Case Reference: 3341618

Appeal Decision
Hearing held on 1 August 2024
Site visit made on 1 August 2024
by C Shearing BA (Hons) MA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 18 September 2024
Appeal Ref: APP/Z1510/W/24/3341618
Halstead Hall, Braintree Road, Halstead CO9 1SL
• The appeal is made under section 78 of the Town and Country Planning Act 1990 (as
amended) against a failure to give notice within the prescribed period of a decision on
an application for outline planning permission.
• The appeal is made by Mr R Catchpole of [APPELLANT] against Braintree
District Council.
• The application Ref is 22/03366/OUT.
• The development proposed is described as ‘outline application for the erection of 34
dwellings (including 24 market units and 10 social affordable units) with permission
sought for access and layout’.
Decision
1. The appeal is dismissed and planning permission is refused.
Application for Costs
2. An application for costs was made by Mr R Catchpole of [APPELLANT] against Braintree District Council. This application is the subject of a
separate decision.
Preliminary Matters
3. The address in the banner heading above is taken from the appeal form, since
this more accurately describes the site’s location. The description of
development reflects that which was agreed between the Council and the
appellant during the course of the planning application.
4. The proposal seeks outline permission, with details of access and layout
submitted for consideration. I have determined the appeal on this basis and
have treated any plans in relation to matters of appearance, landscaping and
scale as indicative. The appellant agreed in the hearing that the layout plan,
reference 1544-PH2-001 Ref F, should not be treated as indicative.
5. Shortly after the appeal hearing, the appellant submitted a legal agreement
under the provisions of section 106 of the Town and Country Planning Act,
dated 1 August 2024 (the S106). This has been taken into account in the
determination of the appeal.
6. On 30 July 2024 the Government published a consultation on proposed reforms
to the National Planning Policy Framework (the Framework) and other changes
to the planning system. Both main parties have been invited to comment on
this change and the responses received have been taken into account.
References to the Framework in this decision are to the version published
December 2023 unless stated otherwise.
Main Issues
7. Based on the evidence, the main issues are:
- Whether the proposal would be in a suitable location with regard to the
spatial strategy for the area;
- The effect of the proposal on the character and appearance of the area, with
particular regard to a) landscape impacts b) trees, and c) design;
- Effects on ecology, and;
- Whether the proposal would provide acceptable living conditions for future
occupants, with particular regard to noise from the A131, outlook and
quality of outdoor space.
Reasons
Location for Housing
8. The Braintree District Local Plan comprises two parts. These are the North
Essex Authorities Shared Strategic Section 1 Plan adopted 2021 (the LPS1) and
the Braintree District Local Plan Section 2 adopted 2022 (the BLP).
9. Policy SP3 of the LPS1 contains 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. The BLP includes a spatial strategy
specifically for Braintree District and includes development boundaries. It sets
out that these boundaries are intended to provide a guide to where new growth
should be directed and mark the existing built form of a town or village and
provide the distinction between a built up area and its surrounding countryside.
10. Policy LPP1 of the BLP sets out that development outside development
boundaries will be confined to uses appropriate to the countryside whilst also
protecting and enhancing valued landscapes, sites of biodiversity or geological
value and soils to protect the intrinsic character and beauty of the countryside.
While Halstead is recognised as being among the largest urban areas in the
District, the proposed houses would be located outside the defined
development boundary. Over time, nearby approved developments may result
in a shift to the perception of the settlement boundary. However, it remains the
case that the appeal site lies outside the defined boundary and in the
countryside for the purposes of the BLP. The proposed residential development
is not considered to comprise a use appropriate to the countryside and would
conflict with Policy LPP1.
11. The inter-play between policies SP3 and LPP1 has been discussed in other
appeal decisions evidenced1 since the BLP adopts a more restrictive approach
to development outside settlement boundaries. Those decisions find that the
two policy documents should be read together, and the BLP contains a spatial
strategy specific to the District. I have no strong reason to reach a different
view and the approach in the LPS1 would not alter the non-compliance with
LPP1.
1 APP/Z1510/W/23/3325050 and APP/Z1510/W/24/3338229
12. The Council acknowledge that the site is well connected to the existing
settlement and offers good access to sustainable transport options and to the
services and facilities available in Halstead. For these reasons the proposal
would comply with BLP Policy LPP42 which refers to sustainable transport.
However, given the conflict with Policy LPP1, the proposal would not be in a
suitable location for housing having regard to the overall spatial strategy for
growth.
Character and Appearance - Landscape Effects
13. The area has been subject to consideration by several landscape assessments,
including the Braintree Landscape Character Assessment (LCA) which defines
the area as the Gosfield Wooded Farmland. The Council’s assessment accepts
that there is not a clear and irrefutable case for the area to be attributed the
status of a ‘valued landscape’ for the purposes of the Framework. Nonetheless,
I agree that it should be regarded as a landscape with something of an
elevated value and a grading of medium/high value as a base line for its
appraisal.
14. The appeal site itself comprises land parcels forming part of the spread of the
former wooded parkland estate of Attwoods Manor and which now include parts
of the grounds of Halstead Hall care home. The site lies to the south-west edge
of Halstead and adjoins other residential developments on the opposite side of
the A1312 as well as sites with extant planning permissions to the north3 and
on the far side of Halstead Hall to the south4. At present, the verdant character
of the site contributes positively to the transition of the town to the open
countryside and woodland beyond. However, it is acknowledged that the
surrounding developments will very likely extend the perceived edge of the
settlement along the A131 to some degree.
15. The parcel of land at the north-western side of the site has a distinctly rural
and tranquil character, derived from its expanse of open grassland and
surrounding tree belts. The northern boundary comprises more sporadically
positioned trees which, together with its elevated position, allow views into the
site from the adjacent open land and from longer views across the River Colne
valley beyond.
16. The proposed development on this north-western parcel would extend notably
beyond the area of development approved on the sites to the north and south
of Halstead Hall. This would breach what would otherwise be a well-defined
edge of the settlement and the edge of Halstead would be seen as climbing into
its wooded backdrop, bringing a degree of erosion to its character as a
settlement held within the valley.
17. These effects would be apparent to those using the footpath which runs further
to the north and users of the adjacent land, which will serve as accessible open
space should the neighbouring permission be implemented. Given the distances
involved and the locations of the proposed houses relative to the site
boundaries, the effect on those visual receptors would be of a moderate
adverse nature. The effects described above to the settlement edge may also
be perceived in longer views from the north, although given the distances
2 14/01580/PUT
3 20/01493/OUT
4 21/02449/FUL
involved and relatively small component of the view that would be affected, the
effects would be limited to a low level adverse effect.
18. The development approved by earlier planning permissions in 1994 and 1997
on the appeal site was limited to structures to the southern part of this parcel
of land and these were primarily low level structures. As such, they
represented a very limited intrusion into this part of the site and their
landscape effects would have been substantially different to those of this
appeal scheme.
19. The parties agree that the effects of the development on the north-west parcel
could be mitigated by landscaping after a period of 15 years. I have no strong
reason to reach a different view and this could reasonably be achieved given
the set back of housing from the northern boundary. However, until such
maturity of the landscaping were achieved, there would be a degree of harm to
the landscape setting as set out above. This harm would, however, be for a
limited period and with fairly limited visibility.
20. In conclusion on this main issue, the proposal would cause a degree of harm to
the landscape character, albeit at the lower end of the scale. The proposal
would conflict with Policy LPP67 of the BLP and the Framework which require
account to be had for the intrinsic character and beauty of the countryside and
to ensure that development is suitable for local context.
Character and Appearance - Trees
21. The appellant accepts that there are trees of possible veteran status on the
site. Veteran trees are defined by Natural England and Forestry Commission
standing advice as irreplaceable, having exceptional biodiversity, cultural and
heritage value. The Framework is clear that development resulting in the loss
or deterioration of irreplaceable habitats, which include veteran trees, should
be refused, unless there are wholly exceptional reasons and a suitable
compensation strategy exists.
22. The potential veteran trees are four oak trees labelled T234, T231, T299 and
T217. The appellant’s tree survey identifies three of those trees as category A
trees and one as a category B, and all having either good or average form,
shape and condition and life expectancies exceeding 40 years. These are
attractive trees which make a significant and positive contribution to the visual
amenity of the site. There is not substantive evidence to suggest that they
should not be considered as potential veteran trees or that they result in health
and safety concerns on the site.
23. All four of those potential veteran trees would experience encroachment into
their root protection areas (RPAs) as a result of access roads and parking
spaces forming part of the development. In the case of trees T217 and T231
the encroachments would be significant. The effects of such works within the
RPA could include damage to the tree, its understorey and roots, as well as
damage to its soil including through compaction, changes to drainage and
increasing levels of air pollution, noise and vibration.
24. The British Standard5 acknowledges that technical solutions might be available
to install hard surfacing within an RPA where it is unavoidable. However, it
makes clear that this advice does not apply to veteran trees, where it
5 BS 5837:2012
recommends that no construction, including the installation of new hard
surfacing, occurs within the RPA. The standing advice of Natural England and
the Forestry Commission goes further and recommends inclusion of an
appropriate buffer zone for veteran trees. On this basis I cannot be satisfied
that the proposed methods, including minimised digging, would be effective in
preventing any deterioration of those trees.
25. Therefore, in the absence of evidence to the contrary, the proposal would
cause the deterioration of those potential veteran trees. There is not
substantive evidence of either wholly exceptional reasons or a suitable
compensation strategy for the deterioration of those trees, as set out in the
Framework. It would not be appropriate for these details to be the subject of a
condition given I am not satisfied that an acceptable solution exists which
would resolve these concerns.
26. The British Standard is now of some age and there is other guidance elsewhere
surrounding this matter. However, there is not substantive evidence which
would lead me to find the relevant British Standard to be out of date and BLP
Policy LPP65 refers specifically to the need to consider it as best practice. The
appellant’s specialist also reports substantial experience of dealing with similar
matters elsewhere where trees have successfully been retained using the no-
dig method. However, I cannot be satisfied that those circumstances were the
same as those before me.
27. In addition to the potential veteran trees, the proposal would entail works
within the RPAs of a number of other trees across the site primarily from the
laying of new roads and parking areas. These affected trees are of varying
quality, but include a number of good quality category A trees which together
contribute to the overall verdant character of the site. The British Standard
states that the default position should be that structures, including paths and
carriageways, are located outside the RPAs of trees to be retained, but gives
provisions which should be followed where there is an overriding justification
for it.
28. It has not been adequately demonstrated that there is an overriding
justification for the works within those RPAs, nor that the subsequent
recommendations in the British Standards, relating to compensatory areas and
mitigation measures, would be adopted. The appellant has detailed methods
and working practices intended to protect root systems in RPAs, including a
reduced-dig method and permeable hard surfacing options. Nonetheless it has
not been adequately demonstrated that the sequential steps of the British
Standard have been followed. The proposal could therefore cause deterioration
of a significant number of quality trees on the site, undermining its verdant
qualities and contributing to the landscape harm set out above.
29. In addition, the proposal would see the removal of a substantial number of
other trees of varying quality across the site which together also contribute to
its character. As above, replacement landscaping could be secured, and there
would be ample open space across the site to place and maintain new trees.
However, this would inevitably take time to become established and to make a
comparable contribution to the existing. As such, the substantial removal of
trees on the site, together with the potential damage to those retained arising
from RPA encroachments, would contribute to the landscape harms arising
from the proposal.
30. In conclusion on this main issue of trees, the proposal would result in the loss,
and potential damage to a number of trees which together make a significant
positive contribution to the character and appearance of their surroundings.
This conflicts with Policy LPP52 of the BLP insofar as it relates to conservation
and enhancement of local features of landscape importance and LPP65 which
states that such trees will be retained unless there is good arboricultural reason
for their removal or they are dangerous or in poor condition. There is also
conflict with the Framework where it states that existing trees should be
maintained wherever possible and that decisions should recognise the intrinsic
character and beauty of the countryside.
31. The effects on the potential veteran trees as deterioration of irreplaceable
habitats would also be contrary to Policy LPP52 above, as well as the
Framework which states that such development should be refused, unless there
are wholly exceptional reasons and a suitable compensation strategy exists.
32. Policy LPP64 of the BLP requires proposals resulting in the deterioration of
veteran trees to be considered against the need for, and benefits of the
development in that location. The benefits of the scheme are discussed in
greater detail below and include the provision of new housing including
affordable homes, as well as economic benefits arising from the construction
process and local spending by future occupants. Even if there is a significant
need for housing to the extent suggested by the appellant, the benefits of the
proposal would not outweigh the harm to the potential veteran trees as set out,
which would be significant and long lasting. Therefore, the proposal would also
be in conflict with Policy LPP64.
Character and Appearance - Design
33. A degree of suburbanisation would occur as a result of the residential
development of the site. The proposed layout includes attributes which differ
from the surrounding patterns of development, including blocks of flats and a
looped road to the northwestern part of the site. Despite this, the wider area
displays a mix of housing typologies and layouts, and the site would have an
edge of settlement location and form part of the transition into the woodland
beyond. For these reasons I do not find the deviation from surrounding
development layouts would necessarily cause visual harm.
34. The proposed car parking areas, particularly that proposed to the north of the
care home, would be substantial, and could appear as visually prominent
features close to the entrance of the development. However, their prominence
could reasonably be reduced through their detailed design including integral
landscaping and surface treatments. The design of the nearest houses and
flats, and location of their windows, would also help to inform the extent of
natural surveillance.
35. As the proposal is in outline only, details of appearance, scale and landscaping
would fall to be considered at a later date and I see no reason why many of the
Council’s concerns could not reasonably be addressed at that stage, including
boundary treatments, treatment of private spaces and bin stores. The
appearance and architecture of the buildings are also not for consideration at
this stage.
36. In conclusion on the matter of design, the proposal at this stage would be
acceptable and the layout would not contribute to the landscape harm
identified above. Insofar as the site layout is concerned and notwithstanding
the concerns relating to trees above, the proposal would comply with Policy
LPP52 of the BLP and SP7 of the LPS1 which require, among other things,
developments to respond positively to their context.
Ecology
37. The appellant’s Preliminary Ecological Assessment acknowledges the site to
contain suitable habitat features for amphibians including Great Crested Newts
(GCNs) and I understand they are present in one of the ponds on the site.
GCNs are designated and protected as European protected species and
protected under the Conservation of Habitats and Species Regulations 2017.
38. The appellant has previously engaged with Natural England to enter into the
District Level Licensing scheme (DLL). However, there is no evidence to
demonstrate that a licence has been secured or that it would be granted. This
is necessary to confirm that the scheme is suitable for DLL, meets the
favourable conservation status test and secures adequate compensation for
any impact. While I appreciate the challenges which the appellant has faced in
attempting to enter into the DLL, there is nonetheless inadequate certainty that
appropriate mitigation would be delivered by these means.
39. Alternatively, a traditional licensing route could be undertaken by carrying out
further population surveys of GCNs which would be necessary to confirm the
extent of mitigation required and to secure the license. As GCNs have been
found to be present on the site, such surveys would be necessary prior to the
grant of any planning permission so that the extent of effects and mitigation
required can be established. Given the outstanding matters in respect of this
alternative licensing route, there is similarly uncertainty as to the effects on
GCNs and whether appropriate mitigation can be secured.
40. While numbers of GCNs on the site may be low, and limited to areas
surrounding the concrete ponds, in the absence of appropriate mitigation, the
proposal could cause significant harm to populations of GCNs on the site. I
have considered whether this matter could otherwise be dealt with by the
imposition of a planning condition. While the Council have provided the wording
for such a condition, which would require the later submission of a mitigation
licence, it was made clear at the hearing that it does not accept the principle of
this route. For the reasons given above, there is not sufficient certainty to
demonstrate that such a condition would be achievable or reasonable. Neither
would a condition requiring further GCN surveys be reasonable given the need
to consider the full extent of impacts of the proposal on GCNs before planning
permission is granted. Exceptional circumstances for this approach as described
in Planning Practice Guidance, are also not apparent here.
41. With regard to bats, tree T215 has been identified as having moderate
potential for bat roosts. Despite some safety concerns for that tree, it does not
necessarily require removal to facilitate the proposed development. Based on
the evidence, it is very likely that a reasonable solution exists as set out by the
Council and which could be agreed between the parties if the scheme were
otherwise acceptable. Consequently, there would be adequate certainty of the
likely impacts on bat species.
42. Additional clarification has been provided in respect of reptile mitigation and it
is accepted that a suitable solution exists involving relocation to a receptor site.
As such, the Council accept that a condition could reasonably address the
outstanding matters and I have no strong reason to reach a different view,
given the certainty which now exists surrounding this matter.
43. I understand there is no local policy requirement for biodiversity net gain, and
the application pre-dated the mandatory requirement. A net loss for
biodiversity is reported on the site and the appellant has agreed to a form of
mitigation for which conditions are recommended. I have no reason to believe
that those would not secure appropriate measures.
44. In conclusion on this main issue, and in the absence of evidence to the
contrary, the proposal would be likely to cause harm to GCNs. The proposal
would conflict with Policy LPP64 of the BLP which requires an adequate
mitigation plan to ensure no harm to protected species where there is a
confirmed presence on the site. It would also conflict with the Framework
insofar as it relates to the protection of sites of biodiversity and that, if
significant harm to biodiversity resulting from a development cannot be
avoided, adequately mitigated or, as a last resort, compensated for, then
planning permission should be refused.
45. The Council accept that BLP Policy LPP23, listed in the putative reason for
refusal, is not applicable here since it relates to a site allocation elsewhere.
Living Conditions
46. The Council accepted in the hearing that the appellant’s noise report
adequately demonstrates that the effects of road noise on the new houses
would be acceptable, subject to the imposition of a relevant condition. I have
no reason to reach a different view and the proposal would be acceptable in
this respect.
47. Several of the proposed private gardens would be north facing and bound in
part by trees and hedgerows. However, given the overall size of those gardens
they would provide a good quality of outdoor space for their future occupiers
with an acceptable degree of outlook and natural lighting. The appellant has
provided clarifications following concerns for oversized units and the scale of
the houses, and their design, would be subject to consideration at the reserved
matters stage if the proposal were otherwise acceptable.
48. In conclusion on this main issue, the proposal would provide an acceptable
standard of accommodation for its future occupiers, compliant with Policy
LPP52 of the BLP and the Framework insofar as they require high standards of
accommodation and healthy living conditions.
Other Matters
49. The S106 would deliver planning obligations including affordable homes as well
as financial contributions to mitigate the effects of the proposal on education,
libraries, healthcare and Habitat Sites. It also provides certainty in respect of
arrangements for management of open space and access. The absence of such
a legal agreement was one of the Council’s putative reasons for refusal.
However, given the appeal is being dismissed for other reasons it is not
necessary to consider this matter in any further detail since the outcome of any
assessment would not change the decision.
50. The S106 includes mitigation for the effects of the proposal on the Hamford
Water, Colne Estuary, Stour and Orwell Estuaries, Blackwater Estuary and
Dengie and Essex Estuaries Habitat Sites. However, Regulation 63(1) of the
Habitats Regulations6 indicates the requirement for an Appropriate Assessment
is only necessary where the competent authority is minded to give consent for
the proposal. As the appeal is being dismissed on other grounds, it is not
therefore necessary to address this in any further detail.
Planning Balance
51. There is dispute between the main parties as to whether the Council can
demonstrate a five year land supply for housing. If it were not able to
demonstrate such a supply, then paragraph 11d) of the Framework would be
relevant to the appeal. However, even if this were the case, the application of
policies in the Framework that protect irreplaceable habitats provide a clear
reason for refusing the development proposed. The proposal would not,
therefore, benefit from the presumption in favour of sustainable development
set out in the Framework. This conclusion is consistent with Policy SP1 of the
LPS1, which requires an approach which reflects the presumption in favour of
sustainable development set out in the Framework. As a conclusion on the
Council’s housing land supply would not therefore change the outcome of the
appeal in any event, I have not considered this matter in further detail.
52. The delivery of housing would, nonetheless, still weigh in favour of the
proposed development and would support the government’s objective to boost
the supply of homes. This would include affordable housing including 7
affordable rent and 3 shared ownership homes, and be located on the edge of
an existing settlement with good accessibility to services and facilities including
public transport links. The Framework acknowledges that medium sized sites
can make an important contribution to meeting the housing requirement of an
area, and are often built out relatively quickly. There would also be economic
benefits arising from the construction process and from ongoing expenditure
into the local economy by future occupants. Even if the Council’s housing land
supply were as low as alleged by the appellant, and even if the site in its
entirety were previously developed land, only moderate weight can be given to
these benefits as a whole, given the scale of the development.
53. The appellant refers to off site biodiversity enhancements, however it is not
clear what this would entail or whether it would provide a net benefit when
considered against the loss of biodiversity which would occur on the site. There
is also reference to the proposal helping to fund the creation of a dementia unit
on the neighbouring site, however there is similarly not sufficient evidence to
conclude this would definitely be the case if the appeal were allowed. Based on
the evidence, these matters do not therefore attract weight in favour of the
development. Where the development has been found to be policy compliant in
other respects, these are neutral matters that similarly do not add weight in
favour of the scheme.
54. The proposal would cause harm to potential veteran trees as irreplaceable
habitats and to protected species, which would be significant and long lasting
and would be in conflict with the development plan and the Framework, and I
ascribe those harms very substantial weight. Harm has also been found
through conflict with the Council’s spatial strategy and landscape harms.
However, I give these harms moderate weight, given the sustainable attributes
6 The Conservation of Habitats and Species Regulations 2017 as amended
of the site’s location on the edge of the settlement, and as the landscape harm
could be mitigated after a period of time.
55. For these reasons, the benefits of the proposal would not amount to material
considerations of sufficient weight to outweigh the conflict with the
development plan as a whole.
56. The Written Ministerial Statement and consultation Framework of 30 July 2024
accentuate the need for housing and the use of previously developed land.
However, even if additional weight were to be given to the benefit of the
delivery of new housing and affordable homes, it would nonetheless remain the
case that the benefits of the proposal would not outweigh the conflicts with the
development plan and the Framework set out.
Conclusion
57. The proposal would conflict with the development plan as a whole and there
are no other considerations, including the provisions of the Framework, which
outweigh this finding. Therefore, for the reasons given, the appeal is dismissed
and planning permission refused.
C Shearing
INSPECTOR
APPEARANCES
FOR THE APPELLANT:
Rowan Clapp Cornerstone Barristers
Paul Munson Planning Consultant for Melville Dunbar Associates
Melville Dunbar Architect, Melville Dunbar Associates
Harry Bennett Lichfields
Andrew May Ecologist, ACJ Ecology
Paul Allen Arboricultural Consultant, EnviroArb Solutions Ltd
Roger Catchpole Stow Healthcare Ltd
FOR THE COUNCIL:
Ben de Feu Cornerstone Barristers
Melanie Corbishley Senior Planning Officer, Braintree District Council
Lee Smith-Evans Urban Design Consultant, Braintree District Council
Hamish Jackson Senior Ecological Consultant, Braintree District Council
James Remington Tree and Landscape Officer, Braintree District Council
Kathy Carpenter Senior Planning Officer, Braintree District Council
DOCUMENTS SUBMITTED AFTER THE HEARING
- Responses from the Council and the appellant regarding the Written
Ministerial Statement and consultation on the National Planning Policy
Framework, both submitted 8 August 2024
- S106 Agreement, submitted 5 August 2024
- Addition to the appellant’s costs application, submitted 1 August 2024
- Council’s response to the costs application, submitted 5 August 2024
- Appellant’s response to the Council’s response to the costs application,
submitted 8 August 2024


Costs Decision
Hearing held on 1 August 2024
Site visit made on 1 August 2024
by C Shearing BA (Hons) MA MRTPI
an Inspector appointed by the Secretary of State
Decision date: 18 September 2024
Costs application in relation to Appeal Ref: APP/Z1510/W/24/3341618
Halstead Hall, Braintree Road, Halstead CO9 1SL
• The application is made under the Town and Country Planning Act 1990, sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
• The application is made by Mr R Catchpole of [APPELLANT] for a full or
partial award of costs against Braintree District Council.
• The appeal was against the failure of the Council to issue a notice of their decision
within the prescribed period on an application for outline planning permission for
development described as ‘outline application for the erection of 34 dwellings (including
24 market units and 10 social affordable units) with permission sought for access and
layout’.
Decision
1. The application for costs is refused.
Reasons
2. Parties in planning appeals normally meet their own expenses. However, the
Planning Practice Guidance (PPG) advises that costs may be awarded against a
party who has behaved unreasonably and thereby caused the party applying
for costs to incur unnecessary or wasted expense in the appeal process.
3. The applicant has put forward two scenarios for the costs application. The first
being an application for full costs on a procedural basis and, alternatively, a
partial award of costs on a substantive basis arising from the imposition of two
of the putative reasons for refusal. These shall be discussed in turn.
4. The outline planning application which was the subject of the appeal
experienced significant delays during its determination, having been set an
original target date for determination of 21 March 2023 and most recently
extended with the applicant’s agreement to 2 October 2023. The applicant has
demonstrated that multiple attempts were made to engage with the Council
during the application period with little or no response. Correspondence from
the Council referred to intended Committee dates, although these dates
subsequently came and went, leaving the applicant feeling no other option was
available but to appeal against non-determination.
5. The applicant did not receive explanation for these delays and the Council’s
conduct was heavily at odds with the spirit of the PPG which makes clear that
the local planning authority should give a proper explanation where they will
fail to determine an application within the time limits. Neither is it apparent
that the acceptance of revised drawings and documents, nor the need for
specialist advice, would necessitate such a significant delay.
https://www.gov.uk/planning-inspectorate - Costs Decision APP/Z1510/W/24/3341618 1
6. The PPG acknowledges that a lack of co-operation and failure to adhere to
deadlines fall among those examples of unreasonable behaviour which may
result in an award of costs. Given the circumstances described above, the
Council displayed unreasonable behaviour during the course of the planning
application.
7. The applicant was not aware of the Council’s concerns prior to the appeal being
lodged. However, given the nature of the putative reasons for refusal, it is not
apparent that they were capable of being adequately addressed before the
application was determined, even if the Council had communicated them
sooner. It is not apparent, therefore, that the appeal could have been avoided
altogether.
8. The costs incurred by the applicant by lodging the appeal included hiring
professional consultants to represent their case. Nonetheless, these consultants
would have needed to engage in the process anyway to address the Council’s
concerns, regardless of the appeal. The decision by the applicant to engage
additional support for the appeal process is not considered to be unreasonable
expense which arose from the Council’s behaviour.
9. Turning to the substantive issues, the applicant alleges that two of the putative
reasons for refusal could have been dealt with by condition. This concern
relates to those reasons 3 and 4 given by the Council, which refer to effects on
ecology and the need for a legal agreement to secure planning obligations.
10. In respect of ecology issues, the Council were clear in the hearing that, while
conditions had been drafted on this matter, it did not support the principle of
this approach and remained of the view that the information required should be
provided prior to the grant of any planning permission. The Council
substantiated this approach and, for this reason, it is not apparent that the
third reason for refusal was one which was necessarily capable of being dealt
with by condition.
11. The fourth reason for refusal relates to the need for a legal agreement to
secure planning obligations. The Council provided evidence during the course of
the appeal to substantiate those requests including reference to development
plan policies and supplementary planning documents. Based on the evidence,
the Council did not have such a legal agreement during the application process
which would have avoided the need for it to form a reason for refusal. Neither
is it apparent that this matter was capable of being dealt with by a planning
condition, given the advice contained in the PPG surrounding the use of
conditions for this purpose.
Conclusion
12. For the reasons given, while the Council’s behaviour during the course of the
planning application was unreasonable, for the reasons given this has not
caused the applicant to incur unnecessary or wasted expense in the appeal
process, as set out in the PPG. The application for costs is therefore refused.
C Shearing
INSPECTOR