Just over a year ago an application (21/2010N) was made to build 15 houses on land to the west of Bunbury Lane. This application was refused at the Cheshire East Planning Committee meeting on the 28 July 2021. Given the legal position of Cheshire East’s Local Plan (agreed) with a land supply in excess of the minimum, it was a surprise therefore, at least to your correspondent that appeal was made to the Secretary of State. However, that decision has now been upheld by the HM Inspector and the appeal is dismissed. That is the end of that application. But we should learn what we can from the experience.
What can we learn from the inspectors report:
1 Suitability of Location: The result of the appeal was wholly dependent on the policies of the Cheshire East Local Plan. In particular policy PG6 that limits the grounds for building outside the settlement boundary, and was cited as the key reason for the decision:
‘Therefore, on a plain reading of the policy and the proposals before me, the development would result in dwellings outside the settlement boundary and as such would conflict with Policy PG6.’ (para 7)
2. The site was also rejected on the grounds that it could not realistically claim to be ‘sustainable’ in terms of the Local plan (CELP) policy SD1
Whilst I acknowledge that the appeal site would be within a reasonable walking distance of some services in the village, I find that these would not be sufficient to meet all the daily needs of a future occupier (para 11)
Short term economic and employment benefits are also judge of limited value:
The limited benefit above would not be sufficient to outweigh the locational harm of the dwellings outside of the settlement boundary, contrary to the development plan. (para 12)
2. Character and Appearance:
In this respect the Inspector judges that the application is acceptable
The proposed development would therefore be in keeping with the pattern of development along and near Bunbury Lane. (para 16)
Therefore, whilst I note the concerns regarding the landscaping of the site, in the event the appeal was allowed, these matters could be dealt with subsequently. Moreover, whilst private views are likely to be somewhat affected, private views are not a planning matter. (para 17)
He goes on to emphasis the point:
Therefore, in light of the above, the proposal would not, by way of its location and the loss of the rural character on site, unacceptably affect the character and appearance of the surrounding area and landscape (para 18)
Up to this point I have ignored all references to the Neighbourhood Plan. It is now time to look at those comments made by the Inspector with reference to our Neighbourhood Plan. This is of special relevance given the current ongoing review of the BNP.
What role did the Neighbourhood Plan in the Inspectors decision:
1. The application would meet the criteria of both H1 and H2. In other words the policies would support the application:
This includes schemes of up to 15 houses on greenfield land immediately adjacent to Bunbury. In this case the proposal would meet these criteria and, although it may result in more than 80 houses being provided within the plan area, as this is not an upper limit this would not be unacceptable. As such, the proposal would comply with the aims and requirements of BNP Policies H1 and H2. ( para 8) (My underlining)
However there is a conflict between the BNP and CELPS.
It is clear that there is a conflict between the BNP and the LPS with regards to whether residential development can be carried out outside of a settlement boundary. LPS Policy PG6 is very clear in its exceptions and there is no reference to the relevant policies of the BNP creating an exception. (para 9 )
To resolve the conflict the HMI applies the rule laid down in government policy that the newer policy (CELPS) has priority and PG6 therefore trumps the BNP policies H1 & H2.
In this case the BNP was adopted prior to the LPS, and therefore policy PG6 of the LPS must take precedence over Policies H1 and H2 of the BNP. (para 10)
The only other reference to the BNP is found in paragraph 18 discussing if the application would result in any loss of character. No, the Inspector judges that the application would comply a raft of CELP policies on this topic and –
It would also comply with ENV4 of the BNP as the appeal site is not within, and does not affect, any of the identified views. (para 18)
The Inspector clearly sees the current H1 & H2 policies of the BNP as out-of-date as they conflict with the more recent CELP policies. That in itself is troubling and requires a removal of the conflict between PG6 and H1 & H2. However, equally concerning is the implication that as written our Neighbourhood Plan is enabling development ‘adjacent to’ i.e. outside, the settlement boundary.
This is apparent from the Inspectors comments:
I note the appellant’s concerns regarding the settlement boundary for Bunbury. However, the development plan (CELP)has a well-founded spatial strategy and settlement hierarchy supported by clear settlement boundaries and it is not within the remit of this appeal to consider altering these. ( para 12)
It was part of the case put by the applicant that the development on a greenfield site is not objectionable in principle (H1)– indeed development has already taken place on greenfield sites outside the settlement boundary of Bunbury, such as Hill Close, St Boniface Close, and Bowes Gate Site.
Fortunately, the BNP is being reviewed and will be brought into conformity with the CELP.
A possible favourable point to emerge from the report is the question of ‘sustainability’. I’m glad to see that the Inspector does not, as so many developers do, agree that the sustainability issue is dealt with by (a) claiming it is possible to walk to the village centre from their site, and (b) the process of building the site will bring economic benefits to the community (see item 2 under ‘Suitability of the Location’ at the top of the article).
From now on developers will have to come up with far better ‘sustainability’ arguments.
Next point is that building outside the settlement boundary (bar a few limited exceptions) is not acceptable. That is a big win. From now until at least 2030 or until the policy changes, you won’t be allowed to build outside the Bunbury settlement boundary. True the boundary must be agreed with CELP but at present there are no plans to alter anything. Only development WITHIN the boundary can be permitted.
This will impact the rate of construction considerably and it is difficult to see where sites capable of 15 house could be found. We need to recognise that houses are added each year inside the boundary. These are usually what are termed ‘windfalls’ – unexpected, from a planning point of view, additions to the housing stock. However, if I am right in this interpretation, no more sites progressively creeping out into the countryside will be seen until 2030 at the earliest.
So, development, yes, but mostly (only?) windfalls – and that is also what the Cheshire East Local Plan says it the way forward for Bunbury.
1.All quotations are from the HMI report. You can find this by clicking on the link here.
2. CELP or Local Plan refers to Cheshire East development plan for housing and Business.
3. PG6 & SD1 are policies of CELPS
4. BNP (Neighbourhood Plan)stands for the Bunbury Neighbourhood Plan part of the CELP. H1 and H2 are housing policies within the BNP.
The Appeal Case
The developers of the Parkside site (Cheshire East Planning Application (21/2010N) have now put in an appeal against the refusal issued in July this year. The grounds for the appeal are stated in the Final Appeal Statement available here:
You can download the pdf here or from the CE planning website using the application reference.
We will add additional comments and information over the next few days so keep watching. Note that the deadline for the submission of additional comments (existing one on the CE website will be carried forward for consideration) is the 17th December 2021. Comments are added via the Planning ispectorate website :
Use the Appeal Reference: APP/R0660/W?21/3281542
It is easy to just copy and paste the above reference.
The alternative is to write in TRIPLICATE to:
Planning Inspectorate, Temple Quay House, 2 The Square, Temple Quay, Bristol BS1 6PN
Here is my first draft of a reply to the appeal. I will update if time allows and you are welcome to use any parts in your submissions. Please comment via the usual email address:
Reply to the Appeal on Parkside Application 21/2010N
Firstly, two initial points are needed to correct a couple of errors that are made in the appellants appeal application.
A. The scope of the appeal:
The apellants agent claims:
1.1.15‘The case the Council has advanced, and the case which the appellant is required to respond to, is therefore confined to the reasons for refusal. To pursue additional matters would be unreasonable behaviour
(Planning Appeal case page 5 para noted above)
Is this the case? This is the guidance on planning appeals current on the Government website:
‘The appeal will be determined as if the application for permission had been made to the Secretary of State in the first instance. This means that the Inspector (or the Secretary of State) will come to their own view on the merits of the application. The Inspector (or the Secretary of State) will consider the weight to be given to the relevant planning considerations and come to a decision to allow or refuse the appeal. As Inspectors (or the Secretary of State) are making the decision as if for the first time, they may refuse the permission on different grounds to the local planning authority. Where an appeal is made against the grant of permission with conditions, the Inspector (or the Secretary of State) will make a decision in regard to both the granting of the permission and the imposition of conditions.
www.gov.uk/guidance/appeals Paragraph: 006 Reference ID: 16-006-20140306 Revision date: 06 03 2014
So, no the appellants’ agent is wrong. The appeal can look at the application as a whole and deal with any issue thereby arising. It is not unreasonable to raise any substantive issue given this understanding of the appeal process. It is of course entirely appropriate for the appellants’ agent to expect the local authority to:…:state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision.” as indeed they note quoting the relevant order.
Quote from para 11.15 of the Appeal Statement referencing Reg 35(1b) of the Town & country Planning order 2015
But where does it limit the scope of the appeal examining any or all aspects of the application? The Inspector may agree with the reasons given by the Local Authority for refusal or reject them but nonetheless still refuse the appeal on other grounds.
B. The status of the co-location policy in The Bunbury Neighbourhood Plan (BNP)
The appellant is anxious to dismiss the co-location policy in H2A by claiming it is not part of the policy at all:
The definition of co-location (which is not policy) should not be interpreted to mean only one single development can take place in any one part of the village as that ignores any assessment of harms or benefits arising from a proposal.
(Appendix 1b page 1, my emphasis)
I am not clear how they come to this conclusion. The Policy is clear in its wording. Policy H2A reads as follows
A maximum of 15 new houses on any one available and deliverable greenfield site, within the extended settlement boundary, and not co–located with any other new housing development.
(BNP Policy H2 – Scale of Housing Development section A page 14)
The Policy is further detailed in the Glossary ;
Co–location – New housing developments should be built in geographically separate parts of the village, in order that existing local communities and infrastructure are not adversely affected by a combination of new developments. No single area of the village should be subject to a large development that has resulted from smaller developments being built close to or accessed from each other. The separation between developments may be maintained by a significant distance, geographic features or visual segregation or a combination of these elements. A new development should not share an access road with another new development. For the purpose of this co–location definition a small development is one of 15 houses or less and this definition applies to all new houses built within the neighbourhood plan period 2015–2030 (see the glossary definition of new development and Policy H2A)
(BNP Glossary pages 64-65, heading Co-location)
Does the appellant claim that terms defined in the glossary are not part of the policy? Reference to the glossary has never been questioned by any authority, HMI, or developer before.
So, no the co-location principle is embedded within policy H2A. Discussions about its application in this appeal I leave to the later section.
Issues with the refusal
The appellants agent identifies three aspects of the refusal to rebut.
- is the appeal site suitable
2. Is it appropriate in scale for Bunbury
3. Does it comply with the development Plan
While I focus on the first item I have no objects to the scale as it is in accordance to BNP policy on the scale of developments i.e. it seeks to develop 15 dwellings. The objections relate to suitability of the site.
When appropriate I shall use the paragraph numbering used by the Appellants appeal statement
Before considering any other reason for refusal not fully covered in the comments prior to decision it is necessary to evaluate the appellants arguments in favour of overturning the refusal.
3.1 Is the appeal Site an appropriate location for development?
Three aspects are considered:
3.1.1 Bunbury is identified as a Local Service Centre (LSC) in the development plan and is a sustainable settlement with services and facilities commensurate with its policy status.
The appellant believes that as Bunbury is a LSC anything built in this village is by definition ‘sustainable’.
The period during which the building or consent for 108 houses took place in Bunbury during the Local Cheshire East plan period 2010-2030 has seen no expansion in facilities. What is sustainable at one level of population is not necessarily sustainable at a higher level. No land has been allocated in the CE Local plan for commercial development in Bunbury. No further allocations of housing are specified in the CELP for Bunbury other than the continued flow of ‘windfall’ one-off developments being deemed adequate to fulfil housing needs given the level of land for housing supply within the authority. Their can be no claim that the appellants development is necessary yo maintain facilities in the village.
Is it in open Countryside?
Reference Policy H1 Settlement Boundary
The site identified in the application is currently used for grazing sheep and is a general purpose pasture. It lies on the edge of Bunbury, to the west of Bunbury Lane on your right as you travel out of the village. It is unremarkable in appearance just like the adjacent fields and the vast majority of fields in the immediate area and of much of Cheshire and the whole country. The appellant says the site (field) ‘..does not protrude into the open countryside but is a well contained and confined development site’ this seems to argue that any field next to housing is not open countryside. The actual definition of open countryside is ‘land outside the settlement boundary’, which this field most certainly is. Claims by the appellant that in their opinion other sites are also outside the settlement boundary and therefore this legitimates their application, even if we were to agree, it is not a reason for repeating errors of the past when many relevant policies were deemed ‘out-of-date’ and at the discretion of the Inspector.. Now the policies that protect open countryside are fully effective and in-date.
As the HM Inspectors report on the previous application (14/5255N ) stated: The proposed residential development is unsustainable because it is located within the Open Countryside….As such it creates harm to interests of acknowledged importance.
Is it co-located?
In the Housing Policy section of the Bunbury Neighbourhood Plan (BNP) (2016) it states in the preamble to the policies:
The Neighbourhood Plan ….recommends no co–location, (see the Glossary) which means that one group of new houses cannot be built next to another, creating a larger development, as this would be prejudicial to the character of Bunbury and would have significant social and environmental impacts upon the immediate area. (BNP p9 para 2)
Small scale developments scattered round the village were seen by the vast majority (95%) of the village as the desirable approach to development. This is the purpose of BNP Policy H2.
If the site in question is granted permission a block of new housing of 36 properties would be created all built, building or granted consent between2010 and 2021 and within the CELPS period 2010 – 2030. This is exactly the situation that BNP Policy H2(a) was designed to avoid. The oldest development, Oak Gardens, was completed and available from October 2010. This should have provided a justification for refusal for development in the adjacent field (16/2010N). While the BNP was ‘made’ in March 2016 it was always meant to be retrospective in relation to this particular policy. It had to be to make sense. If the definition applied by the appeal on this site (Appeal Ref: APP/R0660/W/16/3165643 ) was applied it would mean two developments only a year apart in construction 2015 (before the BNP was made) and 2016 (after the BNP was made) would NOT be designated co-located when built next to each other. Absurd. Perhaps poor drafting lead to the confusion but it is clear that that was the intention:
New Development– In the Neighbourhood Plan the term new development refers to housing development built during the plan period 2010–2030 and is directly related to the reference to co–location in Policy H2A restricting new developments being built next to each other and exceeding the 15 new houses allowed within Policy H2.
(BNP Glossary page 69 New Development – my emphasis)
Co-location is then defined in the glossary as:
The separation between developments may be maintained by a significant distance, geographic features or visual segregation or a combination of these elements. A new development should not share an access road with another new development
(BNP Glossary page 65 – co-location)
Both Oak Gardens and the site in the adjacent field (16/2010N) share a common access – dismissed in the appeal presumably because all policies were deemed ‘out-of-date’. Even if this reasoning is accepted, policies are now ‘in-date’ so the situation is different and the question becomes whether the appellants site and the field next to Oak Garden are separated ‘by a significant distance, geographical features or visual segregation, or combination’. It is not enough to claim, as the appellant does that because they don’t have a common boundary that they are separated sufficiently to meet the first criteria of significant distance. There would be no visual segregation as the effect of building in the appellants site would form the continuous block of housing referred to above. The ‘Significant distance’ in the policy is a judgement call. The only example of such a judgement is the separation distance between the Hill Close (Sawyers Meadow) site and the adjacent site currently being developed by Duchy Homes (Cardamine Gardens) behind the retirement homes to the east of Bunbury Lane. The application ( 16/0646N ) on the latter was refused by the CE Planning Committee on the grounds that it was in open country and co-located with the Hill Close development given consent at the same committee meeting moments before. The Inspectors report indicated that she is did not feel that the two sites were co-located as they were separated by a paddock.. That distance is approximately double that between the Oak Gardens field and the appellants site to the south ignoring the existence of the Oak Gardens dwellings in-between. Not in my judgement a ‘significant’ distance to justify the non-application of the co-location principle in BNP Policy H2A. The no Geographical features present.
Co-location is an integral part of the BNP housing policy. Its purpose is clear. The accumulation of adjacent new developments will destroy much of the character of the village. The appellant seems to claim there is no inherent planning harm in the co-location of new developments. That is a direct dismissal of the co-location principle embedded in the BNP. Such an argument has no merit.
Does it comply with the development Plan
I have restricted my comments to those policies in the Bunbury Neighbourhood Plan and will leave discussions of CELPS and retained policies for those better qualified to debated.
All I will emphasis is that all those policies are in-date. The Local Authority has a Land Supply in excess of the minimum required and provision of affordable housing is adequate. Within the first 11 years of the current CELPS period (2010-2030) Bunbury has had 108 new dwellings added. From an initial level of 550 homes we now have 658. A growth rate of very nearly 20%. Given that CEC has not added to the commitment of LSC like Bunbury to provide a further specific additional housing but is happy to allow the steady flow of ‘windfall construction’ to provide additional growth we must conclude this application is unnecessary to the continued development of the village and threatens damage to its character if given consent.
The original transport survey was never adequate being undertaken in circumstances that did not reflect the ‘normal’ flow of traffic through this part of the village. This was understanable at the time but a more recent survey during the summer – after refusal – might have supported the current appeal with more relevant data.
I would also like to point out that the current planning approach completely ignores the cumulative impact of traffic flow from adjacent developments. If the appeal were granted five new developments (Hill Close, Cardamine Gardens, Oak Gardens field and Oak Gardens, and the appeal site would enter Bunbury Lane within considerably less than ½ mile joining the traffic from Queens Street and the ‘normal’ flow through the village via this route. Together these developments and Queen Street would contribute, using the same algorythem as used in the applleants Transport Survey over 300 additional daily movements. Looking at one site for development at a time does not consider the real impact on the village.
2. Nature Conservation:
the Principle Conservation Officer at CE recommended a new survey of Bats in the fiels and..
A report of the survey results and mitigation and compensation measures to address any adverse impacts on roosting
bats must be submitted prior to the determination of the application.
(Conservation Officers report on the application)
The applellant claims that such a survey has been done but it not visible on the CE Planning website under application 21/2010N. It may have been completed but the contnued failure to post it, in the preference given to contnued attempted rebuttals of objects, clearly seems to indicate the low priority given to the envirnmental and biodiversity aspects of the application and appeal.