Double Hat-trick and Valued Landscapes
Yesterday's decision of Inspector Fagan to dismiss an appeal by Gladman Developments Ltd, against the decision of Braintree DC to refuse planning permission for up to 80 dwellings, together with landscaping, open space and associated ancillary infrastructure on land off Wethersfield Road, Finchingfield, Essex, marks the sixth consecutive success by Ashley Bowes defending decisions of local planning authorities at appeal since January 2017.
The Inspector found the scheme failed to comply with the development plan taken as whole, by virtue of its location outside the settlement limits, its harm to the significance of heritage assets, the landscape and character of the area. Notwithstanding that the Council could not demonstrate a five-year supply of housing land the Inspector found, on application of paragraph 134 NPPF, that the public benefits of the scheme did not outweigh the harm to the heritage assets. Further, he found that paragraph 109 NPPF to be policy in the Framework which restricts development, and that public benefits did not outweigh the harm to the valued landscape. The Inspector therefore did not find the NPPF, or any other material consideration, justified determining the appeal scheme otherwise than in accordance with the development plan, and dismissed the appeal accordingly.
Inspector Fagan is the latest inspector to find paragraph 109 NPPF is a policy to which footnote 9 NPPF refers. That is to say, where a landscape is identified as being "valued", by reference to the criteria at Box 5.1 Guidelines for Landscape and Visual Assessment (3rd. ed.), the harm to the valued landscape should be weighed against the public benefits of the scheme, and only where the harm is outweighed by those benefits, is the tilted balance re-engaged. Many of the decisions on this point, including this one, are influenced by a permission decision of Lewis J in Bovis Homes Ltd v SSCLG (CO/3029/2016) on 28 July 2016, in which the Judge found it was not arguably wrong that the Secretary of State found paragraph 109 to be a footnote 9 policy (see para.6 of the order). Two points need to be born in mind when considering the Judge's order. First as a permission decision, it is not binding, although it is of course persuasive. Second, the refusal of permission was subsequently renewed and is awaiting a decision of the Court of Appeal, so further guidance may be forthcoming in due course. It is also worth noting that the Housing White Paper proposed amending the NPPF to make footnote 9 a close list, excluding paragraph 109 NPPF. However, there is now a wide body of Inspectorate decisions confirming paragraph 109 is a presently policy within footnote 9 NPPF, capable of disengaging the tilted balance.
A copy of the decision can be found here.
Ashley Bowes & Liam Wells appeared for Braintree District Council instructed by Ian Hunt, the Council's Head of Governance.
See: Land at Kidnappers Lane, Leckhampton, Cheltenham (APP/B1605/W/14/3001717) (5 May 2016)
See: Practice Direction (Citation of Authorities)  1 WLR 1001, para.6.1.
See, for example: Nanpantan Road, Loughborough (APP/X2410/W/15/3028159) (16 January 2017), Steeple Bumpstead, Essex (APP/Z1510/W/17/3173352) (6 September 2017)