Safety first: Inspector dismisses significant housing scheme at allocated site amid highway safety concerns

05 Feb 2025

Planning and Environment

Inspector Rennie has dismissed an appeal for the development of up to 40 dwellings in Modbury, Devon. The Site in question was allocated for housing in the South West Devon Joint Local Plan [29] and the Appellant argued the LPA could only demonstrate a 2.5 year housing land supply [94]. Tom Cosgrove KC and Rowan Clapp acted for the successful Council (South Hams District Council) and were instructed by David Fairbairn.

The Inspector recognised the significant benefits of housing delivery (alongside other benefits [97]) in an area agreed to be “in a housing crisis” [96]. He nevertheless refused permission, finding that the proposal would result in an unacceptable impact on highway safety [98]. Accordingly, paragraph 116 of the Framework indicated permission should be refused [99] and the harms outweighed the benefits [100].

The essential highway safety issue concerned the proposed pedestrian access to and from the Site to amenities in Modbury. The direct route involved pedestrians walking along the A379. The parties agreed this route was dangerous [16]: it did not have adequate pedestrian footways. As such, the Appellant had proposed highway works to channel pedestrians to utilise a different route to and from the Site. The Council argued that the proposed route was circuitous and that pedestrians would still use the natural ‘desire line’ along the A379 [18]. The Inspector found that in practice, some members of the public would pursue the desire line notwithstanding the proposed works [35], which could result in significant and severe consequences (to pedestrians and other highway users [22]), particularly when the proposed development was newly built and occupied [20].

That was so even though there had apparently been no requirement for pedestrian enhancement in the Allocations Map which accompanied the Site allocation [28]. The Inspector confirmed that the safety issue was of “paramount importance” and needed to be fully assessed at the decision-taking stage, whatever the consideration within the allocation policy [30, 32].

The Appellants had also argued that the delivery of affordable housing at the Site was unviable and proposed to deliver 0% affordable housing against a policy requirement of 30% [42]. Against that background, the Appellant bore the burden of providing robust evidence to support its contention that the delivery of affordable housing was unviable [44]. The Inspector did not consider the Appellant to have done so [88]: the Appellant appeared to have overstated the benchmark land value [63] and had understated the gross development value of the proposed development [75], which bore greater similarities to some of the other local schemes promoted by the Appellant than contended [75]. The Council’s overall costs figure was also found likely to be more accurate [87]. The s.106 agreement included a blue pencil clause which allowed the Inspector to require the developer to deliver 0%-30% affordable housing in the event permission was granted [46]. The Inspector refused permission, as above, but indicated that if permission were to be granted, he would have required 30% affordable housing to have been delivered [92].

The Inspector dismissed the Appellant’s application for costs (which was premised on the basis the Council had no reasonable basis to refuse permission) having found, as above, that the Council’s highway safety concerns were valid, and that the Appellant proposed to under-deliver affordable housing at the Site. The Inspector also dismissed a cross application by the Council concerning the time taken to respond to the Appellant’s costs application. The Inspector found that it was not unreasonable for the Appellant to be so convinced by their case that an application for costs against the Council should be submitted.

A copy of the decision is available here.