Case Reference: 3256190

Appeal Decision
Inquiry held on 24 to 27 November 2020
Site visit made on 28 October 2020
by Grahame Gould BA MPhil MRTPI
an Inspector appointed by the Secretary of State
Decision date: 7 January 2021
Appeal Ref: APP/P1560/W/20/3256190
700 St Johns Road and St Johns Nursery site, Earls Hall Drive, Clacton on
Sea
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant planning permission.
• The appeal is made by [APPELLANT] against the decision of Tendring District
Council.
• The application Ref 18/01779/FUL, dated 19 October 2018, was refused by notice dated
19 February 2020.
• The development proposed is demolition of nursery buildings and dwellinghouse.
Erection of 195 residential units (comprising 6 two bed houses, 87 three bed houses,
33 four bed houses, 25 five bed houses, 12 one bedroom apartments and 24 two
bedroom apartments), and 8 live work units (mixed commercial units measuring
1,064 square metres in total with flats above). Associated roads, open space, drainage,
landscaping and other infrastructure.
Decision
1. The appeal is dismissed.
Procedural matters
2. The planning application was amended by the appellant prior to its
determination by the Council. The description of the development subject to
this appeal (the development) appearing on the Council’s decision notice is as
stated in the banner heading above and that description is accepted by the
appellant.
3. While the Inquiry finished sitting on 27 November, I adjourned it, rather than
formally closing it to allow for the submission of:
• A certified copy of an executed Unilateral Undertaking (UU) entered into
under Section 106 of the Town and Country Planning Act 1990 (as
amended).
• A final version of a list of suggested planning conditions agreed between
the appellant and the Council, which was submitted on
4 December 2020.
• Clarification about the proximity of the appeal site to the various Special
Protection Areas for birds (SPA) and Special Areas of Conservation (SAC)
and details for the SPAs and SACs (designation citations, conservation
objectives and condition). This information having been submitted by the
Council on 4 December 2020 and comprises inquiry core documents
(CDs) CD8.20 to CD8.25.
• Copies of any exchanges of correspondence between the Council and the
Office for National Statistics (ONS) or other documentation in the public
domain concerning the matter of unattributable population change (UPC)
in Tendring. A note addressing this matter was submitted by the Council
on 4 December 2020 (CD13.13).
• Clarification about the inclusion of housing sites with resolutions to
approve within the Council’s calculation of its five year supply of
deliverable housing sites (5yrHS), as stated in the Tendring Strategic
Housing Land Availability Assessment of May 2020 (SHLAA) (CD6.3).
This clarification was provided by the Council on 4 December 2020 in
CD13.11 and CD12, supplementing the information provided by the
Council in CD13.10.
4. The Council refused planning permission for five reasons (RRs). However, at
the pre-inquiry case management conference held on 24 September 2020 the
Council advised that it would not be ‘pursuing’ (defending) the third RR (living
conditions for adjoining residents). The Council in the proof of evidence (PoE)
provided by its planning witness1 restated its intention not to defend its third
RR. Notwithstanding the Council’s position with respect to the third RR I have
had regard to the representations made by residents concerning their living
conditions.
5. The fourth and fifth RRs concerned the absence of planning obligations
entered into under a legal agreement2 relating to: the provision of affordable
housing; financial contributions for local infrastructure provision and effects
on the integrity of the SPAs and SACs, in particular, the Hamford Water SPA.
The Council through the giving of its written and oral evidence, however,
made it clear that in the event of the appellant entering into planning
obligations relating to the matters referred to in the fourth and fifth RRs then
the concerns raised in those RRs would become uncontentious.
6. With respect to the development’s effect on the Hamford Water SPA and
further to a question I raised at the inquiry, the Council confirmed on
4 December 20203 that the appeal site had incorrectly been identified as
being in the zone of influence (ZoI) for this SPA and that the development
should be considered as being within the ZoI for the Colne Estuary SPA, the
Blackwater Estuary SPA, the Dengie SPA and the Essex Estuaries SAC. I have
therefore treated the wording of the fifth reason for refusal as though it
related to the aforementioned SPAs and SAC.
7. A UU was executed by the appellant on 14 December 20204. The UU contains
planning obligations binding upon the appellant and its successors in title that
would secure the provision of: 23 affordable homes, open space on site and
enhanced footway and cycle facilities; financial contributions for education,
healthcare and bus facilities; and a financial contribution to assist with the
operation of the Essex Coastal Recreational disturbance Avoidance and
1 Paragraph 1.10 of Mr Carpenter’s PoE
2 An agreement or unilateral undertaking entered into under Section 106
3 Within the text of a covering email from the Council submitted to the Planning Inspectorate on 4 December
4 A certified copy of the UU was submitted to the Planning Inspectorate on 15 December as per the timetable for
its submission that was set while the inquiry was sitting
Mitigation Strategy (RAMS) to mitigate the effects of the development’s
occupation on the Colne Estuary SPA, the Blackwater Estuary SPA, Dengie
SPA and the Essex Estuaries SAC.
8. As the planning obligations contained in the executed UU have addressed the
concerns identified by the Council in its fourth and fifth reasons for refusal, I
have treated those RRs as not being subject to any dispute between by the
appellant and the Council. I return below to the planning obligations as other
matters.
9. The adopted development plan, the Tendring District Local Plan of 2007
(TDLP), is in the process of being replaced by the emerging Tendring District
Local Plan 2013-2033 (the eLP). The Council intends that the eLP will
comprise two parts (sections). Section 1 of the eLP containing strategic
policies and proposals that will ‘… apply to the whole of North Essex (including
Tendring, Colchester and Braintree) …’, while Section 2 will contain policies
and proposals specific to Tendring5. While the whole of the eLP has been
submitted for examination, the two sections are being examined separately.
10. The examination of Section 1 of the eLP commenced in 2018 and was
concluded on 10 December 2020 with the examining Inspector’s (EI) report
being made publicly available that day6. The EI has concluded that Section 1
of the eLP would be sound with the making of recommended main
modifications and would be capable of being adopted by the Council. Further
to the publication of the EI’s report the appellant and the Council were given
the opportunity to make written comments on any implications the EI’s
conclusions on the housing requirement for Tendring might have upon the
cases that the parties made while the inquiry was sitting. In that regard the
Council and the appellant both made comments on 18 December. The Council
has advised it is expected that at a Full Council meeting on 26 January 2021 a
decision will be made as to whether Section 1 of the eLP should or should not
be adopted.
11. As Section 1 of the eLP has reached a very advanced stage in its preparation I
consider it should be considered as being a material consideration of great
weight for the purposes of the determination of this appeal.
12. The examination of Section 2 of the eLP is expected to commence following
the completion of the examination of Section 1. Section 2 of the eLP therefore
remains liable to change and I therefore consider that very little weight should
be attached to the policies of Section 2 of the eLP for the purposes of the
determination of this appeal.
13. The inquiry was formally closed in writing on 21 December 2020.
Main Issues
14. Given the Council’s position with respect to the third, fourth and fifth RRs
referred to above, I consider the main issues are the effect of the
development on:
• the character and appearance of the surrounding area; and
5 Paragraph 20 of the Council’s Statement of Case (CD12.2)
6 The eLP examining Inspector’s report and schedule of recommended Main Modifications were submitted as
inquiry documents by the Council on 11 December 2020 as CD13.16 and CD13.17
• the safety and free flow of traffic on the local highway network.
Reasons
Character and Appearance
15. The site has an area of 7.6 hectares and the majority of it comprises the
St John’s Nursery. The nursery is occupied by glasshouses that can lawfully be
used for horticulture, with the ancillary sale of produce ‘grown on’ at the site7.
The site also includes a chalet bungalow and its grounds at 700 St John’s
Road (No 700) and part of the grounds of the bungalow at 762 St John’s Road
(No 762). The development would involve the removal of all of the
glasshouses and the provision of a total of 195 dwellings comprising a mixture
of houses, some blocks of flats and eight live work units. The proposed houses
would variously be two, two and a half and three storeys in height, while the
blocks accommodating the flats and live work units would be three and four
storeys high. The chalet bungalow at No 700 would be demolished to provide
a new vehicular and pedestrian access/estate road. In addition, there would
be land take at No 762 to facilitate a new pedestrian and cycle link with St
John’s Road just to the east of Earls Hall Drive.
16. There is no dispute that the nursery’s glasshouses are of no particular
architectural merit, given their functional design. That said the glasshouses
are low-rise buildings, which I found not to appear out of place, given their
siting at the transition between Clacton’s suburban area and the essentially
open farmland characterising the area to the north of St John’s Road. The
proposed housing would lie behind the ribbon of bungalows, chalet bungalows
and occasional two storey houses in this part of St John’s Road. St John’s
Road at this point is generally characterised by road frontage development,
with the St John’s Nursery being a notable exception. The other exceptions
being the Leisure Glades caravan park, benefitting from a planning permission
for a 62 pitch extension8, and the development of houses and bungalows at
and to the rear of 824 St John’s Road granted planning permission under
application reference 18/00379/OUT (appended to CD12.1) further to a
similar proposal being allowed on appeal9.
17. Mr Thomas, in responding to one of my questions at the inquiry, confirmed
that he was not asked by the appellant to consider redesigning the
development’s layout within the vicinity of the site’s northern boundary, when
it was decided that the thirty or so Poplar trees10 along that boundary would
not be retained as part of the development. That decision being made after
the planning application’s submission and further to the Council’s tree officer
advising that it would be inadvisable for the Poplar trees to be retained within
the development.
18. Replacement tree planting along the site’s northern boundary, secured by the
imposition of a planning condition, could be undertaken. However, such
planting would take time to become established and provide any meaningful
visual screening for a row of 22 houses of between two and three storeys in
height. That row of 22 houses being significantly taller than the glasshouses,
7 Paragraph 72 of enforcement appeal decisions APP/P1560/C/18/3214046 and APP/P1560/C/18/3214047 (CD7.5)
8 Permission 18/00952/FUL granted on 15 April 2019 (appended to CD12.1)
9 APP/P1560/W/15/3002161 (CD7.7.6)
10 As identified in the submitted Arboricultural Impact Assessment (CD2.3)
with the appreciation of the mass of the glasshouses in part being mitigated
by the screening afforded by the Poplar trees.
19. I share the concern expressed by the Council that there could be an
incompatibility between the longer term retention of any new screen planting
and the occupation of the dwellings adjoining the site’s northern boundary.
That being because the rear gardens adjoining the site’s northern boundary
would be of a limited depth and the presence of tall screen planting could
affect the utility of those gardens, a number of which would serve four or five
bedroom houses. The Council contends that relying on screen planting within
back gardens would not be good practice, given the vulnerability of such
planting to removal by the occupiers of individual properties. The imposition
of a planning condition would be capable of securing the short term retention
of any new tree planting. However, such a condition would not ensure that
planting’s retention in perpetuity, with their being no certainty that the
retention of trees planted as part of the development could be secured
through the making of a tree preservation order (TPO).
20. Although the development would be situated behind the existing frontage
dwellings on St John’s Road, it would be open to view to varying degrees by
users of the public footpath running along Earls Hall Road. Given that and
notwithstanding the fact that the area within the vicinity of the nursery is not
subject to any special landscape designations, I consider it important that the
treatment of the site’s northern boundary should be handled so that the
development would integrate well with its surroundings. I am not persuaded
that the development would do that because of the juxtaposition of a row of
rear gardens facing directly onto the open farmland to the north. I therefore
consider that the appearance of this part of the development would be poor
and would fail to provide an appropriate response to its context, at what
would become a new point of transition between housing and the open
countryside beyond.
21. I accept that the site is of a scale that could accommodate some new
buildings of more than two storeys in height without such buildings becoming
disrespectful of the established suburban context. However, I consider it
would be inappropriate to have some two and a half and three storey houses
that were sited only around 12 metres from the northern boundary. In that
regard what is proposed at the nursery would depart from the approach that
is expected to be followed in connection with the implementation of the
950 dwelling scheme at the nearby Rouses Farm, where built development
within the vicinity of the long western boundary next to the retained farmland
would mainly be of one or two storeys and no more than 10.5 metres in
height11. Additionally, at Rouses Farm it is expected that a 20 to 30 metre
wide landscape buffer would be provided along that development’s
countryside boundary12.
22. The absence of a freestanding landscape buffer along the northern boundary
would also be at odds with the ‘approach’ promoted in the Council’s landscape
impact assessment for various sites, including the St John’s Nursery that was
11 Subject to planning application 17/01229/OUT and as shown on the building heights parameter plan for that
development (CD9.1) and which is subject to a resolution to grant planning permission made on 30 May 2018
(page 25 of CD6.3)
12 Paragraph 5.14 of Mr Russell-Vick’s PoE
undertaken in 2010 (the Amec report)13. In the Amec report it was suggested
that along the nursery’s northern boundary the existing hedges should be
retained to form part of a 20 metre wide ‘green buffer’. Within Appendix 4 of
the Amec report site specific ‘Potential Settlement Impact Mitigation’
measures were identified and for sites 1/3 and 1/4 the provision of a
‘… strong defendable landscape boundary along the northern perimeter …’ was
recommended.
23. While the Amec report does not have the status of formally adopted local
planning policy or guidance, within the context of testing the capacity for
potential new housing sites, it does outline an approach for how in very
general terms the nursery might be redeveloped in a manner intended to be
respectful of its context. Within the Amec report an indicative density of
25 dwellings per hectare (dph) was put forward for the nursery. The
suggested approach for the nursery being outlined without being influenced
by any particular proposal for this site and against the backdrop of Policy HG7
of the TDLP indicating that new housing should be provided at a minimum of
30 dph.
24. I recognise that in places the site’s existing buildings and boundary
treatments do not have an attractive appearance when they are viewed from
Earls Hall Road. That said I am not persuaded that the development when
viewed from Earls Hall Drive ‘… would offer a substantially improved visual
experience for walkers and residents using the footpath’14.
25. It is proposed that eighteen houses would have rear gardens backing onto the
site’s eastern boundary. However, the site’s eastern boundary is not as
publicly visible as the northern one and here it is proposed that the existing
trees would be retained. Those existing trees, predominantly Oaks ranging
between 7.0 and 18 metres in height15, would be towards the ends of longer
gardens, when compared with the garden depths proposed along the northern
boundary. I therefore consider the well established trees adjoining the eastern
boundary would be less susceptible to removal compared with the screen
planting intended for the northern boundary, with there being scope to secure
the former’s retention through making TPOs. I therefore consider the layout
and design of the development within the vicinity of the site’s eastern
boundary to be unobjectionable.
26. Many of the houses and the flat blocks would be taller than the ribbon of
dwellings on the northern side of St John’s Road and some of those new
dwellings would be visible through the roof level gaps between the existing
dwellings. However, I consider that only fleeting or distant views of the new
houses and flat blocks from St John’s Road and further afield to the south
would be possible. In that respect I am of the view that the new dwellings
would not have an overt presence and that in the views from the south this
development would not adversely affect the area’s character and appearance.
Discounting any views from Earls Hall Road I am also of the view that the
proposed development would not appear out of place when viewed from
further afield to the east or west.
13 Identified as part of ‘Land North or St John’s Road and North of Cann Hall Estate, Clacton (Sites 1/3 and 1/4) in
Appendix 3 of the Amec report submitted as Appendix 1 to Mr Robinson’s PoE
14 Paragraph 4.40 of Mr Robinson’s PoE
15 As identified in the Arboricultural Impact Report of December 2019 (CD2.3)
27. As I have indicated above, I consider buildings of more than two storeys need
not necessarily be objectionable at the nursery. Block C would be a four
storey building and this building was originally designed to have a fully flat
roof. However, Bock C’s design was amended prior to planning permission
being refused by the Council and it is proposed that it would have a mixed
pitched and flat roof form. While the pitched roof elements of Block C would
be in sympathy with the roof types characterising this suburban location, I
consider Block C would be of a scale that would be uncharacteristic of its
surroundings, with there being a reliance on what for this area would be a
unique flat roofed central spine. I consider that the inclusion of that flat roof
element in Block C’s design is indicative of this building being over scaled.
28. The development because of its backland nature would be served by a
comparatively long and eleven metre wide estate road, comprising a vehicular
carriageway, footways along each side and planting on its eastern side. While
such a long estate road approach into the heart of the development would be
uncharacteristic of its surroundings, I do not find this aspect of the scheme of
itself to be objectionable. That is because for vehicular users of St John’s Road
passing by, the length of the estate road would not be immediately apparent,
while for pedestrians using St John’s Road the length of the access would be
of no particular consequence. For prospective occupiers of the development,
should they find the appearance of the main access to be functionally
disagreeable that would be a factor that they could take into account when
making decisions about whether or not to live in the development.
29. The Council has expressed the view that it is unclear why Earls Hall Drive has
not used as the vehicular access16. However, as part of the pre-application
discussions that took place between the appellant, the Council and Essex
County Council Highways (ECC), it appears that ECC was concerned by the
prospect of Earls Hall Drive being used as the vehicular access, given its
status as a public footpath, and promoted the formation of a new access to
the east17. Even if Earls Hall Drive was to be used as the vehicular access for
the development, it would still be served by a relatively long estate road and
that would not overcome the Council’s concern about the length of the access.
30. The first RR contends that should the development be granted planning
permission that would set a ‘precedent’ for similar developments. However,
individual developments should be considered on the basis of their individual
circumstances and as no directly comparable sites have been identified by the
Council, I consider there to be no merit in the precedent concern raised in the
first RR.
31. For the reasons given above I conclude that the development, in particular,
along its northern boundary would have an unacceptable effect on the
character and appearance of the area. I consider that the harm I have
identified would give rise to conflict with Policies QL9 and QL11(i) of the TDLP.
That is because the development would not maintain or enhance the local
character of the area, with the siting, height, scale and massing of the houses
along the development’s northern boundary being unacceptable, with the
design and layout of those houses failing to incorporate existing site features
of the landscape, namely the Poplar trees, while the replacement northern
16 Paragraph 5.13 of Mr Russell Vick’s PoE and paragraph 6.8 of Mr Carpenter’s PoE
17 Letter of 9 February 2016 from the Council to the appellant forming Appendix 1B of the overarching SoCG
(CD12.3A)
boundary planting has not been designed to function as an integral part of the
new development.
32. I also consider that there would be some conflict with the seventh criterion of
Policy HG13 of the TDLP. That is because as backland development, as
defined for the purposes of Policy HG13, the northern part of the development
would be out of character with the area. However, as I have found that the
main estate road access would not cause visual detriment within the
streetscene, I consider that this aspect of the development would accord with
Policy HG13’s third criterion.
33. Section 12 (Achieving well-designed places) of the National Planning Policy
Framework (the Framework) addresses the quality and appearance of new
development. Given the harm to the character and appearance of the area
that I have identified, I consider that the development would be contrary to
paragraphs 124 and 127 of the Framework insofar as it would not be of a
good design, with it failing to add to the overall quality of the area and there
being some potential for the landscaping and rear garden areas along the
northern boundary not to function well together over the lifetime of the
development. I also consider that there would be conflict with the National
Design Guide, most particularly paragraphs 40 to 42, 51 and 52, because
elements of the development’s design would not relate well to its local context
or respond to the existing local character.
Highways
34. The second RR in essence identified a concern about the ability of the estate
road’s junction with St John’s Road to operate in unison with the traffic light
controlled junction proposed for Rouses Farm, which would be around
110 metres to the east18. The Council arguing as part of its appeal case that
should these two junctions not operate in unison then there would be the
potential for queuing right turning traffic waiting to enter the Rouses Farm to
impede (block) right turning traffic from entering the development’s estate
road. Should such blocking arise it has been further submitted that would
impede the flow of westbound through traffic on the B1027.
35. An additional limb to the Council’s case advanced by its three highways
witnesses is that during the summer months, June through to September19,
there is a seasonal increase in the use of the B1027/St John’s Road, which
has not been adequately assessed by either the appellant or ECC as the local
highway authority. It being submitted that a seasonal increase in the use of
the B1027 arises from vehicular movements generated by the summertime
occupation of the large number of static homes and other holiday
accommodation in the area.
36. A local resident, Mr Everett, also made submissions at the inquiry raising
concerns about: how the traffic arising from the development had been
quantified and the effect of that traffic on the operation of the local highway
network; and the design of the junction between the estate road and
St John’s Road, most particularly the absence of the provision of a right
turning/ghost lane.
18 With there being 97 metres between the stop line for the signal controlled Rouses Farm junction and the appeal
site’s proposed junction with St John’s Road (paragraph 4.1 of the Technical Note forming Appendix RF-D to
Mr Fitter’s PoE
19 As clarified variously through the giving of the evidence of Mr Williams, Mr Cosier and Councillor Bray
37. The Council’s inclusion of a highways reason for refusal was against a
backdrop of there being no objection from ECC to the development. That said
from the brevity of ECC’S formal consultation response of 29 January 2020 to
the Council20, it is far from clear how the highway authority actually assessed
the appellant’s Transport Assessment (TA - CD1.88) and arrived at its
conclusion that ‘From a highway and transportation perspective the impact of
the proposal is acceptable to the Highway Authority …’ subject to the
provision of some mitigation measures.
38. A little more can be gleaned from ECC’s letter of 1 May 2020 to St Osyth
Parish Council21 in which it commented ‘As with all large planning applications
the Highway Authority has undertaken extensive investigation and analysis of
the submitted transport assessment and travel plan accompanying this
planning application. This work has concluded that the proposal is not
contrary to current National and Local policy and safety criteria and has been
found acceptable to the Highway Authority in terms of its impact upon the
local highway network’. Mr Fitter in giving his evidence in chief for the
appellant also remarked that ECC did ask ‘searching questions’ of him. Be that
as it may, the absence of any meaningful reasoning in ECC’S consultation
response I can appreciate was distinctly unhelpful to the members of the
Council’s planning committee.
39. The appellant’s comparison of the existing and proposed trip rate generation
in section 8 of the TA has been criticised. That criticism revolving around how
the vehicular movements generated by the existing use of the nursery have
been calculated, given that the site was only partially in use when the TA was
prepared and the TRICS database22 does not address horticultural ‘nurseries
with ancillary garden centres’ (paragraph 8.3 of the TA). Given those
circumstances an existing trip generation calculation was performed by the
appellant based on the expected trip rate for the use of the 253 space car
park extension granted planning permission under file reference
17/01770/FUL on 8 December 2017. The results from that calculation are
shown in Table 8.1 of the TA, with the number of movements (ie arrivals and
departures) during the AM peak (08:00 to 09:00), PM peak (17:00 and
18:00) and the whole day, respectively estimated at 37, 18 and 1,841
movements.
40. While making comparisons between existing and proposed trip generation in
TAs is well trodden ground, in this instance I do not consider that exercise to
have been particularly informative. That is because the TA was written around
a month after the issuing of an enforcement notice on 14 September 2018
requiring the cessation of various non-horticultural uses at the nursery. Those
uses subsequently having been confirmed as being unlawful through the
determination of the enforcement notice appeals on 5 December 2019.
Consequently, the existing use estimate of 1,841 movements per day in the
TA was excessive.
41. Given the brevity of ECC’S formal response to the Council, which post dated
the determination of the enforcement notice appeals, it is very unclear what
weight ECC may have placed on the existing and proposed trip generation
20 Letter contained in CD3.4
21 Appendix 4 to Mr Williams PoE
22 The recognised database used by transportation professionals to make predictions for trip rates and traffic
generation for new developments
comparison made in the TA. That said, I consider what is of consequence in
this instance, given the proposal to create an entirely new estate access, is
the volume of vehicular traffic the development would be likely to generate
and whether or not the local highway network could accommodate that traffic
alone, as well as in combination with expected traffic growth in the area.
42. With respect to the assessment of the effect of the development’s traffic on
the operation of the local highway network, the appellant has placed reliance
on an automated traffic count undertaken in April 2017. April being
recognised as a ‘neutral’ month for the purposes of undertaking traffic
surveys, ie one unaffected by school holiday periods. Mr Fitter in giving his
evidence confirmed that the extant national guidance relating to the
assessment of traffic flows is stated in the Planning Practice Guidance (PPG)
and it states:
‘In general, assessments should be based on normal traffic flow and
usage conditions (eg non-school holiday periods, typical weather
conditions) but it may be necessary to consider the implications for any
regular peak traffic and usage periods (such as rush hours). Projections
should use local traffic forecasts such as TEMPRO drawing where
necessary on National Road Traffic Forecasts for traffic data’23.
43. There is therefore nothing unusual about the appellant relying on a traffic
survey that was undertaken in April, as opposed to one conducted during a
summer month. In that regard Mr Fitter commented that in some areas, such
as Dorset and the Lake District National Park, applicants are required to
undertake traffic surveys during the summer months. However, neither ECC
nor the Council through their policy or guidance require summer surveys to be
undertaken. If the seasonal increase in the use of the B1027 was at a level
that had become a significant issue year on year, then I would have expected
it to be something that ECC and/or the Council would be familiar with and
would be a matter that all developers were being requested to take account of
when submitting their TAs. However, there seems to be no history of this
seasonality issue having been raised previously with developers, with the TAs
for seven applications, including Rouses Farm, having been reviewed by the
appellant in that regard24.
44. With respect to the operation of the junctions for the development and Rouses
Farm with St John’s Road, the appellant has undertaken sensitivity testing to
indicate how much extra traffic attributable to a seasonal effect would be
required for those junctions to exceed their ‘functional’ capacities and cause
unacceptable levels of congestion. In the case of simple priority junctions,
such as that proposed for the development, their operational capacity is
measured in terms of the ratio to flow capacity (RFC), with the functional
maximum for this type of junction considered to be an RFC of 0.85. For signal
controlled junctions their operational capacity is measured by reference to the
degree of saturation (DoS), with the functional capacity usually taken to be a
DoS of 90%.
23 Paragraph: 015 Reference ID: 42-015-20140306
24 Paragraph 3.5 of Mr Fitter’s rebuttal statement
45. The results of the appellant’s sensitivity testing are summarised in
paragraph 3.10 of Mr Fitter’s rebuttal statement as:
‘The baseline traffic flows could be increased by 15% in the AM peak and
38% in the PM peak before the proposed Rouses Farm traffic signals
exceed 90% DoS on any approach. The baseline traffic flows could be
increased by 31% in the AM peak and 41% in the PM peak before the
proposed site access junction would exceed RFC 0.85.’
46. The Council has provided no empirical evidence challenging the reliability of
the appellant’s sensitivity testing for the effects of seasonality on the flows of
traffic. I therefore consider that I can only reasonably be guided by the
appellant’s sensitivity evidence.
47. On the evidence available to me, I consider that the appellant’s reliance on a
traffic survey conducted in April, rather than between June and September,
reveals no significant deficiency in the appellant’s TA and the conclusions
drawn from it by ECC. What has also become apparent through the
presentation of the Council’s evidence is that throughout the whole of the
period that ECC was considering the appeal development it had available to it
the results from the traffic survey commissioned by it and undertaken during
June and July 2018 concerning part of the B1027 to the west of the nursery25.
Those survey results being for part of the summer period and appearing not
to demonstrate to ECC that there was a seasonal traffic flow issue that the
appellant needed to address before EEC could make its consultation response
to the Council. Consequently, for the purposes of the determination of this
appeal I consider the traffic seasonality issue that has been raised attracts
little weight.
48. It has been contended that the absence of a right turning lane at the junction
between St John’s Road and the estate road would not comply with the design
standards for such junctions, most particularly CD12326 of the Design Manual
for Roads and Bridges (DMRB)27. The DMRB being requirements and guidance
published by Highways England (HE) primarily for the purposes of guiding the
design of new or altered parts of the strategic highway network (motorways
and some A class roads) for which HE is the highway authority.
49. Local highway authorities, such as ECC, do not have to apply the
requirements and guidance contained in the DMRB to the roads they have
jurisdiction over. In considering the effects of the development on the
operation of the B1027 there is therefore no compulsion to apply the
provisions of CD123, something Mr Fitter confirmed in response to a question
I put to him.
50. To prevent queued vehicles waiting to turn right into the estate road from
impeding the flow of westbound traffic on St John’s Road it has been argued
that a right turning lane, a ‘major road central treatment’ (which include
‘ghost islands’) in the language of CD123, should form part of the
development’s design. Paragraph 2.3.1 of CD123 states that ‘The selection of
priority junction and major road central treatment for single carriageway
roads should be determined based on the standard of major road and traffic
25 Pump Hill and Bypass Road contained in Appendix 6 of Mr Williams PoE
26 ‘Geometric design of at-grade priority and signal-controlled junctions’
27 CD13.4
flows on both the major and minor roads. Figure 2.3.1 illustrates approximate
levels of provision for varying traffic flows’. Figure 2.3.1 indicates that below a
flow of 13,000 two-way annual average daily traffic (AADT) on a junction’s
major road the provision of a ‘simple’ priority (T-type) junction would usually
be appropriate. Figure 2.3.1 also indicates that ghost island provision would
be appropriate where the major road has a two-way AADT of between 13,000
and 18,000.
51. Paragraph 2.3.1 and Figure 2.3.1 of CD123, however, need to be read in
conjunction with the ‘Note’ immediately following them. That note states ‘The
2-way AADT design year flows are used to determine the approximate level of
junction provision prior to more detailed traffic modelling to check capacity’.
The note in CD123 indicates that a flow of over 13,000 AADT is not an
absolute threshold for providing right turning lanes, with that AADT being a
level at which more detailed traffic modelling should be undertaken to
determine whether something other than a simple junction would be
necessary. Mr Fitter in his rebuttal statement (paragraphs 7.9 to 7.11)
explained that is the process that was followed.
52. The capacity for the estate road’s junction with St John’s Road was modelled
by the appellant using the Transport Research Laboratory’s ‘PICADY’ software.
The results of that modelling in October 2018 were included as Appendix I in
the appellant’s TA and were therefore available to ECC when it was
considering the proposed development. It is apparent from ECC’S email to the
Council of 2 September 201928 that it was mindful of the possible need for a
right turning lane to be provided because it commented:
‘The other key point is the dedicated run turn lane; I note from the
Stage 1 Safety Audit there were concerns about potential rear end
shunts if one was not provided and the designers comments appear to
suggest that there is spare capacity not to warrant a dedicated right turn
lane. At the very least we would like to see the Safety Audit
recommendation: to carry out further assessment and analysis of
the traffic model to determine the appropriate level of right turn
provision required. The reason being due to the size of development
and current attributes of the road we would normally have a dedicated
right turn lane incorporated in the proposals.’ (The highlighting of text
being as used by ECC)
53. It however appears that ECC in making the above quoted comments failed to
recognise that when the safety audit findings of 14 February 2019 were
submitted to it on 11 June 2019, the designer’s (Mr Fitter) response
(21 February 2019) to the audit’s findings had been included29. It also
appears that the appellant’s safety auditors were unaware of a junction
capacity analysis having been undertaken in advance of being instructed to
conduct an audit, with neither the TA nor the PICADY output data being
available to the auditors30.
54. The appellant has modelled the effect of the development’s traffic on the
operation of the Rouses Farm junction using ‘LinSig’ software. That modelling
has identified a mean maximum queue for passenger car units (PCUs) turning
28 Appended to Councillor Bray’s PoE
29 Appendix C of Mr Fitter’s PoE
30 Appendix A of the Stage 1 Road Safety Audit in Appendix C of Mr Fitter’s PoE
right into the Rouses Farm access of 22.1 vehicles31, assuming an average
vehicle length of 5.5 metres. A queue of 22 vehicles waiting to enter Rouses
Farm would extend back to the access for the development, with there being
97 metres32 between the stop line for the traffic signals and the estate road
for the development. 97 metres being sufficient to accommodate 17.6 PCUs. A
queue of 22 vehicles could therefore block right turns being made into the
development’s estate road and go onto impede the flow of westbound traffic
on St John’s Road. However, for that to happen eastbound drivers would have
to fail to observe Rule 151 of the Highway Code (Rule 151) and cause entry
into a side road to become blocked33.
55. I consider a mean maximum queue length of 22 vehicles would be very much
at the worst case end of possible queue lengths. That is because the figure of
22 vehicles would equate to the average of the maximum queue length,
rather than the average of all queue lengths for vehicles turning into Rouses
Farm.
56. A queue length of 22 vehicles in practice would therefore likely to be an
exception and not the norm for vehicles seeking to enter Rouses Farm.
Additionally, for queues of that length to actually block vehicles seeking to
enter the development’s estate road and also impede westbound through
traffic, there would also need to be vehicles waiting to make a right turn into
the development. So, for the mean maximum queue length to be of
significance for westbound traffic on St John’s Road it would need to coincide
with times when there were also vehicles waiting to turn right into the
development and Rule 151 was not being observed. The effect of the non-
observance of Rule 151 being something that might be alleviated through the
use of ‘keep clear’ markings or a ‘box-junction’ (yellow hatching), as alluded
to in section 7 of Mr Fitter’s rebuttal statement.
57. Mr Fitter has submitted in his evidence that the capacity analysis that has
been performed is subject to some double counting of future traffic growth.
That is because in line with standard practice the baseline (2017) traffic flow
for the B1027 has been subjected to a growth multiplier (national road traffic
forecast [NRTF]) to derive a flow for 2023, which is the development’s
notional completion year used in the TA. To that future year figure the
predicted traffic from both Rouses Farm and the development has been
added, even though Rouses Farm is a committed development and would be
accounted for in the NRTF multiplier. Mr Fitter in his evidence in chief also
advised that the nursery’s existing traffic generation had not been deducted
from the baseline traffic flow used to prepare the TA.
58. Additionally, all of the junction capacity modelling has been undertaken on the
basis of the development being for 210 dwellings, as originally proposed, and
not 195 dwellings as now proposed. Mr Fitter in giving his evidence in chief
also advised that no trip rate distinction had been made between the market
and affordable dwellings within the development, even though in TRICS it is
recognised that affordable homes generate lower rates. I consider that when
all of the foregoing factors are taken into account the assessment of the
effects of the operation of the development’s junction with St John’s Road
alone and in conjunction with the operation of the Rouses Farm junction has
31 Appendix E of Mr Fitter’s PoE
32 Paragraph 4.1 of the Technical Note included within Appendix D of Mr Fitter’s PoE
33 Paragraphs 7.13 and 7.14 of Mr Fitter’s rebuttal statement
been undertaken on a reasonable and robust basis, with the traffic generation
predictions for the development being subject to some double counting and
overestimation.
59. The development would cause some additional use of St John’s Road and that
could affect the entry or exit to the existing dwellings in the vicinity of the
appeal site. However, I consider the amount of additional traffic using this
part of St John’s Road associated with the development would not be so great
as to cause unacceptable delays to the entry or exit to the existing nearby
dwellings.
60. For the period between 2017 and 2019 there were seven personal injury
accidents (PIAs) on St John’s Road within the vicinity of the nursery and the
appellant has submitted that accident rate is below average for a road of this
type, with the available data showing ‘… no significant patterns or clusters’34.
Mr Fitter in response to a question I put to him commented that the cause of
the accidents between 2017 to 2019 were the result of driver error and/or
interactions as opposed to the nature/condition of St John’s Road. Regrettably
there was a fatal accident in April 2020, however, the investigation into the
cause of that accident is ongoing. I consider the available evidence has not
demonstrated that the use of the development’s access would adversely affect
highway safety in the area.
61. Above I have referred to ECC’S formal consultation response to the Council
being very brief. Notwithstanding that I consider there can be no doubt that
ECC considered the need for the provision of a right turning lane and was
satisfied, on the basis of the information available to it when it made its
formal comments to the Council in January 2020, that the development could
be granted planning permission without such a turning lane being provided. In
that regard it is evident from the contents of the letter sent to St Osyth Parish
Council on 1 May 202035 ECC made a conscious decision to require the
provision of a combined footway and cycleway rather than a right turning
lane, given that within the vicinity of No 700 there was insufficient highway
land available to accommodate both, as confirmed by Mr Fitter at paragraph
4.29 of his PoE.
62. It has been contended that inadequate consideration has been given to the
provision of a right turning lane. By extension it has been argued that ECC
reached an incorrect conclusion about the need for a right turning lane.
However, no empirical evidence has been submitted by the Council
demonstrating that ECC should not have reached its conclusion on the
adequacy of the development’s junction and I am not persuaded that I should
reach a contrary view to that held by the highway authority.
63. It is evident that the Jaywick Lane junction and some of the other junctions to
the east of that junction are already operating above or close to their
capacities, with some mitigation measures expected to be provided as part of
the implementation of the Rouses Farm development36. Those junction
capacity issues are likely to be contributing to the travel delays variously
referred to by the Council’s highway witnesses.
34 Section 5 of Mr Fitter’s rebuttal statement
35 Appendix 4 of Mr Williams’ PoE
36 Section 6 of Mr Fitter’s rebuttal statement and the planning conditions expected to be imposed on the planning
permission for Rouses Farm listed in the committee minutes of 12 March 2019 appended to CD12.1
64. The additional traffic generated by the nursery’s redevelopment, on the face
of it, could have the potential to exacerbate the congestion at the existing
junctions to the east. That is because there is currently uncertainty about
when the mitigation to be provided by the Rouses Farm development will be
delivered, given the current absence of a planning permission for that
scheme, and the appeal development could be occupied in part, if not wholly,
prior to the junction improvements being delivered37. However, the appellant
has argued that the traffic generated by the development would ‘… result in a
very low proportional increase in traffic at any other junction on the local
highway network’38. The peak hour proportional increases for the Jaywick
Lane roundabout having been assessed as being no more than 3% for any
arm, a net increase that would be less than the daily variation39. In the
absence of any empirical evidence having been presented demonstrating that
the development would generate anything other than a low proportional
increase in traffic at the junctions to the east, I share the appellant’s view
that there would be a negligible effect on the operation of those junctions.
65. For the reasons given above I therefore conclude that the proposed
development would not adversely affect the safety and free flow of traffic on
the local highway network. I therefore consider that the development would
accord with Policies QL10(i) and HG13(iii) of the TDLP because the access to
the site would be practicable and the highway network would be able to safely
accommodate the additional traffic the proposal would generate.
66. The second RR cites conflict with Policy TR1a (development affecting
highways) of the TDLP. However, Policy TR1, rather than Policy TR1a, has
been identified as a ‘most relevant’ development plan policy in the ‘General’
Statement of Common Ground (SoCG- CD12.3A). Mr Fitter at paragraph 3.21
of his PoE has referred to Policy TR1a as having been ‘erroneously’ referred to
in the second RR and instead he has drawn attention to Policy TR1 (transport
assessment) of the TDLP, without recognising that Policy TR1a is a policy in its
own right.
67. Given the nature of objection to the development stated in the second RR and
as Policy TR1a concerns development affecting highways, I am of the view
that Policy TR1a was correctly cited in the RR. I consider there would be no
conflict with Policy TR1a because there would be no unacceptable hazards and
inconvenience to traffic. For completeness I also consider that the
development would accord with Policy TR1, given that a TA has been
submitted and it does not indicate that the development would have
materially adverse impacts on the transport system.
68. I also consider that there would be no conflict with paragraphs 108, 109 and
127f) of the Framework because there would be no residual cumulative
impacts on the road network that would be severe warranting the refusal of
planning permission.
37 Based on Mr Robinson’s response to the development timetabling question I raised with him at the inquiry and
the initial build rate of 30 dwellings per year rising to 60 dwellings per annum as envisaged for Rouses Farm
(Appendix 4 of the SHLAA)
38 Page 8 of the appellant’s closing submissions (CD13.15)
39 Section 9 of the TA
Other Matters
Living conditions
69. With respect to the siting of the development relative to the existing dwellings
in St John’s Road I consider that there would be sufficient separation for there
to be no unacceptable overlooking of the adjoining homes. In that regard
there would be no conflict with Policy QL10 of the TDLP.
Affordable housing
70. The submitted UU would require the provision of 23 affordable homes
(approximately 12%) on site. While that level of provision would be less than
the 40% expectation stated in Policy HG4 of the TDLP the Council is now
promoting 30% affordable housing provision. In this instance the Council
recognises that the demolition of the glasshouses would represent a
significant abnormal cost affecting the development’s viability and its ability to
provide affordable homes.
71. The Council is content that for viability reasons the provision of 23 affordable
homes would be appropriate and I see no reason to depart from that view. I
therefore consider that the development would make adequate affordable
homes provision under of Policy HG4 of the TDLP and would be consistent
with the policy for the provision of affordable housing set out in the
Framework.
Effects on infrastructure
72. To mitigate the development’s effects on local infrastructure the UU would
secure:
• The provision of and the management for open space on the site,
equivalent to at least 10 percent of the site’s area.
• The making of education contributions totalling £1,770,393 for early
years/childcare, primary and secondary facilities in the area.
• A healthcare facilities contribution of £67,666.
• A bus services contribution of £104,000 and the upgrading of three bus
stops on St John’s Road.
• The provision of a 3.0 metre wide shared footway and cycleway on the
northern side of St John’s Road between its junction with Earls Hall Road
and extending eastwards to tie in with the footway and cycleway
improvements proposed for the Rouses Farm development.
73. Those planning obligations would variously address infrastructure
requirements covered by Policies QL12 (planning obligations), COM6
(provision of recreational open space), COM26 (education provision) and TR3a
(provision for walking) of the TDLP. I consider that the planning obligations
would be: necessary to make the development acceptable in planning terms;
directly related to the development; and fairly and reasonably related in scale
and kind to the development. While the planning obligations are necessary, of
themselves there is nothing particularly exceptional about them, as they
would primarily neutralise the demand upon local infrastructure generated by
the development’s occupation.
Effects on the designated habitats
74. The appellant and the Council agree that the development’s occupation would
be likely to have an adverse effect on the integrity (AEOI) of the qualifying
features (bird species) that frequent the Colne Estuary SPA, the Blackwater
Estuary SPA and the Dengie SPA and the condition of the habitat within the
Essex Estuaries SAC. Those effects arising from the making of additional
recreational visits to the SPAs and the SAC. Having regard to the information
about the SPAs and SAC available to me, I consider that this development in
combination with others in the areas could give rise to AEOI for the SPAs and
the SAC through additional recreational activity.
75. To avoid any increased recreational pressures causing AEOI for the SPAs and
SAC the Council, along with other local planning authorities in the area, has
developed and is implementing the RAMS (CD8.7). The operation of the RAMS
includes the provision of a warden service with the purpose of managing and
educating visitors to designated habitats. The UU would secure a RAMS’
contribution of £23,848.50. I consider that the making of that contribution
would be necessary to ensure that this development did not cause AEOI for
the SPAs and SAC. The payment of that contribution would accord with
Policy EN11a of the TDLP and the RAMS.
Whether the most important development plan policies are out-of-date
76. Paragraph 11 of the Framework indicates that the presumption in favour of
sustainable development should apply. For decision taking that means:
‘… c) Approving development proposals that accord with an up-to-date
development plan without delay; or
d) where there are no relevant development plan policies, or the policies
which are most important for determining the application are out-of-date7,
granting planning permission unless:
i. the application of policies in this Framework that protect areas or assets of
particular importance provides a clear reason for refusing the development
proposed6; or
ii. any adverse impacts of doing so would significantly and demonstrably
outweigh the benefits, when assessed against the policies in this
Framework taken as a whole.’
Footnote 7 of the Framework states ‘This includes, for applications involving
the provision of housing, situations where the local planning authority cannot
demonstrate a five year supply of deliverable housing sites (with the
appropriate buffer, as set out in paragraph 73) …’.
77. Paragraph 73 of the Framework states:
‘… Local planning authorities should identify and update annually a supply of
specific deliverable sites sufficient to provide a minimum of five years’ worth
of housing against their housing requirement set out in adopted strategic
policies, or against their local housing need where the strategic policies are
more than five years old37.’
Footnote 37 of the Framework states:
‘… Where local housing need is used as the basis for assessing whether a five
year supply of specific deliverable sites exists, it should be calculated using
the standard method set out in national planning guidance.’
78. Paragraph 11d)i does not apply in this instance because the nursery is not
situated in a protected area and does not form a protected asset for the
purposes of footnote 6 of the Framework. Under the provisions of
paragraph 11d) for the purposes of the determination of this application there
are two routes under which the presumption in favour of sustainable
development could be engaged. The first route being the absence of a 5yrHS,
while the second would be because the most important development plan
policies for the determination of the application are out-of-date.
Housing land supply route
79. On 16 December 2020 the Secretary of State made a Written Ministerial
Statement (WMS) providing an update on the Government’s proposals for
changing the way in which the standard method (SM) is calculated. On the
same day amendments to the ‘Housing and economic needs assessment’
section of the PPG were also published. The changes to the SM will apply to
cities and towns that have been specified in the PPG. Tendring is unaffected
by the recently made changes to the calculation of the SM and those changes
are therefore not material to the determination of this appeal.
80. The strategic policies of the TDLP are more than five years old and the
appellant and the Council agree that there is no 5yrHS with respect to the
need using the SM of calculation. That being confirmed in the Council’s
Strategic Housing Land Availability Assessment of May 2020 (the SHLAA)
(CD6.3), with a supply of 4.45 years being identified in section 7 of the
SHLAA. A 5yrHS of 4.45 years being based on the SM generating a local
housing need of 865 dwellings per year, giving an overall five year housing
requirement of 4,541 dwellings, inclusive of a 5% buffer40.
81. I consider the appellant rightly questioned at the inquiry the inclusion of the
delivery of housing from some sites that only had resolutions to grant
planning permissions (resolution sites) within the 4.45 years of supply stated
in the SHLAA for the period between 1 April 2020 to 31 March 2025. One such
resolution site being Rouses Farm, which received its resolution to grant
planning permission around two and a half years ago41 and for which the
SHLAA identifies 90 dwellings being delivered by 31 March 2025. At the
inquiry’s close Rouses Farm continued not to benefit from a planning
permission.
82. For the purposes of the determination of this appeal I requested the Council
to recalculate its 5yrHS excluding all of the resolution sites which have been
identified in the SHLAA as delivering dwellings by the end of March 2025. The
recalculation of the 5yrHS being set out in CD13.12. In addition to Rouses
Farm there are three other resolution sites which the SHLAA has assumed
40 Tendring District Council having become a 5% buffer authority following the Government’s publication of the
Housing Delivery Test measurement for 2019 (CD6.3 and CD8.14)
41 30 May 2018 - Appendix 1 of the SHLAA
would deliver a further 135 dwellings by 31 March 202542. When the
225 dwellings from the four resolution sites are deducted, then there was a
5yrHS of 4.20 years on 1 April 202043, when measured against a local housing
need derived from the SM. While planning permissions for two of the
resolution sites have now been granted, I consider that the 94 dwellings
predicted to be delivered from those sites by the end of March 2025, as
identified in CD13.11, should not be treated as though permissions had
existed on 1 April 2020.
83. However, under the provisions of Policy SP3 of Section 1 of the eLP an annual
housing requirement of 550 dwellings a year for Tendring has been found to
be sound by the EI. A housing requirement of 550 dwellings a year being
significantly less than the SM derived local housing need figure of
865 dwellings per year. However, the EI at paragraph 52 of his report has
commented:
‘The policy SP3 requirement for Tendring is not derived from the official
household projections, due to the distorting effect of those projections of
errors that gave rise to exceptionally large unattributable population
change [UPC] in the district between 2001 and 2011 Censuses. In
IED/012 and IED/022 I set out my reasons for endorsing the alternative
approach used to derive the demographic starting-point for Tendring,
which in turn underpins the housing requirement figure.’ (CD13.16)
84. At paragraph 54 of the eLP report the EI has further remarked that to counter
the potential for worsening housing affordability in Tendring ‘… the housing
requirement for Tendring includes a substantial 15% affordability uplift …’.
85. Until Section 1 of the eLP is adopted then paragraph 73 (including footnote
37) of the Framework, advises that the SM should, rather than must, be used
to establish a local housing need figure for Tendring. That national policy is a
material consideration of great weight. However, the examination of Section 1
of the eLP has established that the official household projections for Tendring
are subject to distortion due to errors arising from the UPC. In that regard
there is evidence available demonstrating that the ONS recognises that for
Tendring there is an error with the mid year estimates, which feed into the
calculation of the household projections, with a ‘migration error… likely to be
in the range of 5-6,000 people’44. That migration error being thought to
represent 47% to 57% of the UPC for Tendring45, with the positive UPC figure
for Tendring being around 10,500 and ‘… one of the biggest of any LPA in
England’46.
86. With Section 1 of the eLP so recently having been found to be sound, it seems
likely that this part of the eLP, including emerging Policy SP3, will imminently
progress to adoption. I consider those circumstances to be a very important
material consideration, outweighing the advice in paragraph 73 of the
Framework that the SM should be used. That approach being consistent with
the advice stated in paragraph 48 of the Framework, because Section 1 of the
42 South of Ramsey Road (41 dwellings), Former Martello Caravan Park, Walton on The Naze (53 units) and Land
west of Church Road, Elmstead market (41 units)
43 Ie the beginning of the five year period for the purposes of the SHLAA
44 Email of 29 November 2017 from the ONS to a consultant instructed on the Council’s behalf appended to
CD13.13
45 Paragraph 13 of the examining Inspector’s IED012 of 27 June 2018 appended to CD13.13
46 Paragraph 8 of IED/012
eLP has reached such an advanced stage in its preparation. When an annual
housing requirement of 550 dwellings is used and a historic shortfall
allowance of 212 dwellings and a 5% buffer are added, then a total five year
requirement of 3,110 dwellings has been identified by the Council in the
SHLAA.
87. Against a requirement of 3,110 dwellings the Council is able to demonstrate
the availability of a 5yrHS of 6.14 years, including the deduction of
225 dwellings from the four resolution sites as set out in CD13.12. A 5yrHS of
6.14 years represents a surplus of around 20% when considered against a
five year requirement of 3,110 dwellings.
88. Even if the adoption of Section 1 of the eLP does not happen in January 2021,
as currently envisaged by the Council47, on the evidence available to me I
consider that the SM derived local housing need figure of 865 dwellings per
year is so erroneous it simply cannot be relied upon as the basis for assessing
the current 5yrHS position for Tendring. That is because of the distortion
caused by the UPC, with the 2014 based household projection for Tendring,
an essential input into the SM, being subject to a significant statistical error
that the ONS has recognised exists. Given those circumstances I consider the
SM yields a deeply flawed local housing need figure for Tendring.
89. I recognise that my approach to the consideration of this matter differs to that
of the Inspectors who have determined four other appeals in the Council’s
area drawn to my attention48. However, there has been a very recent material
change of circumstances postdating the determination of those other appeals,
namely the completion of the examination for Section 1 of the eLP. That
means that what was an ‘interim finding’ of the EI that a housing requirement
based on 550 dwellings per year was likely to be acceptable, as was for
example the situation when the Mistley appeal was determined on
23 December 2019, has now become a firm conclusion.
90. As I am of the view that for the purposes of the determination of this appeal
the Council can currently demonstrate that a 5yrHS exists, I consider this
possible route to engaging the presumption in favour of sustainable
development under paragraph 11d) of the Framework does not apply in this
instance.
Non-housing land supply route
91. At paragraph 4.2 of the general SoCG (CD12.3A) a large number of TDLP
policies have been identified as being relevant development plan policies.
Later on in this SoCG Policies QL1, QL9, QL10, QL11, HG4, HG13, TR1, TR3a,
COM6, COM26, ER3 and EN11a of the TDLP have been identified as being the
‘most relevant development plan policies’. For the reasons I have given above
I consider that Policy TR1a of the TDLP should be added to that group of
policies. Of those development plan policies, I am of the view that a
distinction can be made between those that are ‘relevant’ and those which are
‘most important for determining the application’.
47 The Council’s email of 18 December 2020 (CD13.20)
48 APP/P1560/W/19/3239002 Land at Foots Farm, Thorpe Road, Clacton on Sea (CD7.1)
APP/P1506/W/19/3220201 Land to the South of Long Road, Mistley (CD7.2), APP/P1560/W/18/3201067 Land off
Grange Road, Lawford (CD7.3) and APP/P1560/W/18/3196412 Land west of Edenside, Bloomfield Avenue, Frinton-
On-Sea (CD7.4)
92. While Policies HG4, TR3a, COM6, COM26, ER3 and EN11a are relevant policies
I consider they do not come within the category of being the most important
policies for the determination of this application because they relate to
matters that would be addressed via the planning obligations contained in the
UU or be capable of being addressed through the imposition of planning
conditions, most particularly with respect to the provision of the live work
units.
93. As the development would involve the redevelopment of a site that is not
within the settlement boundary for Clacton there would be some conflict with
Policy QL1 (spatial strategy) of the TDLP. As I have found that for the
purposes of the determination of this appeal there is a 5yrHS, I consider
Policy QL1 is not out-of-date. However, under Section 2 of the eLP the Council
intends that the nursery will be included within the settlement boundary
without being allocated for a specific form of development. Given the
prospective change to the settlement boundary the Council has raised no in
principle objection to the nursery’s redevelopment49 and because of that
background I consider the conflict with Policy QL1 of itself should not be
treated as being determinative. I am therefore of the view that while
Policy QL1 is a relevant policy, it is not a most important policy in this
instance.
94. Of the development policies identified by the appellant and the Council as
being the ‘most relevant’, I consider that Policies QL9, QL10, QL11, HG13,
TR1 and TR1a constitute the basket of the most important policies for the
purposes of determining this application. That is because those policies
address general design considerations for new development. The provisions of
Policies QL9, QL10, QL11 are generally consistent with the policies contained
within the Framework. In addressing backland development Policy HG13
contains seven criteria and the wording of some of this policy is not wholly
consistent with the Framework. However, I consider insofar as Policy HG13
seeks to achieve well designed development it is consistent with the
Framework. I consider Policies TR1 and TR1a are broadly consistent with
paragraphs 108b), 109 and 127f) of the Framework because they seek to
ensure that new development does not unacceptably impact upon highway
safety or severely impact on the road network.
95. I consider the basket of most important development plan policies for the
determination of this application are for the most part consistent with the
Framework and are not out-of-date for the purposes of paragraph 11d) of the
Framework.
Planning balance and overall conclusions
96. For the reasons given above I have concluded that the development would
have an unacceptable effect on the character and appearance of the area. I
consider that harmful effect of the development is a matter of very substantial
weight and importance in the planning balance. I have found that the effects
of the development on the safety and free flow of traffic on the local highway
network would be acceptable and that is something that weighs significantly
for the development. The development, through the planning obligations
included in the UU, would have a neutral effect on local infrastructure.
49 Paragraph 5.14 of Mr Carpenter’s PoE and reiterated by Mr Carpenter when he gave his oral evidence
97. I have identified the most important development policies for determining this
application. Of those policies the development would be in conflict with
Policies QL9, QL11 and HG13, while there would be compliance with
Policies QL10, TR1 and TR1a. Nevertheless, I conclude the proposed
development would conflict with the development plan when taken as a
whole.
98. Paragraph 11 of the Framework establishes the presumption in favour of
sustainable development. What is frequently referred to as the “tilted balance”
may be engaged via two routes. With respect to housing provision, for the
reasons I have given above I have concluded that the Council can currently
demonstrate a five year supply of deliverable housing sites to meet its local
housing need. With respect to the basket of most important development plan
policies, for the reasons given above I am of the view it is not out-of-date for
this case. For those reasons I consider the tilted balance should not be
engaged. Having regard to my conclusion in the preceding paragraph, I
consider the presumption in favour of sustainable development does not apply
to the proposed development under either the provisions of the Framework or
Policy SP1 of the eLP50.
99. I have found the most important development plan policies with which the
development would be in conflict, Policies QL9, QL11 and HG13, to be
generally consistent with the Framework. Given that I consider significant
weight should be attached to the conflict with those policies.
100. The development would provide a number of social, environmental and
economic benefits. The provision of 195 dwellings, including 23 affordable
homes and eight live work units, would assist in delivering new homes in the
Council’s area and important social and economic benefits would arise through
the construction and occupation of those dwellings. However, I consider the
social and economic benefits of providing these dwellings should be tempered
by the current availability of a six year supply of deliverable housing sites. I
therefore attach moderate weight to the social and economic benefits arising
from the provision of the proposed dwellings.
101. In visual terms there would be some environmental benefits arising from the
removal of the glasshouses. However, I consider the removal of those
buildings would not outweigh the harmful visual aspects of the development
that I have identified. There would be some benefits arising from the provision
of public open space and play space on site and the potential to enhance and
create wildlife habitats on site. However, those benefits of the development
would largely mitigate effects of the development and I therefore consider
they attract little weight in the overall balance. While the site’s redevelopment
would have the potential to remove contamination from it, there is no
evidence of any such contamination being a significant issue. I therefore
consider that matter attracts very little weight.
102. Overall, I consider that there are matters that weigh substantially for the
development in the planning balance. However, as I have indicated above
there would also be a very substantial harm. I am therefore of the view that
the matters weighing positively for the development are insufficient to
outweigh the significant negative harmful effect and do not indicate that a
50 As worded in the Schedule of Recommended Main Modifications under reference MM4 in CD13.17
decision should be made otherwise than in accordance with the development
plan.
103. For this case it is unnecessary for me to undertake an Appropriate
Assessment (AA) under the Habitats Regulations relating to the development’s
effects upon the SPAs and SAC, as I am dismissing the appeal. However, if I
had done so and a positive outcome had flowed from such an AA that would
not have affected the planning balance or my overall conclusions.
104. I consider that the harm I have identified could not be overcome through the
imposition of reasonable planning conditions. I therefore conclude that the
appeal should be dismissed.
Grahame Gould
INSPECTOR
APPEARANCES
FOR TENDRING DISTRICT COUNCIL:
Robin Green Of Counsel instructed by the Council’s solicitor
He called
Councillor Jeff Bray Vice Chairman of Tendring District Council’s
Planning Committee, who gave highways evidence
Martin Carpenter Director, Enplan
BA (Hons) MRTPI
Ray Crosier Local resident, who gave highways evidence
Philip Russell-Vick Director, Enplan
DipLA CMLI
Neil Williams Local resident and Clerk to St Osyth Parish
Council, who gave highways evidence
FOR THE APPELLANT:
Clive Newberry Of Queen’s Counsel instructed by Michael
Robinson of e3 Design
He Called
Richard Fitter IEng FCILT Director of Entran Limited
FICE FIHE
Michael Robinson Planning consultant with e3 Design
BA (Hons) Dip TP MRTPI
Dominic Thomas BSc BArch Director, Chetwoods
INTERESTED PARTIES
Richard Everett Local resident
INQUIRY DOCUMENTS (IDs) SUBMITTED AT OR AFTER THE INQUIRY
CD8.20 Map of Colne Estuary Special Protection Area (SPA)
CD8.21 Citation document for Colne Estuary SPA
CD8.22 Conservation Objectives for Colne Estuary SPA
CD8.23 Colne Estuary SPA feature condition summary
CD8.24 Map of Blackwater Estuary SPA
CD8.25 Citation document for Blackwater Estuary SPA
CD8.26 Conservation Objectives for Blackwater Estuary SPA
CD8.27 Blackwater Estuary SPA feature condition summary
CD8.28 Map of Dengie SPA
CD8.29 Citation document for Dengie SPA
CD8.30 Conservation Objectives for Dengie SPA
CD8.31 Dengie SPA feature condition summary
CD8.32 Map of Essex Estuaries Special Area of Conservation (SAC)
CD8.33 Citation document for Essex Estuaries SAC
CD8.34 Conservation Objectives for Essex Estuaries SAC
CD8.35 Essex Estuaries feature condition summary
CD10.1 List of draft conditions with notes (4 December 2020)
CD11.1 Certified copy of Unilateral Undertaking executed on
14 December 2020
CD13.1 Mr Newberry’s Opening Statement for the appellant
CD.13.2 Mr Green’s Opening Statement for the Council
CD13.3 Richard Everett’s speaking note
CD13.4 CD123 Design Manual for Roads and Bridges - Geometric design of
at-grade priority and signal-controlled junctions
CD13.5 The TRICS Good Practice Guide 2016
CD13.6 The Council’s Presentation for the Character and Appearance
roundtable discussion
CD13.7 Images supporting LPA’s Presentation for the Character and
Appearance roundtable discussion
CD13.8 Appellant’s Presentation for the Character and Appearance
roundtable discussion
CD13.9 Images supporting Appellant’s Presentation for the Character and
Appearance roundtable discussion
CD13.10 Note on the effect of the removal of the Rouses Farm development
from the five year housing land supply
CD13.11 Note regarding sites identified in the SHLAA (May 2020) as having
resolution to grant permission
CD13.12 Note on the effect of the removal of developments without extant
consent (when SHLAA published) from the five year housing land
supply
CD13.13 Note regarding correspondence on the Unattributable Population
Change
CD13.14 Mr Green’s Closing submissions for the Council
CD13.15 Mr Newberry’s Closing submissions for the Council
CD13.16 Report on the Examination of the North Essex Authorities’ Shared
Strategic Section 1 Local Plan (10th December 2020)
CD13.17 North Essex Authorities’ Shared Strategic Section 1 Local Plan
Schedule of Main Modifications
CD13.18 Email of 4 December 2020 from the Council accompanying the
submission of various requested documents
CD13.19 Email of 11 December 2020 from the Council accompanying the
submission of CD13.16 and CD13.17
CD13.20 Email of 18 December 2020 from the Council commenting on the
receipt of the Report on the Examination of the North Essex
Authorities’ Shared Strategic Section 1 Local Plan
CD13.21 Email of 18 December 2020 from the appellant commenting on the
receipt of the Report on the Examination of the North Essex
Authorities’ Shared Strategic Section 1 Local Plan