Case Reference: 3258552

Appeal Decision
Inquiry (In-Person and Virtual) Held on 11 – 14 January, 1 – 4 February and
8 – 11 February 2022
Site Visit made on 7 February 2022
by Andrew McGlone BSc MCD MRTPI
an Inspector appointed by the Secretary of State
Decision date: 6 May 2022
Appeal Ref: APP/Q4245/W/20/3258552
Former B&Q, Great Stone Road, Old Trafford, M32 0YP
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a failure to give notice within the prescribed period of a decision on an
application for outline planning permission.
• The appeal is made by [APPELLANT] against Trafford Metropolitan
Borough Council.
• The application Ref 100400/OUT/20, is dated 19 March 2020.
• The development proposed is the demolition of existing retail unit and associated
structures; erection of buildings for a mix of use including: 332 apartments (use class
C3) and communal spaces ancillary to the residential use; flexible space for use classes
A1, A3, D1 and/or D2; undercroft car parking; new public realm; and associated
engineering works and infrastructure.
Decision
1. The appeal is dismissed and planning permission is refused for the demolition
of existing retail unit and associated structures; erection of buildings for a mix
of use including: 332 apartments (use class C3) and communal spaces ancillary
to the residential use; flexible space for use classes A1, A3, D1 and/or D2;
undercroft car parking; new public realm; and associated engineering works
and infrastructure.
Applications for costs
2. An application for costs was made by [APPELLANT] (the appellant)
against Trafford Metropolitan Borough Council (the Council) and in the
alternative Lancashire County Cricket Club (LCCC). This application is the
subject of a separate decision.
Preliminary Matters
3. The application submitted to the Council was in outline, with landscaping the
only one of the matters reserved for future consideration.
4. The Council did not determine the planning application, which has resulted in
this appeal being lodged by the appellant. Had the Council reached a decision
on the planning application it confirmed that it would have refused planning
permission for several putative reasons.
5. During the appeal, it became clear that one of the apartments had been double
counted and that the submitted plans show 332 apartments not 333
apartments. There have been no changes to the submitted plans and, having
regard to the main parties’ comments on the matter, I am satisfied that no
prejudice would be caused if I determined the appeal based on the lower
number of apartments.
6. I outlined the provisional main issues at the Case Management Conference
(CMC)1 having regard to the Council’s putative reasons for refusal. The
reasons were then revised following the submission of further evidence2. This
meant that the Council no longer pursued a case in relation to main issues 6
and 7, set out below, and the living conditions of existing residential properties
on Great Stone Road and Trent Bridge Road, with regards to daylight and
sunlight. The Council did, however, add a further putative reason for refusal
relating to noise from concerts at LCCC and whether this give rise to
inappropriate living conditions for any future occupants. In setting out the main
issues at the start of the Inquiry I had regard to the Council’s updated position
and the body of evidence before me.
7. For reasons explained later, the Council withdrew its reason for refusal in
relation to the proposal’s effect on the fine turf training facility (FTTF) at LCCC.
It also made no case about the non-turf training facility (NTTF). LCCC, a Rule 6
party, decided not to call its own evidence on this issue and instead relied on
the Council’s evidence. Even so, despite the Council’s new position, LCCC still
considered an adverse effect on the FTTF would be caused by the proposal. I
consider the merits of this later.
8. LCCC, who were granted Rule 6 status at this Inquiry, raised concerns relating
to highway matters through its written evidence but did not call a witness at
the Inquiry on this topic. As the Council did not raise issue with the scheme in
this respect, I sought written responses from the appellant’s highway witness
to my questions3. I have had regard to all the comments made in respect of
highways in reaching my conclusion on this matter.
9. A signed and dated Unilateral Undertaking (UU) was submitted after the
Inquiry closed. It provides for a Traffic Regulation Order (TRO) review, a design
certifier and a contribution for sports facilities. The UU also provides for
affordable housing and/or a primary school contribution, having regard to my
findings on viability. I consider the obligations and the UU later in my decision.
Main Issues
10. The main issues in this case are:
1) the effect of the proposed development on the character and appearance of
the area;
2) whether the effect of noise from activities at Emirates Old Trafford (EOT)
would result in acceptable living conditions for future occupants of the
proposed development, and whether, as a consequence, unreasonable
restrictions may be placed on LCCC’s operations;
3) whether future occupants of the proposed development would have
acceptable living conditions, with regards to amenity space provision,
outlook, sunlight and daylight;
4) whether the proposed development would have an overbearing effect on
1 CD-F29
2 Inquiry Document 6
3 Inquiry Document 19
the living conditions of the occupants of residential properties on Great
Stone Road, Trent Bridge Walk, Gorse Avenue and Gorse Crescent, having
regard to its height, massing, scale and layout;
5) whether or not the proposed development would make adequate provision
in terms of affordable housing and education, having regard to viability;
6) the effect of the proposed development on the character or appearance of
Longford Park Conservation Area and on the setting of nearby
listed buildings;
7) the effect of the proposed development on EOT, a non-designated heritage
asset and an internationally significant visitor attraction, cultural and
tourism venue;
8) the effect of the proposed development on the fine turf and non-turf
training facility at EOT; and
9) the effect of the proposed development on the safety of vehicular and
pedestrian users of the access to the site, EOT and Great Stone Road.
Reasons
Approach to decision-making
11. The Council is currently unable to demonstrate a five-year supply of deliverable
housing sites. Disagreement between the Council and the appellant exists on
the extent of that supply. I shall consider this dispute later in my decision, but
the Council and the appellant agree that the policies which are most important
for determining the application are out-of-date and paragraph 11 d) of the
National Planning Policy Framework (the Framework) is engaged.
12. While the most important policies in this case may be out-of-date this does not
mean that they carry no weight. Were relevant, I consider the degree of weight
that should be given to them, having regard to the parties’ views4, according to
their degree of consistency with the Framework. However, the presumption in
favour of sustainable development does not change the statutory status of the
development plan as the starting point for decision-making.
Character and appearance
13. The appeal site lies within the Lancashire County Cricket Club Quarter. It is one
of five strategic locations identified for change in The Trafford Local Plan: Core
Strategy (CS). Each location offers an opportunity for major economic and
residential development to enable the growth of the Borough.
14. CS Policy SL3 specifically relates to the LCCC Quarter. It sets out that a major
mixed-use development will be delivered in this location to provide a high-
quality experience for visitors, balanced with a new, high quality residential
neighbourhood centred around an improved stadium at LCCC. The policy goes
on to say that this location can deliver 400 residential units comprised
predominately of accommodation suitable for families. It sets out a number of
development requirements that need to be met in order for development to be
considered acceptable.
4 Paragraph 5.1.22, Statement of Common Ground, October 2021
15. The site itself is located off Great Stone Road and is roughly 1ha in size. The
site is broadly rectangular and contains the former single-storey B&Q store
building and a large area of hardstanding once used for car parking and
associated structures. The store ceased operating in January 2016 and the
building has been vacant ever since. Vehicular access into the site is taken
from Great Stone Road, just as the road starts to rise over the Metrolink line.
This extends alongside the site’s tree lined south-eastern boundary. The site is
generally flat but its southern and eastern parts are lower than the road.
16. The cricket ground and its stands are a prominent feature within the site’s
immediate context but also the wider area. The height of the stands around the
field of play at EOT ranges between around 15 metres to just over 20 metres.
The stands that include the pavilion, hospitality or media facilities, alongside
spectator seating, tend to be of a bulkier scale and mass compared to the
open-air terraces, which consist of banks of spectator seating. During the
summer months, and for certain cricket matches, a temporary stand is erected
between the south-west terrace and The Point. The height of this stand is
around 22.6 metres, roughly equivalent to seven storeys. The stand does,
however, need to be removed when concerts take place at EOT as the location
is also where the stage is erected.
17. To the north is Lancastrian House which is a large office building comprising of
a mixture of two and six-storey blocks with surface car parking between it and
the appeal site.
18. The appeal site is not a landmark site, but it marks a transition between
suburban two-storey inter-war residential development and mixed-use and
mixed-scale development to the north and east between the Metrolink line and
the A56. Development on the appeal site and the western part of EOT is of a
low scale, which provides a soft urban transition to the cricket ground stadium,
Lancastrian House and the much more varied scale, type and form of
development beyond.
19. The appeal site is viewed in conjunction with existing development in the
distance to the north and east. However, EOT provides a strong physical and
spatial break to this area of development and its scale, height and massing5.
The area to the east of EOT at the former Kellogg’s site is earmarked for
further considerable change and is subject to a masterplan and a maximum
height parameter plan. If realised, the height of development would rise up
from the southern corner of this site to the north and west opposite Oakland
House. Notwithstanding this, I consider the site’s immediate context to
comprise of the site, the adjacent residential development, EOT, Lancastrian
House and the Metrolink. This is the primary consideration here so that the
design of any development proposal appropriately recognises it as a
transitional site and responds accordingly.
20. The Council considers that there should be a six-storey limitation on
development at the appeal site due to the site’s proximity to suburban housing.
The evidence base for the Council’s approach is part of the soon to be
examined Civic Quarter Area Action Plan (AAP) which is the Council’s vision for
the site and the LCCC Quarter which has been developed over several years.
The merits of the AAP are for the Examination in Public (EiP) especially as there
are unresolved objections to it. Setting aside the six-storey limitation, it is
5 Debra Harrison Proof of Evidence, Appendix H3
ultimately about achieving a suitably designed scheme for the site. This may or
may not involve a development that is above six storeys, but the key is that it
responds to the site and its context.
21. As the appeal site is generally unconstrained it could be developed in any
number of ways to address the southwestern corner of the LCCC Quarter and
provide general improvement to the urban area. The appeal scheme comprises
of two blocks. The first would be next to the surface car park at EOT, the other
next to the Metrolink line.
22. There would be a clear break inserted between the two blocks at the rear and
upper and lower cuts added at the rear of the first block6. The changes strive to
artificially make the development read as three separate buildings. This would
be the case for the front part of the development next to Great Stone Road
which would consist of three distinct blocks separated by around 14 metres of
space. Conversely, the rear part of the development would not be read in the
same manner. The first block would be read as a single entity enclosing the
northern courtyard. The upper and lower cuts to the rear would not avoid this
block being read as a high solid mass of built form enveloping the rear
boundary of the courtyard from Great Stone Road7 or the gap between the
‘block’ next to the road. Once inside the courtyard, users’ experience and
understanding that this is a single block would only be compounded8.
23. The full height gap to the rear between the two blocks would mean that they
would be distinct from one another. Yet, the benefit of this would be diluted by
the proposed layout, which would serve to narrow the gap next to the southern
courtyard and in turn only offer glimpsed views through and beyond the two
blocks when one stands at Great Stone Road looking inwards9. As a result of
the design approach to the rear of the site, the appeal scheme would read as
two large blocks of development.
24. That said, each block would actively address Great Stone Road and have a
varied and stepped increase in its scale, height and massing towards either the
rear of the site and/or the Metrolink line. The principle of this approach to
developing the site is an appropriate response to the site’s context. However,
the middle to rear sections of the development rise to a scale that exceeds the
permanent stands at EOT along the entire length of the north-eastern
boundary.
25. Comparisons made between the AOD’s for the proposed development and EOT
are relevant, but there are also obvious differences in the scale, height and
massing of each body of development. For example, the massing of the
southwestern terrace at EOT is distinct from that proposed along with the
north-eastern façade10. The media building at EOT is bulkier, but again it is not
directly comparable in terms of its overall scale, height and massing. Even the
scale, height and massing of Lancastrian House is different due to the regular
pattern and scale of development here that breaks the taller parts up physically
and visually.
26. The appeal scheme would not be sympathetic to the surrounding built
6 CD-K5, point e
7 Mr O’Connell’s Proof, Figure 72
8 Mr O’Connell’s Proof, Figures 73, 90 and 92
9 Mr O’Connell’s Proof, Figures 75, 76 and 95
10 103m length with 11m gap, cuts and 5-9 storeys
environment despite its stepped approach, with the north-western and south-
eastern facades both 65 metres plus in length and either five to seven or seven
to nine storeys high. The articulation and step up in both facades would
fragment the roofline and create architectural interest. However, when the
entirety of the scheme is considered, it would read as a large block of
development of a considerable scale and mass that does not achieve an
appropriate transition between the lower scale residential development and
EOT. The more appropriate design response to Great Stone Road does not alter
my view on this.
27. Concerns are cited by the Council about the proposed development’s proximity
to the site’s boundaries. This is directly influenced by the proposed layout.
There is a trade-off between making effective use of brownfield land, ensuring
a viable development, and responding to the site’s context. The proposal
pushes the former two in favour of the latter. That said, the site coverage
would broadly correspond with the scheme at the former Kellogg’s site11, so I
agree with the appellant on this point.
28. Nonetheless, the proposed plans and photomontages showing the north-
western boundary next to the LCCC car park show several trees and a hedge. A
verified view12 indicates a stretch of grass, but that does not tally with the
proposed site plan13, which shows a footpath leading to the rear of the site. The
access road, footpath and layout of the development would be fixed and not
reserved matters. The footpath is the minimum width necessary, and a
retaining structure is required for the ramp down into the undercroft car park.
This would leave insufficient space to accommodate trees along the north-
western boundary up until the north-east corner, either between the footpath
and the boundary or within the footpath itself as this would restrict its usable
width. Hence, the softening effect that the illustrated trees are shown to offer
could not be realised. This is a matter that weighs against the proposal.
29. A density of development of around 332dph would be in stark contrast with the
lower density residential dwellings to the south and west. However, to realise
the Council’s vision for the site and the Framework’s objective to avoid homes
being built at low densities, there would be a contrast of some sort. In the
absence of a definitive figure to guide density, the key question is whether the
proposal simply optimises the site, or not.
30. A numeric approach to developing a site is not a design or context led
approach14. I recognise that the two cannot be treated in isolation, but the
appropriate density will result from the context, accessibility, the proposed
building types, form and character of the development15. A high density of
development on the appeal site may not in itself be harmful, but in this case,
the brief for the site creates direct tension between the proposal’s resultant
scale, height, massing and layout on one hand and the site’s transitional
context on the other. The outcome would be a development that would be of a
density that would clearly and harmfully jar with that of the site’s context and
the lower density of development nearby.
31. I note the appellant’s Townscape Visual Impact Assessment (TVIA) and the
11 Appellant Closing, Paragraph 64
12 CD-K48 CAM-03
13 CD-K49 P5
14 Mr O’Connell confirmed he understood his brief was to design a scheme for the site for around 300 units
15 National Design Guide, Paragraph 66
TVIA prepared by Randall Thorpe in relation to the emerging AAP. Part of the
appellant’s assessment draws on the proposal being broadly similar and
coherent in scale to EOT and nearby office developments off Talbot Road. But,
as noted above, a tighter sphere of reference is needed for this site to ensure
development appropriately transitions between developments of different scale
and use. Furthermore, comparisons drawn by the appellant on the conclusions
reached by the Randall Thorpe TVIA are not directly comparable due to the
differences in scale, height and massing of the two to four storey building
assessed on the site.
32. I consider that the proposed development would lead to a medium magnitude
of change to this urban landscape. The scale, height and massing proposed
would introduce development that is likely to be perceived as negative. It
would be discordant in its context. Whilst there are beneficial elements to the
scheme, and development of the site could yield beneficial change as an end
product, the proposal in overall terms would likely amount to an adverse effect
locally to the townscape’s character.
33. The overall harmful effect of the scheme would be principally experienced from
Great Stone Road to the north of the site and in front of it, along Trent Bridge
Walk and from EOT for years to come. A planning condition would ensure the
level of detailing shown on the submitted details would be delivered on site,
but it would not overcome the harm identified. Landscaping may help soften
the built form at certain points, but it would need to be substantial to mitigate
its harmful visual impact in this urban landscape even some years down the
line. I do not consider suitable mitigation could be achieved with this scheme.
34. Beneficial changes were made by the appellant following the Places Matter
panel, some of which include the amount of car parking, the space along the
north-eastern boundary and the private amenity spaces along here and the
potential connection to Old Trafford Metrolink stop. However, they do not alter
or outweigh my concerns.
35. Drawing these matters together, I conclude in respect of this issue, that the
proposed development would harm the character and appearance of the area,
and conflict with CS Policies SL3 and L7. These jointly seek a new, mixed-use,
high-quality residential neighbourhood appropriate to its context, which
addresses appropriately scale, density, height, massing and layout.
36. For these reasons, the proposal would conflict with Framework paragraphs 126
and 130 and the National Design Guide as the development would not create a
high quality, beautiful place that would function well, be visually attractive,
sympathetic to local character, and add to the overall quality of the area over
the development’s lifetime. Given the importance placed by Government and
the Framework on creating high quality buildings and places and the
opportunity presented here, I attach substantial weight to this harm.
Noise from Lancashire County Cricket Club activities
37. EOT, home to LCCC, is adjacent to the site’s north-east and north-west
boundaries. It has been home to LCCC since 1864, with the original pavilion
built in 1895. EOT has been developed and enhanced in recent years, with the
ground consisting of the pavilion and the new stands, with a hotel, hospitality
and events facilities.
38. EOT is one of the leading cricket venues in the world and it is an internationally
significant sporting/visitor attraction. It is the most significant cricket venue in
the northwest of England. It hosts international cricket (including five-day test
matches, one day limited overs or balls matches such as the T20 and The
Hundred) and county cricket/first-class cricket (in various formats). EOT also
hosts music concerts. Hence, there are two noise generating activities that take
place at EOT.
Noise surveys
39. The appellant and LCCC carried out noise assessments during a concert in
September 2021. The Council has not carried out its own survey but relies on
LCCC’s assessment.
40. The modelled noise levels at the closest façade of the appeal scheme to the
concert stage reached by each noise assessment differ in relation to what was
agreed to be the loudest part of the concert. LCCC’s survey was taken as close
to the location of the proposal’s nearest façade as possible. It covered the full
extent of the concert including several warmup acts and the main act. During
this time the survey location was regularly checked to ensure that there were
no localised effects that could influence the results. The survey also took into
account the sound system configuration at EOT and it was modelled to the
measured noise levels at the mixing desk to ensure consistency16, and to
ensure there were no localised noise events impacting the survey. The
appellant did not, when pressed, dispute the LCCC survey methodology or the
witness’s extensive concert noise experience.
41. Conversely, the appellant’s survey is based on measurements taken from two
locations, for limited periods of time, during the main act’s performance. The
first location, covering two 15-minute periods, is screened from the stage by
the cricket school at EOT. Recorded noise levels also cover a period when the
act took an interval in the middle of their set. Noise levels dropped
considerably in this time, even with recorded music playing instead of live
music. The appellant’s witness was unaware of the interval or the change in
noise level.
42. Location 2 was directly behind the PA and stage noise sources. There was a line
of sight to the stage right side hang but not the other components of the main
PA or the delay stacks sited within the audience area. The proposed
development would have a line of sight to the stage right side hang also but
would also be at a different angle to the other elements of the main PA and
stage. Location 2 was further away than the proposed nearest façade. On this
basis, there is likely to be a substantial difference in noise perception when
comparing location 2 with the proposed development. Measurements at
location 2 covered an eight-minute period due to localised noise issues relating
to people leaving the concert early. Hence, it did not cover the end of the
concert.
43. Locations 1 and 2 were used due to accessibility issues around EOT, but this
should have been expected at a ticketed concert and no effort was made to
arrange access with LCCC before or during the concert. In short, locations 1
and 2 are not as robust or reliable as the location used in the LCCC survey.
44. The appellant modelled noise from a fixed calibration point (location 2) using a
16 Mr Fiumicelli’s Rebuttal, Figure 1, Page 8
point source propagation method towards the noise source. This method is said
to represent a worst-case scenario with a higher noise level at the façade of
the proposed development. However, crucially, modelling is simply that and is
reliant on the correct data to yield a reliable outcome. It was unclear what
figures had put into this model based on the written evidence, but the average
sound levels17 for locations 1 and 2 seem to have been relied on. The model is
also based on a speaker set up not used at EOT18. There is no substantive
evidence to support a view that this would make a negligible difference or to
show that the modelling had been adjusted accordingly.
45. The appellant’s survey does not analyse the 32 Hz octave band which covers
the very low ‘sub-bass’ thump of most modern music. I have no reason to
disagree with LCCC that without this analysis there would be an
underestimation of the potential impact.
46. In the round, I consider LCCC’s survey to be more robust and reliable and I
therefore give this significant weight. It shows that future occupants would be
subject to considerably higher noise levels at the closest façade than is
currently experienced at the façade of properties on Trent Bridge Walk. LCCC’s
assessment places levels at 87dB whereas the appellant’s survey
Laeq 15 mins.
produces levels up to 78dB A difference of 9dB. Once a 3dB effect for
LAeq 15 mins.
the façade is accounted for, even when the assessed concert operated a few dB
below what it could under the premises licence, this means the noise level at
the façade would be 90dB . Notwithstanding their survey results, the
LAeq 15 mins
appellant accepted this figure for projected noise levels based on
LCCC’s survey.
Concerts
47. Based on the premises licence, concerts can take place at EOT up to seven
times per year with up to 55,000 people at each one. Each would have
soundchecks on preceding days, which takes the maximum number of affected
days within the year to 14. Concerts could take place at any time during the
year but, due to the open-air nature of EOT, they are typically held between
May and September. They are scheduled to avoid cricket matches and/or when
the temporary stand is erected as the latter needs to be removed for the stage
to be erected. The licence also means that no more than four concerts with a
capacity of over 5,000 people can be held in a four-week period unless the
Council provides its written consent.
48. LCCC has not historically held the maximum number of concerts set by the
licence, but this may not always be the case and LCCC are holding at least five
concerts in 2022. Further dates are potentially planned to help the club recover
economically from the effects of the pandemic. However, it is a moot point
whether or not the full seven concerts (and preceding soundchecks) actually
take place as my assessment having regard to the agent of change principle
needs to be against what can take place courtesy of the current licence19.
49. The license permits an upper noise limit of 80dB LA at the facades of 23
eq 15 mins
– 37 Trent Bridge Walk, 30 Great Stone Road and 19 Barlow Road. This limit
was specifically set by the Magistrates Court in 2003 to allow concerts to take
place at EOT. It is the highest noise limit set in the UK for an open-air venue
17 Mr Patterson’s Appendix, Table 1
18 Mr Fiumicelli’s Rebuttal, Figure 2
19 CD-G3, Paragraph 009 Reference ID: 30-009-20190722
notwithstanding limits set elsewhere for one-off events20. To achieve this, the
position of the stage and sound system has been refined over time to achieve a
dual aim of creating a high noise level for the performer and audience but at
the same time falling within the noise limit set by the license. Noise levels are
monitored during concerts for licence compliance purposes and there are
measures in place to ensure that these levels are not breached.
50. Previous concerts at EOT have generally attracted a low number of noise
complaints, save for two concerts in 2016 which resulted in significantly higher
numbers of complaints. It was explained that atmospheric conditions at the
time meant that noise from these concerts could be heard 8 to 10 miles away
from EOT. This led to the number of complaints received. That said, regardless
of the number of complaints received it has not led to LCCC’s licence being
reviewed. In this context, the three noise experts agreed that there is no
current nuisance caused by holding concerts at EOT.
The effect and consequences
51. Each noise expert considered a different benchmark should be applied to
assess concert noise against based on their own professional judgment.
52. The BS points to the Noise Council’s Code of Practice on Environmental Noise
Control at Concerts (1995) (‘COP95’)21. This is the primary resource for this
type of noise22 and it outlines the music noise levels that should not be
exceeded. This is 15dB above background noise level which, in this case, is
73dB. While COP95 is around 25 years old, and the appellant does not place
reliance on COP95 or any other standard for internal or external noise for
concerts, it is the only guidance specifically applicable to concerts and the BS
points directly towards it. Using the LCCC survey results, future occupants
would experience concert noise 17dB above COP95.
53. Opinion is expressed that COP95 has been unduly restrictive and there have
been instances when licence limits exceed levels which COP95 set. However,
single exceptions are accounted for in COP95 where circumstances dictate it is
possible to have a higher noise level without causing ‘unacceptable levels of
disturbance’. This is not, and would not be, the case at EOT under the terms of
the premises licence.
54. The noise level in the premises licence was set by applying COP95 and taking a
pragmatic view based on the site-specific circumstances. The closest existing
noise sensitive receptors are around 200 metres from the main stage array on
Trent Bridge Walk. These properties face away from the Metrolink line, EOT and
thus the source of concert noise. Added to this, there is the south-west terrace
and car park at EOT between the array and those properties. Consequently,
they experience lower noise levels at their front facades compared to their rear
elevations. Conversely, the nearest parts of the north-western and north-
eastern elevations of the appeal scheme to the stage and arrays would be just
under 50 metres away. All the upper floor habitable rooms would have a clear
line of sight between the two and those units would have a single aspect.
55. Using the noise level set by the licence would not be appropriate as it is based
on circumstances which would not be the same as the appeal scheme. It also
20 Council Closing, Paragraph 71
21 CD-N9
22 Mr Patterson’s Proof, Paragraph 6.7
relates to the licencing regime which controls activities affecting existing
development and not planning, which considers the effect on new
development. As COP95 concerns itself with concerts, it is a relevant
benchmark, though it is based on music noise levels at 1 metre from the
façade of any noise sensitive premise. However, it is of note that future
occupants would experience concert noise 10dB higher than the highest licence
condition in England. It is a very high noise level that would be extremely
apparent to future occupants of the units closest to EOT.
56. The BS typically applies to continual and steady noise sources and not noise
from concerts. However, the Council considers the internal ambient noise levels
within the BS are appropriate to apply in the absence of any other standard. As
concerts finish at 22:30, the noise levels between 07:00 and 23:00 would be
relevant23, though a 5dB leeway can be applied. The maximum number of
concerts and soundchecks at EOT would not in my view be ‘occasional events’
in the same way as those cited in Note 3 to this table are. The BS is the only
standard before me in respect of internal noise levels, though the Planning
Practice Guidance24 (the Guidance) explains that the numerical values in here
are not to be regarded as fixed thresholds and as outcomes that have to be
achieved in every circumstance. Hence, the crucial factor in this case is the
living conditions for future residents when concerts take place. This
requires judgement.
57. Due to the open-air nature of, and the dual use of EOT the frequency of
concerts is concentrated to certain times in the summer months. Future
occupants would be far closer to the source of concert noise than any existing
residential receptor and subject to noise levels externally that exceed COP95
and the levels set within the licence, potentially for the duration of any concert
and any soundcheck. The noise source would also include a very low ‘sub-bass’
thump. The effect of concert noise would not just be a disturbance and would
last for considerable periods on the affected days.
58. No mitigation is proposed to residents’ private gardens or balconies. These are
an intrinsic part of the proposed design and could not be enjoyed as intended
unless future occupants wished to enjoy the concerts. Otherwise, residents
would be likely to avoid using these spaces during concerts. Other alternative
amenity spaces would be available, but the loudest part of concerts at EOT are
in the evening when people would typically wish to be in their own home.
59. Acoustic glazing would mean future occupants would experience internal noise
levels of around 46dB when concert noise is at its loudest25. This may well
compare to the noise level of a fridge or a library, and offer a better internal
noise level than that experienced at existing properties, but factually, it would
be 11dB above the BS or 6dB above the BS with a 5dB allowance factored in.
Music is also more disturbing because of its varied character which is quite
different to the steady tone produced by a fridge.
60. The standard of glazing is far higher than that used at existing residential
receptors, but the mitigation proposed is reliant on residents keeping their
doors and windows closed. This is simply not realistic, reasonable or
controllable during the months when concerts typically take place and
23 Table 4 of British Standard BS8233:2014
24 CD-G3, Paragraph: 015 Reference ID: 30-015-20190722
25 The caveat to this is that it doesn’t consider the low frequency noise
completely undermines the effectiveness of the mitigation. Keeping windows
and doors closed would also be to the detriment of future residents’ wellbeing
as, due to the lack of alternative means of ventilation, they would have no
option but to open them in warm weather to combat internal heat levels. In
this situation, future occupants would likely experience similar noise levels
inside their single aspect units as those outside. Thus, concert noise would
cause a significant adverse effect at certain times across the summer as future
occupants would be likely to change their behaviour during concerts to avoid
certain activities when they are scheduled and/or keep their windows/doors
closed as there are no alternative means of ventilation proposed.
61. Properties on Trent Bridge Walk are already said to experience 46dB during
concerts. These properties have very different internal layouts to the appeal
proposal. Hence, what is experienced at the Trent Bridge Walk façade facing
EOT is not necessarily the same experience on the other side of the property
which contains the habitable rooms. The units proposed in the development
closest to the concert noise source would all be single aspect, so
notwithstanding the appellant’s arguments, the comparative effect would not
be the same.
62. Future occupants may choose to live in the proposed development in the
knowledge that concerts take place at EOT, but what cannot be guaranteed is
that they would know or appreciate the level of noise that they generate.
63. Alternative forms of mitigation are not considered necessary by the appellant.
A Deed of Easement to provide protection to LCCC and its operations was
discussed at length during the Inquiry, but as it is not part of the UU I have not
had regard to it.
64. The ‘agent of change’ principle is set out in Framework paragraph 187. This
explains that existing businesses and facilities should not have unreasonable
restrictions placed on them as a result of development permitted after they
were established. Where the operation of an existing business or community
facility could have a significant adverse effect on new development (including
changes of use) in its vicinity, the applicant should be required to provide
suitable mitigation before the development has been completed.
65. For LCCC, there are potential consequences if the development is built out and
future occupants experience a very high noise level from concerts. There are
two possible scenarios. Both relate to potential consequences for the premises
license.
66. The first scenario would mean that the premises licence remains as it is and is
fixed with reference to properties on Trent Bridge Walk. However, the proposed
development could not possibly breach the premises licence as it would not be
one of the specific properties listed. This would not, however, mean that future
occupants would not experience the significant adverse effect at certain times
across the summer. Noise levels at the closest façade would be far higher than
those stated in the licence and subjectively double that experienced at Trent
Bridge Walk at the same time that these properties would still meet the terms
of the premises licence. As such, the premises licence would not address the
adverse noise impact outlined.
67. As the proposed mitigation cannot be said to be fully effective, a significant
adverse effect could be caused by concerts at EOT on future occupants of the
proposed development. The key word here is ‘could’. Local authorities have a
duty to take such steps as are reasonably practicable to investigate a statutory
nuisance complaint. It is for the Council to decide if a statutory nuisance exists.
However, if they decide one does exist, they must serve an abatement notice.
The existence of any noise complaint may not be sufficient to trigger a review
of the licence, but they could equally be. It is about substance.
68. Ultimately, whether the licence is reviewed, or the Council takes further formal
action to remedy a statutory nuisance is a matter for them, but there is a
strong likelihood that both could be based on the noise environment that future
occupants would experience during concerts. A statutory nuisance can include
noise affecting balconies and gardens26.
69. The second scenario is that the premises licence is updated to refer to the
closest façade of the proposed development. If the licence was reviewed and
updated to refer to the closest façade of the proposed development, it would be
significantly breached from concert noise or there would need to be a reduction
in concert noise to ensure that the closest façade could meet the 80dB limit.
There is also a risk of civil nuisance action by future occupants. Either could
undermine the very reason behind the licence noise level which was set to
make holding concerts at EOT possible. The upshot could be to curtail concerts
at EOT, and thus LCCC’s activities resulting in direct financial consequences
for LCCC27.
Noise from cricket activity
70. It was agreed that noise from cricket activities at EOT is not always the same,
whether this be measured in noise levels or its character. It does happen with
some regularity during the cricket season, albeit the actual days in the year
and duration of play may not always be fixed, whether planned or for
performance reasons.
71. A range of cricket formats take place on a single day or over multiple days.
Most of these matches are not typically well attended. Those that are can see
the ground at capacity or at least with a considerable body of spectators. EOT
has a capacity of around 20,000. The worst-case scenario is likely to be a one-
day international, typically attended by 15,000 to 20,000 people, at which
there are regular music bursts and PA announcements. In this scenario, the
facades of the proposed development that would face EOT are predicted to
experience noise of 66 dB .
LAeq,T
72. British Standard BS8233:2014 (‘the BS’) does not explicitly provide a noise
level to assess sporting noise against, but it does advise that specialist advice
might be required.
73. The three noise experts all consider that by using up rated glazing and trickle
vents, high and low frequency noise arising from cricket matches could be
mitigated against so that future occupants would experience internal noise
levels in line with the BS. Hence, it was suggested, they would have acceptable
internal living conditions when cricket matches are played, even accounting for
day/night matches. However, this would only work when windows and doors
are closed, and it would not mitigate the impacts of noise on residents’ private
amenity spaces.
26 CD-G3, Paragraph: 017 Reference ID: 30-017-20190722
27 Mr Fiumicelli’s Proof, Appendix 2
74. It would be unrealistic and unreasonable to expect residents to have to keep
their windows and doors shut every time there is a cricket match, especially
during the summer months (when matches are typically played), to overcome
adverse noise impacts.
75. In any case, due to the location of the proposal, noise from certain cricket
matches, whether that be the crowd, the PA or music played at particular
points in the match, such as in response to a wicket, would be audible to future
occupants on their balconies on the north-west and north-east elevations at
levels above the BS standard.
76. The Guidance28 outlines that noise impacts may be partially offset if residents
have access to other areas. These include a relatively quiet, protected nearby
external amenity space for sole use by a limited group of residents and/or a
publicly accessible amenity space nearby.
77. The proposed courtyards would be relatively quiet, protected and near to
residents. Additionally, there are local parks at Seymour Park, Longford Park
and Gorse Hill Park, all of which are a short walk away. Together they would
provide a range of amenity spaces for future occupants to use should they be
affected by cricket related noise.
78. In terms of the effects and consequences of cricket noise, whilst future
occupants may make small changes to their behaviour, I find that, subject to
the imposition of a planning condition, they would have satisfactory living
conditions. On this basis, the proposed development would not affect the ability
for LCCC to hold cricket matches of any form and so in this regard the
proposed development would comply with the aforementioned policies and
guidance. This matter carries neutral weight as the proposal would mitigate the
effect to a satisfactory level.
Conclusion on this main issue
79. Noise from concerts at EOT would result in a time-limited but significant
adverse effect on future occupants of the proposed development. The proposed
mitigation to address the internal noise environment would be ineffective if
residents opened their windows and doors, which would not be unrealistic,
unreasonable or controllable during the months when concerts typically take
place, especially in the absence of any alternative means of ventilation to
prevent overheating. There is no mitigation for the private amenity spaces to
address the significant adverse effect and these spaces are an intrinsic part of
the proposed design. The consequence of this for LCCC could be the review the
premises licence, further formal action to remedy a statutory nuisance or for a
civil nuisance action to be taken by future occupants. There is a real risk,
therefore, that concerts could be curtailed at EOT and for LCCC to suffer direct
financial consequences as a result.
80. On this basis, I conclude, in respect of this issue, that the proposed
development would not accord with CS Policies SL3, L5.13 and L7.3. These
polices do not permit development that has the potential to cause adverse
noise and prejudice the amenity of future occupiers unless it can be
demonstrated that adequate mitigation measures can be put in place. The
proposal would also be contrary to Framework paragraphs 185 and 187 and the
28 CD-G3, Paragraph 011 Reference ID: 30-011-20190722
Guidance as the significant adverse effect of concerts on future occupants
would not be mitigated and reduced to a minimum potential adverse impact,
thereby avoiding unreasonable restrictions being placed on LCCC’s activities. I
attach substantial weight to this harm.
Future occupants’ living conditions – amenity spaces, outlook and sunlight and
daylight
Amenity spaces
81. A mix of amenity spaces are proposed, consisting of two large central
courtyards, multiple rooftop spaces and private spaces in the form of gardens
or balconies for units across the development. The rooftop spaces would be
accessible to all future occupants of the development, whilst the two courtyards
would be accessible and open to use by future occupants and the public.
82. A total of around 3,579m2 of amenity space is proposed across the
development. The quantum of this is not at issue. Nor is the 100% sunlight
that the proposed rooftop spaces would receive or their ability to provide
functional amenity spaces for future occupants to use during the year.
83. A central part of the proposal’s design is the two courtyards. The northern
courtyard would be around 1,085m2 in size whilst the southern courtyard would
be roughly 1,164m2. Jointly, they amount to just under two thirds of the total
amenity space proposed. The courtyards would offer multifunctional spaces for
people to meet, relax, play, access or traverse. They are most likely to be used
by residents on the lower floors, due to proximity, but, equally, they may be
used by every resident due to their size and central position. This could
facilitate community interaction.
84. The BRE Guidance is not mandatory nor is it an instrument of planning policy,
but it outlines the value of good site layout planning for daylight and sunlight
and that this should not limit itself to providing good natural lighting inside
buildings29. As such, it is a valuable resource as sunlight in spaces between
buildings has an important impact on the overall appearance and ambience of a
development and is valuable for a number of reasons, such as making outdoor
activities like sitting out and children’s play more pleasant. BRE Guidance goes
onto say that special care needs to be taken in the design of courtyards as
often they can turn out to be sunless and unappealing. As a check, BRE
Guidance recommends that at least half of all the amenity areas should receive
at least two hours of sunlight on 21 March.
85. Against this check, the appellant’s courtyard shading analysis30 shows that
52% of the northern courtyard and 11% of the southern courtyard would
receive two hours of sunlight on 21 March. Therefore, the southern courtyard
would be significantly affected by shade at this point in the year, with the
northern courtyard less affected and just passing the BRE Guidance check.
86. However, the appellant’s analysis only covers the central parts of those
courtyards and not the full functional areas of each. Looking at the 22 March on
the OEA transient sun study31, whilst a day later than the BRE Guidance, the
full extent of both courtyards would be shaded for the best part of the day.
29 CD-Q3 Paragraphs 3.3.1, 3.3.2, 3.3.3 and 3.3.7
30 Mr Hann’s Proof, Appendix E
31 Ms Harrison Proof, Appendix F
87. On this unconstrained site, the cause of the courtyard shading during the year
would be the proposal’s height, scale, massing and layout. Effectively, both
courtyards would be enclosed by tall built form despite the gap and break
proposed. Given their central role, the high degree of shading that would affect
both courtyards for large parts of the year would significantly affect their
appeal and usability as amenity spaces. Not everyone wishes to be in direct
sunlight for all or part of the time but, given the mix of housing proposed,
some of which would be occupied by families, the quality of external amenity
spaces is important32. The courtyards would not provide suitable outdoor
spaces for future occupants as they would not function as they ought to or
could do. Thus, future residents would not be provided with appropriate living
conditions even if each courtyard contained high quality hard and soft
landscaping with plant species that can respond to direct or partial sunlight.
88. Balanced against this are the multiple rooftop spaces that would be accessible,
sunlit and landscaped to provide functional and flexible spaces for every
resident to enjoy throughout the year. When these spaces are included, around
61% of the total amenity spaces proposed would meet the BRE Guidance.
Furthermore, both courtyards would be safe spaces and subject of quality hard
and soft landscaping.
89. However, given that the courtyards collectively equate to around two thirds of
the total amenity space provision and this is an unconstrained site, I consider
that the proposal overall would not deliver a high standard of amenity for
future users due to the appeal and usability of both courtyards as amenity
spaces. Hence, the proposal would not promote future occupants’ health and
wellbeing in this respect, and they would not be provided with acceptable living
conditions even if each courtyard would contain high quality hard and soft
landscaping and would be safe spaces. This outweighs any overall compliance
against BRE Guidance.
Outlook
90. The first of the Council’s concerns relates to the units proposed on levels 0, 1,
2 and 3 of the south-east elevation, facing the belt of trees next to the tram
line. Excluding the units at either end of this elevation, each unit would be
single aspect and have habitable room windows facing the belt of tall
established trees along the site’s boundary with the tram line. The trees
provide a screen to the tram line and buffer the noise from it, but future
occupants of these units would have a harmful outlook not because it is onto a
bank of trees per se, but because of the proximity of such a tall bank of trees,
which will form a dense visual barrier when they are in leaf. The effect would
be less harmful for the units on level 3, as they are likely to have views over
the canopy with those views increasing when the trees are not in leaf.
91. The proposal is further away from the tram line boundary than the outline
scheme at the former Kellogg’s site, which the Council have resolved to
approve, subject to the s106 being resolved. Work is also underway preparing
the reserved matters scheme33 and the indicative masterplan shows a block of
four storey high development next to the Metrolink boundary. However, this
has yet to be granted planning permission. There are also no details of the
internal layout of the blocks next to the Metrolink to know whether they might
32 National Design Guide, Paragraph 126
33 Housing Land Supply Addenda, 27 January 2022, Appendix 13a(i)
be single aspect or not. As such, the current position on the Kellogg’s site does
not justify the outlook proposed for the units on levels 0, 1 and 2 on the south-
east elevation, which I consider to present a harm to the living conditions of
future residents.
92. The second area of concern relates to the 18 single aspect units proposed on
levels 0 and 1, in the north-east façade, facing the indoor training facility at
EOT. There would be around 12.5 metres between them, which would exceed
the distance advised in Supplementary Planning Document 4 (SPD4), which is a
useful barometer. The proposed layout would allow for a potential future
pedestrian connection between Great Stone Road and Old Trafford Tram
Station between the indoor training facility at EOT and the north-east façade.
Each of the 18 units would either open out directly onto their own private
landscaped garden or towards the path, which is earmarked to be
supplemented by landscaping. Elevated gardens would mean that the soft
landscaping and the indoor training facility would appear lower to future
occupants. There is also sufficient room to accommodate landscaping to screen
the indoor training facility at EOT and soften the outlook for future occupants. I
consider an attractive outlook would be created for the 18 units highlighted
despite the inconsistency between the proposed plans and the photomontage,
as this could be resolved at reserved matters stage.
93. A third area of concern relates to the outlook from certain flats facing into the
courtyards. Yes, they would generally be enclosed or offer glimpsed or oblique
views of the surrounding area, but generally the inward facing units would
benefit from a good outlook across each of the courtyards due to the stepped
nature of development, gaps to the Great Stone Road frontage or distance.
Sunlight and daylight
94. BRE Guidance sets out standards in relation to the levels of sunlight and
daylight reasonably expected within new development, but these standards are
advisory and should be interpretated flexibly34 and in relation to site specific
circumstances.
95. The BRE Average Daylight Factor (ADF) criteria are the most appropriate
measures of light within the rooms proposed in the development as it considers
light reaching a window, the size of the window and internal surface
reflectance. Against the ADF criteria, 88% of all the rooms within the proposed
development would meet the relevant threshold, 8.5% are a negligible or
minor amount below it and the remainder falling below the target ADF value.
Of the remaining number around half are bedrooms.
96. This outcome is based on the application of BRE’s upper target value of 2% for
mixed-use rooms. When a 1.5% value is used, as has found to be a reasonable
approach in other schemes with mixed-use rooms35, 93% of the rooms fully
satisfy the ADF criteria, 5% are a negligible or minor amount below the ADF
criteria. However, of the rooms below that (2%), all but one are bedrooms. The
BRE Guidance confirms that bedrooms do not need as much daylight.
97. When the appeal scheme is compared against other local schemes that have
been granted planning permission by the Council at Sale Square, MKM
34 CD-Q3, Paragraph 1.6
35 APP/E5900/W/17/3171437, Paragraph 128, Mr Radcliffe’s Proof, Appendix D
House/Warwick Road and Wharf Road, it would perform more favourably than
these in sunlight and daylight terms.
98. The BRE Guidance is not concerned with windows that are not within 90
degrees of due south as they would never see the sun. However, it remains a
sensible aim to minimise the number of dwellings that face a degree of north.
In this case, it is said that 151 units would do so. However, as the proposal is a
large, flatted development and due to the site’s location, shape, orientation and
physical parameters, to an extent this scenario is unavoidable. Of the assessed
windows, all pass the Annual Probable Sunlight Hours test save for two
windows in the summer and 12 in the winter.
99. A flexible approach should also be taken so that the site is used efficiently
according to Framework paragraph 125c). I consider, when the proposal is
looked at in the round in sunlight and daylight terms, that a minor level of
harm would be caused to a number of units, but overall, the appeal scheme
would provide adequate living conditions to future occupants insofar as sunlight
and daylight. This does not change my view about the proposal’s effect on
character and appearance of the area as Framework paragraph 125 outlines
that they are to be created in parallel.
Conclusion on this main issue
100. I conclude that the proposed development would result in a poor level of
amenity for future occupants of the proposal in relation to the two courtyards
and the outlook from the units on levels 0, 1 and 2 on the south-east elevation.
I have also concluded that a minor level of harm would arise in respect of the
living conditions of some future residents in respect of sunlight and daylight. As
such, the proposal would not accord with CS Policies L7.3 and SL3.1 which,
among other things, seek development not to prejudice the amenity of future
occupants by creating a high-quality neighbourhood. The wording of the
policies do not replicate the wording used in the Framework, but they are
consistent with its aims to achieve high-quality buildings and places which
create better places to live and work and provide a high standard of amenity
for existing residents. I attach full weight to these policies on this issue.
Conflict would also arise with Framework paragraph 130f) which requires
places with a high standard of amenity for future users.
Living conditions of nearby residential occupants - overbearing
101. SPD4 is not strictly applicable to the appeal scheme as it concerns itself with
house extensions and alterations. The appeal scheme would meet and exceed
the figures in SPD4 for properties on Great Stone Road and Trent Bridge Walk.
The nearest properties on Trent Bridge Walk would be around 41 metres from
the proposal whereas 34 metres away on Great Stone Road with those on
Gorse Avenue and Gorse Crescent varying according to their location.
102. Planning is not, however, just a mathematical exercise. Judgement is needed
to assess whether something is overbearing or not based on factors such as a
development’s height, width and depth, orientation, the existing relationship,
the character of the area and the presence of habitable room windows.
103. Development on the appeal site would be of a greater scale and mass than the
nearby residential properties. There is also a need to make best use of
brownfield land, deliver new homes and help regenerate the area. By
developing the site, it would result in a changed view and relationship for any
of the residential properties on the roads referred to, even if the Council’s
vision for the site at a lower scale and mass is realised. This does not
automatically equate to harm. Nor does the fact that something might be
visible. Built form on the site does not also necessarily need to replicate the
lower scale of development to the south and west of the site, but it does need
to respond to it and the site’s context.
Trent Bridge Walk
104. Properties on Trent Bridge Walk have front and rear window openings, but their
habitable rooms tend to be positioned towards Headingley Drive.
105. The proposed development would be a similar distance away from properties
on Trent Bridge Walk as is the media building at EOT. However, the proposal
would be taller and wider and would be square onto properties on Trent Bridge
Walk. The full extent of the north-eastern elevation would also present itself as
an elongated façade when viewed from Trent Bridge Walk.
106. The highest part of the development would also be opposite properties on Trent
Bridge Walk. The effect would be felt from first floor bedroom windows of
properties between 8 Trent Bridge Walk and CAM-0636. The remainder of EOT
collectively covers a considerable area and is of some scale and mass.
However, the greatest collection of this is at the north end of the ground,
furthest away from Trent Bridge Walk. The stands to the south and either side
of the media building are angled open air seated terraces. They are not a vast
mass individually or collectively, so they do not have an overbearing effect.
107. Despite the articulation, the full height and partial gaps in the north-east
elevation would fail to break up the development sufficiently to avoid the
proposal being read as a substantial block of tall development. The proposed
intervening distance would exceed SPD4 requirements, and there are trees and
shrubs on either side of the Metrolink line. Although the trees and shrubs would
help screen the development to varying degrees across the year, they are not
universal along the path to Trent Bridge Walk. Furthermore, the proposed
lower scaled elements would not be a feature in views from Trent Bridge Walk.
Based on these various factors, I consider the proposal would be overbearing
on the outlook from dwellings on this part of Trent Bridge Walk.
Great Stone Road
108. Currently, there is a significant distance between the residential receptors
along Great Stone Road between Lancastrian House and the Metrolink line and
the scale and mass of the cricket stadium and the training facilities. The
relationship does vary between receptors along this stretch.
109. Lancastrian House is a six-storey block opposite dwellings at the junction of
Great Stone Road and Talbot Road. However, the length of this block is
significantly less than the full extent of the appeal scheme and the alignment of
subsequent blocks of Lancastrian House are fairly tight to Talbot Road and are
largely screened by the initial block when stood directly opposite it.
110. Whilst there would be a visual change to the outlook from properties on Great
Stone Road close to Lancastrian House, an overbearing effect would not arise
due to the long intervening distance between them and the proposed
36 Mr O’Connell’s Proof, Page 28
development, the presence of the surface level car park and the relationship
presented by Lancastrian House to the receptors.
111. From those properties directly opposite the site or immediately next to it, the
proposed development would appear considerably closer, longer and taller than
the stadia/training facilities or the former B&Q building. Closest to the road and
the properties, the proposed design would break the development up
somewhat, and the rising road level of Great Stone Road and the roadside
hedge would play a varying role in the relationship between residents and the
appeal scheme. Nonetheless, the proposed development would still be
dominant and overbearing to residents due to its scale and massing, which
would extend not just in front of the current properties but also increase as the
proposal steps away from Great Stone Road. This would create a harmful
effect.
Gorse Avenue and Gorse Crescent
112. The closest properties on Gorse Avenue (between Great Stone Road and Gorse
Crescent) are generally side on to the appeal site. Therefore, even with front
and rear facing rooms, the proposed development would always be at an
oblique angle regardless of its proximity. The stepped form of development,
allied with more obvious breaks along the Great Stone Road frontage and the
backdrop afforded by the cricket ground beyond, leads me to consider that the
proposal would not create an overbearing effect upon occupiers of the relevant
properties.
113. Properties in Gorse Crescent are arranged into terraced blocks. The proposal
would rise above the neighbouring dwellings and its stepped design would be
visible from midway round the crescent37. Despite the visual change for
occupiers, the proposal would not have an overbearing effect on their living
conditions due to the form of development, intervening distance and/or
orientation of the properties.
Conclusion on this main issue
115. The proposal would not have an overbearing effect on outlook from properties
on Gorse Avenue and Gorse Crescent. Even so, this does not alter or outweigh
my conclusion that the proposed development would have an overbearing
effect on the outlook from residential properties on Great Stone Road and Trent
Bridge Walk, due to its height, massing, scale and layout. The proposal would
not accord with CS Policies SL3, L3 and L7 as the development would not be
compatible with the surrounding area as it would prejudice the amenity of
occupants of adjacent properties by reason of it being overbearing. It follows
that, in accordance with Framework paragraph 130f), the proposal would not
deliver a high standard of amenity.
Affordable housing and education
116. CS Policy L8.3 states that contributions will be sought for all new development
and the nature and level of contributions will be established on a site-by-site
basis, relating to the type and size of the development proposal. CS Policy
SL3.4 confirms that provision of affordable housing should be made in
accordance with Policy L2. This requires appropriate provision to be made to
meet the identified need for affordable housing. There is no dispute that there
37 Mr O’Connell Proof, Page 31
is a clear need for affordable housing in the Borough and for an appropriate
housing mix to achieve a balanced offer, especially for families.
117. Policy L2.9 identifies three broad market locations to take viability issues into
account in the Borough. The site lies within a cold market location where no
more than a 5% affordable housing target will be applied under normal market
conditions, with a flexibility to raise this to a 10% requirement under “good”
conditions38. The parties agree that the higher figure applies given current
market conditions. These figures are subject to viability.
118. However, bullet point 4 of CS Policy L2.12 explains that for developments that,
in viability terms, perform differently to generic developments within a
specified market location, the affordable housing contribution will be
determined through a site-specific viability study and will not normally
exceed 40%.
119. The Council and the appellant disagree on whether the proposal would perform
in viability terms differently to generic development in Old Trafford, having
regard to the typologies that were tested prior to the CS being adopted.
120. The density of the appeal scheme would be more than double the density of
the highest density development tested in Old Trafford for the CS. The site is
also in a distinct location next to the internationally renowned EOT and near to
facilities and services such as an easily accessible tram stop. Furthermore, the
scale and nature of the proposal differs from the generic development tested to
underpin the CS.
121. The high-density scheme at The Botanic Gardens at Talbot Road was deemed
to be generic by the Council. However, there is no explanation to support the
view taken39. I also understand that a 22% affordable housing contribution was
secured with a non-policy compliant change in tenure. That said, the location of
The Botanic Garden site is further away from EOT and the tram stop. Aside
from the different quantity of apartments that both schemes would deliver, the
development at The Botanic Gardens includes office space whereas the appeal
scheme includes flexible spaces within use classes A1, A3, D1 and/or D2.
Taking matters in the round, I consider that the appeal scheme could perform
differently to the generic development in Old Trafford.
122. The appellant has submitted a Financial Viability Assessment (FVA), which is
what CS Policy L2.12(4) seeks to determine the affordable housing contribution
based on. On the appellant’s case this is 6.3% with homes either as Affordable
Rented Units or Shared Ownership Units split proportionately across each
phase and as per the mix found in CS Policy L2. This equates to 21 units.
FVA
123. The credentials of the witnesses who provided evidence on this main issue
should not dictate an outcome in and of themselves. Despite the criticisms
about qualifications, memberships and experience, all the inputs into the FVA
were agreed. The upshot of this is a gross improvement in viability of £14m.
The sole difference between the parties now relates to construction costs,
which directly influence viability and the affordable housing contribution.
38 CD-H4, Paragraph 3.13
39 Mr Hann’s Proof, Appendix 6, Paragraph 28.
124. The Guidance is clear that an assessment of costs should be based on
evidence, which is reflective of local market conditions. Build costs should also
be based on appropriate data (that provided, for example, by the Building Cost
Information Service (BCIS)). The Guidance also says that for a viability
assessment of a specific site or development, market evidence (rather than
average figures) from the actual site or from existing developments can
be used.
125. The Rev G elemental unit cost assessment has been prepared by an
experienced costs professional. It comprises of lots of separate elements, which
are individually quantified and costed. Some of the elements in the assessment
rely on BCIS rates, some do not.
126. Those elements in Rev G that rely on BCIS rates moved in line with the agreed
construction costs inflation figure of 6.58% compared to Rev D. Eight, non-
BCIS rated elements, however, rely on professional judgement. These
elements include costings for external walls, windows and doors, internal
doors, wall finishes and floor finishes. The increase in each between Rev’s D
and G ranges between 46% and 97%. The rate of the eight elements in Rev D
were agreed by the Council after reviewing them against BCIS elements and
other FVA’s.
127. Despite Rev G, Rev D does provide important context. Both are the appellant’s
own considered assessments, and the proposal’s design has not changed
between Revs D and G. The increase in these eight elements is said to be due
to the appellant’s delivery model. I have no reason, given that it is not before
me, to dispute the appellant’s position that Rev A was based on a standard
design and build model. Rev D moved to a developer model with the appellant
using their in-house expertise as they were in a JV with the property investor
PGIM. It was expected that this model would secure an economy of scale and
cost savings compared to a design and build contractor. PGIM are now no
longer on the scene and Rev G has reverted to the standard design and build
model, but it incorporates the design changes accounted for in Rev D.
128. Using a standard model ought to enable design and build contractors to achieve
the economies of scale and cost savings as they are working on multiple large
projects and have the resources, skills, delivery experience and buying power
to do so. A design and build contractor who tried to charge 45% more than an
owner/developer could secure in house would be unable to compete. Without
an explanation by the appellant, I cannot comprehend why there would be such
a stark difference in non-BCIS rated elements based solely on the delivery
model alone, especially when there was no suggestion that the rates adopted in
Rev D were ‘exceptionally low’ or specific to a delivery model.
129. The same point applies to external costs. Preliminaries in Rev G are set at 15%
based on a mean unit rate from BCIS prelims study for projects over a certain
amount. Using 15% would be wholly appropriate based on BCIS data40 if the
mean were to be relied upon, but it is affected by all the rates in the sample
and can be unduly influenced by one or two extreme values when the same
size is small. Thus, the median is more reliable as it is less affected by
anomalies. Moreover, the sample size for Q1 2021 is low compared to previous
quarters which typically show a lower preliminary figure whether the mean or
median is used, save for the Q1 2019 sample which seems to be affected by a
40 Mr Latham Rebuttal Proof, Page 12
wider range of preliminaries. I therefore disagree that there is robust evidence
to support the 15% for preliminaries when BCIS puts this at around 12% which
broadly compares with other apartment schemes in Old Trafford41.
130. For the reasons set out above, there are unanswered questions around the
costs in the Rev G assessment that mean it cannot be seen as a fair and
reasonable assessment. Nor can it be looked at independently from previous
revisions as the purported changes relate to the delivery model not the actual
development itself. On face value, the changes to the eight elements, external
costs and preliminaries have seen the costs on a comparative basis increase by
28% which is over 20% more than the agreed construction cost inflation figure
in the FVA of 6.58% despite them being the same build elements, in the same
location and to the same specification.
Benchmarking
131. The appellant arrives at global figure for the scheme of £1,787m2 having
divided the total costs by the total Gross Internal Area. This is inclusive of the
undercroft car parking and commercial development. This figure was said to lie
between the median and mean, but closer to the median when assessed
against the BCIS for six-storey + flats as of 23 October 2021. However, given
the date of the Inquiry, the most up to date and correct figure for the median
is £1,72342. The appellant is some £64 above this median rate. Either rate is
below the mean as of 23 October 2021 and at the end of Q4 2021.
132. However, BCIS reports basement parking, six-storey flats and commercial
spaces as separate entities. Commercial space and parking are usually cheaper
to build. As a result, when compared to the cost of a flatted development only,
it would inflate the costs of these elements and deflate the costs of the flats.
This is borne out by the appellant’s costing for the undercroft car parking at
£135m2 which is some £1,652m2 shy of the appellant’s global figure. The flats
would therefore need to be costed accordingly to arrive at the appellant’s
figure. As such, I disagree with the appellant that these spaces would be
accounted for as part of a six-storey flatted development as not every
development would include these elements or may indeed include others not
proposed in the appeal scheme. Hence, the appellant’s benchmarking exercise
is not like-for-like.
133. While the appellant’s assessment is site specific, I do not find it to be reliable.
Given this situation, it is appropriate to use a blended rate from BCIS to arrive
at a like for like comparison. This approach is supported by the Guidance as an
appropriate data set. Whether or not the blended rate of £1,609m2 set out by
the Council sits between the mean and the median for the six-storey + flat is
irrelevant as that would not be a like-for-like comparison. The appellant’s
global figure is considerably higher than that and would therefore depress the
amount of money available towards an affordable housing contribution. The
same point would apply even if a comparison was drawn based on the more
reliable Q4 2021 median which the appellant’s global figure is some £64 above.
134. The Council asserts that the proposal can deliver 39% of the proposed
apartments as affordable homes alongside all the other contributions inclusive
of the primary school contribution. This is based on a blended BCIS rate from
41 Mr Lloyd Proof, Paragraph 6.4.7
42 Inquiry Document 18
Q4 2021, Rev D costs, 12% preliminaries and the agreed costs inflation figure
of 6.58%. This equates to a build cost of £156.44ft2.
135. Compared to recent schemes43 granted planning permission in Old Trafford for
various quantities of units, the average affordable housing contribution secured
is around 7%. This would be out of kilter with the delivery of 39% affordable
housing here on the Council’s case.
136. However, Guidance in respect of viability was changed extensively in 2018.
RICS Guidance has more recently been updated to reflect the central change to
avoid land value expectations pricing out affordable housing. The Council also
changed its approach in 2017 by challenging the industry narrative on viability.
This seems to have taken time to have effect given that all bar one of the
schemes that make up the 7% comparison were granted planning permission
after the Council changed its approach. However, most of them were prior to
the Warburton Lane decision which was the first scheme tested on appeal since
the change in approach. It was accepted by the appellant’s witness that the
appellant’s approach to viability in that case was rejected. In that decision, the
Inspector found that there were sufficient funds for 45% affordable housing.
137. Notwithstanding these schemes, the fundamental premise of an FVA is that it is
an objective exercise, and in this case, based on the proposed development.
The outcome of the FVA should determine the affordable housing contribution
and not be based on what may have been the norm or accepted elsewhere.
The level of contribution
138. The appellant’s position of a 6.3% contribution is not, for the reasons set out,
supported by a reliable FVA assessment. As I consider the appeal scheme could
support a higher affordable housing contribution, it follows that a contribution
at 6.3% would not be fairly and reasonably related in scale and kind to the
development and would, therefore, conflict with Core Strategy Policy L2.12.
139. The Council’s assessment of a 39% contribution is underpinned by inputting
either agreed, factual or what I determine to be suitable figures. This, however,
also accounts for the primary school contribution, which could mean that the
affordable housing contribution could be higher still. I shall consider the merits
of the primary school contribution, but solely in relation to affordable housing,
the Council’s level of contribution is what the evidence indicates that the appeal
scheme can at least support.
Education
140. The Education SoCG44 narrowed the dispute between the Council and the
appellant considerably and now only a primary school contribution is sought. To
determine whether this is warranted, the dispute focuses on the methodology
used for the ‘demand’ (pupil yield) and ‘supply’ (shortfall in primary school
places). All the figures involved have been agreed.
141. There is no mechanism before me that could state when the proposed
development is to be built by, just a planning condition stating when it must
start. This cannot specify a timetable for building out or at all. Hence, relying
on any timetable for buildout must also come with a health warning that it
43 Mr Lloyd Proof, Paragraph 7.4
44 Inquiry Document 8
could change. Nevertheless, according to the appellant, phase 1 of the appeal
scheme is anticipated to be complete in Autumn 2024 (20-month build out
period), with full completion by summer 2026 (23-month build out period).
Both would follow a six-month lead in period.
142. The appellant’s methodology in respect of ‘the supply’ is based on the Council’s
school capacity planning (‘SCAP’) forecasts. These are prepared by each local
education authority to help determine how many school places must be
provided in the future and to inform resourcing decisions. They rely upon all
new developments which have been granted planning permission. SCAP is
carried out in May/June each year wholly based on GP registration data
provided in the preceding April. This data seeks to capture all the children who
will be starting primary school five years after they are born. Births between
April and September are then factored in before models are used to extrapolate
that population forward over the coming five-year period to account for annual
changes in migration and survival.
143. The Council prepares its SCAP forecasts as per the SCAP guidance45, which
confirms that robust forecasts are important for agreeing investment from
other services and for housing developers for infrastructure improvements.
Guidance on Securing Developer Contributions46 states that it does not replace
or override any aspects of other Department for Education publications such as
the SCAP guidance, which clearly envisages SCAP forecasts to be used for this
purpose.
144. Based on the completion dates for phases 1 and 2, the appellant considers the
appropriate SCAP forecasts are for the years 2024/2025 and 2025/2026.
However, even if the Council did not challenge them47, the appellant’s version
of suggested planning condition 1 would mean later completion dates and a
knock-on effect for the appropriate SCAP forecast years. I note the appellant’s
rationale for their version of condition 1, but the logic around the judicial
review period is incorrect48.
145. In practice, the appellant’s anticipated timeframes may be correct and/or the
reserved matters could be submitted, or the development built out sooner, but
if their version of condition 1 was fully utilised, the effect would be that phase 1
may not built out until mid-May 2025 at the earliest with phase 2 being
completed by mid-April 2027. Therefore, 216 of the 332 units proposed would
not be completed and would not start generating pupils until after the last year
of the SCAP forecasts before me. In this scenario, there is no forecasting
evidence before me as the children are yet to be born. This highlights an issue
with using SCAP forecasts for developments that would generate pupils further
into the future, which is a conceivable possibility on the appellant’s own case.
146. However, the Council’s version of condition 1 would result in an earlier start on
site and, if the appellant is correct on their initial timeframe for phases 1 and 2,
then completions would arise in the years of 2024/2025 and 2025/2026.
147. There are downsides to relying on SCAP forecasts, such as that their reliability
reduces the further ahead you look due to there being a greater chance of
change. They are also not based on actual recorded births between April and
45 Education SoCG, Paragraph 2.8
46 CD-M1, Page 4
47 Appellant Closing, Paragraph 197
48 Section 91(3B) automatically gives the time extension in this scenario.
September. Furthermore, there can be a difference between expected and
actual pupils turning up at reception; a point demonstrated with a higher
number on roll in October 202149 than expected. This increase will only travel
with the cohort as they progress through primary school.
148. Two further criticisms are levelled at SCAP forecasts by the Council. The first
relates to delays in GP registrations or children starting school due to the
pandemic. However, the effect of this is unknown either way and is time limited
in any event. The other criticism is the effect on inward migration. Trafford has
recently seen an uptick in migration from Hong Kong. That said, Trafford’s
most recent SCAP forecast have already accounted for this as the inward
migration rate was amended so that this is carried forward in future years. Any
further immigration from Hong Kong or anywhere else would not be picked up
in the SCAP forecasts figures before me, but I need to consider this case based
on current circumstances and there is no evidence, either way, to indicate
whether there has been additional inward migration.
149. Although the SCAP guidance clearly envisages SCAP forecasts are to be used
for this purpose, that is not to say that they are the only methodology. There
can be great value in detailed local methodologies and guidance for the
collection of developer contributions for education in that area50. Trafford’s
‘snapshot’ methodology is local and does not require any forecasting. It is
based on current numbers on roll against published admission numbers of
relevant schools, and to add in any child yield from previously committed
development to see whether any level of surplus places remain. It is the
Council’s extant policy on education contributions, following Member’s
discussion at Scrutiny Committee, though the methodology is not part of a
Supplementary Planning Document.
150. However, when either of the timeframes set out are applied it would mean that
a significant proportion of the pupils currently accounted for will not be at the
school when the proposal starts generating pupils for primary school education.
It is an agreed matter that a shortfall cannot be caused by the appeal scheme
unless it arises after the proposal starts generating pupils51. Thus, even if birth
rates are predicted to be steady, it would not be correct to consider whether
there would be a shortfall in primary school places on the October 2021
figures, as any shortfall noted at this point would not be due to the proposal.
Therefore, in this case, notwithstanding the successful application of the
Council’s local methodology to other schemes, an education contribution using
the Council’s methodology would not be directly related to the development or
necessary to make it acceptable in planning terms.
151. Forecasting and modelling the future is not a perfect science and there will
always be some inherent uncertainty and the potential for different outcomes.
Out of the two methods before me, I prefer the appellant’s methodology in
respect of the supply as it looks at the period after the proposal starts
generating pupils subject to the Council’s version of suggested condition 1. As
such, as a consequence, and as set out in the Education SoCG, I conclude that
no primary contribution from the proposed development is necessary
regardless of the pupil yield. The effects of the proposal on education provision,
specifically primary schools, would be acceptable without the need for any
49 15 pupils higher for the reception year
50 CD-M1, Bottom of Page 4
51 Appellant Closing, Paragraph 197, Footnote 199
contribution. I have therefore not gone on to consider the merits of the pupil
yield cases. As such, the proposal would accord with CS Policies L2.2, SL3.2,
SL3.4 and L8.4.
Conclusion on this main issue
152. I have found that a primary education contribution is not necessary to mitigate
the effects of the appeal scheme. The tests set out in CIL Regulation 122 and
Framework paragraph 57 are not therefore met and I give this contribution no
weight in reaching my decision.
153. An affordable housing contribution is necessary to make the development
acceptable in planning terms. A 39% affordable housing contribution was with
a primary school contribution. As the latter is not necessary, this money could
go towards affordable housing and take that contribution to more than the
Council’s conclusion of 39%. However, in the absence of evidence, I cannot
conclude that the site could deliver more than 40%. Notwithstanding the
appellant’s case, the UU has been drafted to allow for such other number of
dwellings as set out in this decision. On this basis it seems to me that the UU
would be directly related to the development and fairly and reasonably related
in scale and kind to it. The UU in respect of the affordable housing contribution
would satisfy the tests in CIL Regulation 122 and Framework paragraph 57.
Affordable housing provision carries considerable weight in favour of the appeal
scheme given the identified need and the mix that the UU would provide for.
Longford Park Conservation Area and the setting of nearby listed buildings
154. Trafford Town Hall, a Grade II listed building, is to the north of EOT and Talbot
Road. The Town Hall is set within formal gardens and has been extended to the
north with a contemporary addition. The Conservation Area is broadly to the
south of the site.
155. Despite the Council’s position, I have a statutory duty under Sections 66(1)
and 71(1) of the Planning (Listed Building and Conservation Areas) Act 1990
(as amended).
156. The Conservation Area’s significance derives from the site of the former
Longford Hall and its association with John Rylands. The estate was designated
as a public park in the 20th century, and its key aesthetic value relates to its
green spaces, mature trees, planting and openness. It is a highly valued
recreation space. The park’s layout reflects the historic estate use with the
central and southern parts of the Conservation Area defined by the estate
buildings, formal gardens and tree-lined paths, with the northern end
displaying a more open character, with wide expanses of fields bounded by
fencing, hedges and mature trees. These afford views of land to the north of
the Conservation Area in the direction of the appeal site with a largely
uninterrupted skyline. Tall, mature trees encircle the Conservation Area and
screen the two-storey houses to the south and east of the appeal site.
157. The appellant’s verified view of the proposed development, looking northwards
from within Longford Park, together with my own observations, indicates that
the proposed development would not be a prominent feature or interrupt the
skyline, as the mature trees would partially obscure the proposal even during
winter months. The appeal scheme would, therefore, have a neutral effect on
the significance of the Conservation Area and would hence preserve it.
158. Trafford Town Hall lies beyond EOT to the north-east of the appeal site. The
Town Hall is a local landmark building and its southern elevation facing Talbot
Road holds the most architectural significance, with several neo-classical
features with hints of Art Deco motif at various points. The proportions of the
building’s elements, materials and architectural details all contribute to the
Town Hall’s overall significance. The landscaped grounds and sunken memorial
garden to the west also contribute positively to the significance of the Town
Hall. The clock tower rises above the remainder of the building and there are
glimpsed views of it across the appeal site from the footway, to Great Stone
Road, and from Gorse Avenue near to its junction with Great Stone Road. This
allows for a limited appreciation of the heritage asset.
159. The clock tower and the proposed development could be viewed together from
Gorse Avenue, but the latter would not alter how the former is experienced as
it is a narrowed, focused view between EOT and Lancastrian House. The
proposal would not, therefore, cause any harm. It would, however, affect the
view of the clock tower across the appeal site from Great Stone Road as the
road rises up in response to the Metrolink line. Given the intervening
development, I consider this would result in a negligible degree of harm, which
lies at the lowest end of a spectrum of ‘less than substantial harm’. Great
weight, however, does need to be given to the asset’s conservation and the
public benefits of the appeal scheme need to be weighed against this harm. I
will return to this later in my decision.
160. There is a cluster of other grade II listed buildings at the entrance to Gorse Hill
Park52. Having regard to the setting and significance of them, no harm would
arise due to their scale, lack of visual relationship and the type, form and
design of nearby development and that proposed.
161. CS Policies SL3 and R1 are not wholly consistent with the Framework in terms
of how they approach the consideration of designated heritage assets, and as
such, carry moderate weight. However, there would be no harm arising from
the proposed development in respect of the Conservation Area or the grade II
listed buildings at the entrance to Gorse Hill Park. In this respect, I conclude
that the proposal would accord with CS Policies R1 and SL3. Nonetheless, due
to the less than substantial harm identified in respect of Trafford Town Hall, the
proposed development would be contrary to CS Policies R1 and SL3. I will
return to weigh this harm against any public benefits of the proposal.
Fine turf and non-turf training facility at LCCC
162. EOT is one of a handful of stadia in the UK to conform to the ECB facility
standards for High Profile Match Venues (including Men’s Test and International
Cricket) and the International Cricket Council’s (ICC) facility standards for
international cricket venues. To qualify as a High-Profile Venue the ECB and
ICC requires a high-quality FTTF for elite level teams involved in competitions
at EOT. The FTTF also serves a significant number of professional users and
talented individuals on the elite player pathway, including but not limited to
England teams, visiting international teams, LCCC, Manchester Originals,
Women’s Regional Academy and Lancashire age groups. The FTTF and NTTF
are split into two blocks of nets comprising of multiple wickets with a central
run up area serving a set of wickets to the north and south.
52 The Great Stone at the entrance to Gorse Hill Park; Gorse Hill Park Entrance Portal and Lodges; and Stretford
War Memorial.
163. The concerns raised in respect of this issue relate to the effect of
overshadowing from the proposal, which could affect light and temperature
levels. In turn, this was said to necessitate the purchase and use of growth
lights for the FTTF. I concur with the parties agreed position that the proposal
would not lead to an effect on the northern bank of nets of the FTTF. Insofar as
the NTTF is concerned, as there is no grass grown here no harm would be
caused by the proposal. Thus, the focus is the effect of the proposal on the ten
wickets in the southern bank of nets with the batter’s end located at the
southernmost part of the FTTF nearest to the appeal site.
164. The cricket season usually ends in September with the FTTF used right up until
then. Between October and the end of March the FTTF is not used for practice,
but between these months renovation, restoration and grass growth take
place. A hard-wearing Perennial Ryegrass, adapted to close mowing, is used.
The crucial months for this are October and February. October is seen as a
critical period for grass establishment by the ECB. In November, December and
January active grass growth does not typically occur, with grass usually
remaining dormant unless there is a spike in sunlight and/or temperature.
However, in February, grass growth accelerates in readiness for the FTTF being
readied for use at the end of March.
165. The Council contended that a lighting rig may mitigate the proposal’s alleged
effect in terms of sunlight, overshadowing and temperature. The appellant
disputed this, but photographs53 submitted during the Inquiry show LCCC have,
and already are using, a lighting rig on the FTTF. This led to the Council
confirming that it wished to withdraw its case on this main issue.
166. However, LCCC clarified the existing use of lighting rigs at EOT and whether
these could provide suitable mitigation against the proposal’s effect on the
FTTF54. Before doing so, I shall first consider the proposal’s potential effect.
167. The appellant’s evidence places the FTTF below the lower-level limit range for
active growth of Perennial Ryegrass whether or not the appeal scheme is built.
This technical analysis shows that there would be a slight reduction in solar
radiation and temperature during the months of October, December, January,
February and March on the southern part of the FTTF with the appeal scheme
in place. There would be no change in November.
168. Accounting for the clearness index for Manchester, which ranges between 27
and 30% during the winter months55, the upshot is that sunlight during these
months will be diffuse and there can be no overshadowing as a result. I do not
disagree with the appellant’s assessment that any reduction in temperature
caused by the proposal would be minimal and would not alter significantly the
existing conditions for turf management or renovation of the FTTF during the
winter months.
169. Notably, without development on the appeal site, growth lighting would
theoretically be needed to provide suitable lighting conditions for active grass
growth in the winter. However, setting this aside, if I were to consider that
harm would be caused to the FTTF, it is LCCC’s position that further growth
lights are required as mitigation to address that harm.
53 Inquiry Document 5
54 Inquiry Document 7
55 Mr Collier’s Proof, Paragraph 2.2.5
170. LCCC say that the small lighting rig currently used on the FTTF is not fit for
purpose as it can only cover three of the 25 nets at any one time and is,
therefore, of limited benefit. It has, however, been used to combat a frost and
provide light to the FTTF. LCCC also explain that their existing larger lighting
rigs would be too large for the FTTF and that a minimum of three further small
lighting rigs would be required to cover 12 pitches with the ability to move
them around.
171. However, LCCC’s position is not supported by substantive technical evidence
and the case for mitigation has not been made out in relation to the nature or
impact of the development. A condition cannot be imposed to remedy an
existing problem or issue not created by the proposal.
172. Thus, I conclude on this issue that the proposal would accord with CS Strategic
Objective OTO11 and Policies SL3 and R6, which seek, among other things, to
encourage, support and maximise the potential of LCCC as a visitor attraction
and its potential to lead major regeneration in the area.
Lancashire County Cricket Club - a non-designated heritage asset and an
internationally significant visitor attraction, cultural and tourism venue
173. Improvements made to EOT in recent years underpin its role as an
international sporting venue and one of the leading cricket venues in the world.
The pavilion was designed by Thomas Muirhead, a Manchester architect, who
later designed the pavilion for Surrey County Cricket Club at the Oval. It has
been extended and altered several times, most recently in 2012. The front part
of the pavilion has been retained and still faces the field of play, which provides
an historic architectural focal point for the ground. However, it has been
substantially altered internally and externally, with contemporary additions
behind. Modern buildings are either side of the pavilion, but its red brick front
façade and original features can be experienced from within the ground and at
an angle from the appeal site. It is a building which offers architectural and
historic value due to its age and use over time, especially as the remaining
parts of the ground have been extensively re-developed in recent years.
174. The pavilion holds communal value in terms of its cricketing history and
cultural characteristics. While the principle of experiencing cricket at EOT from
various places around the playing surface has not changed much over time
despite the changes to the game and the range of formats, the redevelopment
of EOT has seen the ground become a contemporary first-class cricketing
venue alongside other corporate and event offers. I therefore consider the
extent of the non-designated heritage asset (NDHA) to be the pavilion.
175. Despite the separation and the presence of other components of the ground
between the appeal site and the pavilion, it nonetheless forms part of its
setting, albeit it currently contributes little to the significance of the asset. The
development proposed on the site would abut LCCC’s indoor training facility,
the surface level car park next to the FTTF, and rise above the southwest
terrace. It would be clearly visible during the spring, autumn and winter
months, between the gap where the temporary stand is erected for the
summer months. This would not be the case when the temporary stand is in
place and less so when the stage is in situ for concerts at EOT.
176. The proposal’s scale, height and massing would alter the relationship between
the site and EOT and how EOT is experienced both from within the ground and
from Great Stone Road, Gorse Avenue and Gorse Crescent. But it would not be
dominating, in this regard, and reflective only of the glimpsed views currently
available at certain times. However, due to the wider area’s context, including
other elements of EOT, I consider that the proposed development would result
in negligible harm to the significance of the pavilion.
177. For the reasons outlined earlier, CS Policies SL3 and R1 carry moderate weight
insofar as they relate to heritage matters. Although there would be no conflict
with CS Policy R6, on the basis that it encourages and supports the Borough’s
culture and tourism offer in key areas such as at EOT, due to the negligible
harm identified to the NDHA, I conclude that the proposal would not accord
with CS Policies R1 and SL3 which seek to protect, preserve and enhance
locally significant historic buildings. As such, a balanced judgement is therefore
required as set out in Framework paragraph 203, which is a significant material
consideration, having regard to the scale of the harm identified to the NDHA
and its significance. I turn to this later.
Highway safety
178. The proposed vehicular and pedestrian access into the appeal site would use
the existing access point from Great Stone Road, which is next to a vehicular
access into EOT. This access is used occasionally by service vehicles and more
intensively when events take place. The pedestrian footpath extends along the
road either side of the LCCC/site access. The back of the footway marks the
extent of the adopted highway. The access road within the site would not be
adopted with it being owned and maintained by the developer.
179. No highway related concerns have been raised by the Council and there is no
putative reason for refusal on this matter, but in response to LCCC’s concerns,
the appellant confirmed through a revised drawing that there will not be any
raised kerbs that would hinder vehicle movements in or out of the LCCC
access. The footway and accesses will be resurfaced and designed to the
current footpath level. Tactile paving would be installed at either end of the
pedestrian footway. Hence, the proposal would not result in any change to
LCCC’s ability to use its access in a safe manner.
180. Flush kerbs are proposed within the adopted highway to define the two
accesses. They could be driven over but would act as a visual cue for
pedestrians. This is not intended as a protected zone for pedestrians and the
existing access arrangements require pedestrians to cross not only the LCCC
access but an in/out arrangement for the appeal site connected with its former
use. There is no evidence to suggest that this arrangement has caused
accidents or highway safety issues. There is also good visibility at the access
point for all highway users. This would remain the case if boundary treatments
were kept low or set back from the back of the footway through a planning
condition. The proposal would not therefore cause a significant change in the
use of the access.
181. There is no national or local policy requirement to complete a road safety audit
before the appeal is determined. The proposed access arrangements are also
not likely to change fundamentally road user behaviour as they accord with
Manual for Streets and could operate in a safe and efficient manner. The
proposed works would be subject of a Section 278 agreement with the Local
Highway Authority (LHA) and at this point would be subject to a road safety
audit, giving independent recommendations on safety matters in design. These
could be accepted or rejected by the designer who would have a chance to
respond with the LHA determining the appropriateness of the design.
182. I conclude that the proposed development would not harm the safety of
vehicular and pedestrian users of the access to the site, EOT and Great Stone
Road. Hence, the proposal would accord with CS Policy L4, even though it
carries less weight due to its inconsistency with the Framework56, and CS Policy
L7.2 and Framework paragraphs 110 and 111. Jointly, they seek safe and
suitable access for all and to only refuse planning permission if new
development is likely to have a significant adverse impact on highway safety.
Housing Land Supply
183. The Council produces an annual housing land supply position in March each
year, but for the purposes of the Inquiry, the parties engaged to provide an up-
to-date assessment as of 23 November 2021. Following discussions prior to
and during the Inquiry57 the appellant considers there to be a supply of 3.30
years. The Council considers the supply to be 4.24 years.
184. Of the now disputed sites, the disagreement largely rests with the differing
approaches of the parties to whether the sites accord with the term
‘deliverable’ as set out in the Framework and the Guidance which supports this.
The disputed sites fall into three broad categories.
Outline planning applications
185. The former Kellogg’s site is a Joint Venture (JV) between the Council and a
developer, Glenbrook. Outline planning permission has been granted subject to
a s106 which is said to be imminent. A reserved matters application was due
by 31 March 2022 and detailed discussions have taken place to front load the
process. A range of tenures would be delivered through four different sales
outlets. The site is suitable and available for development and due to the JV
nature of the development, there is clear evidence that housing completions
will begin on site within five years in line with Glenbrook’s letter58 and based on
the Council’s assessment.
186. The Council expect 600 of the 800 residential units proposed in the hybrid
planning application at Stretford Mall, submitted in November 2021, to be
delivered by November 2026. The residential development is split into 3 phases
on this Council owned site. I consider that 150 units at the Lacy Street site will
be completed in this time. The planning application is due for consideration by
the Council’s Planning Committee. While a s106 is required, the principles of
this are agreed. The site is a JV between the Council and Bruntwood and the
site is central to the Council’s own investment programme. This, alongside the
£17m of Future High Streets Funding and a development team, shows that
there is a clear intention to bring the development forward and a strategy59 to
do so. However, beyond the 150 units, there are limited details about how
units in the other phases on the site will be started and the rate at which they
will be built out. Without this, I consider that there is insufficient certainty to
include more than 150 units in the forward supply.
56 Paragraph 5.1.22, Statement of Common Ground, October 2021
57 Council conceded that the sites at Bakemark, 94b Talbot Road, Stretford Memorial, Claremont Centre and at
Higher Road Depot should no longer form part of the supply
58 Inquiry Document 10, Page 34
59 Ms Coley’s Proof, Paragraphs 4.7 to 4.10
187. Setting aside the appeal scheme, it is unclear whether a new scheme will come
forward on the appeal site in order for housing completions to begin by
November 2026. The Council estimate 163 units will be delivered on the site,
but this is based on the emerging AAP which is yet to be examined and not a
specific scheme. Hence, the site should not be included in the forward supply.
Full planning applications
188. Planning applications are being considered for the sites at the Greatstone Hotel,
The Pelican and the Robin Hood Hotel. However, it is unclear whether
permission will be granted for these sites as they either lack officer support or
have received objections and need to go before Planning Committee. In any
event, there is insufficient evidence that housing completions will begin on
these sites within five years. There is little evidence about the developers’
intentions, with regard to an anticipated start date or build-out rate to support
their inclusion at present. There is also not enough clear evidence that an
alternative scheme for each site will materialise let alone how the relied upon
completions will transpire before November 2026.
189. An application at Land at/adjacent Katherine Lowe House was recently refused
by the Council on design grounds. The Council is optimistic that a revised
design will come forward, but there is no clear evidence from the applicant that
this will be the case. Moreover, there is no word from the applicant about
potential delivery on any quantum of homes on this site. It should therefore be
discounted from the overall total.
190. Warwick Road South is on the Council’s brownfield register. The applicant has
completed the land assembly exercise, a contractor has been identified and it is
their intention to start on site in Spring 2022. Completion would be by the end
of 2023. While this timetable may remain accurate, or it may have slipped
depending on the application’s outcome at the Planning Committee meeting in
March 2022, there is clear evidence of the developer’s intentions and an
aspiration to address concerns raised in local objections. For these reasons, I
consider there is a strong likelihood of housing completions beginning on this
site by November 2026.
191. The dispute over the Sale West Estate site relates to whether 13 extra units
should be included in the Council’s supply or not. These homes have outline
planning permission, but the site is complex and split into phases. Even so, I
consider the programme provides sufficient clear evidence that the 13 units
would be completed by November 2026.
Pre-application stage
192. All the disputed sites, save for the Council owned site at land East of Partington
Shopping Centre are on the brownfield register. However, the East of
Partington Shopping Centre site is on the Council’s development and
investment programme and discussions have been held with Registered
Providers in relation to its development. The evidence doesn’t fully explain the
stated start and completion dates and a single-phase construction, given the
steps being taken by the Council, but I consider that there is a fair chance that
housing completions may be completed on this site by November 2026.
193. There is also enough clear evidence to support the Council’s view on the
Curzon Cinema site. While the site will only become ‘available’ once planning
permission is granted, the reason for this is clear and the termination notices
have been served. Significant pre-application discussions mean that officers are
likely to support the scheme. The site would be brought forward with
Southway, a Registered Provider.
194. Of the other sites, some or all of them may come forward and yield housing
completions before November 2026 as the Council suggest. I do not discount
the Council’s local knowledge and experience. But, based on current evidence,
despite the ongoing discussions and likely planning applications, there is not
enough clear evidence60 in terms of the developer’s delivery intentions,
anticipated start and build-out rates (even if the Council say that the developer
has a strong track record of delivery and in the case of 94a Talbot Road wishes
to enter into a PPA) to support their inclusion in the housing land supply total.
There are also unknown technical reports to progress for the Christie Road site
before the developer’s hopeful timeframes can be realised. There are also
several steps and potential delays to the Globe Trading Estate site as the
timeframes set out have already slipped and the public consultation had not
started at the time of the Inquiry. Ongoing legal discussions with the
landowners are taking place and the site is occupied by an existing business.
For these reasons, there is not enough clear evidence that housing completion
will begin by November 2026.
Conclusion on the extent of the supply
195. Whilst a snapshot in time, it seems to me that Trafford’s current supply of
deliverable housing sites lies somewhere between the two figures presented to
me but far closer to the appellant’s figure than the Council’s.
The narrative to the five-year supply position
196. The Council suggests that the current benchmark for assessing housing supply
based on the CS is artificially inflated. However, this is the basis on which to
consider this case. Figures from and reliance placed upon the Greater
Manchester Spatial Framework are irrelevant as this plan was withdrawn and
not examined. Places for Everyone is proposing a lower figure, but it needs to
be examined and could be subject to change due to unresolved objections.
197. The 2021 Housing Delivery Test (HDT) published on 14 January 2022 indicates
that the delivery of housing in Trafford has been below the housing
requirement over the previous three years. As a result, the HDT identifies that
a ‘buffer’ applies in Trafford. However, there has been an upward trajectory of
new homes being delivered in Trafford in recent years with the Council no
longer falling into the ‘presumption’ category compared to the 2020 HDT. This
is due to the action that the Council has taken and continues to take to address
the shortfall through its Action Plan. It appears to be doing everything it can in
this regard. The Council is granting more permissions than the housing
requirement and taking other proactive steps. Added to this, even on the
appellant’s case, the extent of the Council’s five-year supply has improved
since the Warburton Lane appeal61 of just over a year ago.
198. The Council is confident that the trajectory will only get better and that it will
be able to demonstrate a five-year supply of deliverable housing sites. They
may be right, but there are simply too many unknowns and given the bumpy
nature of Trafford’s supply in recent years, caution needs to be exercised. Yet,
60 94a Talbot Road, Christie Road, Sale Masonic Hall/Sale Police Station, the Bowden Hotel and the Cresta Hotel
61 CD-L1, Paragraph 15, five-year housing supply 2.4 years
there remains a substantial shortfall which must be set against the context of
significantly boosting the supply of new homes.
Planning Balance
The Development Plan
199. The proposed development would be contrary to the development plan due to
its design, namely as a result of its scale, massing, density, layout and height.
As such, the proposal would conflict with CS Policies SL3 and L7.
200. The proposed design would also fail to mitigate the time limited, significant
adverse effect on future occupants arising from the noise generated by
concerts at EOT. This could, in addition, lead to a review of LCCC’s licence,
formal action being taken to remedy a statutory nuisance or a civil nuisance
action by future occupants. This presents a real and significant risk to LCCC’s
current activities at EOT specifically in relation to concerts and the financial
benefits that they would not realise as a result. Thus, the proposal would
conflict with CS Policies SL3, L5.13 and L7.3.
201. There are also resulting effects of the proposal’s design in terms of the usability
of the two courtyards, the outlook from several units on the south-east
elevation and a certain number of units in terms of sunlight and daylight. In
combination that would fail to provide appropriate living conditions for future
occupants and conflict with CS Policies SL3 and L7.
202. The proposal’s design would also cause an overbearing effect upon the outlook
from properties on Great Stone Road and Trent Bridge Walk. On this basis, the
proposal would not accord with CS Policies SL3, L3 and L7.
203. Harm that would be caused to the designated heritage asset at Trafford Town
Hall and the NDHA at EOT, would be contrary to CS Policies R1 and SL3. No
harm would arise to the significance of the Conservation Area.
204. There would be no conflict with CS Strategic Objective OTO11 and Policies SL3
and R6 in respect of the FTTF and the NTTF. Moreover, there would no conflict
with CS Policy R6 as the proposal would not cause a dominating adverse
impact on EOT or affect its cultural or tourism offer. Cricket and transport noise
could also be adequately mitigated so that the appeal scheme would accord
with CS Policies SL3, L5.13 and L7.3.
205. The proposal would not harm the living conditions of occupants in properties on
Trent Bridge Walk and Great Stone Road in terms of sunlight and daylight. The
proposal would not be contrary to CS Policies SL3 and L7 in this respect.
206. The safety of vehicular and pedestrian users of the access to the site, LCCC and
Great Stone Road would be ensured, which means that the proposal would
accord with CS Policies L4.7 and L7.2.
207. A primary school education contribution is not necessary so there would be no
conflict with CS policies L2.2, SL3.2, SL3.4 and L8.4 in respect of this issue.
The proposal would, based on viability, provide a policy compliant level of
affordable housing and accord with CS Policies SL3.4 and L2.
208. The UU includes local open space and sports facilities contributions that would
improve various provisions at Longford Park and a 3G pitch within one of two
sites in Trafford. The UU also includes provisions for a highway improvement,
TRO review, design certifier. As these would all mitigate the effect of the
development, they would do not weigh in favour or against the proposal.
However, as the appeal is to be dismissed on other substantive issues, I have
not looked at these provisions in detail, given that the proposal is unacceptable
for other reasons.
209. Considering these issues in the round, I find that the appeal scheme would be
contrary to the development plan when taken as a whole. This is a matter of
very substantial weight. I will now consider whether there are material
considerations that would indicate that my decision should be made otherwise
than in accordance with the development plan.
The benefits of the appeal scheme
210. The proposed 332 apartments would make a significant contribution to
addressing the Council’s housing shortfall and provide an appropriate mix of
market and affordable homes that would widen the housing choice within
Trafford. The proposal would also make a sizeable contribution to addressing
the significant and ongoing need for affordable homes in Trafford. I give these
matters considerable weight in favour of the appeal scheme.
211. Undoubtedly the appeal scheme would make effective use of a vacant and
derelict brownfield site within the urban area close to a range of facilities and
services and in a highly accessible location. This is encouraged by national and
local policies and so the principle of doing so here carries significant positive
weight. The proposal would also actively address Great Stone Road and include
a variety of uses. I give these matters moderate positive weight.
212. There would be multiple economic benefits associated with the appeal scheme.
These are a £11.4 million Gross Value Added to the local economy, around
£8.5 million additional household expenditure per year, 186.6 person years of
temporary construction jobs. These matters carry considerable positive weight.
213. A high amount of cycle parking would help encourage people to travel by
sustainable transport modes and the proposal would increase green
infrastructure and biodiversity on the site. Both carry limited positive weight in
my view. The fact that both courtyards would be publicly accessible is a benefit
of the appeal scheme, but one that carries very modest weight due to the harm
identified and the consequential effect on the usability of these spaces. The
proposal would safeguard a connection through the site to allow a potential
future connection between Great Stone Road and Old Trafford Metrolink stop.
This carries modest positive weight.
214. As I understand it, the New Homes Bonus is not ring fenced by the Council for
projects that might help the local area. Council Tax receipts are needed to help
the Council deliver local services and infrastructure. It is a form of mitigation
given the proposed development would place extra demands on both. These
matters therefore carry neutral weight.
The heritage balance
215. The harm to the significance of Trafford Town Hall would be less than
substantial, with the harm at a low level within that spectrum. I afford great
weight and importance to its conservation as it is an irreplaceable resource.
However, having regard to the benefits set out above, I consider that they
would collectively outweigh the harm that would be caused to it.
216. Due to the loss of glimpsed views, the proposal would cause negligible harm to
the pavilion, a NDHA at EOT. This is a low degree of harm, though the setting
of the pavilion would remain unchanged. Against this there are numerous
benefits associated with the scheme which I have outlined above. In my
judgement when I consider the scale of harm identified against these, the
balance is firmly in favour of the appeal scheme.
217. As a consequence of my heritage balance conclusion, and having regard to the
lack of a five-year housing land supply, it is correct for me to apply the tilted
balance as set out in Framework paragraph 11d)ii).
Conclusion
218. The proposal would bring a vacant derelict site back into use within the urban
area and within an area of transformational change. The principle of developing
the site accords with the development plan. The development would make use
of the site’s accessible location and deliver a quantity and mix of houses in the
context of the current housing land supply position alongside various uses that
would collectively provide economic and social benefits. The proposal in all
these regards responds to national and local policy. The proposal would also
make a sizeable affordable housing contribution and help address the clear
need in Trafford. These matters all carry considerable weight. There are further
social, economic and environmental benefits set out above that weigh in favour
of the appeal scheme. I have also stated my view on the significance of
Trafford Town Hall and the scale of the harm to EOT above.
219. However, the proposal would not deliver a high-quality, well-designed building
and place. Substantial harm would be caused to local character and appearance
in this regard, and there would be consequential effects for existing and future
occupants’ living conditions in terms of the amenity spaces and overbearing
outlook owing to the design. These carry, significant, limited, and moderate
weight respectively. Furthermore, despite the mitigation proposed to address
concert noise at EOT, I have concluded that there would be direct harm arising
to future occupant’s private amenity spaces. It would also not be realistic,
reasonable or controllable to expect future occupants to keep their windows
and doors closed during concerts to achieve acceptable internal living
conditions. As a result, there would be a material risk of complaints, statutory
nuisance or an unfavourable review of the premises licence conditions. Hence,
there is the potential risk of serious and direct financial consequences for LCCC
if concerts are curtailed at EOT. This is a matter of substantial weight. The
proposal would also harm the living conditions of some of the future occupiers
in respect of sunlight and daylight. I give this harm moderate weight. The most
important development plan policies relating to these matters are consistent
with the Framework. I attach very substantial weight to the appeal scheme’s
conflict with the development plan when taken as a whole.
220. The proposal would result in benefits, but it would also cause harm. Weighing
the two up is not a mathematical outcome; it is an overall judgement. Many of
the benefits could theoretically be delivered through a similar scheme on the
site with a satisfactory design. High-quality, well-designed buildings and places
are a key aspect of sustainable development and design is paramount to
achieving this. In this case, due to the harms that the proposal’s design would
cause, the adverse impacts of granting planning permission would significantly
and demonstrably outweigh the benefits, when assessed against the policies in
the Framework taken as a whole.
221. There are therefore no material considerations to indicate that this decision
should be made otherwise than in accordance with the development plan.
Accordingly, for the reasons given above, I conclude that the appeal should be
dismissed, and planning permission refused.
Andrew McGlone
INSPECTOR
APPEARANCES
FOR THE APPELLANT:
Alexander Booth Of Queens Counsel, instructed by WSP
assisted by Daisy Nobble, of Counsel,
He called
Lee Collier BA (Hons) FACTS Principal Technical Consultant, STRI
James Patterson BEng MSc MIOA Director of Holtz Acoustics
Gareth Davies BSc MSc MCIHT CMILT Director of Vectos (North) Transport
Planning Specialists
Matthew Hard BA (Hons) MUP MRTPI Associate Director, WSP
Carl Taylor BA (Hons) CMLI Director of TPM Landscape
Paul O’Connell BA (Hons) DipArch Co-Director, O’Connell East Architects
David Radcliffe MRICS Director, AA Projects Ltd
John Powell LLB (Hons) Operations Director, Alfredson York
Associates
Ken Latham MRICS Director, Edmond Shipway LLP
Stephen Miles BA (Hons) MRTPI MRICS Partner, Cushman and Wakefield
Dr Stuart Batho BA (Hons) MLE PhD Associate, WSP
AssocMRTPI
Doug Hann BA (Hons) MTPL MSC MRTPI Director and Head of Planning
Consultancy, WSP
Matthew Evans* Counsel, Forsters
* Participated in the Planning Obligation session only.
FOR THE LOCAL PLANNING AUTHORITY:
David Forsdick Of Queen’s Counsel, instructed by the
Borough Solicitor of Trafford Metropolitan
Borough Council
He called
Daniel Musson BA (Hons) Head of Facilities Planning, ECB
Dr Matthew Robinson PhD CEng MICA Noise, Sandy Brown
Debra Harrison MPlan Major Planning Projects Officer
Rebecca Coley BA (Hons) MA MRTPI Head of Planning and Development
Murray Lloyd BA (Hons) Viability, Continuum
Sarah Butters BA (Hons) Head of Service: Early Years, School
Places and Access
Elisabeth Lewis BA (Hons) DipTp MRTPI Heritage Development Officer
David Pearson* Major Projects Team Leader
* Participated in the Housing Land Supply, Planning Conditions and Planning Obligation sessions.
FOR LANCASHIRE COUNTY CRICKET CLUB:
Killian Garvey Of Counsel, instructed by Grant
Anderson, Partner of Hill Dickinson LLP
He called
Dani Fuimicelli Technical Director, Vanguardia Limited
PERSONS OBSERVING:
Jack Wiseman Trafford Metropolitan Borough Council
Victoria Ward Trafford Metropolitan Borough Council
Noah Billing Trafford Metropolitan Borough Council
Claire Kefford Trafford Metropolitan Borough Council
Richard Gore Trafford Metropolitan Borough Council
Rosalind Gralton Trafford Metropolitan Borough Council
Joanne Egeli Trafford Metropolitan Borough Council
Sarah Lowes Trafford Metropolitan Borough Council
Gerard Lennox Trafford Metropolitan Borough Council
Russell Crocker Trafford Metropolitan Borough Council
Victoria Welch Senior Planner, WSP
Grant Anderson Partner, Hill Dickinson LLP
INQUIRY DOCUMENTS
1 List of Plans
2 Appellant Opening Statement
3 Council Opening Statement
4 Lancashire County Cricket Club Opening Statement
5 Photographs of lighting rigs at Lancashire County Cricket Club
6 Revised Council putative reasons for refusal
7 Lancashire County Cricket Club letter, 12 January 2022
8 Education Statement of Common Ground
9 Viability Statement of Common Ground, 28 January 2022
10 Addendum to Housing Land Supply – Updated 28 January 2022
11 Ms Harrison Living Conditions Note
12 Places Matter Bundle
13 Five Year Housing Land Supply Table Rev A
14 Housing Land Supply Emails re disputed sites
15 Council Housing Land Supply Position,
16 Appellant Housing Land Supply Position, 3 February 2022
17 Council BCIS Clarification
18 Appellant BCIS Table Clarification
19 Highways Questions – Response in Writing to Inspector’s Questions
20 Letter from Accrue Capital, 8 February 2022
21 Lancashire County Cricket Club Closing Submissions
22 Council Closing Submissions
23 Appellant Closing Submissions
CORE DOCUMENTS
CD-A Appellant’s Application Submission (Ref: 100400/OUT/20)
A1 Application form and covering letter
A2 Crime Impact Statement (Design for Security)
A3 Wind microclimate report (WSP)
A4 Air Quality Assessment (REC)
A5 Air Quality Note (REC)
A6 Carbon Budget Statement (Paragon)
A7 Phase 1 Environmental Risk Assessment (Paragon)
A8 Arboricultural Impact Assessment (TEP)
A9 Ecological Assessment (TEP)
A10 Flood Risk Assessment and Drainage Strategy (Waterco)
A11 Statement of Community Engagement (Lexington)
A12 CIL Form (WSP | Indigo)
A13 Site Location Plan (Ref: 1664_PL_100)
A14 Level -1 Plan (Ref: 1664_PL_101) (Superseded)
A15 Level 0 Plan (Ref: 1664_PL_102) (Superseded)
A16 Level 1 Plan (Ref: 1664_PL_103) (Superseded)
A17 Level 2 Plan (Ref: 1664_PL_104) (Superseded)
A18 Level 3 Plan (Ref: 1664_PL_105) (Superseded)
A19 Level 4 Plan (Ref: 1664_PL_106) (Superseded)
A20 Level 5 Plan (Ref: 1664_PL_107) (Superseded)
A21 Level 6 Plan (Ref: 1664_PL_108) (Superseded)
A22 Level 7 Plan (Ref: 1664_PL_109) (Superseded)
A23 Level 8 Plan (Ref: 1664_PL_110) (Superseded)
A24 Level 9 Roof Plan (Ref: 1664_PL_111) (Superseded)
A25 S-W Elevation Plan (Ref: 1664_PL_200)
A26 N-W Elevation Plan (Ref: 1664_PL_201)
A27 N-E Elevation Plan (Ref: 1664_PL_202)
A28 S-E Elevation Plan (Ref: 1664_PL_203)
A29 Courtyard Section AA (Ref: 1664_PL_221)
A30 Courtyard Section BB (Ref: 1664_PL_222)
A31 Courtyard Section CC (Ref: 1664_PL_222)
Existing building, elevations and plans (Ref: M705.06A, M705.05A,
A32
M705.04A)
A33 Existing building, ground floor plan (Ref: 28900-45_01-AG)
Appellant Statement of Case - Appendix 3.3 – Leading Counsel’s
A34
Opinion, 28 May 2020
Appellant Statement of Case - Appendix 3.1 – Invalid letter, 3 April
A35
2020
Appellant Statement of Case - Appendix 3.2 – Email chain between
A36
TMBC and WSP (9-27 April 2020) regarding validation
CD-B (Submissions made during the course of the application)
Plans with revised red line to match Site Location Plan (23 July 2020)
B1
Level -1 Plan (1664_PL_101_B) (Superseded)
B2
Level 0 Plan (1664_PL_102_B) (Superseded)
B3
Level 1 Plan (1664_PL_103_B)
B4
Level 2 Plan (1664_PL_104_B)
B5
Level 3 Plan (1664_PL_105_B)
B6
Level 4 Plan (1664_PL_106_B)
B7
Level 5 Plan (1664_PL_107_B)
B8
Level 6 Plan (1664_PL_108_B)
B9
Level 7 Plan (1664_PL_109_B)
B10
Level 8 Plan (1664_PL_110_B)
B11
B12 Level 9 Roof Plan (1664_PL_111_B)
B13 Level -1 Plan (1664_PL_101_C), 14 August 2020
B14 Level 0 Plan (1664_PL_102_C), 14 August 2020 (Superseded)
Additional information submitted between submission of the appeal and
CD-C
reporting the application to committee
Tree Removal and Protection Plan (D6370.01.002B), 29 September
C1
2020
C2 Accessibility Report, 29 September 2020
C3 Level 0 Plan (1664_PL_102_D), 5 October 2020
C4 Courtyard elevations (1664_PL_205), 5 October 2020
CD-D Committee Reports and additional information
Trafford Council Report to Executive re. joint venture to acquire
D1
Kellogg’s site, 2 October 2017
D2 Pre application response from LPA (PREAPP/00849/18)
Committee Report to Trafford’s Planning and Development Management
D3
Committee (Ref: 94974/OUT/18)
Additional Information Report to Trafford’s Planning and Development
D4
Management Committee (Ref: 94974/OUT/18)
D5 Decision Notice (Ref: 94974/OUT/18)
Trafford Council Report to Executive re. Civic Quarter AAP and CPO of
D6
Former B&Q site, 27 January 2020
Committee Report to Trafford’s Planning and Development Management
D7
Committee (ref: 100400/OUT/20)
Additional Information Report to Trafford’s Planning and Development
D8
Management Committee (ref: 100400/OUT/20)
D9 Former Kellogg’s site Committee Report, 24 September 2020
Committee Report to Trafford’s Planning and Development Management
D10
Committee (ref:100400/OUT/20), 9 December 2021
CD-E Appeal Submission Documents
E1 Appeal Form
E2 Cover letter to PINS
E3 Letter to request inquiry
E4 Cover letter enclosing CD
E5 List of documents under consideration at time of appeal
E6 Statement of Case (August 2020) + appendices
E7 Statement of Common ground (August 2020 submission draft)
E8 EIA screening Report
E9 EIA screening Report (appendix A) – original screening request
E10 EIA screening Report (appendix B) – original screening opinion
E11 EIA screening Report (appendix C) – site location plan
CD-F Hearing Documents (November 2021)
F1 Cover letter
F2 Appellant Statement of Case
F3 Appellant Statement of Case Appendices
Appendix 3.4 – email from TMBC to WSP, 10 September 2020
F4
regarding Use Classes and Consultee feedback
Appendix 3.5 – email from WSP to TMBC, 29 September 2020 providing
F5 Section drawings and Accessibility Report, comments regarding Use
Classes
Appendix 3.6 – email from TMBC to WSP, 29 September 2020
F6
regarding outstanding information
Appendix 3.7 - email from TMBC to WSP, 29 September 2020 regarding
F7
courtyard elevation drawings
Appendix 3.8 – email from WSP to TMBC, 5 October 2020 providing
F8
elevation plans
Appendix 3.13 – revised Level 0 plan (ref: PL_102 Rev D) and
F9
courtyard elevations, 5 October 2020
Appendix 3.15 - Tree removal and protection plan (D6370.01.002B), 29
F10
September 2020
Appendix 3.18 - email from WSP to TMBC, 1 October 2020 regarding
F11
RPAs of metrolink trees
Appendix 3.28 - email from TMBC to WSP, 7 October 2020 – TfGM,
F12
Sport England and Contributions
F13 Appendix 3.37 – LCCC Objection Letter, 8 October 2020
Appendix 4.1 – Email from TMBC to WSP, 9 November 2020 Residential
F14
Allowance
F15 Appendix 7.1 – Schedule of LCCC Quarter development post 2012
F16 Appendix 9.1 – Advertorial Page 1, 21 March 2019
F17 Appendix 9.2 – Advertorial Page 2, 21 March 2019
F18 Appendix 10.2 – Photo of LCCC Pavilion
Appendix 12.2 – Email from TMBC to WSP, 25 June 20 confirming
F19
validation
F20 TMBC cover letter requesting viability to be dealt with by inquiry
F21 TMBC Statement of Case
F22 Sport England Representations
F23 Interested party - Dr Ursula Gonthier
F24 LCCC Representations
F25 Appendix 1 – Match day photographs
F26 LCCC Statement of Case
F27 Pre-Inquiry Conference Invitation, 1 November 2021
F28 Pre-Inquiry Conference Agenda and Note, 1 November 2021
F29 Inspector’s Case Conference Note, 1 November 2021
F30 Draft Unilateral Undertaking
F31 LCCC and Appellant Statement of Common Ground
CD-G National Planning Policy / Guidance
National Planning Policy Framework (2021)
G1 Achieving sustainable development; paragraphs 11, 60, 119-120, 124-
125, 130, 134 and 187
G2 The National Design Guide
G3 National Planning Practice Guidance - Noise
G4 National Policy Statement for England (Defra)
Local Policy/guidance: Adopted Development Plan, Supplementary
CD-H
Planning Documents/Guidance, unadopted/abandoned
Trafford Local Plan Core Strategy (2012), namely policies:
H1 SO1, SO2, SO6, OTO1, OTO2, OTO11, SL1 – SL5, L1-L3; L5; L7; L8;
R1; and R5
H2 Adopted Policies Map
Trafford Local Plan: Land Allocations document LAN1 and LAN 2 – LCCC
H3
Quarter
H4 Revised SPD1 Planning Obligations
H5 Stretford Refreshed Masterplan (January 2018)
H6 Trafford CIL Charging Schedule
H7 Trafford CIL Regulation 123 list
H8 Trafford SHLAA 2020
H10 LCC Development Framework
H11 Civic Quarter Masterplan SPD – 2018 consultation draft
H12 Appendix 4 - New Trafford Local Plan Extracts
CD-I Emerging Local Policy
Submission Draft CQ AAP - CQ AAP Submission and Examination Stage
I1
Appendices
I2 Civic Quarter Area Action Plan Committee Report
Civic Quarter AAP - APPENDIX 1 – Report to Planning and Development
I3
Committee, 11 November 2011
I4 Civic Quarter AAP - APPENDIX 2 – Main Modifications
I5 Civic Quarter AAP - APPENDIX 3 - Boundary Update
I6 Civic Quarter AAP - APPENDIX 4 – Additional Modifications
I7 Civic Quarter AAP - APPENDIX 5 – Updated Integrated Assessment
Civic Quarter AAP – Appendix 5 A Part 1 – Integrated Assessment of
I8
the draft Civic Quarter Area Action Plan, January 2020
Civic Quarter AAP – Appendix 5 A Part 2 - Integrated Assessment of the
I9
draft Civic Quarter Area Action Plan, Appendix 1
Civic Quarter AAP - Appendix 5 A Part 3 - Integrated Assessment:
I10
Appendix 2, Equality Impact Assessment, January 2020
Civic Quarter AAP - Appendix 5 B - Integrated Assessment: Draft
I11
Scoping Report
Civic Quarter AAP - Appendix 5 C - Integrated Assessment: AAP Vision
I12
and Policies
Civic Quarter AAP - Appendix 5 D - Integrated Assessment: EqIA
I13
Assessment
I14 Civic Quarter AAP - Appendix 6 A – Reg 18 Consultation Summary
Civic Quarter AAP - Appendix 6 B and C – Responses to Reg 18 version
I15
of AAP
I16 Civic Quarter AAP - Appendix 7 – Reg 19 Consultation Summary
I17 Summary of representations and responses – CQ AAP, Appendix 7
I18 Civic Quarter AAP - Appendix 8 – Habitats Regulations
CD-J Viability Documents
J1 Trafford Economic Viability Study, May 2009, GVA Grimley
J2 Avison Young Financial Viability Assessment, January 2020
J3 Viability Assessment
J4 Viability Report, Cushman Wakefield
J5 Viability Report, Cushman Wakefield, NPG Viability
J6 Viability Report, Cushman Wakefield, Edmund Shipway Cost Plan
J7 Former Kelloggs’s Site Location Plan and Masterplan
J8 Continuum Independent Viability Assessment, September 2020
J9 Viability Statement of Common Ground, 26 November 2021
J10 Independent Viability Assessment by Trebbi Continuum
J11 Email from WSP to Council on contributions, 5 October 2020
J12 Email from Council to WSP on sports contribution
J13 Viability consultation responses – Civic Quarter AAP
J14 Continuum Viability Report, August 2021
J15 BCIS Appraisal Note
CD-K Design / Landscape Documents
Civic Quarter Masterplan SPD – Townscape and visual impact (Planit-
K1
IE)
Civic Quarter Masterplan SPD – Appendix 1.3 baseline photography and
K2
photomontages
Civic Quarter Masterplan SPD – Appendix 1.4 Townscape and visual
K3
figures
K4 Places Matter Design Pack
K5 Places Matter Design Comments, 3 December 2019
K6 Places Matter Pro Forma
K7 Landscape and Townscape VIA (TPM) (Superseded)
Updated Landscape/Townscape & Visual Impact Appraisal,
K8
26 August 2020
K9 Landscape Design Sketch Book (TPM)
K10 Design and Access Statement- 94974/OUT/18
K11 Design and Access Statement (O’Connell East Architects)
K12 1664_PL_115 Feature brick panel and terracotta baguette details
K13 1664_PL_116 Brick Feature panel details
K14 1664_PL_117 Raked panel details
K15 1664_PL_118 Set back balcony details
K16 SK_004 Materials
K17 Schedules plan (PL-500 Rev B), 26 August 2020 (Superseded)
K18 Phasing Schedule Plan (AP_002)
K19 Appellant SOC - Exhibit 3 Design Report
K20 Appellant SOC - Exhibit 3, appendix 1 walkthrough video
K21 Cricket Pitch CGIs, 26 August 2020
K22 Cricket Pitch CGIs - View 1 – temporary stand
K23 Cricket Pitch CGIs - View 1
K24 Cricket Pitch CGIs - View 2 – temporary stand
K25 Cricket Pitch CGIs - View 2
Appellant Statement of Case - Exhibit 4 Townscape Assessment
K26
(appendices)
Appellant Statement of Case - Appendix 3.10 – email from TMBC to
K27
OEA, 17 September 2020 site accessibility
Appellant Statement of Case - Appendix 3.11 – Accessibility report
K28
prepared by OEA, 29 September 2020
Appellant Statement of Case - Appendix 3.12 – email chain between
K29
TMBC and OEA, 30 September – 1 October 2020 re accessibility
LPA Statement of Case Appendix 7 - Photograph from within LCC
K30
towards Manchester City Centre
K31 LPA Statement of Case Appendix 8 - CGI’s
LPA Statement of Case Appendix 9 - Photograph from within LCC
K32
towards Appeal Site
K33 LPA Statement of Case Appendix 10 - Map
K34 LPA Statement of Case Appendix 11 - Wireframes
LPA Statement of Case Appendix 12 - Former Kellogg’s site Maximum
K35
Height Parameter Plan
K36 Townscape and Visual Assessment (Randall Thorpe)
K37 Townscape and Visual Assessment (Randall Thorpe) – Figures 1-19
K38 Townscape and Visual Assessment (Randall Thorpe) – Figures 20-44
K39 Civic Quarter AAP - APPENDIX 3 - Building Heights
K40 Civic Quarter AAP - APPENDIX 3 - Greenspace
K41 Civic Quarter AAP - APPENDIX 3 - Parameters
K42 2017 Pre-app extracts:
K43 Letter from Matthew Hard to Rebecca Coley
K44 Visuals Sheet
K45 Typical Block Plan
K46 Site Elevation Plan
K47 2019 Pre-app extracts: Site Plan and Elevation drawing
K48 Verified Views, December 2021
K49 Combined Proposed Drawing Bundle
CD-L Appeal Decisions
L1 Land at Warburton Lane, Trafford – APP/Q4245/W/19/3243720
L2 679 High Road, North Finchley - APP/N5090/W/21/3271077
Brewery Quay, Island Street, Salcombe, Devon TQ8 8DP -
L3
APP/K1128/W/18/3215145
18-20 Albion Court, Frederick Street, Birmingham B1 3HE -
L4
APP/P4605/W/18/3217413
L5 Council Note on appeal decisions relied on
CD-M Education Documents
DfE guidance: 'Securing developer contributions for education'
M1
(November 2019)
M2 Education for health capacity assessment, 19 March 2020
M3 Education and healthy capacity assessment revised, 15 July 2020
M4 SoC Exhibit 5 – Education Impact Assessment
M5 LPA SoC Appendix 17 – Educational Background Report
M6 LPA SoC Appendix 17a – LEA response to Alfredson York report
LPA SoC Appendix 17b – B&Q Education Developer Contribution,
M7
27 May 2021
CD-N Noise Documents
BS 6472-1: 2008 Guide to evaluation of human exposure to vibration in
N1
buildings: Part 1 Vibration sources other than blasting
BS 8233: 2014 Guidance on sound insulation and noise reduction for
N2
buildings
N3 ProPG: Planning & Noise 2017
Association of Noise Consultants (ANC) guidelines Measurement and
N4
assessment of ground-borne noise and vibration, 3rd edition, 2020
Association of Noise Consultants (ANC) Acoustics Ventilation and
N5
Overheating, residential Design Guide, v1.1, January 2020
Vanguardia Review of noise issues, Lancashire Cricket B&Q site, doc
N6
ref: VC-103597-EA-RP-001, 9 August 2021
Holtz Acoustics Site at Former B&Q, Great Stone Road, Trafford,
N7 Inquiry evidence, Noise – Summary/Main proof/Appendices, doc ref
HA2020023/A/REV1, 5 November 2021
Vanguardia Noise from concerts at LCCG, doc ref: 05636-0820-0-PN-
N8
0001, 30 November 2021.
N9 Code of Practice on Environmental Noise Control at Concerts
N10 Noise and Vibration Impact Assessment (Holtz Acoustics)
N11 LCCC representations Appendix 2 – Vanguardia Noise Report
N12 Noise Statement of Common Ground, 4 January 2021
CD-O Heritage
O1 Heritage Statement (WSP/Indigo)
O2 Exhibit 8 Heritage (appendices) (Appellant Statement of Case)
Appendix 3.14 – Heritage Officer Comments, 9 September 2020
O3
(Appellant Statement of Case)
O4 Longford Conservation Area Appraisal
O5 Appellant Statement of Case - Appendix 10.2 – Photo of LCCC Pavilion
CD-P Transport
P1 Transport Assessment, March 2020
P2 Travel Plan, March 2020
P3 Transport Assessment Addendum Note, August 2020
P4 Transport Assessment Addendum, 2 September 2020
SoC Appendix 3.19 – Local Highway Authority comments, 2 September
P5
2020
P6 SoC Appendix 3.20– Transport Addendum and emails
SoC Appendix 3.21 – Local Highway Authority parking comments,
P7
29 September 2020
SoC Appendix 3.16 – Transport for Greater Manchester comments,
P8
30 September 2020
SoC Appendix 3.17 – Council email re Transport for Greater Manchester
P9
comments
SoC Appendix 3.23 – Local Highway Authority comments,
P10
2 October 2020
SoC Appendix 3.22 – Council email with Local Highway Authority
P11
comments, 5 October 2020
SoC Appendix 3.24 – parking survey commitment email, 5
P12
October 2020
SoC Appendix 3.25 - Transport for Greater Manchester comments,
P13
30 September 2020
SoC Appendix 3.26 – email traffic data response to Transport for
P14
Greater Manchester, 5 October 2020
P15 SoC Appendix 3.27 – full input data and results prepared by Vectos
P16 SoC Appendix 3.29 – Vectos Traffic Modelling Response
SoC Appendix 3.30 - Transport for Greater Manchester response,
P17
14 October 2020
P18 Full traffic input data and results
Great Stone Road modelling response to Transport for Greater
P19
Manchester, October 2020
P20 SoC Exhibit 2 – Highway Safety Technical Note and Appendix 1
P21 LCCC – Appendices Part 3
CD-Q Living Conditions
Q1 Daylight and Sunlight Assessment (AA Projects)
Exhibit 7 to Appellant Statement of Case - Daylight Sunlight
Q2
(appendices)
Q3 Site Layout Planning for Daylight and Sunlight, A guide to good practice
CD-R Contributions
R1 Affordable Housing Statement (WSP | Indigo) (Superseded)
R2 Revised Affordable Housing Statement (14 April 2020)
R3 Affordable Housing Plan Level 0 (Ref: 1664_PL_102), 14 April 2020
R4 Affordable Housing Plan Level 1 (Ref: 1664_PL_103), 14 April 2020
R5 Affordable Housing Plan Level 2 (Ref: 1664_PL_104), 14 April 2020
Appellant Statement of Case - Appendix 3.33 - email from TMBC to
R6
WSP (2 October 2020) corrected sports contributions
R7 Appendix 18 - Counsel Advice to TMBC on Policy L2.12
CD-S 5YHLS
Appendix 8.2 – Trafford’s Five Year Housing Land Supply Statement, 31
S1
March 2020
S2 Appendix 19 - Update to Housing Land Supply, September 2021
S3 Housing Land Supply Addenda, 1 December 2021
CD-T Fine Turf
T1 Sun Study (1664_PL_112)
T3 March 9am – 8pm
T4 April 9am – 8pm
T5 May 9am – 8pm
T6 June 9am – 8pm
T7 July 9am – 8pm
T8 August 9am – 8pm
T9 September 9am – 8pm
T10 October 9am – 8pm
Appellant Statement of Case - Exhibit 1 Hemiview 3D light assessment
T11
(Appendix 1 STRI CVs)
T12 LPA Statement of Case - Appendix 6 - Sport England Evidence
T13 Appendix 10.1 – Cricket Ground note
CD-U Planning
U1 Planning Statement (superseded)
U2 Draft Heads of Terms, 19 March 2020
U3 Planning Statement Revised, 14 April
U4 Planning Statement of Common Ground, 27 October 2021
U5 Planning Statement of Common Ground Addenda, 26 November 2021
U6 Joint Position Statement on Policies
U7 Agreed conditions table, 26 November 2021


Costs Decision
Inquiry (In-Person and Virtual) Held on 11 – 14 January, 1 – 4 February and
8 – 11 February 2022
Site Visit made on 7 February 2022
by Andrew McGlone BSc MCD MRTPI
an Inspector appointed by the Secretary of State
Decision date: 6 May 2022
Costs application in relation to Appeal Ref: APP/Q4245/W/20/3258552
Former B&Q, Great Stone Road, Old Trafford, M32 0YP
• The application is made under the Town and Country Planning Act 1990, sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by [APPELLANT] for a partial award of costs against
Trafford Metropolitan Borough Council and Lancashire County Cricket Club.
• The appeal is against a failure to give notice within the prescribed period of a decision
on an application for outline planning permission.
Decision
1. The application for an award of costs is allowed in the terms set out below.
The submissions for the applicant
2. The application made in writing by the applicant is for a partial award of costs
in connection with reason for refusal one which relates to the proposed
development’s effect on the fine turf training facility (FTTF) at Emirates Old
Trafford (EOT). The Primary Application is made against Trafford Metropolitan
Borough Council (the Council) with an alternative application made against
Lancashire County Cricket Club (LCCC), a Rule 6 Party to the Inquiry1.
The responses by Trafford Metropolitan Borough Council and Lancashire
County Cricket Club
3. The Council and LCCC submitted their written responses ahead of the cost’s
session at the Inquiry. I have had regard to them in reaching my decision. No
other submissions were made by either the Council or LCCC at the Inquiry.
The response for the applicant
4. The applicant made further oral submissions at the Inquiry. These are as
follows, and I present them verbatim. Firstly sir, just to confirm that I do
maintain a claim for a partial award, firstly against the Council and in the
alternative LCCC.
5. There are no submissions from LCCC that I need to respond to so I will only
respond to the Council.
6. Sir, the position of the Council is misconceived, what is said at paragraphs 1
and 11 of its response is that the Council has been reasonable and pragmatic
1 Planning Practice Guidance, Paragraph: 029 Reference ID: 16-029-20140306
and that in fact it has saved the incurring of costs. Sir you will understand that
it is not a position of substance, it is all smoke and mirrors. What is said is that
the Council did nothing unreasonable in withdrawing reason for refusal one and
that in fact adopted a sensible course. To be clear sir, the applicant does not
say the Council acted unreasonably in withdrawing that reason for refusal
because sir the withdrawal was unavoidable in light of events. The
unreasonable conduct on behalf of the Council is to be found in how it acted
previously. The reason for refusal should never have been pursued or certainly
not have been pursued beyond April 2021, almost 12 months ago when LCCC
acquired growth lights. This, if ever the reason was justified and the applicant
says it wasn’t, should have been withdrawn before the Case Management
Conference and the preparation of proofs.
7. Sir, the Council’s response refers to the fact that the Council adduced
substantial weight in favour of the reason for refusal. The problem for the
Council was that evidence was adduced on the basis of a fundamental
understanding of the factual position and when the factual position was drawn
to the Inquiry’s attention by the appellant, the Council withdrew the reason for
refusal and elected not to challenge the applicant’s evidence on that topic. At
paragraph 7 of the Council’s response, it is suggested that the Council on the
morning of day 2 of the Inquiry was confronted by matters beyond its control
and that it sought to act reasonably in relation to that situation. The Council
cannot absolve itself of responsibility for that situation. The Council resolved on
a reason for refusal, and it called evidence from a witness which was factually
wrong. This is because the Council had failed to conduct the necessary
investigations to ensure that its case was based on a sound, factual premise.
The significance of its failure is immediately apparent from the fact that the
reason for refusal was immediately withdrawn, and no challenge was offered to
Mr Colliers evidence.
8. I need to refer to paragraph 12 of the Council’s response (paragraph 12
subsequently read out). Sir, that is wrong, and the Council is wrong to suggest
there has been no substantive concession. In fact, there has been a
comprehensive concession. Ms Harrison confirmed yesterday that whereas the
Council had previously afforded substantial weight to the harm which it
perceived was caused to the facility, it now accepted that there was no harm
and that no weight should be attached. So, sir there has been a full and
comprehensive withdrawal of the Council’s case. Given that position sir, I
respectfully submit that the applicant is entitled to recover its costs in respect
of this issue which must include Mr Collier’s preparation and proof for the
Inquiry, and sir we took the whole of day one on this matter and I leave it to
your judgement sir, whether this or any other time period relating to this
matter is appropriate. Unless I can assist further that is it sir.
Reasons
9. The Guidance advises that costs may be awarded against a party who has
behaved unreasonably and thereby caused the party applying for costs to incur
unnecessary or wasted expense in the appeal process. For an application to be
successful, it needs to clearly demonstrate how any alleged unreasonable
behaviour has resulted in unnecessary or wasted expense.
10. The appeal to which this costs application relates was made in response to the
Council’s non-determination of the planning application. The appeal form was
dated 28 August 2020. Subsequently, the Council’s Planning and Development
Management Committee determined the Council’s position had they been able
to determine the planning application. Following their meeting on 15 October
2020, multiple putative reasons for refusal were adopted. The first reason
relates to the substance of this application and the proposal’s effect on the
FTTF at LCCC.
11. The reason for refusal was advanced by the Council following the objection of
Sport England, with the support of the England and Wales Cricket Board (ECB)
as technical advisors. This position was then set out in the Council’s Statement
of Case, the Statement of Common Ground Addenda and the Council’s topic
specific Proof of Evidence, which fed into other Proofs of Evidence.
12. The Council’s evidence was presented and cross examined at the Inquiry. This
outlined the Council’s position that the proposal would cause overshadowing to
the FTTF which would result in consequential light and temperature effects.
Setting aside the merits of this, and the implications for the grass, the Council
contended that growth lights would be needed to mitigate the effect. The
applicant disagreed with this stance.
13. In written and oral evidence, the Council said that no growth lights were used
by LCCC on the FTTF currently. This position was plainly wrong as shown by
photographs taken by the applicant’s Counsel on the evening of day one of the
Inquiry and the morning of day two. These showed a growth lighting rig in use
on the FTTF.
14. It was evident that the Council and its witness was unaware of this situation. I
recognise the Council’s efforts to ascertain what the position was from LCCC,
once the matter came to their attention, and the prompt withdrawal of the
reason for refusal on day two which avoided further Inquiry time being spent
on the matter. Although Sport England, the ECB and LCCC all fed into the
Council’s position, ultimately it was the Council’s decision to pursue the reason
for refusal, present evidence on this matter and call a witness to the Inquiry.
For their part LCCC could have and should have kept the Council abreast of the
change in circumstances, but that does not obviate the Council’s responsibility
and actions.
15. As the Council outlines in its response, it had two options when confronted with
this situation. Both were the Council’s alone to consider and determine its next
step. The Council decided to withdraw the reason for refusal and not cross
examine the applicant’s witness. This did save subsequent Inquiry time, but it
is no remedy to the preceding time spent on the matter. The simple point
remains that the evidence presented by the Council on the issue of growth
lights was not accurate. The applicant has, therefore, incurred wasted time and
expense arising from their witness having to prepare his evidence for the
Inquiry and in attending the Inquiry itself.
16. The Council’s witness would also not have needed to have been cross examined
nor both witnesses re-called for examination at the start of day two.
17. Given my finding on the Primary Application I have not gone onto consider the
alternative application against LCCC.
Conclusion
18. I conclude that unreasonable behaviour resulting in unnecessary or wasted
expense, as described in the Guidance, has been demonstrated.
19. In reaching this conclusion, I note that evidence on the FTTF issue started at
12:10pm on day one and was roughly dealt with in an hour on day two2.
Hence, it was not, in total, 1.5 days as suggested by the applicant.
Costs Order
20. In exercise of the powers under section 250(5) of the Local Government Act
1972 and Schedule 6 of the Town and Country Planning Act 1990 as amended,
and all other enabling powers in that behalf, IT IS HEREBY ORDERED that the
Trafford Metropolitan Borough Council shall pay to [APPELLANT], the
partial costs of the appeal proceedings limited to those incurred in preparing,
presenting and cross-examining evidence in relation to the alleged impacts of
the proposal on the FTTF; such costs to be assessed in the Senior Courts Costs
Office if not agreed.
21. The applicant is now invited to submit to Trafford Metropolitan Borough
Council, to whom a copy of this decision has been sent, details of those costs
with a view to reaching agreement as to the amount.
Andrew McGlone
INSPECTOR
2 Inspector Note that the reason for refusal was withdrawn at 10:25 on day 2.