Update:

All submissions (all objections) on the removal and diversion of the footpaths across the field next to Oak Gardens have now been made and this  part of the process is closed. The inspector will shortly visit the site.  (S)he will not talk to you about the appeal! But we will hear the result soon afterwards.

 

This is the submission  I made  to Cheshire East in  objection to their order to divert footpath 14 and extinguish the Unrecorded Footpath that crosses the land off Oak Gardens. This Order is now going to appeal and those of you that put in objections and have not withdrawn them will have been notified of the procedure. Others can still put in objections in writing to :

Jean McEntee, 3G Hawk, Temple Quay House, Bristol, BS1 6PN

Email:jean.mcentee@pins.gsi.gov.uk

Reference all communications: ROW/3187612
Footpath Orders relating to planning application 16/2010N

From:

Peter Gorman

 

I would like to object to the above path orders on the following grounds:

1. The orders do not satisfy the criteria under section 257 of the Town and Country Planning Act 1990 that: ‘Subject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath [F2, bridleway or restricted byway] if they are satisfied that it is necessary to do so in order to enable development to be carried out— (a) in accordance with planning permission granted under Part III [ section 293A] , or (b) by a government department.’ Since only outline planning has been granted with all matters other than access reserved, such as housing type, design and layout then15 dwellings could be provided on this site without diversion or extinguishment of the footpaths, using different housing type and layout.

2. It would be pre-emptive to lose and alter these rights of way before full planning permission hasbeen granted on this site, because there are a number of conditions that need to be met before development can commence and these could prevent development taking place or plans to be altered compared to the illustrative plans submitted.

3. The proposed alternate route is damaging to biodiversity and contrary to duties under section 40 of the Natural Environment and Rural Communities Act 2006.

4. The Statement of Reasons states: ‘An assessment of the proposal has been carried out by the Borough Council’s Nature Conservation Officer and he has no objection to the proposals.’ However, having spoken to him he was not explicitly aware of the path order details until I drew them to his attention and now has recommendations to make.

5. Planning permission has been granted by considering the Neighbourhood Plan as out of date, since Cheshire East could not agree a 5 year housing supply, however, the Neighbourhood Plan was not out of date according to the recent ministerial statement and Cheshire East has now a Local Plan and 5 year housing Plan so it and the Neighbourhood Plan should be given more weight when deciding reserved matters, which is likely to change the design.

6. If the National Planning Policy Framework (NPPF) is to be considered then the loss of amenity value of these footpaths, particularly in the context of enjoyment of the countryside, should be considered along with loss of historic village character, loss of biodiversity, potential damage to protected species and the lack of sustainability of the proposed site, being in open countryside in an area with very limited public transport and no mains’ gas, as damage to noted interests which outweigh any presumption in favour of development. So in relation to carrying out the footpath orders and the illustrative plan the ‘adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in this Framework taken as a whole’ contrary to the NPPF.

Background

I live next to the field in question, across which the paths are designated. I have enjoyed using the three footpaths that cross the site of planning application 16/2010N, Bunbury FP14, Bunbury FP15 and the claimed diagonal path subject of a Definitive Map Modification Order Application, for nearly 3 years, because of the lovely views of open countryside, mature woodland, an ancient ash tree and associate wildlife, including many protected species. I see the frequent use of these footpaths were, by many people including, dog walkers, children using them as safe walking routes to and from school, rambling groups, locals and visitors.

The diagonal claimed path over the open field is the historic link between Bunbury and Spurstow and is the route used to connect to the Sandstone Trail, popular with tourists, so is important to tourists visiting Bunbury’s historic attractions, and therefore important to the local economy.

Bunbury FP 14 is used to connect Lower Bunbury to Long Lane and provides a pleasant walk over open fields with views to the protected Biodiversity Action Plan Priority Woodland to the south of the site. It connects to Bunbury FP15 along the south of the field, which then meets the claimed diagonal path at the bridge over the tributary to the River Gowy, to join the footpath to Spurstow.

All these attractive open rural footpaths, as well as providing useful practicable routes, are important to historic village character, enjoyment of the countryside and associate wildlife, health and social wellbeing and to the tourist economy.

Details of Objections

1. The orders do not satisfy the criteria under section 257 of the Town and Country Planning Act 1990 that: ‘Subject to section 259, a competent authority may by order authorise the stopping up or diversion of any footpath [F2, bridleway or restricted byway] if they are satisfied that it is necessary to do so in order to enable development to be carried out— (a)in accordance with planning permission granted under Part III [For section293A] , or (b) by a government department.’ Since only outline planning has been granted with all matters other than access reserved, such as housing type, design and layout and that 15 dwellings could be provided on this site without diversion or extinguishment of the footpaths.

Appeal Decision Ref: APP/R0660/W/16/3165643 states:

‘ 1. The appeal is allowed and planning permission is granted for a residential development for 15 dwellings with associated works at Land at Oak Gardens, Bunbury, CW6 9QN, in accordance with the terms of the application, Ref 16/2010N, dated 21 April 2016, subject to the conditions in the attached Schedule.

Procedural Matters

2. The application was submitted in outline. Whilst the application form indicates that layout is applied for, the Planning Statement and the Appeal Statement say that only access is for consideration and that the layout is for indicative purposes only. The layout plan is also marked “indicative”. I have dealt with the appeal on the basis that all matters are reserved except for access.’

This shows that planning permission is only outline with all matters reserved except for access.

You can see from the revised illustrative plan from the developer available at: http://doc.cheshireeast.gov.uk/NorthgatePublicDocs/07819545.pdf the area the 6 affordable 2 bedroom houses in Oak Gardens (south-east of the site) take up, so that 15 one bed apartments, for example, would not take up a much larger footprint and would leave space for the existing footpaths.

2. It would be pre-emptive to lose and alter these rights of way before full planning permission hasbeen granted on this site, because there are a number of conditions that need to be met before development can commence and these could prevent development taking place or plans to be altered compared to illustrative plans being submitted.

There are 14 conditions attached to the appeal decision planning permission and conditions 1, 8, 10, 11, 13 and 14 are pre-commencement conditions.

Under condition 1 ‘the appearance, landscaping, layout, and scale’ of the development need to be approved. This means diversion and extinguishment of footpaths in these orders may not be necessary.

Under condition 10 ‘Before the approval of the final reserved matters application, an updated protected species impact assessment and mitigation strategy shall be submitted to and approved in writing by the local planning authority.’

Condition 11 states: Before the approval of the final reserved matters application a habitat management plan to cover the life of the development shall be submitted to and approved in writing by the local planning authority. From the day of commencement of development, the management plan shall be adhered to thereafter.’

Cheshire East’s Nature Conservation Officer (NCO) in his submission to planning application 16/2010N available at http://doc.cheshireeast.gov.uk/NorthgatePublicDocs/07835630.pdf states in relation to great crested newts:

It should be noted that since a European Protected Species has been recorded on site and is likely to be adversely affected the proposed development the planning authority must have regard to whether Natural England would be likely to subsequently grant the applicant a European Protected species license under the Habitat Regulations. A license under the Habitats Regulations can only be granted when: • the development is of overriding public interest, • there are no suitable alternatives and • the favourable conservation status of the species will be maintained. Details of how the Habitat Regulations ‘tests’ were considered must be recorded within the committee/delegated report. Please refer to guidance issued by CE legal in respect of this issue. I advise that the proposed outline mitigation and compensation is acceptable and is likely to maintain the favourable conservation status of the local newt population. If planning consent is granted I advise that a condition must be attached requiring any future reserved matters application to be supported by an updated protected species impact assessment and mitigation [and] compensation strategy.’

Since this development is not of overriding public interest, there are suitable alternative sites for development in Bunbury (in fact with developments built and given planning permission since the start of the plan period in 2010 already exceed the target of 80 dwellings for the period 2010 to 2030) and the conservation status may not be maintained a license may not be forthcoming.

As you will also see from the NCO submission this site is rich in protected species including badgers, great crested newts, toads, grass snakes and many species of bats. The site is also used by many birds, including protected species such as buzzards and woodpeckers.

The NCO admits the illustrative plan does not have a scale so does not necessarily guarantee the required 15 m buffer to protect the wildlife corridor to the west of the site and therefore also makes it difficult to judge distances from the hedges and their undeveloped edges, which are important to wildlife and provide insects for bats, who use the hedgerows as foraging corridors. Loss of the grassland itself has an adverse impact on wildlife, but the corridors of uncut grassland bordering the hedges, trees and woodland are very important to biodiversity and this should be recognised at the reserved matter’s stage and suitable changes made to the illustrative application.

Condition 13 states: ‘No development shall take place until a Construction Method Statement has been submitted to, and approved in writing by the local planning authority.’ It then gives details of what needs to be covered.

Condition 14 states: ‘No development shall take place until the following information has been submitted to, and approved in writing, by the local planning authority: i) a full site survey showing: the datum used to calibrate the site levels; levels along all site boundaries; levels across the site at regular intervals; levels of adjoining gardens; and floor levels of adjoining buildings. ii) full details of the proposed finished floor levels of all buildings and hard landscaped surfaces. The development shall be carried out in accordance with the approved details.’

Condition 5 refers to the proposed access and is a condition before the occupation of dwellings rather than commencement, however, it would seem more sensible to check that these access arrangements could be made before dwellings are built, given disputes over ownership of access in similar village developments.

Condition 8 states: ‘No development shall commence until the public right of way through the site has been diverted as shown on the approved Footpath Plan.’

I believe this should state until there is a fully approvedFootpath Plan, as the footpath diversion has not been fully approved and should not be changed until a detailed development plan has been approved and the need for footpath changes are shown to be necessary and that any changes take into account duties to conserve biodiversity and NPPF guidance.

Given all the conditions on this outline planning permission, it cannot be deemed ‘necessary’ under section 257 of the Town and Country Planning Act 1990 to make these path orders. This situation could be reviewed after conditions 1,10, 11, 13 and 14 have been met, as well as confirmation that the proposed access arrangements are possible and that if any path alterations are required it is made sure they meet the criteria in section 257 of the Town and Country Planning Act 1990, duties under section 40 of the Natural Environment and Rural Communities Act 2006, where there is a duty to conserve biodiversity and ‘in particular have regard to the United Nations Environmental Programme Convention on Biological Diversity of 1992’ and also follow NPPF guidance.

3. The proposed footpath diversion and alternate route to the extinguished path is damaging to biodiversity.

The proposed footpath diversion uses a compacted stone surface immediately adjacent to hedgerows and destroys the uncut grassland at the edge of the field, which is important to biodiversity, by providing higher diversity plant species than the cut grassland and homes and foraging for wildlife, including protected species like grass snakes, toads and great crested newts and is especially important to provide insect food for bats using the hedgerows as foraging corridors.

Under Section 40 of the Natural Environment and Rural Communities Act 2006 there is a duty to conserve biodiversity and ‘in particular have regard to the United Nations Environmental Programme Convention on Biological Diversity of 1992.’ Where

‘Conserving biodiversity includes, in relation to a living organism or type of habitat, restoring or enhancing a population or habitat.’

These path orders do not, therefore, meet the duty to conserve biodiversity.

4. The Statement of Reasons states: ‘An assessment of the proposal has been carried out by the Borough Council’s Nature Conservation Officer and he has no objection to the proposals.’ However, having spoken to him he was not explicitly aware of the path order details until I drew them to his attention. He has now advised me as follows: I have asked for the route of the diverted footpath to allow for a two meter undeveloped buffer from the hedgerow. I can also ask for this to be provided as part of the detailed design at the reserved matter’s stage.’

This suggests that there is much to be decided in relation to nature conservation at the reserved matter’s stage of this outline planning application and that path orders should not be made until a final plan is available and only if it shows footpath orders are needed and that any alterations to footpaths properly take in to account nature and biodiversity conservation should they be made.

7. Planning permission has been granted by considering the Neighbourhood Plan as out of date, since Cheshire East could not agree a 5 year housing supply, however, the Neighbourhood Plan was not out of date according to the recent ministerial statement.

Appeal paragraphs 7 and 8 states:

7. On 12 December 2016 the Planning Minister, Gavin Barwell, published a Written Ministerial Statement (WMS) concerning neighbourhood planning. This requires that, where there are relevant policies for the supply of housing in a recently made neighbourhood plan, these policies should not be considered out-of-date unless there is a significant lack of supply and if a specific set of circumstances occurs at the time of decision making. These are that the WMS is less than 2 years old, or the NP has been part of the development plan for 2 years or less; the NP allocates sites for housing, the LPA can demonstrate a  3-year supply of deliverable housing sites. All these circumstances must occur together.

8. The Council reject the WMS relevance as they claim the criterion for maintaining the currency of the NP is not met. I dispute this. The Council has confirmed that it cannot demonstrate a current 5 year housing land supply (HLS) and that its current supply is 3.96 years. The figure of 3.9 years agreed exceeds the 3 years required by the Minister. The Bunbury Neighbourhood  Plan (BNP) was ‘made’ in March 2016 and therefore meets the time period criteria. The central weakness of our case the council claim is that although the boundary of the NP takes in land which has planning permission for housing..it does not specifically allocate sites for housing. Therefore, given the absence of allocated sites in the NP and the lack of a 5 year HLS, according to the WMS, the relevant policies for the supply of housing are out of date.’

r. The ministerial statement does not say the NP needs to allocate specific sites for housing just that it ‘allocates sites for housing.The  BNP Policy H1 makes this clear. I quote:

The Neighbourhood Plan proposes a Settlement Boundary for Bunbury based upon the existing defined Settlement Boundary in the Crewe and Nantwich Local Plan 2005. The purposes of the Settlement Boundary are:– A. Directing future housing, economic and community related development in the Neighbourhood Plan Area to the village of Bunbury, to enhance its role as a resilient and sustainable community and to protect the surrounding open spaces and countryside. B. Containing the spread of the village, by reinforcing its core area and maintaining an effective and coherent built up–rural edge. C. Proposals for housing development outside the Bunbury Settlement Boundary will only be granted where they comply with the criteria set out in Housing Policy H2 (Scale of Housing Development), or in exceptional circumstances; such as any new dwelling required for the essential need of an agricultural worker to live permanently at or near their place of work in the countryside

Bunbury NP clearly designates sites available for housing adjacent to the existing boundary as well as within it   otherwise it would not be exceeding its target for the period to 2030 already so the NP should have been given weight.

Cheshire East have a Local Plan and 5 year supply of housing so it and the Neighbourhood Plan should be given more weight when deciding reserved matters, which is likely to change the design.

5. If the National Planning Policy Framework (NPPF) is to be considered then the loss of amenity value of these footpaths, particularly in the context of enjoyment of the countryside, should be considered along with loss of historic village character, loss of biodiversity, potential damage to protected species and the lack of sustainability of the proposed site. The site is in the open countryside in an area with very limited public transport and no mains’ gas. So in relation to carrying out the footpath orders and the illustrative plan the ‘adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole’ contrary to the NPPF.

Section 17 of the NPPF includes as ‘Core planning principles’ :

be genuinely plan-led, empowering local people to shape their surroundings, with succinct local and neighbourhood plans setting out a positive vision for the future of the area.

● take account of the different roles and character of different areas […] recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it;

contribute to conserving and enhancing the natural environment and reducing pollution.

● promote mixed use developments, and encourage multiple benefits from the use of land in urban and rural areas, recognising that some open land can perform many functions (such as for wildlife, recreation, flood risk mitigation, carbon storage, or food production);

● conserve heritage assets in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of this and future generations;

● actively manage patterns of growth to make the fullest possible use of public transport, walking and cycling, and focus significant development in locations which are or can be made sustainable; and

take account of and support local strategies to improve health, social and cultural wellbeing for all, and deliver sufficient community and cultural facilities and services to meet local needs.

Section 69 of the NPPF states: ‘The planning system can play an important role in facilitating social interaction and creating healthy, inclusive communities.’ Section 73 states: ‘Access to high quality open spaces and opportunities for sport and recreation can make an important contribution to the health and well-being of communities.’

These footpaths are important to walkers to have a pleasant place to enjoy the intrinsic beauty of the countryside and its wildlife and a place where people meet others out walking, so are important to healthy activities, social interaction and the well being of the community. They should be valued and protected.

Conclusion

These path orders are not ‘necessary’ under section 257 of the Town and Country Planning Act 1990 as only outline planning has been granted with all matters, other than access reserved, such as housing type, design and layout yet to be decided.

It would be pre-emptive to lose and alter these rights of way before all other pre-conditions to development are met and a final design plan agreed, as there is no guarantee when and what plan will be able to go ahead.

The proposed alternate route is damaging to biodiversity and contrary to duties under section 40 of the Natural Environment and Rural Communities Act 2006. I understand the Nature Conservation Officer is asking for changes to the proposed path orders and will be asking for changes to the layout at the reserved matters’ stage also, so no path orders should be made until all reserved matters are settled.

The NPPF ‘Core Planning Principles’ include taking ‘account of the different roles and character of different areas’ and ‘recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it’ and should ‘contribute to conserving and enhancing the natural environment.’ Losing these paths would harm historic village character, harm the enjoyment of the countryside, harm healthy and social pursuits, potentially harm tourism, would damage the natural environment and potentially harm protected species.

For all the reasons given please refuse both the above path orders, so that people can continue to use these attractive rural footpaths to enjoy the countryside and associate wildlife.

Thank you for considering my objections.

About the Author

Peter Gorman ()

Now retired from teaching. Involved in supporting the Village Day Committee, Village websites and Secretary of the Bunbury Action Group.