Case Reference: 3338229

Appeal Decision
Hearing held on 23-24 April 2024
Accompanied site visit made on 24 April 2024
by J Bowyer BSc(Hons) MSc MRTPI
an Inspector appointed by the Secretary of State
Decision date: 11th June 2024
Appeal Ref: APP/Z1510/W/24/3338229
Land South of Springfields and North of the Flitch Way, Braintree, Essex
• 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 is 23/02722/OUT.
• The development proposed is described as ‘outline application for the erection of
74 affordable residential dwellings with all matters reserved except access’.
Decision
1. The appeal is dismissed.
Preliminary Matters
2. The appeal relates to an application for outline planning permission. Approval is
sought for means of access to the site. Matters relating to appearance,
landscaping, layout and scale are reserved for future consideration, although a
number of parameter plans are submitted for determination and these have
informed my assessment of the proposal.
3. The submission also includes illustrative plans, including a site layout and
landscape masterplan. While these plans show one potential way that the site
could be developed, they are not submitted for approval and there could be
alternative ways to bring forward a scheme within the extent indicated by the
parameter plans as part of a reserved matters (‘RM’) submission. I have
therefore treated details apart from those relating to access as illustrative.
4. Prior to the Hearing, the appellant submitted a legal agreement under the
provisions of section 106 of the Town and Country Planning Act 1990 (as
amended) dated 28 March 2024 (‘the s106’). The Council confirmed that this
would address its third reason for refusal in respect of provision for affordable
housing, infrastructure and mitigation for effects on European sites. The
obligations and undertakings within the s106 were discussed at the Hearing,
and I have had regard to the s106 in determining the appeal.
5. An interested party made representations during the Hearing referring to the
Flitch Way, which runs adjacent to the site, as a non designated heritage asset
(‘NDHA’). This had not been previously raised or considered in the written
evidence and the main parties were not in a position to respond during the
Hearing. I therefore agreed with the main parties that comments could be
submitted in writing. I duly received comments from each main party which I
have taken into account in my decision. The Hearing was subsequently closed
in writing on 8 May 2024.
6. I undertook an unaccompanied site visit of the area surrounding the appeal site
on 23 April 2024 during an adjournment of the Hearing, and an accompanied
visit to the site itself on 24 April 2024.
Main Issues
7. The main issues are:
i) whether or not the proposal would be in a suitable location having
regard to the spatial strategy and its location in the countryside;
ii) the effect of the proposal on the character and appearance of the area;
iii) whether or not living conditions for future occupiers of the site would be
acceptable in respect of privacy, outlook and the provision of amenity
space;
iv) whether or not the proposal would make adequate provision for parking;
and
v) whether or not the Council can demonstrate a five year supply of
deliverable housing sites.
Reasons
Suitable Location
8. The Braintree District Local Plan 2013-2033 (‘the LP’) comprises the North
Essex Authorities’ Shared Strategic Section 1 Plan (adopted 2021) (‘the S1LP’)
and the Section 2 Plan (adopted 2022) (‘the S2LP’).
9. Policy SP 3 of the S1LP provides the Spatial Strategy for North Essex, and sets
out that existing settlements will be the principal focus for additional growth,
with development accommodated within or adjoining settlements according to
their scale, sustainability and existing role. However, the S1LP has to be read
together with the S2LP which includes a district-specific spatial strategy and
other policies that relate specifically to the Braintree District area. The
overarching spatial strategy as outlined in both the S1LP and S2LP seeks to
concentrate development on locations including the town of Braintree, but the
S1LP additionally identifies development boundaries. These are noted as
marking the distinction between a built up area and its surrounding countryside
and providing a guide to where new growth should be directed. Policy LPP 1 of
the S2LP further stipulates that development outside of development
boundaries will, amongst other things, be confined to uses appropriate to the
countryside.
10. The appeal proposes 74 dwellings on a broadly triangular field on the edge of
Braintree. While Braintree is identified as a focus for development in the LP, the
dwellings would be located within countryside outside of the identified Braintree
development boundary. As the appellant accepts, the development would not
comprise a use appropriate to the countryside, and the proposal in this location
would therefore conflict with Policy LPP 1 of the S2LP.
11. Given the conflict with Policy LPP 1 of the S2LP, the development would be
contrary to the overall spatial strategy for growth. As a consequence, I
conclude that the proposal would not be in a suitable location.
Character and Appearance
12. The main part of the appeal site comprises an agricultural field with trees and
hedgerows in a belt of varying depth around the boundaries. To the north east
of the site, the belt merges with a corridor of mature vegetation around the
River Brain/Pods Brook which sets the site apart from development within
Braintree to the east. Running along the south of the site is the Flitch Way, a
cycling and walking trail following the line of the former Braintree to Bishops
Stortford railway, beyond which are open agricultural fields.
13. Part of the north west boundary of the site adjoins dwellings on Springfields
which are part of the Sun Lido estate; a fairly high density development of
predominantly two-storey dwellings of similar styles. The rest of this boundary
adjoins an open parcel known as ‘Gilda Terrace’ where outline planning
permission has been granted on appeal for development including up to 120
dwellings1. An access route from Rayne Road running through the Gilda Terrace
site is also included within the appeal site area.
14. Access is the only matter forming part of the development applied for as part of
the outline application, and the illustrative plans that have been submitted
including the site layout and landscape masterplan are for illustrative purposes
only. Nevertheless, I need to be satisfied that an acceptable scheme to
accommodate the quantum of development proposed could be devised at
reserved matters stage, taking into account various matters including design,
parking and effects on landscape character and appearance.
15. In considering landscape effects, the main parties agree that the appeal site is
not a ‘valued landscape’ within the terms of the Framework and I have no firm
reason to find differently. Nevertheless, it is an open and undeveloped field
within the countryside and the Framework sets out that planning decisions
should contribute to and enhance the natural and local environment including
by recognising the intrinsic character and beauty of the countryside.
16. The Braintree, Brentwood, Chelmsford, Maldon and Uttlesford Landscape
Character Assessment 2006 identifies that the site is part of Landscape
Character Area (‘LCA’) A12 - Pods Brook River Valley. The Assessment notes
that Pods Brook lies in a narrow shallow valley, and highlights sensitive key
characteristics and landscape elements of LCA A12 including a complex pattern
of small pastoral fields and deciduous woodland plantations along the valley
floor with hedgerows with hedgerow trees delineating field boundaries. At the
edge of Braintree, woodland cover is reduced and the valley becomes more
open with larger arable fields that slope down to meet at the Brook.
17. LCA A12 cuts into LCA B13 - Rayne Farmland Plateau. LCA B13 is generally
characterised by gently rolling hills with wide flat tops and valleys covered by
predominantly medium to large arable fields interspersed with small grass
paddocks and pasture.
18. The Council has not challenged the appellant’s assessment within their
Landscape and Visual Impact Appraisal (‘LVIA’) of medium landscape value,
susceptibility to change and sensitivity for each of LCA A12 and B13 and I
concur that this would be reasonable.
1 Appeal ref APP/Z1510/W/20/3265895
19. As an agricultural field with tree and hedgerow boundaries which slopes down
towards Pods Brook, the appeal site exhibits some key characteristics of LCA
A12. It makes a moderate and localised contribution to the LCA, and I agree
with the appellant that the site has a medium baseline landscape value.
20. In considering the landscape susceptibility and sensitivity of the site, the
appellant highlights nearby development in Braintree as an urbanising
influence. However, in contrast to Gilda Terrace where housing along two sides
of the site was noted in the appeal decision, development adjoins only a small
part of one boundary of the appeal site. Based on my observations, there is
also greater screening of the Sun Lido development by vegetation in views
from the appeal site than is present in views from Gilda Terrace. While this
screening is not complete, it serves to set the housing development apart from
the appeal site both physically and visually, reducing the extent of intrusion.
The River Brain/Pods Brook corridor further provides for clear distinction to the
development beyond to the east of the site. Despite some traffic and other
noise that was audible at the site during my visit, the representative landscape
features together with the openness of the site confer a pleasant, generally
rural quality. While it is a parcel on the edge of LCA A12 and close to residential
development, I find that the site is clearly appreciated as part of the rural
setting around the Braintree settlement edge. This includes from the Flitch
Way, where the site makes an important contribution to providing an open
buffer between development within the built-up area and the Flitch Way and
more open countryside beyond.
21. The site may lack a significant sense of tranquillity which is a feature of the
wider A12 LCA. Even so, I find given these factors that the site’s susceptibility
to change is more reasonably assessed as medium rather than the medium/low
suggested by the appellant, and its sensitivity to change would also be medium.
22. In reaching this view, I note that the extent of the built up area in the vicinity
would be increased with development on the Gilda Terrace site. However, the
approved scheme shows a generous swathe of open space along the
boundaries with the appeal site and the Flitch Way. This would significantly
temper the effect of the Gilda Terrace development on how the appeal site is
experienced. The adjacent development does not alter my overall assessment
of the landscape value, sensitivity or susceptibility to change of the appeal site.
23. The Council has not raised an objection to the point of access for the
development which would be taken from Rayne Road via a road that would
serve the Gilda Terrace development. Within the main part of the site, access
roads would then be required to serve the proposed dwellings and the
illustrative layout shows a roughly triangular arrangement of roads with
housing fronting onto the streets. The illustrative plans show streets within the
main part of the site to be narrower than are indicated on the adjacent Gilda
Terrace parcel. However, boundary vegetation around the site and intervening
open space would provide for both physical and visual distinction between the
respective developments such that the difference would not be jarring and
would not in itself be objectionable.
24. The number of streets within the site is also relatively small and I can see no
reason that differences in the scale and appearance of buildings sufficient to
provide for a sense of identity and legibility could not be achieved as part of a
RM submission.
25. That said, the streets shown on the illustrative plans are all of fairly narrow
width. This has implications for the potential to incorporate trees sufficient to
provide for ‘tree-lined’ streets which the National Planning Policy Framework
(‘the Framework’) seeks as part of development. The Council has also raised
concerns including in respect of the proximity of dwellings to retained trees
around the site boundaries, particularly to allow for their future growth; the
visual dominance of parking along some streets; and a lack of detail to show
how changes in land levels on the site would be addressed. With reference to
the development as it is shown on the illustrative plans, I share these concerns
which I consider would result in detriment to the quality of the development,
particularly when taken together. The arrangement of rear gardens adjoining
open space along the River Brain/Pods Brook corridor would also be contrary to
guidance offered by the National Model Design Code and would require careful
treatment to provide privacy and security for occupiers while ensuring
protection for trees and a sympathetic visual transition to the open space.
26. I recognise that layout, scale, appearance and landscaping are reserved
matters. The illustrative plans do not represent the only way that the site could
be developed, and individually, I consider that it may well be possible for
changes or additional detail to come forward at RM stage to overcome the
concerns. Indeed, I have noted the appellant’s suggestions of potential ways
that the illustrative scheme could be amended. However, it seems to me that
changes to address many of the concerns identified would be likely to result in
demands for additional space within the site. Such demands may be modest in
isolation, but they could combine to result in a significant requirement within
the scheme. Furthermore, while the appellant has drawn my attention to
overprovision of amenity space against standards within the illustrative layout
which could offer some flexibility to accommodate changes, adequate
separation would still need to be maintained between dwellings to provide
suitable privacy.
27. Given the cumulative range of concerns noted above and irrespective of the
overall density of the scheme, I have some doubt from the evidence currently
before me that it would be possible to devise a scheme at RM stage to
satisfactorily accommodate the quantum of development applied for on the site
while achieving a suitably high quality design that would assimilate well with its
surroundings.
28. Even if that were not the case, the proposal would essentially transform the
site to a housing development resulting in a significant and permanent change
to its nature and character and the loss of the agricultural field which
contributes to the landscape character of the area. Given the relatively small
size of the site, the magnitude of the effect on the wider landscape would be
minor. Having regard to the position of the site beyond LCA B13, I also agree
with the main parties that landscape character effects on this LCA would be
broadly neutral by year 15.
29. I acknowledge that the illustrative proposals suggest that the majority of trees
and hedgerow around the site could be retained. However, the development
would extend the edge of Braintree further into this part of LCA A12 along the
valley close to Pods Brook. Although there would be a landscape buffer, it
would also bring built form notably closer to the Flitch Way than both existing
development and the permitted development on the Gilda Terrace site. As a
consequence, the open setting around this part of Braintree and the buffer to
wider countryside to the south of the Flitch Way would be markedly reduced.
30. While the landscape buffer may be multifunctional, it would be smaller than the
potential area of residential development and the illustrative proposals further
suggest that the buffer would itself include structures such as drainage
features, play, albeit natural, seating and pathways. In my judgement, there
would not be an enhancement to the balance of landscape elements on the site
overall. Instead, I consider there would be a discernible loss of characteristic
landscape features and urbanisation of the site that would not be mitigated by
retained or proposed new planting. I cannot therefore agree with the
appellant’s contention that the landscape effects of the proposal on the site or
LCA A12 would be neutral or beneficial.
31. Irrespective of the detailed appearance and materials of the buildings and
potential for new planting, I find given these factors that the effect on the
landscape character of the site would be negative. I agree with the main
parties that this effect would be moderate/major at year 1, reducing to
moderate at year 15 as planting establishes. I further find that the effect on
LCA A12 would also be negative, albeit that I accept the effect would be
localised and of minor magnitude.
32. Turning to visual effects, it is common ground between the main parties that
effects on most receptors would be minor and neutral by year 15. There is
dispute however in respect of views from the Flitch Way.
33. Based on my observations at my visit and the evidence before me, the Flitch
Way is a well-used walking and cycling route, including for leisure. It travels
through both built-up areas and more open countryside, and the transition
between these areas is undoubtedly part of the experience of path users.
However, views from the path into more rural areas provide an attractive sense
of relief and I consider that they are a particularly important part of the special
qualities and overall experience of the Flitch Way as a comparatively tranquil
route extending out from the built-up area into the surrounding countryside.
34. Looking north from the Flitch Way near to the appeal site, there are some
views of buildings including at Sun Lido, but the separation distance and
intervening vegetation significantly limits their prominence and I found this
development to have only a very minor influence. There is development closer
to the Flitch Way to the east of the site, but the intervening River Brain/Pods
Brook vegetated corridor provides for distinct sense of separation. Looking
south, there is some development visible around the A120, but this is quite
some way in the distance. While the countryside around this part of the Flitch
Way is not remote or unspoilt, it still has a pleasant rural quality. Furthermore,
the fact that open views towards the south are more extensive and accessible
does not negate the value of the views towards the north and I consider that
views to both sides of the path are important to the appreciation of the
transition from town to countryside which is discernible on crossing the
landscape corridor around the River Brain/Pods Brook.
35. In this context, I find that the open appeal site makes a valuable positive
contribution to the overall experience of this part of the Flitch Way. I therefore
agree with the Council that the sensitivity of views from the Flitch Way here is
high rather than medium/high as the appellant argued.
36. I have already noted that the proposal would bring housing much closer to this
section of the Flitch Way than both the existing development to the north and
the permitted development on the Gilda Terrace site where a landscape buffer
approximately twice the depth of the shallowest part of the buffer suggested on
the appeal site is indicated. I acknowledge that development would not extend
along the whole length of the site beside the Flitch Way and that there would
be greater separation to buildings towards either end of the buffer. Even so, I
find that there would be a pronounced and unmistakeable increase in the
proximity of development to this part of the Flitch Way.
37. Furthermore, much of the Gilda Terrace site is at a higher land level than the
adjacent section of the Flitch Way, with a vegetated embankment that
considerably restricts opportunities for views from the path, helping to reduce
the likely visual impact of the development there. The appeal site however is
generally at a similar or lower level to the Flitch Way which would significantly
increase opportunities for views of development. Having regard to the greater
exposure of the appeal site in combination with the closer proximity of
buildings to the Flitch Way, there would be a much greater perception of the
presence of development on the appeal site in contrast to at Gilda Terrace. The
effects of the schemes are not therefore directly comparable and I consider
that the proposal would present a much stronger urbanising influence to the
Flitch Way than other nearby development west of the River Brain/Pods Brook.
38. The visual effect would be localised to a fairly short section of the Flitch Way
near to the site. Existing vegetation also provides for some filtering of views
and this could be increased with new planting as part of the proposal. However,
the provision of drainage features within the landscape buffer would be likely to
constrain areas of potential planting and some views of the development would
remain.
39. In these views, the proposal would result in notable and unwelcome
encroachment of urbanising development to the countryside setting around this
part of Braintree and there would be a marked reduction in the rural character
of this section of the Flitch Way that would not be mitigated by the potential for
landscaping. Having regard to the high sensitivity of views from the Flitch Way,
I find that the proposal would detract significantly from users’ experience of
this part of the Flitch Way route.
40. The harm that I have identified to landscape character would be predominantly
focused on the site itself with only a minor adverse effect on LCA A12. Visual
effects would also be localised. Nevertheless, there would be harmful erosion of
the rural setting to this part of Braintree and I consider that the proposal would
be conspicuous and obtrusive to users of the Flitch Way, with marked detriment
to the attractiveness of the route as it travels beyond the built-up area into the
surrounding countryside. Overall, I find that the proposal would cause significant
harm to landscape character and appearance.
41. I recognise that the appeal site is not part of the green buffer around Braintree
designated under Policy LPP 68 of the S2LP. However, while the designation of
green buffers may have been informed by evidence including assessments
considering landscape capacity, the supporting text to Policy LPP 68 explains
that they are identified in order to prevent coalescence between neighbouring
towns and villages. In this respect, the proposal would not bring development
closer to Rayne than existing buildings along Rayne Road or the development
permitted on the Gilda Terrace site. As a result, I am satisfied that the gap
between Rayne and Braintree would not be meaningfully narrowed so as to
cause coalescence. Nevertheless, a lack of harm in this regard is not a positive
factor that would weigh in favour of the proposal, and it does not offset the
landscape harm that I have identified.
42. Drawing matters together, I acknowledge that the illustrative plans submitted
with the appeal are not fixed and show one potential way that development
could be brought forward. However, I have some doubt from the evidence
before me that 74 dwellings could be accommodated on the site while ensuring
suitably high quality design that would assimilate well with its surroundings.
The proposal would in any event result in significant harm to landscape
character and appearance.
43. I appreciate that constraints on the site include the irregular shape and the
need to ensure efficient use of land, but I nevertheless conclude for these
reasons that there would be unacceptable harm to the character and
appearance of the area. The proposal would conflict with requirements within
Policy SP 7 of the S1LP and Policies LPP 35 and LPP 52 of the S2LP broadly for
a high standard of design which reflects or enhances local distinctiveness,
relates well to local character and makes appropriate provision for landscaping.
It would also be contrary to Policies SP 3 of the S1LP and Policies LPP 1 and
LPP 67 of the S2LP insofar as they broadly seek sympathetic development that
integrates successfully into the local landscape, growth that conserves the
setting of existing settlements and recognition and protection of the intrinsic
character and beauty of the countryside.
Living Conditions
44. Policy SP 7 of the S1LP and Policies LPP 35 and LPP 52 of the S2LP include
requirements broadly seeking a high standard of accommodation and amenity
for future residents of development with regard to factors including
overlooking, overbearing effects and provision of appropriate and usable
amenity space.
45. The illustrative plans show a number of dwellings where the close proximity of
neighbouring properties would result in awkwardly shaped amenity spaces,
constrained outlook and potential for overlooking, all of which would detract
from living conditions for occupiers of the dwellings. I acknowledge the
illustrative status of these plans, but they suggest to me that accommodating
the number of dwellings that are proposed on the site would be likely to result
in at least some areas where relationships between buildings could well be tight
such that providing adequate outlook and amenity spaces of satisfactory quality
could be challenging.
46. That said, the details of the layout, scale, appearance and landscaping of the
development which would largely determine living conditions experienced by
future occupiers of the site are not before me at this outline stage and there is
more than one way to develop the site. In this context, and noting also that the
Council has not raised concerns about living conditions for the vast majority of
the dwellings indicated on the illustrative plans, I find that the quality of living
conditions for future occupiers of the site is not determinative in this case.
Parking
47. Policy SP 7 of the S1LP includes a requirement for parking facilities to be well
integrated as part of the overall design of development. Policy LPP 52 of the
S2LP further includes a requirement that development should not have a
detrimental impact on the safety of highways.
48. The Council accepts that the illustrative plans show provision of an adequate
number of parking spaces, but is concerned that visitor spaces would be poorly
distributed which could result in on-street parking, causing obstruction or
detriment to highway safety. In particular, I note that relatively few visitor
spaces are indicated along the southern street.
49. However, the shortfall suggested on the southern street would be very modest
and distances to visitor parking elsewhere would not be long. Moreover, the
illustrative plans are just that, and details of layout which would include the
layout of parking are not before me at this outline stage. As I have noted in
respect of living conditions, there is more than one way to develop the site and
I find in this context that the arrangement of parking is not determinative in
this case.
Housing Supply
50. The appellant disputes the Council’s claim that it can demonstrate a supply of
specific deliverable sites sufficient to provide a minimum of five years’ worth of
housing (‘a 5YHLS’) which the Framework indicates would be the relevant
requirement for the purposes of determining this appeal.
51. In calculating the 5YHLS position, both main parties have considered the period
from 1 April 2023 to 31 March 2028, and agree a requirement for 4,367
dwellings. Against this, the Council considers there is a deliverable supply of
5,070 dwellings, or 5.8 years. The appellant considers that the deliverable
supply should be taken as 3,710 dwellings, or 4.2 years.
52. The Framework glossary sets out that to be considered ‘deliverable’, sites for
housing should, amongst other things, be achievable with a realistic prospect
that housing will be delivered on the site within 5 years. It further identifies
two categories of sites. Category a) sites are those which do not involve major
development and have planning permission, and all sites with detailed planning
permission. These should be considered deliverable until permission expires,
unless there is clear evidence that homes will not be delivered within five
years. Category b) includes sites with outline planning permission for major
development which should only be considered deliverable where there is clear
evidence that housing completions will begin on site within five years.
53. Many of the elements of the deliverable housing supply claimed by the Council
are agreed between the parties and would provide a total of 3,785 dwellings.
However, the appellant disputes the inclusion of 10 sites with major outline
permission (one of which includes an element of C2 bedspaces) and one further
site which had a resolution to grant permission at the base date of the
assessment. There is also dispute in respect of the application of a lapse rate,
54. Where specific sites are disputed, the appellant essentially argues that ‘clear
evidence that housing completions will begin’, has not been provided so as to
comply with the Framework definition of ‘deliverable’. The Framework does not
further define what is meant by ‘clear evidence’, although the Planning Practice
Guidance gives some examples. It indicates that evidence to demonstrate
deliverability may include current planning status, firm progress being made
towards the submission of an application, firm progress with site assessment
work or clear relevant information about site viability, ownership constraints or
infrastructure provision. However, this is not a closed list. Furthermore, the list
of sites in category b) of the Framework definition of deliverable includes sites
with permission in principle, sites allocated in the development plan or sites
identified on brownfield registers as well as sites with outline planning
permission for major development. In this context, I do not consider the
appellant’s suggestion that sites with major outline permission which are yet to
have an RM submission made for housing will generally fail to pass the clear
evidence test to be compelling as a point of principle.
55. However, and having regard to the various appeal decisions and court
judgments referred to by the main parties where deliverability has been
considered, I do agree with the appellant that the expectation within the
Framework for ‘clear evidence’ requires something cogent as opposed to simply
mere assertions.
56. I also agree with the Council that the reference in the Framework definition of
deliverable to ‘clear evidence that housing completions will begin on site within
five years’ should be read in the context of the preceding part of the definition.
This refers to a ‘realistic prospect’ that housing will be delivered on the site
within 5 years’, and the Council argues that sites should be capable of
delivering completions, but that there is no requirement for certainty or
probability. To my mind, whether there is a realistic prospect of delivery is a
matter of judgement, albeit one to be reached on the basis of an assessment of
factors that may influence delivery informed by clear evidence. My assessment
of the disputed sites below has been made against this context.
57. I have also had regard to a recent appeal decision on a site at Land to the Rear
of 231 Witham Road, Black Notley where the deliverability of many of the
disputed sites in this case was considered (‘the Black Notley Appeal’) 2.
However, that appeal was determined under the written representations
procedure and in considering housing supply, the decision records that the only
information provided by the Council comprises the notes attached to its
Housing Trajectory. I have had regard to the assessments in the Black Notley
Appeal, but I have reached my own conclusions on the basis of the evidence
before me. This includes the discussion during the Hearing as well as additional
written statements from the main parties considering housing supply matters
which were not before the Black Notley Inspector.
Disputed Sites
Phase 4 Land North East of Rectory Lane, Rivenhall (210 dwellings)
58. This site relates to the fourth phase of development on a wider site which has
previously delivered 443 homes in phases 1 to 3. The fourth phase has outline
permission for up to 230 dwellings, although only 210 are included in the
Council’s claimed deliverable supply.
59. In March 2023, two parallel RM applications, each for 225 dwellings were
submitted. The Council confirmed at the Hearing that necessary information
2 Appeal ref APP/Z1510/W/23/3325050
had now been received to validate the applications which differ in respect of the
inclusion of a bus gate. The applications for RM follow the approval of design
codes required by conditions on the outline permission and the Council advises
that they have been brought forward following a Planning Performance
Agreement (‘PPA’) with pre application meetings and Councillor engagement. I
do not have written details of the pre application discussions and I note that
there has been some slippage from the timetable envisaged in the PPA which
suggested presentation to the Planning Committee in April 2024. However, the
Council explained that this delay reflected work to address concerns that had
been raised by Councillors with the proposal and I consider the engagement
carried out to date could reasonably be expected to minimise likelihood of
further significant delay.
60. The appellant highlights that the site is not in the ownership of a developer, but
disposal of the site would be in the business interests of the site promoter and
while the transfer of the site is therefore an additional step to complete, I do
not consider this would necessarily be a barrier to delivery. Furthermore, the
Council advises that the landowner in this case is the same as for phases 1, 2,
and 3 where there is a proven record of delivery. The rates of delivery
anticipated by the Council would also be in line with what has been achieved on
the wider site, and given the existing relationships and experience on the site, I
see no reason that prompt discharge of conditions to enable delivery starting in
2025/26 would be unrealistic.
61. Taking these factors together, I am satisfied overall that there is clear evidence
to support the inclusion of the 210 dwellings anticipated by the Council within
the deliverable supply.
Phase 5 South West Witham Growth Location (110 dwellings)
62. This site relates to an outline permission for development including up to
750 dwellings. The Council has provided a copy of an email advising that the
developer intended to submit a RM application for Phase 5 of this site in
April 2024 although this had not been submitted by the date of the Hearing.
The email alone would not constitute ‘clear evidence’.
63. However, the Council refers to pre application discussions with the developer
and as the Inspector in the Black Notley Appeal noted, there is a ‘track record’
of delivery here with Phases 3b and 4 under construction and partly completed.
In my view, it would be reasonable to anticipate the developer would seek to
continue delivery on the site without pausing construction, and there is no firm
information before me to suggest there would be any particular impediment to
achieving this. Furthermore, the rates of delivery assumed by the Council
would not be significantly out of step with those achieved historically and which
I have little reason to doubt could be realistically maintained.
64. In the Black Notley Appeal, the Inspector found that it was not evident that it
would be realistic to suppose that all units will be delivered by 2028 and
adopting a benevolent view included 55 dwellings in the supply. However, the
Council points to the lead in time to Phase 3b/4 which was referenced by that
Inspector as having been disrupted by the pandemic and an application for
variation of conditions so as to be much longer than other phases. Given the
information that is before me in this appeal including in respect of details of
past progress on the site, I am satisfied that there is sufficiently clear and
cogent evidence to show a realistic prospect of delivery by 2028 as assumed by
the Council. I therefore consider that inclusion of 110 dwellings from this site in
the deliverable supply is adequately justified.
Land at Woodend Farm, Witham (190 dwellings)
65. This site relates to an outline permission for development including up to 400
dwellings. While the site may not yet be in their ownership, a series of
applications to discharge conditions on the outline permission have been
submitted by a developer and in some cases determined. An RM application for
a section of spine road has also been determined and a further RM application
for central open space is pending. Some of the applications have been pending
for a fairly prolonged period since March and April 2023. However, the Council
explained that staffing issues in landscaping had led to delays but that steps
had been taken to address these issues and outstanding matters were now
being actively progressed.
66. The Council also pointed to pre application discussions and a PPA that is to be
negotiated for RM for housing. I do not have written detail of these, but taken
together with the other submissions to date, which include a phasing plan, I
consider that there is clear evidence of serious and meaningful work ongoing
and firm progress being made to bring forward the development. While there
may be a requirement for fairly significant highway works to support the
development, the developer is in discussions with the Highway Authority and a
s278 Agreement is being negotiated.
67. In my judgement, these factors demonstrate a realistic prospect that dwellings
are capable of being delivered on the site within the relevant 5 year period.
That said, the complexity of the site and need for submission of RM for housing
as well as for significant highway works to be carried out mean that I consider
the likelihood of completions from 2025/26 as assumed by the Council to be
overly optimistic. Pushing delivery back by a year would be reasonable and
would remove 65 dwellings from the supply. I therefore include 125 dwellings
from the Woodend Farm site in my assessment.
Land North of Maldon Road, Hatfield Peverel (110 dwellings)
68. This site has outline permission for up to 110 dwellings. An RM application
including details relating to discharge of some conditions has been made.
However, I note that the application was made by the land promoter. For the
reasons above, I consider the fact that the site may not yet be in the
ownership of a developer should not necessarily preclude it from being
considered deliverable. Nevertheless, any developer would be likely to operate
according to their own requirements for development and it is unclear whether
there has been developer input to the RM submission. I therefore have some
doubt as to whether a developer would be likely to implement any resulting
permission in the same form. Accordingly, I consider it uncertain at best that
the RM, if approved, would directly result in housing completions, certainly
within the timescales assumed by the Council. Nor is there other substantive
information from the promoter, developer or any other party to corroborate the
timescales as appropriately realistic here.
69. That said, I accept that site assessment work has undoubtedly been carried out
to support the RM submission, and that this could inform any revised
proposals. Given this work, I do not totally discount that there is a reasonable
prospect of some housing completions within the 5 year period. However, I
consider it would be prudent to assume slippage from the Council’s trajectory,
delaying the first completions to 2026/27. This would result in a deliverable
supply of 70 dwellings from the site.
Land East of Broad Road, Straits Mill (140 dwellings)
70. This site has outline permission for development including up to 1,000
dwellings. Design codes were part of the outline permission. A phasing scheme
and landscape ecology management plan have since been approved, and
reserved matters have been submitted for a section of the spine road.
Nevertheless, there appears to be significant infrastructure and planning work
that remains outstanding and the appellant highlights multiple ownerships and
requirements such as a need for remediation of landfill and remodelling of
ground levels which would add complexity.
71. The Council advises that the site is being marketed and that there is developer
interest. However, there are no firm details before me to show that any
developer, or indeed the applicant for the outline permission, is currently
engaged in serious and meaningful work to bring forward detailed proposals
that would allow for construction of dwellings to start. Moreover, while an
overall phasing strategy may have been agreed, this does not establish when
individual phases would be implemented and there is no other firm detail
before me to indicate what timescales for delivery would be realistic. The
trajectory assumed by the Council allows for a longer lead in time that
averages indicated in the Lichfields ‘Start to Finish’ report (‘the Lichfields
Report’), but it is clear that delivery has already slipped from previously
anticipated trajectories, including that considered reasonable by the Inspector
in an appeal concerning land to the west of the A131 High Garrett3.
72. Work on site assessment would have been part of the outline and I note the
submissions that have been made to date. However, only limited practical
progress is evidenced and does not lead me to a different view than the
Inspector in the Black Notley Appeal that what has been provided falls short of
‘clear evidence’ of deliverability. I consider that the inclusion of 140 dwellings
from this site in the 5YHLS has not been justified and it should be removed.
Land off Bournebridge Hill, Greensted Green (150 dwellings)
73. This site has outline permission for up to 200 dwellings. The permission was
subject to a planning obligation which essentially requires planning permission
for cycle and pedestrian links to be in place before submission of RM. An
application for the links was made but has been pending since April 2023. This
is an extended period of time, but the Council explained that the delay was the
result of issues with lighting which have required revisions to the scheme and
that the decision will be delegated and is anticipated within a relatively short
period. I have no firm reason to doubt this will be forthcoming.
74. However, while the Council advised that pre application discussions with a
developer who is advanced in the purchase of the site have taken place and
that a Planning Performance Agreement (‘PPA’) is being negotiated, the PPA is
not yet in place and I have no written details of the pre application. Nor do I
have clear details of any separate discussions that the Council suggests are
ongoing with the Highway Authority and Lead Local Flood Authority. There may
3 Appeal ref APP/Z1510/W/21/3278620
be an intention on the part of a developer to bring forward development, but I
can therefore treat this as little more than assertion and the lack of detail
means that it is difficult to form any firm view on the extent of progress.
75. Moreover, there is no information before me from any developer to indicate
what timescales for delivery might be realistic. The delivery trajectory assumed
by the Council would not be out of step with average rates and timescales
indicated in the Lichfields Report, but these are averages and while I have no
reason to doubt the general strength of the local housing market area, that
alone is not compelling evidence that adherence to average timescales would
be realistic to this specific site.
76. I appreciate that work on site assessment would have been part of the outline.
However, I am not satisfied that there is adequately clear evidence of progress
that has since been made to substantiate a realistic prospect of delivery within
the 5 year period. Accordingly, I find that sufficient justification for the
inclusion of this site in the 5YHLS has not been provided, and it should be
removed.
Land North of London Road, Kelvedon (140 dwellings and C2 bedspaces
equivalent to 36 dwellings)
77. This site has outline permission for development including up to 300 dwellings
and a care home.
78. A proforma completed by the land promoter in July 2023 indicated that the site
was being sold to a developer and that RM would be submitted by the end of
2023 with completions commencing in late 2024. However, no RM application
or discharge of conditions applications have yet been submitted.
79. The Council advises that a request for pre application discussions has now been
received and that RM are in preparation and will be accompanied by a PPA. It
also refers to discussions with the highway and surface water drainage
authorities. However, in the absence of firm details to substantiate any of this,
I can treat it as little more than assertion and the lack of detail means that it is
difficult to form any firm view on the extent of progress.
80. Moreover, there has already been slippage from the timescales that were
suggested in the proforma completed in July 2023. While the site may be in a
relatively strong housing market area, there is no other specific information
before me to indicate what timescales for delivery could now be considered to
be realistic here.
81. Site assessment work would have informed the outline permission, but there is
little definite evidence indicating firm progress since that stage and I am not
satisfied that there is tangible information to show that delivery within the
5 year period is a realistic prospect. In my judgement, sufficient justification for
the inclusion of this site in the 5YHLS has not been provided, and it should be
removed.
Land West of Boars Tye Road, Silver End (94 dwellings)
82. This site has outline permission for up to 94 dwellings. No RM application or
discharge of conditions applications have yet been submitted.
83. The Council refers to an approach that has been made by a developer working
on a bid for the site. However, in the absence of firm details, I can treat this as
little more than assertion. Even if that were not the case, I cannot know if their
bid will be successful. While there may be interest in the site, I have no
substantive information to demonstrate meaningful progress in bringing
forward development on the site. Irrespective of the strength of the local
housing market, there is also no firm detail to corroborate likely timescales for
progress as realistic according to the conditions of the specific site.
84. Notwithstanding work on site assessment that would have been part of the
outline, I consider the information provided in respect of this site to fall short of
clear evidence sufficient to establish a realistic prospect of delivery within the
5 year period. Accordingly, I find that sufficient justification for the inclusion of
this site in the 5YHLS has not been provided, and it should be removed.
Small Acres, Maldon Road (16 dwellings) and Land East of Braintree Road, Tye
Green (35 dwellings)
85. These permissions concern developments of relatively small scale and I have
no firm reason to doubt their accessibility credentials or the strength of the
local housing markets. Be that as it may and even if I were to accept the
Council’s view that the sites are not subject to constraints, there are no firm
details before me indicating progress on either site since the grant of outline
permission to bring development forward. In the absence of any such specific
information, I do not find there to be sufficient clear evidence that housing
completions are capable of beginning on these sites within five years to offer a
realistic prospect of delivery within the relevant period. I have therefore
discounted these sites.
Land at Mount Hill, Halstead (54 dwellings)
86. This site had a resolution to grant outline permission at the base date for the
5YHLS assessment. Outline permission has subsequently been granted.
87. A proforma completed by the land promoter in July 2023 indicated that the site
was being sold to a developer/housebuilder and that RM were anticipated by
the end of 2024, with housing completions estimated from 2026. However, this
would depend on a successful RM application. Moreover, it is unclear if the site
has been sold and while the proforma suggests there are no constraints on the
site, there is no firm detail before me to indicate any serious and meaningful
work that might be ongoing to bring forward RM. I can therefore treat the
dates suggested on the proforma as speculative at best.
88. I acknowledge that this is a fairly small greenfield site and the Council’s
comments that it is a relatively strong housing market area. Nevertheless, the
information provided does not in my view constitute clear evidence that there
is a realistic prospect of delivery. I therefore consider the inclusion of the site in
the 5YHLS to be premature and find that it should be removed.
Lapse rate
89. The appellant argues that a lapse rate of 15 dwellings per year (a total of
75 dwellings) should be applied to reflect the fact that some permissions may
lapse where owners change their minds, neglect time limits, or constraints
emerge. The suggested rate reflects a lapse rate that was included in the
housing trajectory in the S2LP. Be that as it may, this trajectory serves a
different purpose and I am not persuaded that it should offer a standard or
benchmark for the assessment of 5YHLS.
90. There may be some permissions that could lapse and so may not come
forward. For the purposes of 5YHLS assessment however, the Framework sets
out that sites which do not involve major development and have planning
permission and all sites with detailed planning permission should be considered
deliverable until the permission expires unless there is clear evidence that
homes will not be delivered within five years. Furthermore, neither the
Framework nor the Planning Practice Guidance refer to application of a general
lapse rate in the assessment of 5YHLS.
91. The appellant suggested at the Hearing that it would not be realistic to look at
every site with detailed permission or involving non-major development in
detail. Nevertheless, in the absence of clear evidence that sites will not deliver
within five years, I am not persuaded having regard to the definition of
deliverable in the Framework that there is a compelling basis to discount these
elements of supply through application of a lapse rate. Nor do I consider it
would be reasonable to apply a general lapse rate to sites which have been
specifically assessed and found to be deliverable; either by the main parties
where there is no dispute or in my assessment above.
92. I further note that the Council’s evidence indicates that levels of supply from
windfall sites are much higher than has been assumed in its 5YHLS
assessment. The appellant has not offered substantive challenge to the level of
additional supply indicated which would exceed the suggested lapse rate by
some way. It therefore seems to me that this would in reality at least offset the
potential effect on the overall housing supply position of any permissions that
did lapse.
93. I therefore consider there are no persuasive grounds to apply a lapse rate in
this case.
Housing Land Supply Conclusion
94. On the basis of my assessment above, I find that there is sufficient clear
evidence to justify the inclusion within the deliverable supply of a total of
515 dwellings from the disputed sites at Phase 4 Land North East of Rectory
Lane, Rivenhall; Phase 5 South West Witham Growth Location; Land at
Woodend Farm, Witham; and Land North of Maldon Road, Hatfield Peverel. It
may be that other disputed sites could also come forward, but I consider the
information provided currently on these sites to fall short of clear evidence that
there is a reasonable prospect of delivery within the 5 year period.
95. Adding the 515 dwellings that I have found deliverable from the disputed sites
to the 3,785 dwellings from sources that the main parties agree would be
deliverable results in a total deliverable supply of 4,300 dwellings. I have
further found that there are no persuasive grounds to apply a generic lapse
rate in this case. I therefore consider the deliverable supply to be
4,300 dwellings. This is below the requirement for 4,367 dwellings and results
in a 4.9 year supply.
96. At 67 dwellings, the shortfall would be very slight, but I conclude that the
Council has not demonstrated a five year supply of deliverable housing sites.
Other Matters
97. The Flitch Way follows the route of a former railway line between Braintree and
Bishops Stortford which was opened by the Great Eastern Railway in 1869. The
track is no longer present, but its linear form remains clear and it has a visible
presence as a routeway connecting the towns. From the information before me,
I agree with the main parties that the Flitch Way would comprise a NDHA. I
consider that much of its significance derives from its intrinsic historic and
archaeological interest as a former railway line, informing an understanding of
the economic and social history of the area.
98. In terms of its setting, the appellant comments that the route of the railway
line was chosen primarily for practical reasons rather than any aesthetic
connection with its surroundings. I further note that the setting in the vicinity
of the appeal site has evolved since the railway line was built. Be that as it
may, the passage of the route through rural surroundings between built-up
areas contributes to the understanding of its historic context and function in
providing a connection between Braintree and Bishops Stortford. Insofar as it
relates to this appeal, I therefore find that the rural setting to the NDHA does
make some contribution to its significance.
99. I have already found under the second main issue that the proposal would
result in encroachment of urbanising development to the countryside. As a
consequence, the rural setting of this part of the Flitch Way would be eroded.
However, I consider that the resulting harm to the significance of the NDHA
would be very limited given that only a part of the Flitch Way’s overall
significance is derived from its setting and that the appeal site is only a very
small part of this setting.
100. Noting that the proposal would have some effect on the significance of the
Flitch Way as a NDHA, the Framework advises that a balanced judgement will
be required having regard to the scale of any harm or loss and the significance
of the heritage asset. I return to this matter in my planning balance below.
101. From the information before me, the Blackwater Estuary Special Protection
Area (‘SPA’) and Ramsar site and the Essex Estuaries Special Area of
Conservation (‘SAC’) are vulnerable to the effects of recreation. The appeal site
is located within the area from which most visitors to these sites are identified
as originating from and the development could therefore result in additional
visitors, increasing recreational pressure. This pressure, particularly when
taken in combination with other plans and projects, could lead to an adverse
effect on the integrity of the sites. In order to mitigate potential recreational
effects of development, the s106 includes a financial contribution in accordance
with the Essex Coast Recreational Disturbance Avoidance and Mitigation
Strategy (‘the RAMS’) towards a programme of strategic mitigation measures.
The Council is satisfied that the s106 would ensure adequate mitigation such
that the integrity of the SPA and Ramsar and SAC sites would not be adversely
affected and I have no firm reason to find differently.
102. Had I found the proposal to be otherwise acceptable, I would need to formally
consider the effect of the proposal on the integrity of these sites and the
potential for mitigation within the framework of an Appropriate Assessment.
However, as I am dismissing the appeal for other reasons, I have not pursued
this matter further as it could not be determinative.
103. I have had regard to representations made by interested parties which raise
additional concerns including regarding traffic levels, pressure on local
infrastructure and effects on biodiversity and neighbouring living conditions.
However, none of the matters raised alter my conclusions on the main issues
or overall planning balance.
Planning Obligation
104. I have considered the obligations within the submitted s106 in light of tests for
obligations outlined at Regulation 122(2) of the Community Infrastructure Levy
Regulations 2010 (‘the CIL Regulations’). These tests require that obligations
are 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.
105. The s106 provides that all of the proposed dwellings would be affordable and
requires a scheme to be submitted which would, amongst other things, provide
for 15 affordable rent and 59 shared ownership dwellings. This would exceed
the requirement that would apply under the terms of Policy LPP31 of the S2LP.
However, the description of development refers to 74 affordable dwellings and
the provision of 100% affordable housing is one of the considerations in favour
of the proposal advanced by the appellant to outweigh conflict with the
development plan. I have given this weight as a benefit of the proposal in the
planning balance and I therefore consider that the stipulated provisions relating
to affordable housing would be necessary to make the development acceptable
in planning terms. I am also satisfied that these obligations would be directly
related to the development, and fairly and reasonably related in scale and kind
to the development.
106. Obligations relating to the RAMS contribution would be necessary to mitigate
effects of the proposal on the Blackwater Estuary SPA and Ramsar site and the
Essex Estuaries SAC. Obligations relating to provision and management of open
space, amenity space and play areas within the site; and links between the site
and the Flitch Way and Footpath 108 would be necessary to support
sustainable travel choices, address requirements within the development plan
and to properly secure the proposals detailed in the submitted parameter
plans. Obligations relating to refuse collection would be necessary to ensure
suitable arrangements were in place to meet needs of future occupiers. Further
obligations would provide for financial contributions towards healthcare,
outdoor sport, allotments, education including early years and childcare,
libraries, highway improvements and improvements along the Flitch Way as
well as monitoring. The CIL Statement of Compliance provided by the Council,
representations by Essex County Council and Mid and South Essex NHS and the
explanation given by the Council at the Hearing offer further explanation and
justification for the contributions sought, detailing why they are necessary as a
result of the development and how they would be spent.
107. With regard to the evidence provided, I consider that all of these obligations
would be required to address the impacts of the development, and I am
satisfied that they would in each case be necessary to make the development
acceptable in planning terms, directly related to the development proposed and
fairly and reasonably related in scale and kind to it.
108. I find that each of the obligations in the s106 would comply with the tests at
Regulation 122(2) of the CIL Regulations which are reflected in the Framework
and can be given weight. I have therefore taken them into account.
Benefits of the Proposal
109. Having regard to the imperative outlined in the Framework to significantly
boost the supply of housing and my findings in this case that there is a current
shortfall in housing supply, the provision of 74 dwellings on the site is an
important benefit.
110. However, while I have found that the Council is not able to demonstrate a
5YHLS, the shortfall is very slight. Furthermore, the LP is seeking to deliver
housing 10% in excess of the level of need and although the appellant has
contested the deliverability of elements of the Council’s identified housing
supply in the short-term, there is no compelling evidence before me suggesting
that overall housing delivery across the plan period would fall short of what is
expected. Indeed, the Council’s evidence shows a significant upturn in delivery
alongside progress on the S2LP with housing completions in the last few years
exceeding targets by a healthy margin. This is borne out by the results of the
Housing Delivery Test which show recent delivery has been significantly above
requirements.
111. Even if I were to have found the housing supply position to be as low as the
4.2 years argued by the appellant, it seems to me having regard to this context
that there would be a strong possibility of the position improving in the
short-term. Furthermore, as the Black Notley Appeal Inspector noted, the
Council will not need to show a five-year housing land supply for applications
made after the publication of the revised Framework on 19 December 2023.
112. I consider these to be moderating factors so that overall, I afford significant
weight to the benefit of housing delivery.
113. The proposed dwellings would also contribute to the supply of affordable
housing. The evidence before me shows that delivery of affordable housing
over the LP period has been some way below the level of identified need and
the appellant further highlights Housing Register data suggesting a significant
number of households in need of affordable housing. Rates of affordable
housing delivery have increased in recent years since the S2LP was found
sound and the Council referred at the Hearing to preliminary figures indicating
delivery of around twice the level of annual need in 2023/24. Even so, there
would remain a cumulative shortfall in provision against targets since the start
of the plan period, albeit fairly modest and reducing.
114. The provision of 100% affordable housing on the site would be significantly
above what would be required by the LP and even if future development on
allocated sites meets policy requirements as the Council anticipates, this
provision would contribute to addressing the historic shortfall. I therefore
consider the provision of affordable housing to be an important benefit of the
proposal. However, I note that a scheme proposing 100% affordable dwellings
without grant funding would be unusual. The appellant advised that discussions
with the landowners have been on the basis of a 100% affordable scheme and
I would reasonably expect this to influence land value. The signatories to the
s106 in this case also include a Registered Provider and I have no firm reason
to doubt their commitment to the scheme. Be that as it may, the Council’s
viability consultant comments that their experience is that the price a
Registered Provider is able to pay for a shared ownership dwelling will usually
cover no more than build costs, and offers for affordable rent properties often
will not cover the full build costs. Such terms would not cover any land value
and in the absence of substantive evidence to demonstrate viability, raise some
question in my mind over realistic prospects for delivery. Balancing these
factors, I afford significant weight to the benefit of affordable housing.
115. There would be economic and social benefits associated with the proposal, both
during construction as well as spending and support for local services by future
occupiers. I give these benefits moderate weight noting that they would be
fairly limited on account of the scale of the development and that employment
opportunities would further be largely temporary during construction.
116. The proposal includes a biodiversity net gain of at least 10%. The appellant
suggested that this would attract limited weight, but I afford moderate weight
given that legislative requirement for gains at this level would not apply to the
appeal scheme. Conversely, I acknowledge the appellant’s intention for
landscaping on the site to be multifunctional, but landscaping is a reserved
matter and so full details of provision are currently unclear. Moreover, the
landscaping buffer to the Flitch Way would in large part be required to mitigate
the effects of the development. I therefore give limited weight to landscaping
as a benefit.
117. Through the s106, there would be financial contributions towards social and
physical infrastructure. These contributions would be necessary to mitigate the
effects of the development proposed. Insofar as they could support
improvements that would be available to the existing and future community
locally there would be some benefit, but I consider this would be minor and
carries limited weight.
118. Both main parties give moderate weight to location and accessibility of the
proposal and I concur with this assessment. However, the connection to the
Flitch Way supporting opportunities for walking and cycling is in my view part
of the accessibility of the site and I am not persuaded that promoting active
travel should attract weight as a separate benefit.
Planning Balance
119. I have identified that there would be harm to the significance of the Flitch Way
as a NDHA, although I have found that this would be very limited. I further
note the Council does not consider that harm to the NDHA would have been so
significant as to constitute a reason for refusal and has not identified conflict
with the development plan in this respect. Taking a balanced judgement, I
consider that the range of benefits of the proposal noted above would clearly
outweigh the very limited harm that would be caused to the significance of the
Flitch Way as a NDHA.
120. However, I have also found that the proposal would be contrary to the overall
spatial strategy for growth so that it would not be in a suitable location and
there would be conflict with Policy LPP 1 of the S2LP. The conflict with the
planned strategy for growth weighs significantly against the appeal.
121. I have identified concerns about living conditions for future occupiers of the site
and the distribution of parking indicated within the submission. It is open to the
appellant to take on board these concerns as part of any subsequent proposal,
but these matters have not been determinative given the illustrative status of
the plans. However, I have found that there would be unacceptable harm to
the character and appearance of the area. While this harm would be localised,
the proposal would detract notably from the experience of receptors using the
Flitch Way in particular and I afford it significant weight.
122. Overall, I have identified conflict with a number of policies of the LP and given
the range and importance of the matters raised, I consider that the proposal
would conflict with the development plan when it is read as a whole.
123. Notwithstanding that the shortfall is marginal, my finding that the Council is
unable to demonstrate a 5YHLS means that paragraph 11d of the Framework is
relevant. In this case, permission should be granted unless 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.
124. The 5YHLS position also indicates that the spatial strategy and development
boundaries under S2LP Policy LPP 1 are not meeting current housing
requirements. However, for the reasons above, this is likely to be a short-term
situation. There is also no argument before me that the spatial strategy would
otherwise be inconsistent with the Framework which sets out that the planning
system should be genuinely plan-led. In this context, the location of the proposal
contrary to the spatial strategy would still weigh against the development.
125. Moreover, the proposal would be contrary to the Framework insofar as it seeks,
amongst other things, recognition of the intrinsic character and beauty of the
countryside and developments that function well and add to the overall quality
of the area and that are visually attractive and are sympathetic to local
character including the surrounding built environment and landscape setting. I
consider that these adverse effects of the proposal in these respects would be
considerable.
126. I have carefully considered the benefits of the proposal noted above, and I am
particularly mindful of the provision of housing and affordable housing as
significant benefits. However, even setting aside any harm from the location of
the development, the adverse impacts of the proposal would in my judgement
significantly and demonstrably outweigh the benefits when assessed against
the policies in the Framework taken as a whole. The proposal would not
therefore benefit from the presumption in favour of sustainable development
within the Framework. Neither do I find that there are material considerations
which, applying section 38(6) of the Planning and Compulsory Purchase Act
2004 would be sufficient to justify a decision otherwise than in accordance with
the development plan.
Conclusion
127. For the reasons given above, I find that the proposal would conflict with the
development plan when it is read as a whole, and material considerations
including the Framework do not indicate that a decision contrary to the
development plan should be reached. I therefore conclude that the appeal
should be dismissed.
J Bowyer
INSPECTOR
APPEARANCES
FOR THE APPELLANT:
Matthew Dale-Harris Barrister, Landmark Chambers
Rory Baker Ceres Property
Craig Crowley Home Group
Christian Gilham LRW
Wayne Gold Goldev
Vanessa Ross Arc
Tom Rumble Woolf Bond
Joel Waugh Conisbee
FOR THE LOCAL PLANNING AUTHORITY:
Robert Williams Barrister, Cornerstone Barristers
Bobby Browne Wynne Williams Associates
Kathy Carpenter Braintree District Council
Neil Jones Braintree District Council
Joanna Lilliott Holmes & Hills
INTERESTED PARTIES:
Mike Eldred Chair, Rayne Parish Council
Sandra Reynolds Friends of Flitch Way
DOCUMENTS SUBMITTED DURING AND AFTER THE HEARING
HD1 Updated Habitat Regulation Assessment Record, submitted by the Council.
HD2 Speaking notes, submitted by Sandra Reynolds.
HD3 Welcome to the Flitch Way Leaflet, submitted by Sandra Reynolds.
HD4 Braintree District Local Plan 2022 and Proposal Maps, submitted by the
Council.
HD5 Essex County Council Parking Standards Design and Good Practice 2009,
submitted by the Council.
HD6 Essex Design Guide 2005, submitted by the Council.
HD7 Email containing Council Fees and Charges Table and minutes of Cabinet
meeting in February 2021 approving the proposed charges, submitted by
the Council.
HD8 Heritage Statement on the Flitch Way, submitted by the appellant.
HD9 Letter of 7 May 2024 in response to HD8, submitted by the Council.