Case Reference: 3267825

Costs Decision
Hearing Held on 28 September 2021
Site visits made on 10 June 2021 and 28 September 2021
by R Sabu BA(Hons) MA BArch PgDip ARB RIBA
an Inspector appointed by the Secretary of State
Decision date: 12th November 2021
Costs application in relation to Appeal Ref: APP/Z1510/W/21/3267825
Land North of Station Road, Earls Colne CO6 2ER
• 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
Braintree District Council.
• The hearing was in connection with an appeal against the refusal of planning permission
for outline planning permission with all matters reserved except access, for up to 53
residential dwellings, associated landscaping, public open space, SuDS and formation of
new vehicle access off Station Road.
Decision
1. The application for an award of costs is refused.
The submissions
2. The costs application was submitted in writing and the Council’s response and
the Applicant’s final reply were made orally at the hearing.
Reasons
3. The Planning Practice Guidance (PPG) advises that costs may be awarded
where a party has behaved unreasonably, and the unreasonable behaviour has
directly caused another party to incur unnecessary or wasted expense in the
appeal process.
4. It adds that examples of unreasonable behaviour by local planning authorities
include introducing fresh and substantial evidence at a late stage necessitating
an adjournment, or extra expense for preparatory work that would not
otherwise have arisen.
5. The Appellants final comments were submitted in late April 2021 and in mid
May 2021, the Council submitted evidence indicating that it was reviewing its
housing land supply position. In late May 2021, the Council submitted further
evidence stating that the housing land supply had changed and the Council
were able to demonstrate a five year housing land supply.
6. While I acknowledge that housing land supply is a continuous process, it is
reasonable for the Council to periodically review their position and the effect on
the appeals in their area.
7. The Housing Land Supply position was updated to 31 March 2021 and the
update in position was submitted as part of the appeal in late May 2021.
However, even if the Council had submitted their updated position earlier, since
the appeal was submitted by the Applicant in January 2021, they would have
had to respond to the updated position and given the dispute regarding the
sites that contribute to the housing supply, it is likely that a change of
procedure to a hearing would have been necessary in any event.
8. I acknowledge the evidence regarding the site visit date being changed due to
issues with the consultation process. However, there is little substantial
evidence to indicate that the delay in this respect has resulted in unnecessary
expense in the appeal process.
9. Accordingly, the Council has not behaved unreasonably and in any event
unnecessary expense has not been incurred in the appeal process.
Conclusion
10. Consequently, unreasonable behaviour resulting in unnecessary or wasted
expense, as described in the PPG, has not been demonstrated. For this reason,
and having regard to all other matters raised, an award for costs is therefore
not justified.
R Sabu
INSPECTOR


Appeal Decision
Hearing Held on 28 September 2021
Site Visits made on 10 June 2021 and 28 September 2021
by R Sabu BA(Hons), MA, BArch, PgDip, RIBA, ARB
an Inspector appointed by the Secretary of State
Decision date: 12th November 2021
Appeal Ref: APP/Z1510/W/21/3267825
Land North of Station Road, Earls Colne CO6 2ER
• The appeal is made under section 78 of the Town and Country Planning Act 1990 (the
Act) against a refusal to grant outline planning permission.
• The appeal is made by [APPELLANT] against the decision of Braintree District
Council.
• The application Ref 19/02257/OUT, dated 11 December 2019, was refused by notice
dated 3 September 2020.
• The development proposed is described as, ‘outline planning permission with all matters
reserved except access, for up to 53 residential dwellings, associated landscaping, public
open space, SuDS and formation of new vehicle access off Station Road’.
Decision
1. The appeal is dismissed.
Application for costs
2. An application for costs was made by [APPELLANT] against Braintree
District Council. This application is the subject of a separate Decision.
Preliminary Matters
3. The proposal was made in outline with approval sought only for access. During
the hearing it was confirmed that the drawing detailing the access for which
approval is sought is drawing number SK 01 Rev A. While this drawing is titled
Indicative Access Arrangement, the main parties also confirmed that this
drawing is not indicative. I have therefore had regard to the submitted plans on
an indicative basis only in so far as they relate to the reserved matters.
4. While I acknowledge the Section 2 - Publication Draft Local Plan June 2017,
since there is no certainty that it will be adopted in its current form, I attribute
the Policies within limited weight.
Main Issues
5. The main issues are:
• The effect of the proposed development on the character and appearance of
the area including the loss of trees and hedgerow; and
• The effect of the proposed development on the setting of Earls Colne
Conservation Area (CA), Meadowcroft and Station House.
Reasons
Character and appearance
6. The site is a triangular area of undeveloped land at the northern edge of Earls
Colne to the east of Station Road. Given the more moderate spacing of the
largely detached buildings on this side of Station Road, the area has a pleasant
spacious semi-rural character. Given its green undeveloped nature, the site
provides a pleasant open contribution to the character of this area and has a
close relationship with the countryside further to the east notwithstanding the
presence of the golf course.
7. The site is located within the wider Colne River Valley. The land slopes down to
the north and east towards the valley such that the slope of the other side of
the valley to the north east in particular is visible from the site.
8. The scheme would introduce a significant amount of built development, road
and hardstanding to an undeveloped site. It would therefore urbanise and
greatly alter the landscape character of the site. Since this side of Station Road
has a more rural quality than the western side of the road, the urbanisation
would appear incongruous, harmfully eroding the pleasant open character of the
area. This urbanisation would be prominent not only in close views from Station
Road, but also from the valley slope to the north east.
9. The wider views towards the site from across the valley to the east and north
are partially screened by trees, vegetation and local topography. However, there
are a number of points primarily to the north from Mill Lane where the site
appears to be visible and the urbanisation of the site and harm to the character
of the area would be apparent. In the long term, this harm may be partially
mitigated by careful consideration of landscaping matters that would be
assessed at reserved matters stage. However, there would be significant harm
to the character of the area in the short and medium terms as any landscaping
would take time to provide a substantial amount of screening.
10. While layout is a matter for future consideration, the number of proposed
dwellings would appear incongruous given the moderate spacing and more rural
feel of the east side of Station Road. I note the Townscape and Density Study
provided by the appellant. However, the development at Hillie Bunnies and
Willow Tree Way are located closer to High Street than the appeal site such that
they have a closer relationship to more urban parts of the village. Therefore,
these developments are not directly comparable to the site in terms of character
and appearance. While the development at Atlas Road lies closer to the site, it is
on the west of Station Road, and is a far larger development than the proposal.
Therefore, these developments are not directly comparable to the site in terms
of character and appearance.
11. Accordingly, while a form, type and density similar to those noted in the Study
may be achieved and layout is a matter for future consideration, given the less
developed nature of the east side of Station Road, and the location of the site at
the edge of the village, the proposal would not appear as a natural extension of
the settlement. It would instead unacceptably urbanise the site, appearing
incongruous in this semi-rural part of the village and would harmfully intrude
into the countryside. Moreover, this effect would be apparent not only from
along Station Road, but also from certain points on the valley slope to the north
east.
12. I note the evidence relating to a scheme for 90 dwellings to the west of Station
Road which appeared to near completion at the time of my site visit. However,
since that development wraps around existing dwellings, its impact on views
from Station Road appears limited. In addition, the west side of Station Road
has a more close-knit pattern of development than the east of the road.
Accordingly, that scheme is not directly comparable with this proposal and it
appears to have had a limited effect on the character of the area surrounding
the appeal site.
13. There is a modest industrial area to the north of the site. Given the agricultural
appearance of the buildings, they are generally in keeping with the rural
character of the surrounding area. Therefore, notwithstanding the presence of
those buildings, the development of the site with 53 dwellings would appear to
intrude into the countryside.
14. I also note a scheme for up to 56 units close to Colne House. However, while I
note the contribution that development makes to the evolution of Earls Colne,
since it is located closer to the centre of the village, it is not directly comparable
with this scheme in terms of character and appearance. I also note the
comments of the previous Inspector for a scheme that was dismissed in 2013.
Since that decision was made some eight years ago and the proposal subject of
this appeal is for a far greater number of dwellings, it is not directly comparable
to this appeal which must be determined on its individual merits.
15. The proposal includes the removal of a significant length of hedgerow and a
number of trees along Station Road to facilitate visibility splays for the access. It
is also likely that some hedgerow south of the proposed access would need to
be removed to allow the provision of footpath widening. However, the appellant
has indicated that the hedgerow could be replanted a short distance into the
site. Therefore, while I acknowledge the length of hedgerow to be removed, in
my judgement new planting could largely mitigate the harm in this respect.
Since Policy RLP Policy 81 of the Braintree District Local Plan Review Adopted
Plan July 2005 (LPR) does not preclude the removal of trees and hedgerow, the
development would not conflict with this Policy.
16. Consequently, the proposed development would harm the character and
appearance of the area. Therefore, it would conflict with LPR Policies RLP2 and
RLP3 which direct development to within Village Envelopes. It would also conflict
with LPR Policy RLP9, which seeks, among other things, development that is in
character with the site and relate to its surroundings.
17. In addition, the scheme would conflict with LPR Policy RLP80 which resists
development that would not successfully integrate into the local landscape.
18. The proposal would also conflict with Policies CS5, and CS9, of the Braintree
District Council Local Development Framework Core Strategy Adopted
September 2011 (CS) which seek, among other things, to protect and enhance
the landscape character of the countryside and development that respect and
respond to the local context.
19. While LPR Policy RLP 10 relates to density, and LPR Policy RLP 90 relates to
design, since layout, scale and appearance are matters for future consideration,
they are not directly relevant to this main issue.
CA, Meadowcroft and Station House
20. The site is adjacent to Earls Colne CA, the significance of which lies in the way
its range of buildings of various ages and styles reflect the historic evolution of
this rural settlement. The part of the CA which lies along Station Road is
primarily characterised by detached buildings with moderate spacing such that
this side of Station Road has a semi-rural character and appearance. Given the
undeveloped rural nature of the site, it provides a pleasant spacious setting for
the CA and contributes positively to its setting.
21. The proposal would introduce a significant amount of built development, road,
driveways and hardstanding that would have a significantly urbanising effect on
the landscape character of the area. While future consideration of landscape
could partially mitigate the loss of openness, given the scale of the
development, it would result in the loss of rural character of the CA thereby
diminishing its significance.
22. Meadowcroft and Station House are non-designated heritage assets, the
significance of which lie in the evidence of historic vernacular architecture. Given
the proximity of the site to these buildings, it lies within their settings.
23. A number of buildings have been constructed between Meadowcroft and the site
such that it has a closer relationship to the adjacent dwellings than to the
undeveloped site. As such, Meadowcroft is currently experienced as part of a
group of buildings, rather than as a partially isolated dwelling. As such, while
the site lies within the setting of Meadowcroft, it provides little contribution to
the significance of this non-designated heritage asset.
24. The proposal would include up to 53 dwellings and while it would urbanise the
site, this would have little impact on the significance of Meadowcroft given the
dwellings sited between it and the site. Accordingly, the proposal would not
harm the significance of Meadowcroft.
25. Station House is located to the north of the site and is largely screened from the
site by trees and vegetation along the boundary. To the rear of Station House
lies commercial units such that the setting of this building has also been altered
resulting in it being less isolated. The red line indicated on the location plan
does not extend to the boundary with Station House but leaves a significant
portion of land between the two sites. Therefore, the site provides a modest
contribution to the significance of the building. As such, the proposal would not
fully diminish the separation of the building and the development to the south
and would not harm its significance.
26. While Meadowcroft and Station House may not have been mentioned in a
previous application for development on the site, I have necessarily had regard
to the evidence before me and this point has not altered my findings on this
main issue.
27. I acknowledge that the village lies within an extensive rural landscape. While
this development would affect an appreciation of the village primarily from close
views, it would nonetheless diminish the appreciation of the historic rural
settlement to some degree. Accordingly, it would cause less than substantial
harm to its significance.
28. Consequently, the proposal would detract from the setting of Earls Colne CA and
therefore would cause harm albeit less than substantial, to its significance.
Other Matters
29. I acknowledge local concerns including those relating to land ownership.
However, this is not a planning matter. While I also note the evidence regarding
enforcement action on the site, this is a matter for the Council in the first
instance and I have necessarily assessed the proposal before me. As such these
matters have not altered my overall decision.
30. I also note local concerns regarding highway safety and congestion. I
acknowledge that the scheme would increase the number of trips to and from
the site and would add to that resulting from nearby developments. However,
the proposal would result in adequate visibility splays from the proposed access
such that motorists would have adequate time to react to oncoming vehicles
and vice versa. As such, the proposed access would not have an unacceptable
impact on highway safety.
31. I also note the evidence regarding the junction of Station Road with High Street.
However, I have necessarily assessed the scheme before me and this matter
has not altered my overall decision.
32. In addition, I recognise concerns regarding wildlife including reptiles and
kingfishers. However, from the evidence before me, any harm in this respect
could be adequately mitigated through the use of suitably worded conditions.
33. The effect on local services such as schools and doctors’ surgeries has also been
raised as a concern. However, there is little substantial evidence before me to
indicate that the proposal would result in any undue harm in this respect. While
I also acknowledge concerns regarding drainage, I see no reason why a
condition could also not mitigate any harm resulting from the development in
this respect.
Planning Obligations
34. The appellant has completed a legal agreement under Section 106 of the Act (a
S106) in conjunction with Braintree District Council which includes a number of
obligations to come into effect if planning permission is granted. I have
considered these in light of the statutory tests contained in Regulation 122 of
The Community Infrastructure Levy (CIL) Regulations 2010. They relate to a
number of matters.
35. CS Policy CS2 seeks a target of 40% affordable housing provision on sites in
rural areas. The agreement makes for this provision and I consider it is fairly
and reasonably related to the development proposed and as such passes the
statutory tests.
36. The S106 makes provision for amenity areas and open space to be provided in
accordance with plans and specifications to be provided to the Council prior to
the commencement of development. I am satisfied that the obligation in this
respect is related directly to the development and fairly related in scale and
kind.
37. The S106 also makes provision for financial contributions towards a number of
outdoor sports facilities, allotments and towards education in the area. The
sums in respect of the financial contributions are undisputed and the terms
related directly to the development and fairly related in scale and kind. As such
they would accord with the provisions of Regulation 122 of the CIL Regulations
and the tests for planning obligations set out in the Framework.
38. The appeal scheme proposes up to 53 dwellings on a site that lies within the
Zone of Influence (ZoI) of Blackwater Estuary Special Protection Area (SPA) and
Ramsar. As such there would be a likely increase in the number of recreational
visitors to the designated site, potentially resulting in disturbance to the
integrity of the habitats of qualifying features. Therefore, in combination with
other developments it is likely that the proposal would have significant effects
on the site.
39. The Essex Coast (RAMS) sets out detailed mitigation measures that would be
funded by S106 contributions at a specified tariff per dwelling. The submitted
S106 makes for financial contributions in accordance with the RAMS. The
contributions would be necessary to make the development acceptable in
planning terms; directly related to the development; and fairly and reasonably
related in scale and kind to the development, in accordance with Regulation 122
of the CIL Regulations. As such, the contributions toward the mitigation
schemes would count as mitigation toward maintaining the integrity of the sites.
Other Considerations
40. I have found development plan conflict in respect of character and appearance
and the CA. S38(6) of the Act says the development should be determined in
accordance with the development plan unless material considerations indicate
otherwise, and in this regard my attention has been drawn to the five-year
housing land supply situation.
41. It is agreed between the main parties that the current housing target for
Braintree District for the period 2021 – 2026 is some 5,352 dwellings on the
basis that the cumulative shortfall is to be made up within the five-year period.
42. During the Hearing, the Council updated their position as set out in the
Statement of Common Ground and confirmed that they consider there to be a
deliverable supply of some 5,703 dwellings within the five-year period resulting
in a five-year housing land supply position of around 5.33 years. The appellant
disputed the deliverability of a number of the sites included in the supply and
consider a five-year housing land supply position of around 4.44 years.
43. The Glossary to the Framework states that to be considered deliverable, 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. Where a site has outline planning permission for
major development, has been allocated in a development plan, has a grant of
permission in principle, or is identified on a brownfield register, it should only be
considered deliverable where there is clear evidence that housing completions
will begin on site within five years. I also note the advice within the Planning
Practice Guidance (PPG) on what may be considered ‘clear evidence’.
44. I acknowledge that a number of the disputed sites were granted outline
planning permission a considerable time after the submission of the application.
I also note that in some cases this period included agreement of S106 legal
agreements and were affected by the Covid-19 pandemic. Furthermore, while a
number of sites were granted outline planning permission after the base date of
1 April 2021, case law indicates that the definition of deliverable is not a closed
list.
Phases 3B, 4 – 216 dwellings
45. A number of the disputed sites have outline permission and reserved matters
application submitted to the Council. Of these one of the largest is Phases 3B, 4
South West Witham Growth Location, off Hatfield Road and the earlier phases
are either under construction or have been completed. I note the comments of
the Inspector for the case at Rayne. However, since that appeal the reserved
matters application was submitted to the Council and is currently anticipated to
be determined by the Planning Committee in the near future. In addition, the
developer has provided a forecast of completions which are roughly in line with
the Council’s trajectory and is more conservative than the rate of completions of
the earlier phases.
46. Therefore, notwithstanding the time it has taken for the application to be
considered by the Planning Committee and that the agenda for the meeting has
not been published, there is clear evidence that the housing completions will
begin on site within five years.
Land North of Colchester Road – 175 dwellings
47. While I note that there are a number of pre-commencement conditions to be
discharged, there is no clear evidence before me to indicate why the sites such
as this which benefit from both outline and reserved matters planning
permissions could not be delivered in accordance with the Council’s trajectory
within five years.
48. Including the above two sites and two small sites where reserved matters
permission have been granted in the housing land supply position, and removing
a couple of small sites where outline planning permission has lapsed, the
Council are able to demonstrate a supply in the region of at least 4.7 years
Land east of Broad Road – 160 dwellings
49. A reserved matters application had not been submitted for the site at Land east
of Broad Road and a developer was in the process of purchasing the site.
However, there was no clear evidence regarding the timing of the completion of
the purchase, or the submission of a reserved matters application. Moreover,
given the size of the scheme, for around 1,000 dwellings, the reserved matters
application would be likely to be submitted in phases. In addition, it is likely that
the delivery of housing would be dependent on infrastructure, the details of
which have not been provided.
50. I acknowledge the forecast of housing completions from a site promoter.
However, this was not completed by the developer currently purchasing the site.
Furthermore, I note that a phasing strategy was submitted to the Council, and
that the Council’s trajectory reflects national and local data. However,
notwithstanding ongoing pre-application discussions, there is no clear evidence
that housing completions would begin on site within five years.
Towerlands Park – 155 dwellings
51. The scheme at Towerlands Park is also a large development which benefits from
outline planning permission. A projection of housing completions has been
provided by the developer which is significantly more ambitious than the
Council’s estimate based on national and local data for build out rates.
Accordingly, the indication of site opening on the developer’s website does not
provide clear indication of housing completions within five years. The Council
has also indicated that a reserved matters application is due to be submitted
following extensive pre-application discussions and a planning performance
agreement.
52. I also acknowledge the evidence regarding the Link Road provided as part of an
adjacent scheme. However, given the lack of a reserved matters application, it
is unclear whether the Council’s housing trajectory could be delivered as a
realistic prospect.
Land between Long Green and Braintree Road – 110 dwellings
53. While the Council indicated that clear progress had been made during pre-
application discussions and towards the submission of a reserved matters
application, no evidence regarding the timing of submission was provided. There
also appears to be no information provided by the developer regarding build out
rates. Therefore, notwithstanding the sustainability of the location, there is no
clear evidence that housing completions would occur within five years.
Land North of Oak Road – 70 dwellings
54. A reserved matters application for the scheme at this site was expected
imminently at the time of the hearing and there appears to be no specific
constraints on the greenfield site. However, even if a reserved matters
application had been submitted, since no substantial evidence regarding build
out rates were provided by the developer, there is no clear evidence that
housing completions would occur within five years.
Conclusions on this issue
55. For the foregoing reasons, the above sites cannot be included in the five-year
housing trajectory and together they amount to around 495 dwellings which
would demonstrate a housing supply position of around 4.9 years at most.
56. Consequently, the Council cannot demonstrate a five-year supply of housing
land and I consider the Council’s housing land supply position to lie in the region
of between about 4.7 and 4.9 years.
Planning Balance
57. The Council are unable to demonstrate a five-year housing land supply. As
discussed above, since there is only a slight housing shortfall, I attribute this
matter modest weight. Paragraph 11(d)i of the Framework states that 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 the application of policies in this Framework that protect areas or
assets of particular importance provides a clear reason for refusing the
development proposed.
58. The development would result in less than substantial harm to the CA due to the
urbanising effect on the rural setting of the village. In accordance with
paragraph 202 of the Framework, this harm should be weighed against the
public benefits of the proposal including, where appropriate, securing its
optimum viable use.
59. The public benefits of the proposal primarily lie in the provision of 53 dwellings
including affordable housing to the local housing supply. This would include the
social and economic contribution that future occupiers would provide to the local
community and there would be temporary economic benefits during the
construction phase. Given the limited nature of the shortfall, I consider it quite
probable that this could be addressed elsewhere in the district and not in this
location where there would be an adverse effect on the CA. Therefore, I
attribute reduced weight to these benefits.
60. The Framework advises that great weight should be given to the asset’s
conservation irrespective of whether any potential harm amounts to substantial
harm, total loss or less than substantial harm to its significance. On this basis,
the weight attributed to the benefit of the provision of 53 dwellings does not
outweigh the less than substantial harm to the significance of the CA.
61. Therefore, the proposal would conflict with LPR Policies RLP90 and RLP95 which
seek, among other things, designs that are sensitive to the need to conserve
local features of historic and landscape importance and development adjacent to
a Conservation Area and affecting its setting should not detract from its
character and appearance. It would also conflict with the aims of CS Policy CS9
which seeks, among other things, developments that respect conservation
areas.
62. I also acknowledge Policy SP3 of the North Essex Authorities' Shared Strategic
Section 1 Plan which permits development adjoining settlements according to a
number of factors. However, given my findings above, the proposal would
conflict with the development plan as a whole.
63. The proposal would also result in harm to the character and appearance of the
area. The harm would be primarily in short views from Station Road and some
longer views from the north east across the valley. However, while the
landscape harm may be partially mitigated over time by tree and hedgerow
planting, the scheme would nevertheless unacceptably urbanise the site,
harmfully departing from the spacious character of this area. Given the less
developed nature of the east side of Station Road, the development would not
appear as a natural extension of the settlement, rather it would unacceptably
intrude into the countryside. I therefore attribute significant weight to the harm
in this respect. Therefore, even if there was an absence of heritage harm, the
adverse effects would nevertheless significantly and demonstrably outweigh the
benefits.
Conclusion
64. For the reasons given above, the proposed development would conflict with the
development plan as a whole and in the absence of material considerations to
indicate otherwise, the appeal is dismissed.
R Sabu
INSPECTOR
APPEARANCES
FOR THE APPELLANT:
Ian Coward Collins and Coward
Jacob Taylor Heyhill Land
Barrie Whight Heyhill Land
FOR THE LOCAL PLANNING AUTHORITY:
Mathew Wilde Braintree District Council
Alex Evans Braintree District Council
Catherine Carpenter Braintree District Council
INTERESTED PARTIES:
Terry Meecham Local resident
Lyn Spurgeon Local resident
DOCUMENTS
Appellants closing notes
Two photographs of the site submitted by Mr Meecham