Martin Edwards successfully appeared for Bath and North East Somerset Council in three co-joined section 78 appeals in relation to residential development. Jurisdiction to determine the third appeal was recovered by the Secretary of State and that decision is outstanding.
These appeals throw up interesting issues regarding the operation of the 5 year housing land supply in a Housing Market Area in the context of a recently adopted Core Strategy. In relation to the Boxbury Hill appeal a further point of interest is the way in which the inspector, Mr Geoffrey Hill BSc Dip TP MRTPI dealt with the potential impact of a development of 124 dwellings in the proximity of a large colliery spoil heap known as "The Batch" which the Council considered to be a non-designated heritage asset.
The inspector noted that it must have been extremely frustrating for the Council, having only just received an endorsement from a Planning Inspector that it had a 5-year land supply, to immediately be placed in a position to have to defend that in detail at a section 78 planning appeal inquiry. However, the Appellants are entitled to make a planning application and to take the case to appeal if they consider the refusal of permission to be unwarranted. More importantly he went on to say that "...there is more than a 5-year supply of housing land in all of the Policy Areas except Bath. It being so early in the plan period I do not consider that it is correct to allow additional development outside the Bath Policy Area because the consequences of this would lead to distortion of the sustainability balance embodied in the principal component of the CS's strategy. That is, it would not be in accordance with the core planning principles of NPPF to accept that the shortfall in housing land supply in the Bath Policy Area automatically justifies permitting additional development elsewhere across the District, and particularly in locations where there may be congest objections on grounds of sustainability. " He then concluded: "In terms of the policy set out at paragraph 14 of NPPF, I come to the view that permitting significant growth in excess of the current land supply situation in Policy Areas outside Bath would undermine the principles of sustainable development set out in the CS. To do that so early after the adoption of the CS would significantly harm the value and purpose of the detailed, lengthy and collaborative plan-making process which has taken account of the views of local people in wishing to shape their surroundings. This would undermine confidence in the plan-making process, which constitutes an adverse impact that would significantly and demonstrably outweigh the benefits of topping up the housing supply by permitting further development in the Somer Valley. "
On the Boxbury Hill appeal the inspector also concluded that, from the information available at the inquiry, the setting of the non-designated heritage asset would outweigh the potential benefits of additional housing at this location and that in the circumstances where there was no overriding need for additional residential development in the Somer Valley, the benefits of the scheme would not outweigh the harm to the setting of The Batch and would be contrary to the objectives of both the CS and the Local Plan and the NPPF.
Two lessons can be learned from these decisions. First, in the context of section 78 appeals where the 5-year housing land supply in a recently adopted development plan document is in issue then appellants will need to tread carefully and have robust evidence to support their approach. Second, whilst a heritage asset may not be designated as such the NPPF now accords such assets a greater importance.