Case Reference: 3265253

Appeal Decision
Hearing Held on 3 November 2021
Site Visit made on 2 and 3 November 2021
by Rachael Pipkin BA (Hons) MPhil MRTPI
an Inspector appointed by the Secretary of State
Decision date: 21/01/2022
Appeal Ref: APP/Y1110/W/20/3265253
Land at Pennsylvania Road, Exeter EX4 5BL
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant outline planning permission.
• The appeal is made by [APPELLANT] against the decision of Exeter City Council.
• The application Ref 20/0596/OUT, dated 15 May 2020, was refused by notice dated
26 August 2020.
• The development proposed is outline application including access, with all other matters
reserved, for up to 26 (maximum) residential dwellings.
Decision
1. The appeal is dismissed.
Applications for costs
2. An application for costs was made by Exeter City Council against Land
Allocation Ltd.
3. An application for costs was made by [APPELLANT] against Exeter City
Council. These applications are the subject of separate Decisions.
Preliminary Matters
4. The original application was made in outline with only access to be determined
at this stage. All other matters were reserved for future determination. I
have had regard to the existing and proposed site plans and the indicative
layout of the proposed development as shown in these drawings, but have
regarded all elements of these drawings as indicative apart from the details of
the access.
5. The Council’s third reason for refusal set out that, in the absence of sufficient
highway information, the Council was unable to confirm that the scheme
would meet highway safety standards in terms of pedestrian access to and
from the site onto the existing highway network. Since planning permission
was refused, the appellant has sought to address this reason for refusal and
submitted a revised highway scheme1.
6. The revised scheme proposed a signalised shuttle arrangement on
Pennsylvania Road between Stoke Valley Road and Whitethorn Park. This
proposed to restrict traffic movements between these roads to single lane,
1 Newell Edwards Technical Note dated 13 October 2021
provide traffic calming and facilitate the installation of a footpath on one side
of Pennsylvania Road.
7. The Procedural Guide – Planning Appeals –England makes clear that if an
applicant thinks that amending their application proposals will overcome the
local authority’s reasons for refusal they should normally make a fresh
planning application. Furthermore, the appeal process should not be used to
evolve a scheme and it is important that what is considered is essentially the
same as that on which the local planning authority took their decision and on
which the views of interested people were sought.
8. The Council has confirmed that the local highway authority, Devon County
Council, was consulted on the revised highway scheme but that there was no
wider consultation. The proposals would introduce significant changes which
would directly affect properties with access onto this stretch of Pennsylvania
Road. Notwithstanding that the revised highway scheme was discussed at the
Hearing, it was evident from those interested parties present that they were
unfamiliar with what was being proposed and had concerns about it.
9. I have had regard to the ‘Wheatcroft’ principles including whether
amendments would materially alter the nature of the application and whether
anyone who should have been consulted on the changed development would
be deprived of that opportunity. I have come to the conclusion that they
would. I have therefore proceeded to base my decision on the proposals
before the Council when it made its decision.
10. The scheme originally proposed pedestrian access from the site onto the
adjacent bridleway, a public right of way, with improvements to this route
including street lighting to provide a link to Stoke Valley Road. Due to issues
around land ownership which would prevent the required upgrade to this
pedestrian link, the scheme was subsequently amended to provide an
alternative pedestrian route in the form of a footpath along Pennsylvania Road
connecting the site to Stoke Valley Road.
11. At the Hearing it emerged that amendments made to the original highway
scheme during the planning application process, as set out on drawing
numbered 60600165-60-4, had only been seen by the local highways
authority and had not formed part of a wider consultation. However, it is
evident that these drawings were before the Council at the time it made its
decision. Furthermore, they were submitted with the appeal which was
subject to consultation. I am therefore satisfied that interested parties have
had the opportunity to comment on these. I have therefore taken them into
account in my decision.
12. The Council published a revised Five Year Housing Land Supply Statement
(HLSS) in September 2021 with a base date of 1 April 2021. This was
submitted as evidence in advance of the hearing, the appellant had the
opportunity to respond and did so.
13. Following the Hearing, the Council updated its five year housing land supply
with a revised base date of 6 September 2021. This late evidence was
submitted and the appellant was given the opportunity to respond. On the
basis of the information submitted, I was satisfied that I did not need to re-
open the hearing. I return to this matter later in my decision.
14. On 14 January 2022 the Government published the Housing Delivery Test
(HDT) Results for 2021. I did not need to refer back to the parties on this
matter as the HDT score for the authority would not materially alter the
position as presented to the Hearing.
15. A copy of a completed signed planning obligation by way of a Unilateral
Undertaking (UU) under Section 106 of the Town and Country Planning Act
1990 (as amended) dated 21 April 2021 was submitted during the course of
the appeal. This sought to secure affordable housing, contributions to primary
healthcare, education provision (early years, primary and secondary) and
provision and management of public open space.
16. The Council advised that the completed UU sought provisions that were not
required in relation to healthcare, early years and primary education and not
in accordance with policy in respect of affordable housing provision. In
response to this, an executed Deed of Revocation dated 19 November 2021
which revokes the UU dated 21 April 2021 has been submitted. This is signed
by the Council as the local planning authority, Devon County Council as the
education authority and the appellant.
17. A further UU was submitted after the hearing which secures the provision of
affordable housing, secondary education provision and public open space. This
is signed and dated 17 November 2021.
Main Issues
18. The main issues are:
• the effect of the proposed development on the character and appearance
of the area;
• the effect of the proposed development on biodiversity;
• whether or not the proposed development would provide safe access for
pedestrians to and from the highway; and
• whether there are any material considerations which mean that the
decision should be made otherwise than in accordance with the
development plan.
Reasons
Planning Policy Context
19. The development plan includes the ‘saved’ policies from the Exeter Local Plan
First Review 2005 (the LP) and the Exeter City Council Core Strategy 2012
(the CS). My attention has been drawn to Policies CP1, CP3 and CP16 of the
CS and Policies H1, LS1 and LS4 of the LP as being the most important
policies for the determination of the application.
20. Policies CP1 and CP3 relate to housing delivery. They set a minimum
requirement for housing to be provided in the plan period to 2026 and how it
will be addressed through the supply of sites from various sources. Due to the
age of the plan, the Council is now relying on its local housing needs
assessment to calculate its housing requirement rather than that set out
within the plan. Consequently, whilst these policies are relevant, they are not
development management policies that play a significant role in determining
planning applications. They are not therefore the most important policies.
21. Policy H1 sets out the Council’s approach to the delivery of housing based on
a sequential approach which promotes the use of previously developed land
(PDL) first. This is therefore one of the most important policies. Whilst there
are some differences in wording, the National Planning Policy Framework (the
Framework) supports such an approach in seeking to make as much use as
possible of PDL. The policy is therefore consistent with the Framework and not
out-of-date.
22. Policy LS1 seeks to protect the landscape setting of the city by restricting
development within that setting. This is one of the most important policies.
However, as this policy constrains housing delivery in a manner inconsistent
with the approach advocated in the Framework it is out of date. This is
consistent with the view taken by the Inspector2 in the appeal at Land to the
west of Clyst Road, Topsham and, in view of this decision, not disputed by the
Council.
23. Policy CP16 seeks to protect the character and local distinctiveness of certain
areas around the city. Like LS1, it is therefore one of the most important
policies. However, unlike Policy LS1 it does not place restrictions on the type
of development that would be permitted. The protection of valued landscapes
is supported by the Framework and the policy is therefore not inconsistent. It
therefore carries full weight.
24. Policy LS4 seeks to protect sites of nature conservation interest. As the appeal
site is designated as a site of local interest for nature conservation (SLINC),
this policy is one of the most important policies. In terms of its approach, the
policy applies a balanced approach to development, requiring the need for the
development to outweigh nature conservation considerations, minimise any
damage and provide appropriate mitigation or compensation. Whilst the
wording of the policy is different from the Framework, the approach is
aligned, and I do not find it to be inconsistent. It is therefore not out of date.
25. In addition to those referred to above, I consider that Policy DG1 of the LP
and CP9 of the CS referred to in the Council’s decision notice are also most
important policies. Policy DG1 requires effective connectivity between existing
and proposed development and putting people before traffic and
improvements. Policy CP9, whilst focussed on strategic transport measures,
also requires additional development to include improvements to facilities for
pedestrians. These policies are broadly consistent with the Framework and are
not therefore out of date.
26. Policy CP7 of the CS which relates to affordable housing is also one of the
most important policies. This seeks 35 per cent affordable housing on sites
capable of providing three or more additional dwellings, subject to viability.
This policy does not accord with paragraph 64 of the Framework and therefore
is out-of-date.
27. I have therefore determined that the most important policies to this
application proposal are Policies CP7, CP9 and CP16 of the CS and Policies H1,
LS1, LS4 and DG1 of the LP. I have found that two out of the seven most
2 APP/Y1110/W/18/3202635
important policies area out-of-date. However, a consideration of whether the
‘basket’ itself is out-of-date and therefore whether the appeal scheme
complies with the development plan as a whole is a matter to which I will
return in my final conclusions.
Character and appearance
28. The appeal site is an area of pastureland of approximately 1.1 hectares. It is
located on the eastern side of Pennsylvania Road and to the north of the built-
up area along Stoke Valley Road, from which it is separated by a belt of
mature trees. These trees contain the extent of development, forming a
clearly defined boundary between the substantively built-up area and the
open countryside beyond. Immediately to the south of the site, there is a pair
of semi-detached properties on Whitethorn Park. Other dispersed
development including some very limited residential development lies on the
opposite side of a bridleway that runs along the eastern edge of the site.
29. The site is undulating with a distinctive north to south slope. It is largely
enclosed on three sides by existing mature hedgerow with its southern
boundary more open towards the development along Whitethorn Way.
Despite its proximity to the urban area and the suburban housing
development beyond the tree belt, the site is strongly rural to the extent that
the city is not easily perceptible when one is within the site itself or just
outside it.
30. The surrounding area is characterised by rolling hills and valleys, with the
Duryard Valley Park directly opposite the site on the western side of
Pennsylvania Road. The landscape falls within the ‘Exeter Slopes and Hills
Landscape character Area’ as defined in the Devon Landscape Character
Assessment (LCA). This describes this area as comprising farmed and wooded
slopes which provide a rural backdrop to the city. The views and woodland in
close proximity to the city form a strong sense of place, with a strong rural
character and increased sense of tranquillity. These undeveloped slopes,
which include the appeal site, form part of the distinctive landscape setting to
the city.
31. The site also lies within the landscape sub-area known as the ‘Exeter Slopes
and Hills’ as defined in the more recent East Devon and Blackdown Hills
Landscape Character Assessment 2019. This area is described as feeling
elevated above surrounding areas, offering views across Exeter City. It
reinforces the findings of the earlier LCA with regards to the area’s strong
rural and tranquil character.
32. The Exeter Fringes Landscape Sensitivity and Capacity Study 2007 (the LSCS)
identifies the site as forming part of the land with Zone 3. This is a large area
to the north of the city, described as comprising prominent hill and valley
sides with high intrinsic sensitivity which forms a strong positive rural
backcloth to the city. The appeal is a relatively small parcel of land within this
wider area. However, it is in an elevated position to the city and adjacent
valleys and visually prominent. Its strongly rural character beyond the natural
boundary to the city formed by the belt of trees, make a positive contribution
to the landscape setting of the city, characteristic of the wider zone.
33. The LSCS goes on to state that the development in this location would result
in harm to the character and distinctiveness of the rural area. Whilst this
document is now some years old, there is no evidence that the important
characteristics and features of the surrounding area have significantly
changed since this study was undertaken. The LSCS therefore remains
relevant.
34. The proposal would provide up to 26 dwellings which based on the indicative
drawings are shown to be a combination of terraces and semi-detached
properties laid out as a cul-de-sac positioned towards the southern side of the
site.
35. The existing very limited development beyond the tree line is not prominent in
distant views towards the appeal site and city edges, especially from Stoke
Hill to the east. The introduction of up to 26 houses on the appeal site would
fundamentally alter its rural character. It would appear as an anomalous form
of development projecting beyond the clearly defined limits of the city and its
natural boundary formed by the belt of trees. This would have an urbanising
effect in a strongly rural context that would encroach into the open
countryside and the sensitive and valued landscape setting of the city.
36. It has been argued that the visual effect of the scheme would be localised. I
appreciate that the indicative layout locates the proposed houses on the
southern slope of the site where it is argued that the sloping topography
would provide some natural screening. Having viewed the site from the
surrounding area, I cannot agree that the proposal would not be visible in
longer distance view from the surrounding countryside. The topography of the
site would not be able to fully screen the proposed development and its
suburban character which would be visible. This would give rise to a
substantial degree of harm to the character of the area and the sensitive
landscape setting to the north of the city.
37. From within the city itself, there would be limited views of the proposed
houses on the city skyline due to the treed boundary formed by the bridleway
vegetation and the sloping topography of the site. Such views would likely be
limited to rooftops beyond the tree line, and less visible during summer
months when the trees would be in leaf. Nevertheless, it would erode the
open and undeveloped character to the north of the city.
38. The site has a long frontage to Pennsylvania Road which is formed of a Devon
hedge bank and a mature hedgerow. These are characteristic features of the
area, forming the boundaries to fields and open land within the landscape and
enclosing rural roads and lanes. They contribute to the rural character to the
north of the city.
39. In order to provide an appropriate visibility splay at the access to the site, a
40 metre section of the hedge bank and hedgerow would be removed or
relocated from the Pennsylvania Road frontage and a new road junction would
be created. This would erode the rural character along this road, interrupting
the continuous line of hedgerow which encloses the lane. Significant harm to
the character and appearance of the area would arise from this.
40. The scheme, as a small housing estate set around a cul-de-sac would have a
suburban character. This would not integrate with surrounding development
and its largely rural character. In addition, the additional activity on the site in
combination with light emitted from the development would further add to its
intrusive nature in this rural location. Consequently, I find the scheme would
detract from the tranquillity of the area and the green setting of the city,
extending the urban form into the open countryside in a manner that would
be harmful.
41. The boundary vegetation and the natural undulations of the site would provide
some screening in those immediate views of the site from both the bridleway
and Pennsylvania Road. However, the removal of a significant section of
hedge bank and hedgerow along the Pennsylvania Road frontage and the
formation of a new vehicular access would provide views into the site and the
urbanisation of the site would be apparent. I also do not consider the site
topography would be sufficient to screen the development from views along
the bridleway. This would be more apparent during winter months when leaf
cover from boundary vegetation would be reduced.
42. The appeal site forms part of a SLINC which links with Duryard Valley Park,
which is a Site of Nature Conservation Interest (SNCI). Whilst these
designations are recognised within the appellant’s Landscape and Visual
Appraisal and the effect of the scheme on the Duryard Valley Park is
considered, the report does not specifically assess the effect of the scheme on
these designations and the character of the appeal site as a SLINC.
43. The introduction of a small housing estate within a SLINC and connected to a
SNCI, would change the undeveloped and natural character of this area in
terms of its being of interest for nature conservation. It is proposed that part
of the site is left open and enhanced with planting for biodiversity which I
discuss in more detail below. However, this would not overcome the harm
that would arise from developing more than half the site with roads, housing
and domestic gardens which would erode its natural character.
44. The importance of the countryside surrounding the city was recognised as
requiring protection by an Inspector in dismissing an appeal3 for a much
smaller development of a pair of semi-detached houses on land off Whitethorn
Park. The policy context at the time was considerably more restrictive in
terms of protection of the countryside. Nevertheless, I concur with the
Inspector’s findings that the trees along the bridleway form a logical limit to
the urban area and that development beyond it would be harmful,
representing a prominent encroachment into the adjoining open countryside,
clearly visible from the surrounding area as well as approaches along
Pennsylvania Road.
45. I conclude that the proposed development would significantly harm the
character and appearance of the area. It would therefore conflict with Policy
LS1 of the LP in so far as it requires proposals to maintain local distinctiveness
and character and Policy CP16 of the CS which similarly seeks to protects the
character and local distinctiveness of the hills to the north of the city.
Biodiversity
46. The appeal site is enclosed by hedgerows. These have been surveyed and
assessed in accordance with the Hedgerow Regulations 1997. The
assessment4 concluded that the hedgerows to the eastern and western
boundaries of the site were species-rich, supporting a mix of native species
and a number of trees. Due to their extent, connectivity and age, they are
3 APP/Y1110/A/92/214396/P4
4 Hazel Dormouse Nut Search Survey and Hedgerow Survey Report, March 2020 – Delta-Simons
considered ecologically important. The hedgerows to the northern and
southern boundaries were classified as ‘not important’ due to their age and
being species-poor. The important hedgerows are located on a hedge bank.
47. Hedgerows can provide habitat for dormice which are a protected species. The
appellant undertook a survey5 which confirmed their presence in hedgerows
both on and adjacent to the site. The report recommended that the
hedgerows bounding the site should be retained, protected and enhanced for
dormice and other wildlife. Where the proposal would require the hedgerow to
be removed to provide the access, it recommended that, in order to minimise
any loss of the hedgerow, a hedgerow translocation should be undertaken to
retain the diversity and value of this mature species-rich hedgerow.
48. A substantial section of the hedgerow along the Pennsylvania Road frontage
would need to be relocated. Based on the submitted drawings and the width
required to form the access, this would appear to be around half of the length
of this hedgerow. The plans indicate that existing trees along this frontage
would be retained where possible.
49. From what I heard, the translocation of a hedgerow involves either dragging
or lifting the hedgerow and the bank in which it is growing to its new position,
thereby minimising disturbance to it. Very limited details have been provided
as to how this translocation of the hedgerow would be undertaken in the
circumstances of the appeal site.
50. I observed on site that the carriageway on Pennsylvania Road is considerably
lower than the appeal site on its western boundary. In these circumstances, it
is not evident how this work could be undertaken without a substantial
amount of excavation. In view of the likely extent of this work and the very
limited details provided, I do not have sufficient information to enable me to
conclude that these works could be undertaken without significant harm to
both the hedgerow and any species living within it. As these works would be
fundamental to providing access to the scheme and given my concerns about
the scale and impact from the works, it would not be reasonable to rely on a
condition to secure these details.
51. Moreover, even if the hedgerow could be retained, the proposed works would
create a substantial gap within it. This would disconnect this mature hedgerow
from the wider network of hedgerows within the area. Such connectivity is
important in enabling animals, such as dormice, to travel between hedgerows
and other habitats like woodland. The formation of the gap would therefore
adversely affect the biodiversity of the area.
52. The scheme proposes biodiversity enhancements. This includes the
replacement, enhancement and creation of new hedgerows, a Sustainable
Urban Drainage System incorporating areas of open water and wet grassland
and for new grassland around the site to be managed meadow to provide
foraging and commuting habitat for a range of local fauna. It also proposes
new tree planting along the southern section of the site plus a small section of
woodland and hazel scrub to be incorporated into the northern and western
extents of the site.
5 Hazel Dormouse Nest Tube Survey Report, August 2020 – Delta-Simons
53. The appellant has submitted a biodiversity net gain report which
demonstrates that the proposed development would result in an overall net
gain in biodiversity. Based on the illustrative masterplan for the site, the
appellant has assessed the biodiversity net gain to increase by more than 10
per cent for ‘habitat units’ and by approximately 90 per cent for ‘hedgerow
units’.
54. From what I heard, much of the new native hedges would be providing
boundary hedging to the proposed housing. It would not therefore be possible
to secure any long-term biodiversity gains from these as there would be
nothing to stop future occupants from either cutting these or replacing them
with an alternative form of planting or enclosure. In addition, these hedges
would be fragmented, relatively narrow and short in length. The lack of
connectivity and the limited scale of these would limit their effectiveness in
establishing habitat for wildlife.
55. The biodiversity net gains are based on a hedgerow reaching a ‘moderate’
condition which would be around a ten year period and therefore significantly
less than the 20-30 years that a hedgerow requires to reach maturity. In this
regard, I do not find the replacement hedgerow would compensate for the
loss.
56. The appellant’s Preliminary Ecological Appraisal6 (PEA) assessed the site for
identified habitat or potential species. In addition to dormice and hedgerow
surveys, it indicated the need for a great crested newt survey as well as
identifying other requirements for species protection. In the absence of firm
evidence as to which of these species are present, it is not possible to
establish a baseline of existing biodiversity on the site. Therefore, whilst the
proposals may increase certain types of habitats, this could be to the
detriment of these, as yet, un-surveyed species.
57. The Council did not refuse planning permission due to the absence of the
additional surveys. This point was raised by the appellant at the Hearing.
However, the Council’s position was that since it found the scheme to be
unacceptable for other reasons it would have been unreasonable to have
required this extra work from the appellant when it was clear to the Council
that it was going to refuse the application. Moreover, the appellant would
have been aware of the need for additional survey work from their own PEA
and could have undertaken this in order to confirm a robust baseline. In view
of the Council’s intention to refuse the scheme, I do not find its approach
unreasonable.
58. In the absence of a firm baseline, I can only give limited weight to the
biodiversity net gain report as there is insufficient evidence of what existing
biodiversity on the site would be affected. Furthermore, the relocation of the
hedge bank as proposed and the formation of a wide gap within what is a
well-connected and established hedgerow would undermine connectivity.
Besides, it seems to me that with the introduction of domestic development
with associated lighting, hard surfacing and pets, especially cats, the net
gains arising from the proposals are likely to be limited.
6 Delta-Simons - Preliminary Ecological Appraisal – Land off Pennsylvania Road, Exeter (January 2020)
59. In this location, where the appeal site forms part of a SLINC, I find that this
would reduce the biodiversity of the site and the site’s nature conservation
value which would be harmful.
60. Overall, I find that the proposal would cause significant harm to biodiversity.
It would therefore conflict with Policy LS4 of the LP which only permits
development that would harm a SLINC if the need for the development is
sufficient to outweigh nature conservation considerations and the extent of
any damaging impact is kept to a minimum and appropriate mitigation and
compensatory measures are implemented. It would also conflict with Policy
CP16 of the CS which set out that the biodiversity value of sites of local
conservation importance will be protected and unavoidable impacts mitigated
and compensated for.
Highway safety
61. The main access for vehicles and pedestrians to the proposed development
would be through a newly formed access onto Pennsylvania Road
approximately 60 metres north of Whitethorn Park and 14 metres south of the
entrance to Duryard Valley Park on the opposite side of the road. This stretch
of Pennsylvania Road is on a hill, has no footpath and runs between a
vegetated embankment on its western edge and the garden wall to Hilltop
along much of its eastern edge. The road is subject to a 30 mph speed limit
and I observed at both site visits that it was a well-used route.
62. The scheme proposes a footpath which would connect the site entrance with
the existing footpaths on Stoke Valley Road which would provide a link to bus
stops along this road. The submitted drawings indicate that the footpath
would measure 1.8 metres across the site frontage and would narrow to
1.2 metres where it links to Whitethorn Park and beyond to Stoke Valley
Road. This section of footpath would be some 60 metres in length. In order to
accommodate the proposed footpath, the carriageway would be narrowed,
reducing to 4.9 metres at its narrowest point.
63. The Council has requested a minimum provision of a 1.8 metre footpath and a
carriageway width of 5.5 metres. It is not disputed that these dimensions
cannot be achieved together due to the constraints of the existing road.
64. The proposed footpath would not be sufficiently wide to enable an ambulant
person to pass along it side by side with a wheelchair user. In certain
circumstances it may be appropriate for the ambulant person to walk behind
the wheelchair user over a short stretch of footpath. However, in the scenario
proposed as part of the appeal, it seems that should someone come from the
opposing direction, they would need to step into the carriageway in order to
get past.
65. Furthermore, with family housing proposed and improved pedestrian access to
the adjacent picnic area, it seems very likely that there would be instances
when pedestrians would be travelling along with a child’s buggy and possibly
a child walking beside them. This would also likely require someone travelling
in the opposite direction to have to make way by stepping into the
carriageway. These factors lead me to the conclusion that the narrowness of
the proposed footpath would increase the risk of conflict between pedestrians
and vehicular traffic along this stretch of Pennsylvania Road and would be
harmful to pedestrian safety.
66. Based on Manual for Streets (MfS), it would not be possible for two HGVs to
pass each other where the carriageway reduces to less than 5.5 metres. The
appellant has argued that whilst there may be insufficient width for this, given
the surrounding land uses, the likelihood of two opposing HGV movements
occurring is generally low. I am inclined to agree with this assessment. I also
note that the minimum width would enable a car and HGV to pass each other,
based on the MfS assessment. In these circumstances, the reduced
carriageway width would be acceptable for the vehicles anticipated to use it.
67. Nevertheless, with an insufficiently wide footpath which would mean
pedestrians having to step into the carriageway in order to pass each other,
the reduced carriageway width would, in my view, add to the risk to
pedestrians.
68. I have been referred to the Devon County Council Highways in Residential and
Commercial Estates – Design Guide and the requirements set out therein for a
footpath width of 2 metres. This guidance recognises that in certain instances
the width of a footpath may be reduced where pedestrian flows are low. It
states that a reduction to 1.35 metres may be appropriate subject to visibility
and safety requirements.
69. The appellant has assessed that on the basis of trips generated by the appeal
site alone there would be five two-way trips in both the morning and
afternoon peak hours. For this reason, it has been argued that the occurrence
of people passing each other along this stretch would be low.
70. The proposal would additionally introduce a footpath and a dropped kerb
crossing point providing improved access to the Duryard Valley Park in
comparison to the existing circumstances. Notwithstanding the inadequate
width of the footpath, I consider it likely that other users would be
encouraged to walk along this stretch of the road particularly as it would
provide access to this area of greenspace and the picnic spot located there.
This leads me to conclude that pedestrian trips would likely be higher than
those suggested by the appellant.
71. In terms of the reduced width, the appellant has argued that 1.35 metres
does not align with any of the prescriptive requirements of any particular
disabled users who would require either a width of 1.5 metres to enable a
wheelchair user and ambulant person to pass along the footpath or 1.2
metres which would allow two ambulant people to walk side by side. I have
been provided with no evidence that explains the width of 1.35 metres and
why this would be acceptable but not 1.2 metres. However, as I do not
consider that pedestrian flows would be that low, I find no justification for a
reduced footpath width, whether 1.2 or 1.35 metres.
72. The indicative layout indicates an alternative pedestrian route from the appeal
site onto the bridleway to the east. No details of the formation of this access
have been provided. It has been confirmed that the existing bridleway would
need to be upgraded to an appropriate standard for pedestrian use, notably
through the installation of lighting. Due to issues of ownership, this would not
be possible. The appellant has suggested that this would nevertheless provide
an additional opportunity to provide access to and from the site. Whilst I do
not disagree, it would not provide suitable or safe access to the site due to the
absence of lighting. It therefore would not justify the provision of a
substandard footpath along Pennsylvania Road.
73. My attention has been drawn to other sections of substandard footpath along
Pennsylvania Road. Whilst I note these, they do not provide any justification
for providing a substandard footpath to serve the appeal proposal.
74. I conclude that the proposed development would not provide safe access to
and from the site for pedestrians. It would therefore increase the risk of
conflict between pedestrians and other road users which would be harmful to
highway safety. It would therefore conflict with Policy DG1 of the LP and CP9
of the CS. These policies together require development to connect effectively
with existing routes and spaces and put people before traffic and include
improvements to facilities for pedestrians.
Other Considerations
Housing Land Supply (HLS)
75. At the time the Council made its decision, it could only demonstrate a
2.1 years supply of housing. Since then, the Council published a
September 2021 HLSS which set out that the Council had a supply of
5.5 years for the period commencing 1 April 2021.
76. The appellant disputes this position on the basis that the Council has included
seven sites which either do not meet the Framework definition of a deliverable
site or because full planning permission has been granted since 1 April 2021.
On the basis of these sites being excluded, the appellant considers the Council
can demonstrate between 4.41 and 4.67 years supply. These are premised on
the application of a ‘cut-off’ date of 1 April 2021 for the calculation of the five
year supply.
77. In order to be considered deliverable, the Framework sets out that sites for
housing should be available now, offer a suitable location for development
now, and be achievable with a realistic prospect that housing will be delivered
on the site within five years.
78. Paragraph 74 of the Framework explains that a five year supply of deliverable
housing sites can be demonstrated where it has been established in a recently
adopted plan or in a subsequent annual position statement. The Council has
no recently adopted plan and is therefore reliant upon producing an annual
position statement. The Council’s September 2021 HLSS with a base date of
1 April 2021 provided such a position statement.
79. The Council subsequently sought to revise that annual position statement by
producing an updated version, published in November 2021, with a revised
base date of 6 September 2021. This was submitted after the Hearing. It
indicated that the Council could identify a 6.1 year supply of housing. In
providing this updated position, the Council was seeking to address the
criticism of its September 2021 HLSS in that the base date should be the
same as the cut-off date for the assessment of delivery.
80. In support of its position, the Council referred me to a decision by the
Secretary of State in relation to an appeal7 at Woburn Sands,
Buckinghamshire. The Secretary of State concurred with the view of the
Inspector that it is acceptable, in relation to an assessment of housing land
supply, that evidence can post-date the base date provided that it is used to
7 APP/Y0435/W/17/3169314
support sites identified as deliverable as of the base date. This approach is
reasonable and I have no reason to disagree.
81. However, the Woburn Sands Inspector did not agree that the base date
should be altered to take into account such evidence as this would require an
adjustment of the five year supply period which is not advocated in national
policy or guidance. It was the Inspector’s view that such an approach would
go against efforts to create greater certainty in the planning process, thereby
avoiding the need to argue HLS at every appeal. I agree with this conclusion.
In coming to this view, I note that the Framework refers to an annual position
statement which, to my mind, indicates it is produced once a year.
82. For this reason, I do not agree that the November 2021 HLSS should be used
for the calculation of the Council’s five year HLS. However, I agree that
evidence beyond the base date can be taken into account on the basis that it
supports sites identified as deliverable at the base date.
83. I turn now to consider the deliverability of each of the contested sites from
the September 2021 HLSS.
Land to the north and south of the Met Office, Hill Barton (Phase 5) (Site
346a)
84. This site is expected to deliver 235 dwellings. As of the base date, no planning
application had been submitted and pre-application discussions were ongoing.
When the Council sought to update its evidence of delivery in August, the
developer indicated it intended to submit a full application within 3-4 months.
However, with no planning application submitted let alone approved several
months beyond the base date, I do not consider that there is sufficient
evidence that completions will begin on site within five years. I consider these
235 dwellings should be excluded from the trajectory.
Hill Barton Farm, Hill Barton Road (Site 347e)
85. At base date, there was a resolution to grant outline planning permission
subject to the completion of a legal agreement. Outline permission was
granted a couple of months after base date in June 2021 for 200 dwellings of
which 132 are expected to be delivered within the HLSS five year period. This
is phase 4 of a five phase scheme. A reserved matters application was
submitted in the same month permission was granted. The evidence provided
post-hearing indicates that the reserved matters has been approved. This is
indicative of the scheme being progressed quickly through the application
process. The Council has indicated that previous phases have been
successfully delivered and I have no evidence to the contrary. On this basis, it
is reasonable to include the 132 dwellings within the calculation.
86. The Council’s November HLSS indicates that this site would deliver 146
dwellings within the five year period. However, this is predicated on a base
date of 6 September 2021. I have found no justification for revising the base
date nor recalculating the supply. I have therefore not applied the revised
figure.
Land east of Cumberland Way (Phase 4) (Site 356d)
87. Outline planning permission was granted for 80 dwellings on this site in April
2021, shortly after base date. A reserved matters application was due in
Summer 2021 but I have nothing before me to indicate this has been
submitted. I therefore have no evidence of how much progress has been
made towards approving reserved matters, as advocated in the Planning
Practice Guidance. Furthermore, the evidence indicates that the site was to be
sold on and that this sale has since stalled. For these reasons, I do not
consider that there is clear evidence that completions will begin on site within
five years. I therefore consider 80 dwellings should be excluded.
The Old Coal Yard, Exmouth Junction, Mount Pleasant Road (Site 408)
88. This site has outline permission for 400 dwellings and 65 senior living care
units, identified in the HLSS as delivering 465 dwellings over a 10 year period.
Of this, 150 dwellings have been identified for delivery within the first five
years. At base date, no permission had been granted and no reserved matters
application had been made. In the absence of these, there is no clear
evidence that housing completions will begin on site within five years. I
therefore consider 150 dwellings should be excluded.
Exmouth Junction gateway site, Prince Charles Road (Site 423s)
89. A full planning application was made for 51 dwellings. The Council’s HLSS set
out that it had been recommended for approval but was awaiting the
completion of a legal agreement. I have nothing before me to show this has
now been resolved. This degree of uncertainty could in my view put back the
potential start date of a development by some time. For these reasons, I do
not consider it appropriate to include this development within the calculation
of overall supply. These 51 dwellings should be removed from the calculation.
Clifton Hill Sports Centre, Clifton Hill (Site 419s)
90. At base date, there was a resolution to approve a scheme for 42 dwellings
subject to completion of a section 106 legal agreement. Planning permission
has subsequently been granted on 13 October 2021. Whilst this is beyond
base date, it relates to a site the Council included as deliverable at base date.
I therefore consider these dwellings should be retained as part of the five year
supply.
Whipton Barton House, Vaughan Road (Site 407s)
91. A full planning application for 56 dwellings had a resolution to approve subject
to a completed section 106 at base date. Planning permission was granted in
September 2021. For the same reason I consider dwellings from the
redevelopment of the Clifton Hill Sports Centre should be included, I consider
these 56 dwellings should also be.
92. The Council has referred me to a site, The Harlequin Centre, Paul Street,
which had planning permission for 125 dwellings plus a hotel which were
considered deliverable within the five year period. This was included within
the September HLSS. At that time, the developer of that scheme had
submitted a revised application seeking the development of 330 dwellings
which was pending consideration. The Council has advised that the revised
scheme is now recommended for approval. However, I have no firm evidence
that permission has been granted. The adjusted number of dwellings should
not therefore be included within the calculation.
93. The appellant has argued that the Covid-19 pandemic is likely to have
implications for the housebuilding industry. Whilst it is accepted that the
effects of the pandemic are not fully known, I have been provided with no
substantive evidence of any notable slowing down of the housebuilding
industry nor of the housing market. I therefore give this very limited weight in
terms of its effect on HLS.
Overall findings on HLS
94. The Council’s housing requirement is for 3,292 dwellings over the five year
period. In excluding the sites as set out above, the Council’s deliverable
supply of housing would be 3,072 representing a shortfall of 220 dwellings.
95. The Council cannot demonstrate a five year supply of deliverable housing
sites. The shortfall is modest. Where a five year housing land supply cannot
be demonstrated, paragraph 11 of the Framework sets out that decisions
should apply a presumption in favour of sustainable development. I return to
this in my planning balance.
Benefits of the scheme
96. The scheme would deliver up to 26 dwellings and would make a contribution
to the supply of housing for the city. In the context of the Council’s modest
shortfall in its supply of deliverable housing sites, the addition of 26 dwellings
carries moderate weight.
97. According to the Council’s Strategic Housing Market Assessment 2014/15, the
predicted level of affordable housing that would be delivered through policy
compliant development would be 215 units per annum which would be
significantly less than the identified affordable housing need of 325 dwellings.
The proposal would provide a policy compliant 35 per cent affordable housing,
equivalent to 8 affordable units that would be provided on site. This would
help to create balanced communities and would help to meet an identified
need for affordable housing. However, the provision of 8 affordable units is a
modest contribution to the overall supply of affordable housing. It therefore
carries moderate weight in the scheme’s favour.
98. I have been referred to an appeal8 at Ringswell Avenue, Exeter where the
Inspector attributed considerable weight to the benefits of the scheme which
included the provision of 17 affordable units. However, this was part of a
larger scheme and delivered more than double the amount of affordable
housing units compared to the scheme before me. It is not therefore directly
comparable.
99. During construction and subsequent occupation of the development, there
would be a number of economic benefits in relation to employment, supply of
goods, use of services and spending money within the local economy. Those
associated with construction would be time limited, however, longer term
benefits would result from future occupants. Additional financial benefits
would be accrued from the New Homes Bonus and the Council tax receipts.
These benefits together carry moderate weight.
100. The appellant contends that the proposed development would be in an
accessible location which would reduce the need to travel by private car.
8 APP/Y1110/W/18/3212951
Within Exeter, future occupants would have access to a good level of services
including schools, a university, public transport and the shops and facilities
within the city centre which are located some 1.5 kilometres from the site.
101. I have already found the proposal would not provide safe pedestrian access
from the site. Furthermore, public transport from the site is limited to a single
route bus service which runs half hourly during the week and hourly on the
weekend. The appeal site is located on a hill and therefore to access services
and facilities on foot would involve walking down and up a relatively steep
incline. This would not be practical if carrying shopping or pushing a buggy for
any distance. I do not therefore consider the location to be accessible. I
therefore give this aspect of the scheme very limited weight.
102. The revised highway scheme proposed to provide an informal pedestrian
crossing in the form of a dropped kerb to the publicly accessible picnic area
within the Duryard Valley Park. There is currently no footpath link to this area
and the proposal would therefore represent an improvement on the existing
situation. However, given that the proposed footpath to this location would be
substandard, I give this benefit limited weight.
103. The appellant has indicated that the scheme would provide an area of open
space which would be publicly accessible. However, the submitted Landscape
Masterplan attached to the Biodiversity Net Gain Report identifies that most of
the undeveloped space within the site will be used for woodland, hazel or
wildflower planting. It is not clear where the public open space would be or
how this could be accommodated in the context of the proposed biodiversity
gains. In addition, this area would be set away from the existing residential
development and likely would only be used by future occupants of the
proposed development. Whilst I acknowledge the health and wellbeing
benefits of open space, I give the provision of open space very limited weight.
104. It is suggested that the scheme would contribute to carbon savings, however,
I have limited information in respect of this. This therefore carries very limited
weight in favour of the scheme.
105. The proposed dwellings would be built to comply with required standards of
energy consumption and sustainability as set out in guidance and required by
Building Regulations. This does not offer anything over and above
requirements, and therefore in terms of the benefits it delivers I attribute this
very limited weight.
106. The scheme would make a contribution to secondary school provision.
However, this would be to meet the needs arising from the proposed
development. This would therefore be a neutral factor in the balance.
Other Matters
107. The appeal site is located within 10 kilometres of both the Exe Estuary Special
Protection Area (SPA) and the East Devon Pebblebed Heaths SPA and Special
Area of Conservation. These are statutorily protected habitats sites under the
Conservation of Habitats and Species Regulations 2017 (as amended).
108. The Council has determined that additional residential development would, in
combination with other plans and projects have a significant effect on these
protected sites through additional recreational pressures. The Council has
undertaken an appropriate assessment which concluded that the impacts of
the proposed development could be mitigated through a financial contribution
towards the implement of measures set out within the South East Devon Site
Mitigation Strategy. The Council confirmed that this contribution could be top-
sliced from Community Infrastructure Levy payments.
109. Notwithstanding the Council’s findings in respect of this, as the competent
authority, I am required to carry out an appropriate assessment of the effect
of the proposed development. However, as I have found that the scheme is
unacceptable for other reasons, I do not need to pursue this matter further.
Planning Balance
110. The appeal site is located outside the settlement boundary and is in the open
countryside. There would be significant harm to the character and appearance
of the area, biodiversity and pedestrian safety. These are all matters which
carry very substantial weight and importance in the planning balance.
111. I have identified the most important policies for determining this application.
Of these the proposed development would conflict with policies CP9 and CP16
of the CS and policies H1, LS1, LS4 and DG1 of the LP. The proposal would
comply with policy CP7 in regards to affordable housing and inevitably would
comply with other relevant policies within the development plan.
Nevertheless, in my judgement the appeal scheme would conflict with the
development plan when taken as a whole.
112. Paragraph 11 d) of the Framework sets out that for decision taking where
there are no relevant development plan policies, or the policies which are
most important for determining the application are out-of-date, permission
should be granted unless: i. the application of policies in the Framework that
protect areas or assets of particular importance provides a clear reason for
refusing the development proposed; or ii. any adverse impacts of doing so
would significantly and demonstrably outweigh the benefits, when assessed
against the policies in the Framework taken as a whole.
113. Footnote 8 sets out that in relation to an application involving the provision of
housing, where a local authority cannot demonstrate a five year supply of
deliverable housing sites, then the policies which are most important for
determining the application are out-of-date.
114. I have found that two of the most important policies are out of date but the
majority are not. Which leads me to conclude that the basket of most
important policies is not out-of-date in this case. However, I have concluded
that the Council cannot demonstrate a five year supply of deliverable housing
sites to meet its local housing need. The presumption in favour of sustainable
development would therefore apply in this case and the ‘tilted balance’ would
be engaged.
115. The proposal would deliver a range of modest economic, social and
environmental benefits. Due to the modest scale of the benefits in the context
of the limited shortfall in housing supply, these benefits attract limited to
moderate weight. Taken in combination, I therefore attribute moderate weight
to the package of benefits in the planning balance.
116. As I have identified above, the proposal would give rise to significant harm in
respect of three main issues to which I attribute substantial weight. In my
view, the adverse impacts of granting permission would significantly and
demonstrably outweigh the benefits when assessed against the policies of the
Framework taken as a whole. Therefore, the proposal would not constitute
sustainable development with regard to paragraph 11 d ii) of the Framework.
Conclusion
117. The proposed development would be contrary to the development plan and
there are no material considerations that outweigh this conflict. Consequently,
with reference to Section 38(6) of the Planning and Compulsory Purchase Act
2004, the appeal should be dismissed.
Rachael Pipkin
INSPECTOR
APPEARANCES
FOR THE APPELLANT:
Joe O’Sullivan Head of Planning, AAH Planning Consultants
Leanne Richardson Senior Planning Consultant, AAH Planning
Consultants
Oliver Brown Landscape Architect, AAH Planning Consultants
Stuart Wilson Transport Planning, Newell Edwards
FOR THE LOCAL PLANNING AUTHORITY:
Matthew Diamond Principal Project Manager (Development)
Katherine Smith Principal Project Manager (Local Plans)
Anne Priscott Consultant Landscape Architect
Alex Thomas Senior Highways Development Management
Officer, Devon County Council
Simon Curran Solicitor, Exeter City Council Legal Services
INTERESTED PARTIES
Ken Scowcroft Local resident
Mark Stobbs Local resident
Francis Hall Local resident
Mr Caspar Local resident
G Hall Local resident
HEARING DOCUMENTS
HD1 Council Statement in response to the Inspector’s question regarding
habitats mitigation (November 2021)
HD2 Costs application on behalf of the Council
POST-HEARING DOCUMENTS
PHD1 Email from Council dated 4 November 2021 requesting late evidence
relating to the Council’s five year housing land supply be considered
PHD2 Copy of Hazel Dormouse Nut Search Survey and Hedgerow Survey
Report, March 2020
PHD3 Copy of Hazel Dormouse Nest Tube Survey Report, August 2020
PHD4 Email from Appellant dated 8 November 2021 responding to Council’s
proposed submission of late evidence
PHD5 Email from Council dated 9 November 2021
PHD6 Council’s Five Year Housing Land Supply Statement (November 2021)
PHD6 Secretary of State Decision, APP/Y0435/W/17/3169314, Land to the East
of Newport Road and to the east and west of Cranfield Road, Woburn
Sands, Buckinghamshire
PHD7 Consent Order in relation to appeal APP/G2815/W/19/3232099
PHD8 Delivery evidence for site 416
PHD9 Email from Appellant dated 10 November 2021, setting out objections to
the late evidence and confirming a written rebuttal to the Council’s late
evidence will be submitted
PHD10 Appellant’s Costs rebuttal and Appendix A
PHD11 Unilateral Undertaking under section 106 of the Town and Country
Planning Act 1990 (as amended) dated 17 November 2021
PHD12 Deed of Revocation dated 19 November 2021
PHD13 Council’s comments on Appellant’s costs rebuttal
PHD14 Appellant’s Rebuttal on revised 5 year housing land supply
PHD15 Appellant’s costs application
PHD16 Council’s costs rebuttal, email dated 10 January 2022
PHD17 Email from appellant dated 14 January 2022 confirming no further
comment to costs rebuttal


Costs Decisions
Hearing Held on 3 November 2021
Site visit made on 2 and 3 November 2021
by Rachael Pipkin BA (Hons) MPhil MRTPI
an Inspector appointed by the Secretary of State
Decision date: 21/01/2022
Costs application in relation to Appeal Ref: APP/Y1110/W/20/3265253
Land at Pennsylvania Road, Exeter EX4 5BL
• 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
Exeter City Council.
• The hearing was in connection with an appeal against the refusal of planning permission
for an outline application including access, with all other matters reserved, for up to 26
(maximum) residential dwellings.
Decision
1. The application for an award of costs is allowed in the terms set out below.
Procedural Matter
2. An application for costs was also made by Exeter City Council against Land
Allocation Ltd. This application is the subject of a separate Decision.
The submissions for [APPELLANT]
3. The submission was made in writing. In summary, the applicant considers the
Council has behaved unreasonably by introducing fresh and substantial
evidence at a late stage necessitating extra expense for preparatory work that
would not otherwise have arisen. In addition, the Council provided information
that the applicant considers is manifestly inaccurate or untrue.
4. The Council submitted late evidence after the close of the Hearing on
3 November 2021 in relation to its five year housing land supply position. This
has caused the applicant to incur unnecessary and wasted expense in the
appeal process in both objecting to the introduction of the late evidence and
providing a rebuttal to it. The applicant contends that the Council acted
unreasonably by reassessing their housing land supply when these matters had
been the subject of discussion at the Hearing and that the evidence should
have been provided prior to and at the Hearing itself.
5. In addition, the Council’s submission to the Planning Inspectorate on which the
Inspector based the decision to accept the late evidence was not as they
described it and other additional matters were included which were not
specified at the time. The applicant considers that the provided information was
therefore manifestly inaccurate and untrue.
The response by Exeter City Council
6. The response was made in writing. After the Hearing, the Council asked the
Inspector if it could submit its updated five year housing land supply position
given its relevance to the matters that had been discussed at the Hearing. The
Inspector agreed that it could be submitted stating that it was considered
material. This was disputed by the applicant who asked to see the evidence.
This was then submitted. The Council considers it did not act unreasonably as it
had asked the Inspector if the evidence could be submitted before it did so. In
addition, the applicant’s views were known by the Inspector before the Council
was allowed to submit the evidence.
7. The Council also identified a Secretary of State decision and consent order that
was material and requested this be taken into consideration. This was relevant
to issues brought up at the Hearing and its relevance was unknown before
then. The Council does not consider that it would have been professional or
ethical to not disclose this information to the Inspector once know.
8. The Council does not consider that the evidence it has provided is manifestly
inaccurate and untrue. The Inspector had and has the discretion on whether to
accept the late evidence or not. The applicant was copied in on relevant emails
and given the opportunity to present their views on it. The Council does not
consider it has behaved unreasonably.
Reasons
9. Planning Practice Guidance (PPG) advises that, irrespective of the outcome of
the appeal, costs may only be awarded against a party who has behaved
unreasonably and thereby caused the party applying for costs to incur
unnecessary expense in the appeal process.
10. The PPG advises at paragraph 471 the types of behaviour that might give rise
to an award of costs against a local planning authority on procedural grounds.
This includes introducing fresh and substantial information at a late stage
necessitating an adjournment, or extra expense for preparatory work that
would not otherwise have arisen.
11. Following the Hearing which was closed on 3 November 2021, the Council
advised me that it had recalculated the housing land supply figure on the basis
put forward by the applicant. This gave a new figure of 6 years and 1 month
and a revised base date of 6 September 2021. The Council requested that the
late evidence be considered in view of how implicit this issue was to the appeal.
12. I sought the views of the applicant on whether this late evidence should be
accepted and gave them the opportunity of making written representations or
of requesting the re-opening of the Hearing.
13. Whilst I noted the applicant’s objections to the submission of the late evidence,
I nevertheless gave the Council permission to submit it given that the five year
housing land position was material to the appeal decision. The evidence was
only then submitted. In addition, the Council included a decision of the
Secretary of State in respect of Woburn Sands, Buckinghamshire2 which it
1 Paragraph: 047 Reference ID: 16-047-20140306
2 APP/Y0435/W/17/3169314
asked me to take into account. This decision supported the Council’s position
that evidence after the cut-off date could be taken into account.
14. The Council advised that it had recalculated its five year housing land supply on
the basis of the discussions at the Hearing and the applicant’s argument that
the base date should be the same as the cut-off date for the assessment of
delivery. The Council also advised that in addition to the new base date, an
increased yield for one of the sites, The Harlequin Centre, Paul Street, had
been included.
15. I accepted the late evidence and gave the applicant the opportunity to provide
a written response to this before making a decision as to whether or not the
Hearing should be reopened. My assessment of the late evidence and its
relevance to the appeal is included in my appeal decision and I do not repeat it
here.
16. The submission of the revised five year housing land supply position hinged
upon the argument as to whether the Council could take into account evidence
of delivery from after the cut-off date for the assessment of whether a site
would be deliverable. At the Hearing, the matter of the cut-off date was
discussed. However, it was also included in the applicant’s Addendum
Statement submitted prior to the Hearing and was not therefore an argument
introduced at the Hearing that the Council could not have considered and
prepared for in advance. It was therefore unreasonable of the Council to have
not responded to this at the Hearing.
17. Furthermore, in revising its five year housing land supply position, in addition
to rebasing the five year housing land supply period and increasing the yield
from the Harlequin Centre, it also included additional completions, sites, site
evidence and an altered housing trajectory. The Council’s explanation of the
late evidence did not set out this level of detail. However, as an updated five
year housing land supply position it is not unreasonable to expect some of this
information to be included.
18. The Woburn Sands appeal decision was not made known to me when the
Council requested that it provide a rebased five year housing land supply. I
understand the Council’s reasons for submitting this decision. However, in not
informing me of its intention to also include this information as part of its late
evidence, I find the information submitted to me about the late evidence was
manifestly inaccurate.
19. I have nonetheless accepted this evidence as I recognise that it is of relevance
to the appeal and the applicant has been given the opportunity to respond.
Nevertheless, given that the Council must have known that matters in relation
to cut-off dates were a point of dispute, it was unreasonable of it to have
submitted this evidence after the Hearing was closed.
20. The Council in submitting this evidence the day after the Hearing has
introduced late evidence that has caused the applicant to have had to
undertake further work and incur additional expense in the appeal process,
both in setting out its reasons for objecting to the submissions and
subsequently rebutting the evidence.
Conclusion
21.I therefore find that unreasonable behaviour resulting in unnecessary or wasted
expense, as described in the PPG, has been demonstrated and that a partial
award of costs is justified.
Costs Order
22. 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
Exeter City Council shall pay to [APPELLANT], the costs of the appeal
proceedings described in the heading of this decision, limited to those costs
incurred in both objecting to and rebutting the late evidence submitted by the
Council.
23. The applicant is now invited to submit to Exeter City 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.
Rachael Pipkin
INSPECTOR


Costs Decisions
Hearing Held on 3 November 2021
Site visit made on 2 and 3 November 2021
by Rachael Pipkin BA (Hons) MPhil MRTPI
an Inspector appointed by the Secretary of State
Decision date: 21/01/2022
Costs application in relation to Appeal Ref: APP/Y1110/W/20/3265253
Land at Pennsylvania Road, Exeter EX4 5BL
• 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 Exeter City Council for a partial award of costs against Land
Allocation Ltd.
• The hearing was in connection with an appeal against the refusal of planning permission
for an outline application including access, with all other matters reserved, for up to 26
(maximum) residential dwellings.
Decision
1. The application for an award of costs is allowed in the terms set out below.
Procedural Matter
2. An application for costs was also made by [APPELLANT] against Exeter
City Council. This application is the subject of a separate Decision.
The submissions for Exeter City Council
3. The submission was made in writing. In summary, the Council has applied for a
partial award of costs on substantive grounds on the basis that the appellant
has been unreasonable due to its lack of co-operation on the planning
obligation in association with the appeal. The manner in which the planning
obligation was submitted and its contents has amounted to unreasonable
behaviour by the appellant.
4. There was no dialogue with the Council’s legal department and a signed
planning obligation was submitted to the Planning Inspectorate in April 2021.
This finalised planning obligation sought different contributions from those
requested by the Council, notably in respect of affordable housing contributions
and contributions to primary healthcare. A deed of variation has been required
to make the planning obligation acceptable. This has caused the Council extra
and unnecessary work, the costs for which are sought by the Council.
The response by [APPELLANT]
5. The appellant set out in the draft Statement of Common Ground (SoCG) on 11
January 2021 that they intended to secure the planning obligations by way of a
Unilateral Undertaking (UU) under Section 106 of the Town and Country
Planning Act 1990 (as amended) which would be in accordance with the
consultation responses received for the planning application1.
6. The appellant sought the agreement of the Council to the SoCG including the
planning obligations detailed within it. The Council did not respond until
October 2021 when they apologised for not commenting or agreeing the SoCG.
The Council’s statement of case, dated April 2021, did not refer to the draft
SoCG or planning obligations. The Council only responded in respect of the UU
as part of its response to the Inspector’s pre-hearing note. The appellant
refutes the claim made that there was no dialogue with the Council before the
UU was submitted.
7. The Council could have raised its concerns that it did not consider the
affordable housing contributions being provided were policy compliant. This
could have been done when it had the completed UU before it on 21 April 2021
rather than waiting until weeks before the Hearing. It is not clear what
‘unnecessary expense’ the Council has incurred as a consequence of this.
8. The NHS contributions included within the UU were in response to consultation
responses. It is subject to a blue pencil clause which would enable it to be
excluded should the Inspector consider this necessary. It is therefore
irrelevant.
9. The appellant revised the UU in good faith in accordance with the information it
had but the Council did not respond on this for several months.
Reasons
10. Planning Practice Guidance (PPG) advises that, irrespective of the outcome of
the appeal, costs may only be awarded against a party who has behaved
unreasonably and thereby caused the party applying for costs to incur
unnecessary expense in the appeal process.
11. Paragraph 53 of the PPG2 sets out the type of behaviour that may give rise to a
substantive award of costs against an appellant. This may occur through a lack
of co-operation on any planning obligation.
12. The Council has confirmed that it was never provided with a draft planning
obligation. The only planning obligation provided to it was the finalised UU,
signed and dated 21 April 2021. This made provision for contributions to
affordable housing and healthcare amongst other things. On 21 May 2021
there was email correspondence between the Council and the appellant
advising that the Council would review the document if the appellant could
provide the relevant ownership details and confirmation that the Council’s legal
fees would be paid. The appellant requested a quote for the fees, which the
Council provided.
13. There is nothing before me to show that the required details of ownership had
been provided and confirmation that the Council’s legal fees would be paid by
the appellant. There is nothing to suggest that beyond this date there was any
further dialogue between the parties. However, I concur with the Council that
the ‘ball’ was at this stage in the appellant’s court. I note that the Council
followed this matter up on 26 August 2021 when it sought clarification from the
1 Council Ref 20/0596/OUT
2 Paragraph: 053 Reference ID: 16-053-20140306
appellant as to how they wished to proceed. I have not been made aware of a
response to that request.
14. I appreciate that the Council only provided detailed comments in relation to the
acceptability of the legal agreement in response to the pre-hearing note on
22 October 2021. However, the appellant did not advise of its position following
the Council’s email of 21 May 2021. This was unreasonable of the appellant.
15. Annexe N of the Procedural Guide: Planning appeals – England provides good
practice advice to appellants in preparing planning obligations in relation to an
appeal. It sets out at paragraph N.2.3 that there should be a continuous
dialogue between the parties in the run up to the hearing about the state of the
draft section 106 to ensure that the final draft is as good as it can be. At
paragraph N.2.5, it goes on to explain that a final draft rather than an executed
planning obligation be provided, to allow for the possibility that it may be
changed during the hearing process.
16. The appellant, in submitting an executed planning obligation by 21 April 2021,
did not follow the procedural guidance. I appreciate that the Council did not
provide comments on the required contributions within its Statement of Case,
which pre-dated the executed planning obligation. I also acknowledge that the
appellant had to chase the Council for a response on the SoCG which, had it
responded earlier, may have clarified the Council’s position in respect of the
planning obligation earlier on in the appeal process.
17. The affordable housing contribution in respect of social rented housing was a
point of dispute between the parties. The Council considered that the
contributions as set out in the executed UU were not policy compliant. These
matters could be and were resolved. Had the appellant been informed of the
Council’s concerns earlier on, they may have been resolved sooner during the
appeal proceedings. However, this would not have altered the fact that the UU
had been executed, it was wrong and required a deed of variation.
18. The contribution to the healthcare was included by the appellant as a result of
the consultation response and request for this by the NHS. However, I note
that the planning officer’s report refers to this contribution not being justified
by policy at this time. It is not therefore clear why this point was not clarified
by the appellant before its inclusion within the finalised UU. I do however
accept that Clause 13 of the executed UU includes a ‘blue pencil’ clause such
that that the obligation is conditional on my finding that it complies with CIL
regulations.
19. Nevertheless, the planning obligation sought the wrong contributions and had
been executed. No reason has been put to me as to why this was executed in
advance of the Hearing and not in accordance with the procedural guidance. A
deed of variation was therefore required to make the planning obligation
acceptable. I therefore find that the appellant did not co-operate with the
Council in regards to this matter and this amounts to unreasonable behaviour
by the appellant.
20. This behaviour has resulted in extra work and additional expense for the
Council in resolving this matter, set out by the Council as entering into
additional documentation in the form of deeds of release to correct. An award
in respect of this extra work is appropriate.
Conclusion
21.I therefore find that unreasonable behaviour resulting in unnecessary or wasted
expense, as described in the PPG, has been demonstrated and that a partial
award of costs is justified.
Costs Order
22. 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 Land
Allocation Ltd shall pay to Exeter City Council, the costs of the appeal
proceedings described in the heading of this decision, limited to those costs
incurred in resolving matters in relation to the planning obligation.
23. The applicant is now invited to submit to [APPELLANT], to whom a copy
of this decision has been sent, details of those costs with a view to reaching
agreement as to the amount.
Rachael Pipkin
INSPECTOR