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Housing and Business Scheme Refused in Spite of Land Supply Shortfall

Ashley Bowes and pupil barrister Liam Wells have successfully represented Braintree District Council to resist an appeal for 98 residential units, 8 self-build plots and a business hub at West Street, Coggeshall, Essex.

The Inspector accepted the Council's submissions that the 3.12 year's land supply was a "moderate" shortfall, and that the harm to the valued landscape and to the heritage significance of the Grade II listed Highfields Farmhouse and Conservation Area, significantly and demonstrably outweighed the benefits of the scheme.

The scheme therefore did not represent sustainable development in accordance with paragraph 14 NPPF, and accordingly the NPPF did not provide a justification for departing from the policies of the statutory development plan.

The Decision Letter is worth a read for the thoughtful analysis by an experienced Inspector of a number of current conundrums:

(1) The Inspector rejected the Appellant's contention that an assessment of landscape value should be limited to the appeal site itself, rather found the Council were correct to base its assessment on the wider landscape context (see paragraphs 29-30 of the Decision Letter).

(2) The Inspector however concluded that paragraph 109 NPPF was not a specific policy in the Framework which indicated that development should be restricted. As such, a breach of paragraph 109 NPPF did not, in her view, serve to disengage the "tilted balance" at paragraph 109 NPPF (see paragraphs 42-45 of the Decision Letter). That is however at some variance with the view taken by the Secretary of State himself in the Leckhampton appeal decision (APP/B1605/W/14/3001717) and the High Court on the subsequent s.288 appeal permission hearing (CO/3029/2016). However, in-spite of that, it is notable the Housing White Paper proposes to amend footnote 9 to make it an exhaustive list of restrictive policies, and paragraph 109 NPPF, does not appear within that list. The issue therefore seems set to rumble on.

(3) The Inspector also concluded that once the terms of a restrictive policy are met (for example where the public benefits outweigh the less than substantial harm to a heritage asset in line with paragraph 134 NPPF) the tilted balance is re-engaged so as to deal with the final planning balance (see paragraph 108 Decision Letter). That was a point the Court of Appeal sidestepped in Watermead Parish Council v Ayelsbury Vale District Council [2017] EWCA Civ. 152 per Lindblom LJ at [45] but, later, in Barwood Strategic Land LLP v East Staffordshire Borough Council [2017] EWCA Civ. 893, Lindblom LJ appeared to accept the Secretary of State's construction of footnote 9 NPPF at [22(2)] as being follows:

"Once identified, the specific policy in question has to be applied – and, where that specific policy requires it, planning judgment exercised – before the decision-maker can ascertain whether the "presumption in favour of sustainable development" is available to the proposal in hand ..."

(4) The Inspector correctly applied Suffolk Coastal District Council v Hopkins Homes Ltd [2017] UKSC 37 to find that general countryside policies are not "policies for the supply of housing" to be deemed "out of date" simply because of a lack of a five-year supply of housing land, but that the weight to attach to a conflict with them in light of their role in constraining the supply of housing land is an important matter with which the planning decision taker must grapple. The Inspector found the Council's countryside policy (CS5 Braintree Core Strategy) to restrain the supply of housing but that as it was adopted against a criteria based appraisal of countryside quality it should be afforded "more than moderate weight ... albeit not full weight" (see paragraph 101 Decision Letter).

The Decision Letter can be viewed here.