Case Reference: 3306479

Appeal Decision
Inquiry held on 10 January 2023
Site visit made on 10 January 2023
by Jonathan Bore MRTPI
an Inspector appointed by the Secretary of State
Decision date: 30th January 2023
Appeal Ref: APP/Z1510/W/22/3306479
Land to the north of London Road, Kelvedon, Braintree, Essex, CO5 9AU
• The appeal is made under section 78 of the Town and Country Planning Act 1990
against a refusal to grant outline planning permission.
• The appeal is made by [APPELLANT] against the decision of Braintree District
Council.
• The application Ref 17/00679/OUT, dated 12 April 2017, was refused by notice dated 10
March 2022.
• The development proposed is for a mixed-use neighbourhood development comprising
up to 300 dwellings, health centre, local retail area, care home, an early years and
childcare facility, open space and landscape buffers, and supporting infrastructure that
includes sustainable drainage and two accesses from London Road.
Decision
1. The appeal is allowed and outline planning permission is granted, with all
matters reserved, for a mixed use neighbourhood development comprising up
to 300 dwellings, health centre, local retail area, care home, an early years and
childcare facility, open space and landscape buffers, and supporting
infrastructure that includes sustainable drainage and two accesses from London
Road, on land to the north of London Road, Braintree, CO5 9AU in accordance
with the terms of the application, Ref 17/00679/OUT, dated 12 April 2017, and
the submitted site location plan, subject to the conditions set out in Annex 1 to
this decision.
Background
2. The appeal concerns an application for outline planning permission, with all
matters reserved. The original application was for 250 homes and included an
employment area, but was amended to the present description by agreement
with the Council on 14 September 2021. The application was accompanied by a
concept plan and a design code, which are discussed below under Issue 2.
Despite issuing a refusal of planning permission in March 2022, the Council did
not defend its decision at the inquiry because it cannot currently demonstrate a
5-year supply of housing land, as discussed under Issue 1.
Main Issues
3. The main issues in this appeal are:
1. current housing land supply and its implications for the application of
planning policy;
2. whether the appeal scheme is appropriate for Kelvedon in respect of its
location, built form and community facilities, and the extent of the public
benefits that would arise from the scheme;
3. the effect of the scheme on the countryside, landscape and ecology;
4. the effect of the scheme on the significance of nearby listed buildings,
having regard to their settings, and on the significance of other heritage
assets.
Reasons
Issue 1: current housing land supply and its implications for the
application of planning policy
4. It is common ground between the Council and the Appellant that, currently,
there is 4.86 years’ supply of housing land within Braintree District. This
position is contrary to Policy SP4 of the adopted North Essex Authorities’
Shared Strategic Plan, which forms Section 1 of the Braintree Local Plan, which
obliges each authority to maintain a sufficient supply of deliverable sites to
provide for at least five years’ worth of housing. Under Policy SP4 it is
incumbent on the Council to work proactively with applicants to bring forward
sites that accord with the overall spatial strategy and relevant policies in the
plan.
5. The site is just south-west of Kelvedon, between the London Road, B1024, and
the main railway line that links Liverpool Street with Colchester and beyond.
Being outside the settlement, the scheme conflicts with Policy LPP1 of the
Braintree Local Plan, Section 2 of which was adopted in July 2022, which
confines the site to uses appropriate to the countryside. The scheme also
conflicts with Policy NE5 of the Kelvedon Neighbourhood Plan, adopted in July
2022, because it would interfere with a viewing cone, illustrated in Volume 2,
Appendix D of the plan, which crosses the site from the junction of London
Road with the A12 towards the spire of St Mary’s Church and the edge of the
village. This cone is a designation for landscape purposes and does not relate
to the setting of the listed church, a matter discussed under Issue 4.
6. Owing to the deficit in housing land supply, Local Plan Policy LPP1 and Policy
NE5 of the Neighbourhood Plan can both, despite the recent adoption of these
plans, be regarded as out of date with reference to paragraph 11 of the
National Planning Policy Framework (NPPF). The NPPF states that in such
circumstances planning permission should be granted other than in the
conditions discussed in the next paragraph.1
7. The consequences of the overall policy framework and the shortfall in housing
land supply mean that planning permission should be granted for the proposed
development unless, in short, any adverse impacts of granting permission
would significantly and demonstrably outweigh the benefits, or where there are
certain assets of particular importance which provide a clear reason for refusing
the development proposed. The benefits of the scheme, which include the
provision of housing, affordable housing and a range of community facilities,
are considered in Issue 2; and the impacts of the scheme on the countryside,
1 As there are no housing allocations in the neighbourhood plan, the different balance for neighbourhood plans
described in paragraph 14 of the NPPF does not apply.
ecology, habitats and the listed buildings beyond the north-east and south-
west sides of the site are discussed in Issues 3 and 4.
Issue 2: Whether the appeal scheme is appropriate for Kelvedon in respect
of its location, built form and community facilities, and the extent of the
public benefits that would arise from the scheme
8. Kelvedon with Feering is designated a Key Service Village in the Local Plan.
These are large villages serving a wider rural hinterland, and are capable of
meeting day to day needs through the availability of a range of community and
retail facilities and links by public transport and road to the larger towns. The
scale and location of the appeal scheme, with its range of community facilities,
discussed below, its position on a bus route along London Road, and its
immediate accessibility to the westbound A12, would be consistent with the
designation of Kelvedon with Feering as a Key Service Village. It would accord
with Policies SP3 and SP6 of the North Essex Authorities’ shared strategic plan
in respect of spatial strategy and infrastructure & connectivity. It would also be
in accordance with Policy HO1 of the Kelvedon Neighbourhood Plan, which
allows for further new residential development above Local Plan housing
requirements, subject among other things to the provision of appropriate and
timely infrastructure.
9. The scheme would deliver 300 dwellings, of which 40% would be affordable in
accordance with Local Plan Policy LPP31. In addition, it would deliver a
community hub containing a range of facilities including a health centre, a local
retail area, a care home and an early years and childcare facility, in accordance
with Local Plan Policy LPP61, which supports new or enhanced community
facilities. These would be secured by a planning obligation. The health centre
would replace an existing facility on London Road which is closer to the centre
of the village. Evidence presented at the inquiry demonstrated that the existing
health centre is not of a suitable standard to meet the needs of a modern GP’s
practice; the proposed new facility would provide the opportunity for better car
parking together with the ability to provide a more holistic service including
minor surgery and facilities for practitioners such as physiotherapists and social
prescribers, ultrasounds and clinics for targeted health conditions, none of
which can be provided to the same level at the existing health centre.
10. The application was accompanied by a concept plan and design code. These are
only indicative, but they demonstrate that a scheme of 300 homes and a
community hub can be successfully accommodated on the site whilst ensuring
that the scale and layout of the development remain in keeping with the
modest scale of Kelvedon. In terms of form and location, the scheme would
continue the essentially linear form of Kelvedon, so its effect on the setting of
the village would be limited. The concept plan and design code also
demonstrate that a scheme can be designed with appropriate layout and
connectivity and that adequate amounts of open space and structural
landscaping can be provided on site, together with a landscaped buffer to
mitigate the effect of the scheme on nearby listed buildings, a matter returned
to under Issue 4. The provision of open space and allotments is included within
the planning obligation. The scheme would thus accord with Local Plan Policy
LPP52, which promotes good layout and design in new development, and with
Policy LPP50, which requires appropriate open space in new development.
11. The concept plan shows the community hub as being in two possible locations
within the site. The Council’s preference is for a south-western location to take
it further away from the existing houses on London Road. However, from my
observations, and having regard to the views of local people who spoke at the
inquiry, a south-western location would be too far from the centre of the
village, diminishing the public benefits arising from the scheme. A location at
the north-eastern end of the site would be more easily walkable from other
parts of the village, for those wishing to access the retail, healthcare, and early
years and childcare facilities; it would be more likely to promote active modes
of transport; and it would allow the development on the site to integrate more
effectively with the village and its existing facilities along London Road. There
would be enough space on the site to enable the living conditions of the nearby
residents on London Road to be protected through careful design and
landscaping. Provided the community hub is located at the north-eastern end
of the site, the scheme would relate well to Kelvedon. This is a critical factor in
the successful integration of the site with the village and the full realisation of
public benefits, and I have made it the subject of a condition.
12. The impact of the community hub on the existing facilities in the village would
be slight. The shops would be small and below the size that would require a
retail impact assessment; this is an indication that their impact on the existing
retail facilities in the village would not be significant. The scheme would
therefore not conflict with Local Plan Policy LPP9, Retailing and Regeneration.
Indeed, taken overall, the hub located at the eastern end of the site would
provide a range of facilities that would complement those in the village. The
site has the capacity to accommodate different walking routes, and the
planning obligation includes improvements to the footway along London Road,
which would assist in integrating the site with the village. The scheme would
accord with Local Plan Policy LPP42, which promotes sustainable transport.
13. In conclusion, the scheme would be appropriate for Kelvedon in respect of its
location and its facilities, and it would deliver substantial public benefits: these
include new homes and affordable homes in a district that currently does not
have a 5 year supply of housing land, together with a range of community
facilities which would enhance the role of Kelvedon as a Key Service Village,
including the provision of a much-needed new health centre. The scheme would
accord with a wide range of development plan policies as described above.
Issue 3: the effect of the development on the countryside, landscape and
ecology
14. The site consists of a large, gently undulating and relatively featureless arable
field with little intrinsic landscape interest. It is not subject to any national or
local landscape designation and no public rights of way cross the site. There
are some views across the site from public viewpoints towards the edge of
Kelvedon, its church spire and trees, and the groups of listed buildings at
Church Hall Farm and Crabb’s Farm, as discussed below under Issue 4, but
these features are mostly glimpsed at a distance through the hedge along
London Road, or from passing trains, and they have limited significance for the
landscape character of the site or the setting of the village. The viewing cone in
the Neighbourhood Plan, referred to earlier, is taken from a point close to the
A12 off-ramp towards St Mary’s Church. There is a roadside footway in this
location, but it is not heavily used as it is a long way from the village edge. In
this position the church spire is more likely to be glimpsed at speed from
vehicles rather than observed by pedestrians. The spire is an almost
insignificant feature from this distance, and the village edge is mostly
appreciated as a line of trees. The development would interfere with the
viewing cone, but the degree of harm would be small. The scheme would
accord with Local Plan Policy LPP67 Landscape Character and Features, which
requires proposals to be sympathetic to the character of the landscape,
settlement edge and countryside.
15. Regarding ecology, the preliminary Ecological Appraisal (September 2021)
found that the site is comprised of common habitats of generally low ecological
value, although a hedgerow and deciduous woodland pocket on site is of local
importance. The site may provide suitable habitat for protected and/or notable
species, with reptile presence confirmed in historic surveys. The 2017 bat
survey found no evidence of roosting bats although bats have been sighted in
the general area. Conditions are attached which deal with the various
ecological issues. The scheme would provide opportunities to supplement the
existing hedgerows, whilst the proposed landscaping and buffers shown
indicatively on the concept plans would provide opportunities for biodiversity
net gain.
16. In order to mitigate visitor pressure on a range of designated sites on the
Essex Coast, the planning obligation includes a requirement for 5.6 hectares of
open space, well above the amount normally required for a development of this
size, together with the provision of a 2.7 km long circular route for dog
walkers, and provision is also made for a contribution towards the Essex Coast
Recreational Disturbance Avoidance and Mitigation Strategy (RAMS). With
these on-site and off-site mitigation measures, the habitats regulations
assessment and appropriate assessment conclude that there would be no
adverse effect on the integrity of these sites alone or in-combination with other
plans or projects.
17. Therefore, despite the conflict with Policies LPP1 of the Local Plan and NE5 of
the Neighbourhood Plan, the impacts on the countryside and landscape setting
of the village would be slight. The scheme would protect important habitats and
a condition is attached which requires an improvement in biodiversity. Subject
to the planning obligation and an appropriate condition, the proposal would
accord with Local Plan Policies LPP66 in respect of the protection,
enhancement, management and monitoring of biodiversity, LPP63 Natural
Environment and Green Infrastructure, LPP64 Protected Sites and SP2
Recreational Disturbance Avoidance and Mitigation Strategy (RAMS).
Issue 4: the effect of the scheme on the significance of nearby listed
buildings, having regard to their settings, and on the significance of other
heritage assets
18. There are groups of listed buildings beyond the north-eastern and south-
western sides of the site.
19. Church Hall Farm is a historic farmstead on the south-western edge of
Kelvedon, immediately to the north-east of the site. The group contains four
Grade II listed structures. Church Hall Farmhouse is primarily 18th century, with
19th and 20th century additions and alterations, and is a combination of
different ranges and forms. The building has significance for its architectural
and aesthetic qualities. To the north is a barn which has been subject to re-
cladding but may contain fabric of the fourteenth to the sixteenth centuries,
together with an ancillary building, likely to have been a stable, of the 16th
Century, and to the east is a 16th Century granary, which was converted in the
19th Century to a house. These buildings derive significance from their age,
form, appearance and their role as part of a high-status farmyard. Their
primary relationship is with each other, as a farmstead, but there is also some
visual interaction of these buildings with St Mary’s Church and the historic
western core of Kelvedon.
20. The farmstead was once part of a much larger, prosperous landholding, which
included the appeal site, and was formerly associated with the Bishop of
London. There is therefore a degree of shared significance and shared setting
to the four buildings within the farm and a former functional and ownership
relationship with the appeal site. There are also some visual interrelationships
with the site; the barn is clearly seen in parts of the northern end of the site,
the farmhouse is just visible from parts of the site, whilst the other two
buildings are less visible.
21. However, later buildings, boundary treatments and tree and hedge planting
have altered the appearance of the group and have eroded its visual
relationship with the appeal site, with the result that, even at relatively close
quarters, the importance of the site as part of the group’s visual setting has
been diminished. Moreover, seen from a greater distance across the site, the
buildings are only glimpsed against the leafy background of the village edge.
The visual appreciation of the historic link with the site and surrounding land is
relatively weak and there is no longer a functional link with the appeal site
because the farm has fallen out of its original agricultural use. The individual
buildings within the group now relate more closely to each other and to their
immediate settings.
22. Most of the significance of the Church Hall Farm buildings is found within their
physical fabric and structure, and within their immediate settings within the
former farmyard, which would not be affected by the development. There
would be some harm to the buildings’ settings arising from the development of
the field to which it was once connected functionally, the severance of the
farmstead from the open countryside, and the proximity of new development.
However, the concept plan demonstrates that it would be possible to
incorporate a substantial open planted buffer between the development and
these listed buildings, and whilst this could not address the harm caused by the
severance of the group from open agricultural land, it would be sufficient to
prevent the development from impinging visually on the settings of the listed
buildings. This is particularly important in the area adjacent to the barn and the
farmhouse and is made the subject of a condition. The ability to appreciate the
status, age, function, and interrelationship of the listed buildings would be
unaffected. The scheme would cause less than substantial harm to their
significance.
23. To the north of Church Hall Farm is St Mary’s Church, which is listed Grade I.
The building dates to the twelfth century, but has experienced several phases
of development including 13th Century north and south aisles, a 14th Century
chancel, a 14th Century lower tower stage, a 15th Century clerestory and tower
third stage, 16th Century additions 19th Century restoration. The tower is
topped by a slender spire of modest height. The east boundary wall of the
churchyard is Grade II listed.
24. The church is heavily screened in views from the site by mature deciduous and
evergreen trees within and around the extensive churchyard. Its setting
includes the churchyard and the immediate vicinity, including Church Street
and Old Vicarage, but there is little intervisibility between the church and the
site. The spire and part of the top of the tower can be seen from some
locations across the site, but they are not prominent features, appearing
slightly above and behind the treetops at a distance. To register them, they
have to be sought out against the background. The church is a substantial
building, but it does not dominate the wider landscape, nor does it appear to
have been designed to dominate it. The occasional longer views contribute little
towards an understanding of the building’s significance. There would be some
harm caused by the severance of the church from open countryside, so that
from the west it would no longer be perceived as on the edge of the village,
and there would be a small degree of harm caused by the loss of some distant
views towards the church spire, but the scheme would cause less than
substantial harm to the significance of the listed church.
25. South of the church is the 18th Century Old Vicarage, listed Grade II. The
setting of the Old Vicarage, like that of the church, is largely confined to its
immediate surroundings; these include the church, the churchyard and the
historic part of Church Street. The site can be perceived from the windows and
garden at the rear of the house, and vice-versa, but views are heavily filtered
through extensive tree planting within the mature grounds. The Old Vicarage
and its grounds have an enclosed feel and in effect create their own setting on
this side of the building. The development would not harm the ability to
appreciate the age, design and interrelationship of the Old Vicarage with the
church and Church Street. There would be some harm to the building’s setting
simply because of the proximity of new development to a building which is
currently sited on the edge of the village, but this would be slight because of
the existing screening and would be mitigated by the landscaped buffer which
would be an integral part of the development. The harm to its significance
would be less than substantial, at the low end of the scale.
26. Some way to the west of the site is Crabb’s Farm, on Cranes Lane, which is
Grade II listed. The main farmhouse is of the 16th and 17th Centuries, but with
later alterations; it is largely timber framed and plastered, its roofs red clay
tiled, and its windows are largely timber casements probably of the 19th
Century. Its architectural and archaeological interest comes from the age and
quality of its historic fabric as an example of an Essex Yeoman’s farmhouse,
originally of reasonably high status, of the late medieval and early modern
period.
27. Immediately southeast of the farmhouse, and attached to it, is a Grade II listed
barn which may date from 1500. It is part wattle and daubed, with a largely
weatherboarded exterior and a plain clay tiled roof. The building has a well-
preserved and good quality internal frame and, much restored, is now used as
a wedding venue. As with the farmhouse, the barn derives its significance
mostly from its historic fabric, as a high-quality and well-preserved example of
a late medieval Essex barn of a reasonable scale.
28. The immediate setting of these buildings is the former historic complex of the
farmstead itself, which now has a domesticated and landscaped appearance in
keeping with its use as a home and as a venue for weddings, rather than as a
functional farmyard. There is a visual relationship with the wider agricultural
land around, but Crabb’s Farm is some distance from the appeal site and its
buildings are well-screened by trees and mature gardens, even in winter. The
roofline and some of the upper parts of the buildings can be seen in the
distance from across the site, but it is not possible to obtain a clear picture of
the buildings or their significance. There is no evidence that land within the site
at any point fell within the ownership of Crabb’s Farm.
29. The buildings at Crabb’s Farm therefore derive their significance mostly from
their historic fabric and their age and importance as examples of good quality
Essex yeoman farming of the late medieval and early modern periods. Their
setting is largely confined to a small area of land immediately around the
farmstead. Any new homes would be over 130m away at the closest and
outside the setting of these buildings. The scheme would not harm the
significance of the listed buildings at Crabb’s Farm.
30. As regards other heritage assets, there is a high potential for the survival of
previously unknown archaeological remains, particularly in the northern part of
the site close to the village. An archaeological investigation is required in
accordance with LPP59 Archaeological Evaluation, Excavation and Recording
and this is made the subject of a suitable condition.
31. To conclude on this issue, the scheme would cause less than substantial harm
to the significance of the listed buildings at Church Hall Farm, the St Mary’s
Church and the Old Vicarage. The level of harm would be diminished by the
provision of a buffer to separate the buildings from development on the site,
and this is made the subject of a condition. The scheme would not harm the
significance of the buildings at Crabb’s Farm. The potential for archaeological
remains can be made the subject of a condition as described above.
32. The conclusion of less than significant harm is reached in respect of the effect
of the development on the setting of each of the individual buildings and in
respect of its cumulative effect on the totality of the listed buildings. The
scheme would accord with Local Plan policies LPP47 Built and Historic
Environment, and LPP57 Heritage Assets and their Settings.
Other Matters
33. An argument was presented that the appeal proposal should allow for a future
connection to the adjacent undeveloped land near Crabb’s Farm, to enable a
larger co-ordinated scheme to be brought forward. However, such a scheme is
not before me, and this point can be given very little weight. The appeal
proposal is acceptable as it stands, and it is not necessary to attach a condition
to this permission which would facilitate a future connection with the adjacent
land.
Overall conclusions
34. The scheme would provide important public benefits, including the provision of
new homes and affordable homes in a district with a shortfall in housing land
supply, together with the provision of a new health centre and other
community facilities. The impact of the scheme on the countryside and setting
of the village would be limited and the scheme would protect important
habitats. There would be no harm to the settings of the listed buildings on the
south-western side of the site and less than substantial harm to the
significance of the listed buildings on the north-eastern side, which would be
outweighed by the substantial public benefits of the scheme. Although the
scheme would not accord with Policy LPP1 of the Braintree Local Plan or Policy
NE5 of the Kelvedon Neighbourhood Plan, the shortfall in housing land supply
renders these policies out-of-date within the terms of the NPPF and the adverse
effects of the scheme would not significantly and demonstrably outweigh the
benefits described above. For all these reasons the appeal is allowed.
Conditions
35. A set of 32 planning conditions extending to some 16 A4 pages was suggested
by the parties. These are too numerous and prescriptive for an outline
application on a large open site with the characteristics described above and
relatively few nearby properties. An outline application is intended to allow for
flexibility in the subsequent process of developing access, appearance,
landscape, layout and scale. I pointed this out at the inquiry, but given that
similar conditions were included in two recent appeal decisions, the parties
requested some explanation of any divergence from those decisions. I do not
know the circumstances that led to those decisions, but below is an explanation
of the approach I have taken towards the conditions.
36. Paragraph 56 of the NPPF states that planning conditions should be kept to a
minimum and only imposed where they are necessary, relevant to planning and
to the development to be permitted, enforceable, precise and reasonable in all
other respects. Some of the suggested conditions fail against these criteria,
having regard to the nature of the development and the site, and many contain
more detail than is necessary for the grant of planning permission, being akin
to detailed specifications. I have condensed many of these conditions. NPPF-
compliant conditions are necessary in respect of the following subjects. Where
appropriate I have commented on the conditions in the parties’ schedule of
suggested conditions.
37. The standard outline conditions are attached. The reserved matters of
appearance, scale and layout should cover the planning and design of the
development, including matters such as the location and design of walls, fences
and means of enclosure; finished levels; the location of refuse facilities; the
location and design of lighting in accordance with Local Plan Policy LPP77, and
the appearance and location of electric vehicle charging points, which are
required in new residential development by the building regulations. For the
avoidance of doubt, I have listed these components to ensure that they are
included in the reserved matters submissions.
38. A condition requiring the community hub to be located towards the north-
eastern end of the site is necessary for the reasons given in this decision,
together with design details to ensure the residential living conditions of
properties are protected against the operation of the hub. These design details
should be submitted as part of the reserved matters submissions for
appearance, landscaping and layout. A further condition limiting noise from
plant and equipment at the community hub is attached.
39. Landscaping is covered by reserved matters, and in this particular case it is a
matter for the parties to decide their approach towards existing hedgerows and
trees as well as future planting; these matters can be considered holistically as
part of the overall landscape scheme submitted as a reserved matter. The
quantity of open space is covered in the planning obligation, but it is necessary
to attach a condition relating to the positioning and scale of the landscape
buffer along the north-eastern part of the site to protect the settings of the
nearby listed buildings.
40. Part of the site is close to the main railway line, and a condition is required
addressing noise attenuation to protect residential living conditions in the
affected part of the site.
41. An on-site archaeological investigation is required by condition in accordance
with Local Plan Policy LPP59 because of the archaeological potential of the site
described above.
42. Conditions are required seeking biodiversity net gain, and requiring the future
management of the landscape and ecology through a landscape ecological
management plan. Conditions are also required to ensure the conservation of
protected species during construction and after completion; the mitigation of
impacts on priority farmland birds where these exist, and the reduction of
construction impacts on reptiles, evidence for which has been found near the
railway line and hedges.
43. Conditions are also required to address the issues arising from construction, to
protect residential living conditions, highway safety and areas of biodiversity;
and to require the submission of the details of surface water and foul drainage
to ensure compliance with Local Plan Policies LPP74, LPP75 and LPP76,
although the degree of detail in the suggested conditions is unnecessary.
44. A condition requiring the submission of relevant travel plans is attached in the
interests of encouraging sustainable transport. However, the suggested
condition which seeks to include travel packs with six one-day vouchers for use
on public transport goes beyond the tests of necessity and reasonableness.
More practical measures to encourage sustainable and active movement
include the footway widening and improvements which are included in the
planning obligation.
45. Some of the parties’ suggested conditions are unnecessary or unenforceable.
46. Several require the submission of details concurrent with the applications for
the discharge of reserved matters, but there is no means of enforcing the
timing of applications in this way. The solution is to make it clear that these are
aspects of design that fall within the compass of the reserved matters, as
discussed above, and I have drawn up the conditions to make this clear.
47. Suggested condition 3 is unnecessary because it simply repeats the terms of
the permission, and the restriction on the size of the retail units is restricted by
the planning obligation.
48. A condition requiring compliance with the parameter plans and the design code
would not be precise or enforceable because these plans and documents are
indicative only.
49. Regarding suggested condition 6, it is a matter for the Council to satisfy itself
whether, on the submission of the relevant details, the affordable homes and
any bungalows proposed comply with Building Regulations 2015 Part M(4); the
best way of ascertaining this might well be certification from a building control
professional, as the Council have pointed out, but a planning condition
prescribing this process is not necessary for the development to go ahead.
50. A similar point arises in respect of the suggested condition requiring the
developer to demonstrate that it is in possession of licences from Natural
England pursuant to the Conservation of Habitats and Species Regulations. The
licences are obtained under other legislation, and although it is obviously
helpful for the Council to know that they have been obtained (or are not
required) this is simply a procedural matter and a planning condition requiring
it is not necessary for the development to go ahead.
51. Finally, regarding suggested condition 19, a condition on contaminated land
and remediation is not necessary because the Phase 1 Contaminated Land
Assessment (2017) stated that there is no evidence to suggest that previous
agricultural uses of the site have created a plausible source of contamination;
the search data did not identify any pollution incident or adjacent use that
could pose a plausible source of contamination and the risk was considered nil
to very low.
Planning obligation
52. The planning obligation under s106 of the Town and Country Planning Act 1990
contains a requirement to submit a residential phasing strategy and
requirements to complete the health centre prior to first occupation of any of
the dwellings; to complete the retail units prior to the first occupation of 200
dwellings and to impose limitations on the size of the retail units; to complete
the care home and the early years facility prior to occupation of 50 dwellings;
to make contributions towards outdoor sports, community facilities, healthcare,
education, library improvements, the recreation avoidance and mitigation
strategy and the monitoring of travel plans; to provide for and manage off-site
skylark habitat; to provide for amenity space; to provide a substantial amount
of open space, including provision for dog walking, and provide for its
management, phased provision and future maintenance; to provide and
transfer allotment land; to provide affordable housing according to a specified
mix; and to provide for a range of improvements for pedestrians including
pavement widening on London Road.
53. These are all required to make sure the development is acceptable, accords
with Local Plan Policy LPP78 regarding infrastructure delivery and impact
mitigation, and accords with the range of planning policies described above.
Conclusion
54. For all the reasons given, I allow the appeal.
Jonathan Bore
INSPECTOR
ANNEX 1: PLANNING CONDITIONS
1) Details of the access, appearance, landscaping, layout, and scale,
(hereinafter called "the reserved matters") shall be submitted to and
approved in writing by the local planning authority before any
development takes place and the development shall be carried out as
approved.
2) Application for approval of the reserved matters shall be made to the
local planning authority not later than 3 years from the date of this
permission.
3) The development hereby permitted shall take place not later than 2 years
from the date of approval of the last of the reserved matters to be
approved.
4) The development hereby permitted shall be carried out in accordance
with the following approved plan: Location Plan EG003-001 REV 00.
5) The community hub shall be located towards the north-eastern end of the
site.
6) The reserved matters for access, appearance, landscaping and layout
shall demonstrate how the potential for noise, disturbance, visual
intrusion and light pollution from the community hub on the living
conditions of neighbouring residents is to be mitigated.
7) The reserved matters applications for layout and appearance shall include
the location and design of walls, fences and means of enclosure, finished
levels, the location of refuse facilities, the location and design of lighting
and the appearance and location of electric vehicle charging points.
8) The landscaping details submitted as part of the reserved matters
application shall include indications of all existing trees and hedgerows on
the land, identify those to be retained or translocated, and shall set out
measures for their protection throughout the course of development.
9) The landscaping scheme submitted as part of the reserved matters
application shall include a substantial landscaped buffer in the north-
eastern part of the site, with dimensions at least equivalent to that shown
on the indicative design code and concept plan, which shall be designed
to protect the settings of the listed buildings at Church Hall Farm, St
Mary’s Church and the Old Vicarage. The landscaped buffer shall be
completed in accordance with the approval of the reserved matters.
10) All planting, seeding or turfing comprised in the approved landscaping
scheme shall be carried out in accordance with an implementation
programme to be agreed in writing with the local planning authority. Any
trees or plants which within a period of 5 years from the completion of
the development die, are removed or become seriously damaged or
diseased shall be replaced in the next planting season with others of
similar size and species.
11) A sound attenuation scheme designed to protect residential living
conditions in those dwellings likely to be affected by external noise from
the adjacent railway line shall be submitted to and approved by the local
planning authority before work on the relevant phase is commenced. The
scheme shall include both external works including bunding and planting,
and details of building design and acoustic performance including any
necessary ventilation and cooling. The sound attenuation works shall be
completed before the dwellings in the relevant phase are occupied, and
shall be retained thereafter.
12) No development or preliminary groundworks shall take place until a
programme of archaeological investigation has been carried out on site in
accordance with a scheme submitted to and approved in writing by the
local planning authority. The scheme shall include an assessment of
significance; the programme and methodology of site investigation and
recording and post investigation assessment; the provision to be made
for analysis and recording, publication and dissemination and archive
deposition of the analysis and records of the site investigation; and the
nomination of a competent person or organization to undertake the works
set out within the written scheme of investigation.
13) A scheme for the achievement and maintenance of measurable net gains
in biodiversity in connection with the development hereby approved,
which shall include a phasing plan and a landscape ecological
management plan to secure the long-term effectiveness of the scheme,
shall be submitted to and approved in writing before development on site
is commenced, and the scheme shall be implemented in accordance with
the approved details.
14) A scheme for the conservation of protected species and their habitats
shall be submitted to and approved in writing by the local planning
authority before any works of construction, including preliminary
groundworks, have commenced and the scheme shall be implemented in
accordance with the approved scheme. The scheme shall include
conservation measures during construction, and design and maintenance
measures to ensure the conservation of the protected species following
the completion of the development.
15) Prior to the commencement of development, a survey of the site, the
details of which shall be agreed in writing with the local planning
authority, shall be carried out to assess the presence of breeding birds. If
the survey identifies priority farmland birds that are likely to be affected
by the development, a farmland bird mitigation strategy, including
timescale, phasing, methodology and monitoring, shall be submitted to
and approved in writing by the local planning authority before any works
of construction take place. The mitigation strategy shall be implemented
in accordance with the approved details.
16) No development or preliminary groundworks on any phase shall
commence until a scheme for the reduction of impacts to reptiles during
construction, following the provision of updated reptile surveys, has been
submitted to and approved in writing by the local planning authority. The
scheme shall be carried out in accordance with the approved details.
17) No above ground development shall commence within any phase of the
development until a scheme for on-site foul water drainage works for the
relevant phase has been submitted to and approved in writing by the
local planning authority. Prior to the occupation of any phase, the foul
water drainage works relating to that phase shall be implemented in
accordance with the approved scheme.
18) No above ground development shall commence within any phase of the
development until a scheme for surface water drainage for the relevant
phase, based on sustainable drainage principles and including details of
how long-term maintenance is to be secured, has been submitted to and
approved in writing by the local planning authority. Prior to the
occupation of any phase, the surface water drainage works relating to
that phase shall be implemented in accordance with the approved
scheme.
19) No development shall take place, including any works of demolition, until
a construction method statement has been submitted to, and approved in
writing by the local planning authority. The statement shall provide for
the parking of vehicles of site operatives and visitors; loading and
unloading of plant and materials; storage of plant and materials used in
constructing the development; the erection and maintenance of security
hoarding; wheel washing facilities; measures to control the emission of
dust and dirt during construction; a scheme for recycling/disposing of
waste resulting from demolition and construction works; measures to
minimise the risk of off-site flooding during construction; and contact
details and complaints procedures. The approved Construction Method
Statement shall be adhered to throughout the construction period for the
development.
20) No site clearance, demolition or construction work shall take place on the
site, including the starting of machinery and delivery of materials, outside
the following times: Monday to Friday 0800 to 1800 hours; and Saturday
0800 to 1300 hours. No work shall be carried out on Sundays, Public
Holidays and Bank Holidays.
21) A construction environmental management plan shall be submitted to
and approved in writing by the local planning authority before any
development, including preliminary groundworks, is commenced,
containing details of how construction impacts on areas of biodiversity on
the site are to be avoided or mitigated. The plan shall be implemented in
accordance with the approved details.
22) A travel plan for the residential part of the development shall be
submitted to and approved in writing by the local planning authority and
the travel plan shall be implemented upon the first occupation of any
dwelling.
23) A travel plan for the community hub uses shall be submitted to and
approved in writing by the local planning authority and the travel plan
shall be implemented upon the first occupation of the community hub
uses.
24) The level of noise from any plant and equipment at the community and
retail uses in the community hub shall be limited to 10 dB(A) below the
background noise level, expressed as a LA90, 15 minutes, measured
from the boundary of the nearest residential property.
ANNEX 2: APPEARANCES
FOR THE APPELLANT:
Charles Streeten – of Counsel
He called
Mr Robert Pomery MRTPI: Pomery Planning Consultants
Mr Laurie Handcock IHBC: Director, Built Heritage and Townscape,
Iceni projects
Dr Ricardo Pinto-Wright LMS-T(GP), DFFP: Partner, Kelvedon and
Feering Health Centre
Mr Karl O’Brien: [APPELLANT]
FOR THE LOCAL PLANNING AUTHORITY:
Asitha Ranatunga – of Counsel
Mr Ranatunga did not call any witnesses.
RULE 6 PARTY
Mr Melville Dunbar AA DIPL PLAN, RIBA, FRTPI, FFB, RIAI: Melville
Dunbar Associates, on behalf of Wendy and Geoff Scott, owners of
adjacent land
INTERESTED PARTIES:
Katriona Golden: local resident
Cllr Paul Thorogood: District Councillor and County Councillor
Thomas Foster: local resident
John Elliott: local resident
ANNEX 3: DOCUMENTS AND PLANS
Documents
1. Core documents CD1 to CD33
2. Completed planning obligation dated 11 January 2023
3. List of suggested conditions
4. Appendices to Mr Pomery’s proof of evidence
5. Appendices to Mr Handcock’s proof of evidence
6. Statement of Dr Pinto-Wright
7. Statement of Mr Elliott
8. Appendices to Mr Dunbar’s evidence
9. Statement of common ground on relevant planning policies
10. Statement of common ground on the 5 year housing land supply and other
relevant planning matters
11. Statement of common ground on heritage assets
12. Statement of common ground on the community hub
13. Statement of common ground on landscape
Plans
1. Location plan submitted with the application
2. Parameter plans (indicative)