NEWBURY
14/00234/FULD
Pins Ref
2223037
Dolmans,
Shaw Hill,
Shaw, Newbury
Charles Smith
Homes
Erection of three town houses,
Dele.
rearrangement of car parking
Refusal
layout for the extant approval
11/01689/FULD for the erection of
a block of 8 no. apartments.
Allowed
25.3.15
Procedural Matters
The decision notice listed five reasons for refusal. Reason three related to the lack of evidence to
suggest that the development could be constructed so as to achieve Code Level 4 of the Code for
Sustainable Homes, as required by policy CS15 of the West Berkshire Core Strategy (2012) (the
CS). The Council are satisfied that Code Level 4 can be achieved on the basis of the preassessment report that has been submitted with the appeal. Consequently, they no longer wish to
pursue this reason for refusal and have recommended that a condition be attached to any approval
to secure Code Level 4, if the Inspector were minded to allow the appeal. The appellant has no
objection to such a condition and the Inspector was satisfied that such a condition would be
necessary, in line with policy CS15, in the interests of achieving sustainable development, and that
it would meet the tests set out in paragraph 206 of the National Planning Policy Framework (the
Framework).
The fifth reason for refusal alleges that the proposal would fail to mitigate its impact on local
infrastructure, services, amenities and affordable housing need, as a result of the lack of a planning
obligation. A signed and executed unilateral undertaking (UU) has been submitted with the appeal.
This would require financial contributions to be made towards the provision of education
(£3,800.59), adult social care (£2,262), library facilities (£1,227), public open space (£5,730),
transport facilities (£16,500) and waste and recycling (£168.60). The UU also includes provision for
an ‘administration fee’ which is stated as being either £675 or £1,350. In response to the document,
the Council consider that the figure should be £675.
Notwithstanding the fact that they have submitted the UU the appellants dispute whether any of the
contributions requested by the Council would comply with the tests of regulation 122 of the
Community Infrastructure Levy Regulations 2010 and paragraph 204 of the Framework. They also
consider that the proposal falls below the threshold for which planning obligations should be sought,
having regard to current Government policy relating to schemes of 10 units or less, as set out within
the Planning Practice Guidance (PPG)1. Furthermore, the appellants consider that the development
falls below the threshold for which affordable housing provision should be required under the terms
of policy CS6 of the CS and, consequently, they have made no provision for affordable housing
within the UU.
The Council consider that the rationale for the requested infrastructure contributions is clearly
justified within their statement of case and consistent with the requirements of policies CS5 and
CS6 of the West Berkshire Core Strategy 2006-2026 (the CS) and the adopted supplementary
planning document Delivering Investment from Sustainable Development (2013) (the SPD). In their
view, current Government policy within the PPG does not amount to a material consideration that is
sufficient to outweigh the presumption in favour of the Development Plan, as established by section
38(6) of the Planning and Compulsory Purchase Act (2004). Whilst the proposal of itself falls below
the threshold for which affordable housing provision will be sought under policy CS6, the Council
considers that it forms part of a larger development relating to the same site, in combination with the
previously approved scheme for 8 apartments. As such they consider that three affordable housing
units should be provided as a result of the proposal.
The Council have indicated that the development would be liable for a charge under the Community
Infrastructure Levy if a decision is made after 01 April 2015. If the development is issued after that
date, they would no longer seek the infrastructure contributions that are contained within the
submitted UU.
In order to avoid any potential ‘double counting’ of contributions Regulation 123(2) of the
Community Infrastructure Levy Regulations 2010 (CIL Regulations) makes clear that a planning
obligation which seeks to provide funding or the provision of infrastructure which is intended to be
funded, wholly or partly, by CIL, may not constitute a reason for granting planning permission. I
have taken account of this in my decision below.
Main Issues
In view of the above, the main issues in relation to the appeal are:
i) The effect of the proposal on the character and appearance of the surrounding area, including its
effect on protected trees;
ii) Whether the proposal would provide acceptable living conditions for future residents with regard
to the level of external amenity space;
iii) Whether contributions contained within the submitted UU are necessary to make the
development acceptable in planning terms, directly related to the development, and fairly and
reasonably related in scale and kind to the development; and, if so, whether those contributions
should be sought, having regard to the requirements of the CS and current Government policy
within the Planning Practice Guidance.
iv) Whether the proposal should make provision for affordable housing, having regard to the
requirements of policy CS6 of the CS and current Government policy within the Planning Practice
Guidance; and
v) Whether the proposal would represent sustainable development, having regard to the policies of
the Framework, taken as a whole.
Reasons
Character and Appearance of the Area
The appeal site relates to the garden area of Dolmans, a substantial dwelling set to the side of
Shaw Hill as it rises past the site. Mature trees within gardens and those in the highway verge
combine to create a verdant and attractive setting for the substantial detached dwellings on either
side of the carriageway. Dolmans has a substantial garden to the south of the house. The house
itself is an attractive building, even in its present condition, but is due to be demolished to allow
construction of 8 flats under a planning permission granted by the Council in 2011. Work has
commenced on the implementation of that permission.
In the immediate context, the site is within a section of Shaw Hill dominated by large dwellings, of
varying age and architectural style, in substantial plots. However, that character is not universal to
the wider area within which the site is located; immediately to the north of the site, around the
junction with Love Lane, the built form becomes more tightly packed, with detached dwellings on
smaller plots. When viewed from the public highway, including the raised pavement on the western
side of Shaw Hill the mature trees and landscaping are the predominant features in the character of
the immediate area. Even in the winter months the planting provides a dense screen, with fleeting
views through to the dwellings beyond.
The appeal site conforms to this pattern and established trees create a high degree of enclosure.
This enclosure is provided not only by the trees within the site but the coniferous trees immediately
beyond the site boundary on the highway verge. The majority of the protected trees run alongside
the western boundary, with the exception of a mature beech, which is located on neighbouring land
beyond the south-east corner of the garden, and a Himalayan birch which is relatively central.
A tree survey has been submitted, including a tree constraints plan which defines the root protection
area (RPA). Reference has been made to the location of the highway and potential impact on the
RPA but this would have been apparent to the author of the tree survey when the site survey was
being undertaken. No compelling written evidence has been submitted that would lead the Inspector
to question the validity of the professional evidence provided by the appellant in this respect.
Of the 16 trees within the group TPO, three were identified as being unsuitable for long term
retention, including a Yew (T104-U) and Laurel (T106-U) close to the gable of the proposed building
and a Sycamore (T95-U) adjacent to the site entrance. The survey identifies the deficiencies of
these three specimen, including defects that the Inspector was able to observe at the time of his
visit. Subject to suitable replacement planting being secured by an appropriate condition to secure a
suitable landscaping scheme, he was satisfied that the loss of these three specimen would not
cause harm to the integrity of the group TPO or the wider character and appearance of the area. In
addition to securing adequate replacement planting, a landscaping scheme would also secure
additional planting and screening along the boundary of the site to supplement the screening
offered by existing vegetation.
Furthermore, on the evidence before him, he was satisfied that the remaining trees could be
protected through the imposition of a condition requiring that the development is carried out in
accordance with an arboricultural method statement that should first be submitted to and approved
in writing by the Council, as local planning authority.
Internally, the gently stepped layout of the garden relates intimately to the south facing aspect of the
existing dwelling; the layout of the garden clearly relates to that of the house. The redevelopment of
the house for apartments will alter this historic relationship, in terms of the type of accommodation,
and the fact that a car parking area is proposed immediately to the south of the new apartments.
Thus, much of the historic character and ambiance of the internal environs will be lost, in any event,
as a result of the existing approval.
The principal façade of the proposed dwellings would face onto the south-facing elevation of the
new flats such that the two buildings would have a direct relationship with one another. To the
Inspector’s mind, this is a reasonable design response, particularly in the context of the adjacent
dwellings which do not front directly onto Shaw Hill. The distance between the two blocks would
also be sufficient to prevent a cramped form of development. Furthermore, the internal arrangement
would have little impact on the wider street-scene, given the existing tree cover and the fact that this
can be retained and enhanced through additional planting. As noted, there is no prevailing
architectural style within the area and, consequently, there is no reason to find that the townhouse
design would cause harm to the established pattern of development.
Therefore, whilst the proposal would result in an increase in the built density of the site, it would be
well-screened from surrounding vantage points and well designed, of itself. Thus, the proposal
would not result in any significant harm to character and appearance of the surrounding area and
would conform to the need for good design, as set out at section 7 of the Framework. It would also
comply with the design related requirements of policies CS14 and CS19 of the CS and saved policy
HSG1 of the West Berkshire District Local Plan (2007).
In reaching his conclusions in this respect, the Inspector noted the previous appeal decision, dated
08 December 2010, relating to the site. He was not provided with the plans or drawings that
accompanied that proposal and it is unclear how that scheme compared in terms of scale and
appearance to the current proposal. In any event, each appeal must be determined on its individual
merits and he considered the proposal on the information before him, taking account of the fact that
planning permission for the redevelopment of Dolmans has been approved since that appeal
decision was issued.
Whether the Proposal Would Provide Satisfactory Living Conditions for Future Residents with
Regard to Outdoor Amenity Space
The Council’s Residential Development Supplementary Planning Document (the Residential SPD)
recommends that houses above 3 bedrooms should be provided with a garden area of 100 square
metres. This is put forward as a general guide as opposed to an absolute rule. The proposed rear
gardens would be approximately 10m in length with a width ranging from 6 to 7 metres. This would
be below the recommended standard but would be sufficient for basic amenities such as sitting out,
drying washing, play for small children etc. The gardens would also be south-facing and, therefore,
would benefit from good levels of natural light. The Inspector was satisfied that this would provide
adequate living conditions for future residents, commensurate with the type of accommodation
proposed.
Residents of the apartment block would benefit from a substantially reduced area of external space
in comparison to the layout, as originally approved. However, the approved plans demonstrate that
outdoor space would be available around the perimeter of the apartment block, including a decking
area for outdoor seating. This area benefits from a pleasant setting, amongst mature landscaping
and would provide opportunities for outdoor seating and recreation. Neither party has calculated the
space available in numerical terms and the Council have not referred specifically to the living
conditions of residents of the apartments within their statement. To his mind, this would provide an
acceptable level of amenity, commensurate with the type of accommodation proposed; apartments
in close proximity to the town centre and its amenities.
Consequently, the Inspector was satisfied that the level of external amenity space would meet the
likely needs of future occupants and, accordingly, that living conditions would be acceptable in this
regard. In this respect, the proposal would conform to advice within paragraph 17 of the Framework.
The Need for Financial Contributions Towards Local Services
The PPG makes clear that all planning obligations, including where tariff style charges are sought,
must be fully justified and evidenced, and that they must meet the tests laid out within regulation
122 of the CIL regulations and paragraph 204 of the Framework. The introductory text to the SPD
notes that the guidance is intended to provide consistency and transparency with regard to the type
and scale of contributions that the Council is likely to seek. It also notes that planning obligations will
be considered on their merits and negotiated on the basis of regulation 122 and paragraph 204 of
the Framework. Thus, whilst the SPD provides guidance on the Council’s approach, it does not
negate the need to justify contributions in any given case.
In terms of transport, the Local Highway Authority (LHA) have suggested that the requested
contribution of £16,500 would be used towards supporting the two local bus services that pass close
to the site (5 and 6/6a), upgrades to local bus stops, and improvements to facilities at Newbury train
station. Whilst the development may increase patronage of bus and train services to a modest
degree, commensurate with its size, the site is in a sustainable location, within walking distance of
the town centre, where residents would have good access to a full range of shops and services.
Given the inherently sustainable location of the site the proposal would not give rise to any transport
related effects that would need to be mitigated in order to make it acceptable in planning terms.
Increased patronage of local services is not evidence of harm; in fact, it is reasonable to expect that
increased usage would have beneficial impacts by reducing the subsidy required to sustain existing
bus services. The Inspector also noted that the SPD states that the Council will seek revenue
contributions in appropriate circumstances ‘to fund the running of a service made necessary by the
development’. That is not applicable to the proposal before him which would not generate a need for
a bus service by virtue of its scale and sustainable location. Whilst he noted the desire to upgrade
existing bus stops to include real time passenger information systems, there is no evidence to
suggest that the bus stops are currently unsuitable for use or to suggest that the upgrades are
necessary to make the development acceptable in planning terms. Similarly, he had not been
provided with any specific evidence to suggest that Newbury train station is presently unsuitable for
use without passenger safety improvements, or that those improvements are necessary to
accommodate any increased usage that would stem from the proposal. In view of the above, the
Inspector was not satisfied that the requested contribution of is necessary to make the development
acceptable in planning terms.
The Council has undertaken an exercise to determine the likely child yield from the development
and set that against capacity within local primary and secondary schools. On the basis of that
exercise, they have determined that there would be sufficient capacity within those schools to
accommodate the expected number of children. As a result, contributions towards primary and
secondary provision have not been requested. The expected child yield of the development for
pupils with special educational needs is 0.04, some way short of an additional pupil.
The SPD notes that such provision is organised on a district wide basis, as opposed to more local
catchments. To his mind, that does not avoid the need to demonstrate that a contribution is required
to make the development acceptable on its own merits. No information has been provided with
regard to the capacity within the district to accommodate additional pupils with special educational
needs that would be likely to arise from the proposed development. As such, on the information
before him, he could not conclude that the requested contribution is necessary to make the
development acceptable in planning terms.
The SPD refers to a ‘Child Sufficiency Assessment Report’ (2010) with regard to early years’ child
care. The summary of that report in the SPD identified that there were limited places available
across the district, taken as a whole, with very limited provision in outlying rural locations. The SPD
states that contributions will be sought from all developments on the basis of the district wide need,
as identified in the 2010 assessment. However, that report is now approximately 5 years old and no
current analysis has been provided of the capacity for childcare provision. Furthermore, the scarcity
of rural provision, as identified in that report is not necessarily indicative of a lack of early years’
provision within Newbury. The Inspector could see no reason to apply a district wide approach to
early years’ provision in contrast to the evidenced based approach used by the Council regarding
primary and secondary education which looks at capacity in locations relevant to the proposed
development. The PPG requires contributions to be fully justified and evidenced. For the reasons
given, insufficient evidence has been provided to demonstrate that a contribution towards early
years’ provision is necessary to make the development acceptable in planning terms, or that the
need for the contribution is directly related to the proposed development.
The library contribution was requested on the basis of the potential borrowing capacity of residents
of the proposed development, based on the number of residents and the fact that each would be
permitted to borrow 15 books per visit. Further evidence was provided regarding the number of
books loaned by Newbury library in the year spanning 2012/2013, usage of public computers, and
the level of stock carried by the library, put at 84,215 items. However, no supporting evidence has
been provided to suggest that this level of stock is insufficient to accommodate any increase in
borrowing or to suggest that the facilities will be unable to accommodate any extra demand.
Therefore, he was not satisfied that the contribution has been adequately supported by evidence to
demonstrate that it is necessary to make the development acceptable in planning terms.
The statement from the Council’s adult social care services team notes, in generic terms, the nature
of services provided within the District and considers that a contribution is justified on the basis that
any increase in population will add pressure on the demand for those services. However, no specific
detail about the capacity of local services is provided and no detail is provided as to how the
suggested contribution would be spent in a way that would mitigate any need generated by the
proposed development. Therefore, he was not satisfied that the contribution is necessary on the
basis of the information provided, nor can he be certain that it is directly related to the development
proposed.
Topic Paper 7 of the SPD identifies that the Council is satisfied that the quantity of public open
space within the district is adequate, in line with local standards, but notes that there is a need to
improve its quality. The Council have stated that the requested contribution of £5,730 would be
used to improve existing public open space within 400m of the site. However, no information has
been provided to show where those spaces are and no analysis has been provided in terms of the
existing quality of those spaces. Consequently, from the evidence before him, he was unable to
determine whether the public open space within the vicinity of the site has any qualitative deficiency
that would need to be improved in order to accommodate the modest increase in usage that would
result from the proposed development. As such, he could not conclude that the contribution is
necessary to make the development acceptable in planning terms.
The Council have put forward a condition to require that refuse and recycling facilities shall be
provided for each dwelling. The Inspector was satisfied that a condition to secure such provision is
necessary to ensure that adequate facilities are in place, in the interests of the character and
appearance of the area and in the
interests of re-using existing resources, in line with paragraph 17 of the Framework. Consequently,
adequate provision for waste and recycling facilities on site can be achieved through the imposition
of a condition and the financial contribution of £168.60 is not necessary to make the development
acceptable in planning terms.
No detail is provided within the UU regarding the purpose of the ‘administration fee’, or how it is
intended to be spent by the Council. As such, the Inspector could not be certain that the contribution
would meet the tests of regulation 122 of paragraph 204 of the Framework.
In view of the above, he concluded that the provisions of the UU are not necessary to make the
development acceptable in planning terms and, with regard to early years’ childcare and adult social
services, he was not satisfied that the contribution is directly related to the impact of the proposed
development. The Council have supplied two previous appeal decisions where inspectors have
accepted requests for infrastructure contributions. However, each appeal must be determined on its
individual merits and he was unaware of the information that was submitted to the respective
Inspectors in support of the request for contributions in those cases. The Inspector also noted that
those decisions were made prior to the adoption of the CS, publication of the current SPD, and
publication of the Framework and PPG. Thus, the policy context has evolved since those decisions
were issued and he considered the proposal on the information before him.
Policy CS5 does not, of itself, require that contributions are made for all developments of 1 dwelling
or above. That threshold is set within the SPD and, as such, is not an absolute requirement of the
development plan. As set out above, the adoption of the SPD does not negate the need to consider
requests for contributions based upon the specific impact of an individual scheme, in view of
regulation 122 of the CIL Regulations and paragraph 204 of the Framework. In view of his findings
on those matters, the contributions within the UU are not required for the development to comply
with policy CS5.
The provisions of the development plan and the PPG are both material considerations in the
determination of this appeal. He found that there is no requirement in policy CS5 for the financial
contributions contained within the UU, and no requirement within the development plan that
infrastructure contributions will be sought on a threshold dependent upon the number of dwellings
proposed. Paragraph 12 of the PPG is clear that contributions should not be sought for schemes of
10 dwellings or less. The Inspector attached significant weight to the PPG in this regard as it
represents current Government policy. Given this, and the lack of any justified need for
contributions, based on policy CS5 of the CS, he took no account of the provisions of the UU in
reaching his decision to grant planning permission.
National Westminster Bank PLC is a signatory to the UU and the Council have highlighted that their
interest, as ‘mortgagee’ is not referred to within the recitals of the document. In addition, the
company registration number and registration number are absent from the UU. Section 106(9) of
the Town and Country Planning Act 1990 requires that an obligation must identify the person
entering into the deed and state what his interest in the land is. Whilst it may be assumed that
National Westminster Bank PLC is the mortgagee, this is not stated within the UU. In any event, as
set out, he took no account of the UU in reaching his decision. Therefore, the highlighted drafting
issue does not have any bearing on his decision.
The Council have indicated that the development would be liable for a charge under the CIL
regulations, if his decision is issued after 01 April 2015. In such circumstances, it would be unlawful
for the contents of the UU to be taken into account as a reason for granting planning permission.
However, for the reasons given, he took no account of the UU in reaching his decision. The
collection of any CIL contribution is undertaken by the relevant charging authority on service of a
notice that planning permission has been granted in relation to chargeable development. As such,
the requirement for, and enforcement of, the payment of any contribution in relation to the proposed
development is not a matter for consideration in this appeal.
Whether the Development Should Provide for Affordable Housing
Policy CS6 of the CS identifies that affordable housing provision will only be required on sites
providing 5 dwellings or more. The proposal before him was for 3 dwellings and therefore falls under
that threshold, albeit that it would result in a total of 11 units at the site, when taken in the context of
the 8 apartments that already have approval.
However, as acknowledged by the Council, the scheme of 8 apartments was approved in 2011 at a
time when the Council’s policy position was different. Whilst he was mindful of the Council’s
concerns regarding the sub-division of sites as a means of avoiding the threshold, it seemed to him
to be unreasonable to retrospectively apply an altered planning policy position by taking into
account a scheme that already has approval. Permission was granted in 2011 for that scheme on
the basis of Local Plan policies as they applied at the time, prior to the adoption of the CS. The
development complied with those policies and can legitimately be constructed without providing
affordable housing. The fact that no affordable housing was provided is through no fault of the
appellant; it is simply a reflection of the policy position at the time. At his accompanied site visit, both
parties confirmed that work on the extant permission for 8 flats had commenced, following the
discharge of relevant conditions.
Consequently, the current proposal cannot be seen as a deliberate attempt to avoid the affordable
housing threshold. It is a new planning application submitted under different policy circumstances.
Any applicant for planning permission can only address the policies as they exist at the time of
making an application. The proposal does not seek a complete redevelopment of the entire site. It is
for an additional three dwellings. On that basis, the Inspector concluded that the proposal falls
below the threshold of 5 dwellings set by policy CS5. He also attached significant weight to the
current Government policy within the PPG which is that affordable housing contributions should not
be sought for schemes of 10 dwellings or less. As such, there is no basis in development plan or
national policy for affordable housing to be provided as part of the scheme.
Whether the Proposal Would Constitute Sustainable Development
Paragraph 7 of the Framework identifies three, mutually dependent, strands to the definition of
sustainable development; economic, social and environmental. The proposal would add to the
supply of housing in a sustainable location, within walking distance of the town centre and its shops,
services and employment opportunities. The construction of three new houses would bring shortterm economic benefits as a result of employment in the local economy and the eventual occupants
would bring additional spending capacity for local shops and services. The proposal would therefore
have modest economic benefits, commensurate with its scale.
Providing the supply of housing to meet the needs of present and future generations is a recognised
social benefit and this would apply to the proposal before him. In environmental terms, the site is in
a sustainable location, the proposal would respect the character and appearance of the surrounding
area and trees can be protected during the course of development. The dwellings would also be
constructed to Code Level 4, reflecting the need for sustainable construction within the CS.
No harm has been identified that would significantly and demonstrably outweigh the benefits of
granting planning permission, when assessed against the policies of the Framework, taken as a
whole. Therefore, he concluded that the proposal would represent sustainable development and
that the presumption in favour of sustainable development at paragraph 14 of the Framework is
applicable.
Conditions
The Inspector considered the suggested conditions and have included those that meet the statutory
tests, as detailed at paragraph 206 of the Framework, making changes to the wording, where
necessary, for clarity and to avoid repetition. In addition to the statutory commencement condition, a
condition is required to ensure compliance with the approved plans, for the avoidance of doubt. He
also attached a condition to ensure that the access arrangements and car parking/ turning areas are
implemented in accordance with the approved plans, in the interests of highway safety. For the
same reason, a condition is necessary to ensure that any access gates are set back at least 5
metres behind the highway and that any such gates open inwards into the site.
Cycle parking would be available within the proposed garages and he could see no specific need for
a condition in this regard. For the reasons given above he was satisfied that a condition is
necessary to secure appropriate facilities for the storage of refuse and recycling.
As discussed above, a condition is required to secure tree protection and a detailed schedule of
work to retained trees, in line with an arboricultural method statement. A landscaping condition is
necessary to provide a planting scheme, including replacement tree planting, in the interests of the
character and appearance of the area. Details of the finished materials and boundary treatments
should also be submitted to and agreed in writing by the Local Planning Authority for the same
reason.
A condition to ensure that the dwellings would achieve a minimum of Code Level 4 is necessary, in
the interests of achieving a sustainable development, in line with development plan policy. Given
the proximity to surrounding residential uses, and the need to protect the living conditions of those
residing nearby, he was satisfied that a condition is necessary to limit the hours within which
construction can take place at the site. Finally, a condition to ensure that the proposal is constructed
in line with a construction method statement is necessary in the interests of neighbouring amenity
and highway safety.
Conclusion
The Inspector concluded that the effect of the proposal on the character and appearance of the
surrounding area would be acceptable, subject to the imposition of necessary conditions, as
described above. It would also provide a satisfactory living environment for future occupiers.
Financial contributions towards infrastructure provision and an obligation to provide affordable
housing are not necessary to make the development acceptable in planning terms. No harm has
been identified that would significantly and demonstrably outweigh the benefits of granting planning
permission and he was satisfied that the proposal would represent sustainable development.
For the above reasons, and taking all other matters into account, the Inspector concluded that the
appeal should be allowed.
Decision
The appeal is allowed and planning permission is granted for the erection of three town houses,
rearrangement of car parking layout for extant approval 11/01689/FUL for the erection of a block of
8 apartments at Dolmans, Shaw Hill, Shaw, Newbury RG14 2EL in accordance with the terms of the
application, Ref 14/00234/FULD, dated 24 January 2014, subject to the conditions set out in the
schedule attached to this decision.
DC