spread of any of the existing trees,
shrubs or hedges identified for retention.
No works involving alterations in ground levels, or the digging of trenches, or
excavations of any kind, (including the laying or installation of drains, pipes,
cables or other services) shall be carried out within the extent of the spread of
any existing trees, shrubs and hedges identified for retention.
No machinery of any kind shall be used or operated within the extent of the
spread of the existing trees, shrubs or hedges.
9. Prior to the commencement of development, a Biodiversity Construction
Environmental Management Plan (BCEMP) shall be submitted to and approved
in writing by the Local Planning Authority. The BCEMP shall include:
• Risk assessment of potentially damaging construction activities;
• Identification of “biodiversity protection zones”;
• Reasonable Avoidance Measures (both physical measures and sensitive
working practices) to avoid or reduce impacts during construction (may
be provided as a set of method statements);
• The location and timing of sensitive works to avoid harm to biodiversity
features;
• The times during construction when specialist ecologists need to be
present on-site to oversee works;
• Responsible persons and lines of communication;
• The role and responsibilities on-site of an ecological clerk of works or
similarly competent person; and
• Use of protective fences, exclusion barriers and warning signs.
The approved BCEMP shall be adhered to and implemented throughout the
construction period strictly in accordance with the approved details.
10. Prior to the commencement of development, a detailed surface water
drainage scheme for the site, based on sustainable drainage principles and an
assessment of the hydrological and hydrogeological context of the
development, shall be submitted to and approved in writing by the Local
Planning Authority. The scheme shall include details of the following:
• Verification of the suitability of infiltration of surface water for the
development based on infiltration tests undertaken in accordance with
BRE 365 testing procedure and the infiltration testing methods found in
chapter 25.3 of the CIRIA SuDS Manual C753;
• Limiting discharge rates to 11l/s for all storm events up to and including
the 1 in 100 year rate plus 40% allowance for climate change;
• Provide sufficient storage to ensure no off-site flooding as a result of the
development during all storm events up to and including the 1 in
100 year plus 40% climate change event with a 10% allowance for urban
creep;
• Demonstrate that all storage features can half empty within 24 hours for
the 1 in 100 year plus 40% climate change critical storm event - Final
modelling and calculations for all areas of the drainage system;
• The appropriate level of treatment for all runoff leaving the site, in line
with the Simple Index Approach in Chapter 26 of the CIRIA SuDS
Manual C753;
• Detailed engineering drawings of each component of the drainage
scheme;
• A final drainage plan which details exceedance and conveyance routes,
finished floor levels and ground levels, and the location and sizing of any
drainage features;
• A written report summarising the final strategy and highlighting any
minor changes to the approved strategy;
• A Maintenance Plan detailing the maintenance arrangements for different
elements of the surface water drainage system and maintenance
activities / frequencies; and
• A timetable for implementation of the above.
The approved scheme shall be implemented thereafter in accordance with the
approved timetable.
11. Prior to above ground construction, a scheme for on-site foul water drainage
works, including connection point(s) and discharge rate(s), shall be submitted
to and approved in writing by the Local Planning Authority. Prior to
occupation of any phase of the development the approved works relating to
that phase shall be carried out in complete accordance with the approved
scheme.
12. No development or preliminary groundworks shall commence until a
programme of archaeological evaluation has been secured and undertaken in
accordance with a Written Scheme of Investigation (WSI) submitted to and
approved in writing by the Local Planning Authority. The WSI shall include a
mitigation strategy detailing the excavation / preservation strategy where
appropriate and a timetable for the carrying out of this work. The
development shall be carried out in accordance with the approved WSI.
13. A post-excavation assessment shall be submitted to the Local Planning
Authority (LPA) within six months of the completion of fieldwork based upon
the Written Scheme of Investigation approved under Condition 12, unless an
alternative timescale is otherwise approved in writing in advance by the LPA.
This shall result in the completion of post-excavation analysis, preparation of
a full site archive and report ready for deposition at the local museum, and
submission of a publication report.
14. Prior to the commencement of development, a Construction Method
Statement shall be submitted to and approved in writing by the Local Planning
Authority (LPA). The Statement shall provide for:
• Safe access to and from the site, including details of any temporary haul
routes and the means by which these shall be closed off following the
completion of the construction of the development;
• The parking of vehicles of site operatives and visitors;
• The loading and unloading of plant and materials;
• The storage of plant and materials used in constructing the
development;
• The erection and maintenance of security hoarding, including decorative
displays and facilities for public viewing, where appropriate;
• Wheel washing facilities;
• Measures to control the emission of dust and dirt during construction;
• A scheme for recycling / disposing of waste resulting from demolition and
construction works;
• Delivery, demolition, site clearance and construction working hours;
• Details of how surface water runoff and groundwater shall be managed
throughout the construction phase;
• Details of how the approved Statement shall be implemented and
adhered to, including contact details (daytime and 24 hour) for
specifically appointed individuals responsible for ensuring compliance;
and
• Details of the keeping of a logbook on-site to record all complaints
received from the public and the action taken in response. The logbook
shall be available for inspection by the LPA and shall include information
on the action taken in response to the complaint.
The approved Statement shall be adhered to throughout the construction
period for the development.
15. Prior to the commencement of development, an investigation and risk
assessment, in addition to any assessment provided with the planning
application, shall be completed in accordance with a scheme to assess the
nature and extent of any contamination on the site, whether or not it
originates on the site. The contents of the scheme shall be submitted to and
approved in writing by the Local Planning Authority. The report of the
findings shall include:
• A survey of the extent, scale and nature of contamination;
• An assessment of the potential risks to:
- Human health,
- Property (existing or proposed), including buildings, crops,
livestock, pets, woodland and service lines and pipes,
- Adjoining land,
- Groundwaters and surface waters,
- Ecological systems, and
- Archaeological sites and ancient monuments; and
• An appraisal of remedial options, and proposal of the preferred option(s).
This shall be conducted in accordance with DEFRA and the Environment
Agency’s ‘Model Procedures for the Management of Land Contamination,
CLR 11’.
16. Prior to the commencement of development, a detailed remediation scheme
to bring the site to a condition suitable for the intended use by removing
unacceptable risks to human health, buildings and other property and the
natural and historical environment, has been prepared, and submitted to and
approved in writing by the Local Planning Authority. The scheme shall
include all works to be undertaken, proposed remediation objectives and
remediation criteria, timetable of works and site management procedures.
The scheme shall ensure that the site does not qualify as contaminated land
under Part 2A of the Environmental Protection Act 1990 in relation to the
intended use of the land after remediation. The development shall be
carried out in accordance with the approved scheme.
17. Following the completion of measures identified in the remediation scheme
as approved under Condition 16, a verification report that demonstrates the
effectiveness of the remediation carried out shall be produced and submitted
to and approved in writing by the Local Planning Authority prior to the
occupation of any dwellings.
18. Notwithstanding Conditions 16 and 17, should contamination be found that
was not previously identified or not considered in the approved remediation
scheme, that contamination shall be made safe and reported immediately to
the Local Planning Authority (LPA). The site shall be reassessed in
accordance with Condition 15 and a separate remediation scheme shall be
submitted to and approved in writing by the LPA. Such approved measures
shall be implemented and completed prior to the first occupation of any
parts of the development.
19. The landscaping scheme required by Condition 1 of this permission shall
incorporate a detailed specification of hard and soft landscaping works and
details of boundary treatments and means of enclosure. This shall include
plant / tree types and sizes, plant numbers and distances, soil specification,
seeding and turfing treatment, colour and type of material for all hard
surface areas and method of laying, refuse storage, signs and lighting. It
shall also include details of the position, design, height and materials of the
boundary treatment and means of enclosure.
All areas of hardstanding shall be constructed using porous materials laid on
a permeable base.
All planting, seeding or turfing contained in the approved details of the
landscaping scheme shall be carried out in the first planting and seeding
seasons after the commencement of the development.
All hard surface areas approved as part of the scheme shall be carried out
before the first occupation of the buildings or upon the completion of the
development whichever is the earlier.
Any trees or plants which die, are removed, or become seriously damaged or
diseased within a period of 5 years from the completion of the development,
shall be replaced in the next planting season with others of a similar size and
species.
20. Prior to occupation of the dwellings hereby permitted, a lighting design
scheme for public areas shall be submitted to and approved in writing by the
Local Planning Authority. The scheme shall identify those features on-site
that are particularly sensitive for bats and that are likely to cause
disturbance along important routes used for foraging, and show how and
where external lighting shall be installed (through the provision of
appropriate lighting contour plans, isolux drawings and technical
specifications) so that it can be clearly demonstrated that any areas to be lit
shall not disturb or prevent bats using their territory.
All external lighting shall be installed in accordance with the specifications
and locations set out in the approved scheme and maintained thereafter in
accordance with the scheme. No additional external lighting outside the
curtilage of dwellings shall be installed without prior written consent from the
Local Planning Authority.
21. No occupation of the development shall take place until a suitable access has
been built from Long Green or the B1018 Braintree Road in the form of one
of the proposed roundabout accesses approved under this planning
permission, and no more than 50 dwellings shall be occupied until the
approved link road and second roundabout access has been delivered in
accordance with the details controlled by Condition 25.
22. Prior to the commencement of development, a scheme to upgrade two
existing bus stops, namely the Braintree bound stop on Millennium Way (ID
ref: FREEPOR6) and the Witham bound stop on B1018 between Galley’s
Corner and Fowler’s Roundabout (ID ref: 3802502), shall be submitted to
and approved in writing by the Local Planning Authority. The completion of
these upgrades shall be carried out in accordance with the approved scheme
prior to first occupation of the development.
23. Prior to the commencement of development, a scheme to upgrade the
existing Public Right of Way Footpath 4 Cressing over that part of the route,
which is within the site boundary, to include implementation timescales, shall
be submitted to and approved in writing by the Local Planning Authority.
The completion of the approved upgrades shall be in accordance with the
approved details and timescales.
24. Prior to the commencement of development, a Residential Travel Plan for the
developed site shall be submitted to and approved in writing by the Local
Planning Authority. The approved Plan shall be implemented prior to first
occupation of the development.
25. Prior to the commencement of development, a drawing detailing the simple
priority access(es) along the link road between the proposed B1018
Braintree Road / site access roundabout and the Long Green / site access
roundabout shall be submitted to and approved in writing by the Local
Planning Authority. The drawing shall provide the general arrangement
between the heads of the splitter islands at either end of the link road. The
layout shall include:
• The site accesses which shall be simple priority T-junctions (without
ghost island right turn lanes);
• A minimum 6.75m wide carriageway;
• A minimum 3.5m wide footway / cycleway on one side of the above
carriageway and a minimum 2m wide footway on the other; and
• A minimum of two bus stops on the above carriageway.
Stopping sight visibility envelopes shall be provided as shown on approved
drawing 17126-012-A, which shall be kept clear of obstructions between
0.6m and 2.4m (except for isolated slim objects). All trees shall be removed
within the visibility envelopes unless otherwise approved in writing by the
Local Planning Authority.
The development shall be carried out in accordance with the approved
details and with the trigger points for the implementation of these details as
set out in Condition 21.
26. Prior to the commencement of development, a detailed noise mitigation
report shall be submitted to and approved in writing by the Local Planning
Authority. The report shall detail measures that shall be incorporated into
the development to ensure that the proposed residential development is
adequately protected from such noise. The assessment shall be completed
in line with BS8233. The development shall only be carried out in
accordance with the approved details and shall be retained as such
thereafter.