Agenda item

PROPOSAL: Outline application for residential development (up to 460 dwellings), a primary school, associated works, ancillary facilities and infrastructure, open space, recreation facilities and landscaping.  Vehicular access from the A46 (T) and Fiddington Lane.

OFFICER RECOMMENDATION: To follow.

A non-determination appeal has been submitted in respect of the above application; therefore, the Council must advise the Planning Inspectorate as to how it would have determined the application, had it remained the decision-maker.

43.2          This was an outline application for residential development (up to 460 dwellings), a primary school, associated works, ancillary facilities and infrastructure, open space, recreation facilities and landscaping.  Vehicular access from the A46 (T) and Fiddington Lane.  The Planning Committee had visited the application site on 30 November 2021 prior to the meeting.

43.3          The Development Management Team Leader (North) advised that the appeal site was a 52 hectare parcel of land which lay to the south of the A46(T) and the east of the M5.  The majority of the site lay immediately south of the recently approved ‘Land at Fiddington’ where a mixed use development including up to 850 dwellings had been permitted.  To the north was the consented retail outlet and garden centre which was currently under construction.  The southern boundary of the site was formed by the limit of the rear garden of a property known as Bungalow Farm, with the eastern boundary lying adjacent to agricultural fields and the extent of the rear gardens of a small number of properties on the minor road which ran between Fiddington and Ashchurch.  The site itself comprised arable fields with boundary hedges and trees, scattered scrub and seasonally wet ditches.  A block of woodland, known as Milne’s Covert, lay to the western part of the site.  The site was not subject to any designations and the majority fell within Flood Zone 1.  A public footpath passed through the north-eastern corner of the site before running along its eastern boundary.  A bridleway also ran along the northern boundary; this formed part of the Gloucestershire Way which was a long-distance route.  Members were advised that the proposal was submitted in outline and sought permission for up to 460 dwellings, including policy compliant affordable housing, together with a one form of entry primary school, open space, recreation facilities, landscaping and associated infrastructure.  The proposal shared the same access arrangements onto the A46(T) and Fiddington Lane as the permitted development referenced previously.  An illustrative masterplan and parameters plan had been submitted to demonstrate how the site could be developed.  As assessment of the main material considerations was set out at Pages No. 14-48 of the Committee report with the key harms and benefits highlighted.

43.4           Turning to the principle of development in this location, Tewkesbury was identified as a top tier settlement in the Joint Core Strategy settlement hierarchy and was recognised in Policy SD2 as a location where dwellings would be provided to meet the identified housing needs of Tewkesbury in line with its role as a market town.  The application site formed part of the wider Tewkesbury Town area and was broadly consistent with the strategy as set out in Policy SP2 to meet the housing and/or employment needs of the borough.  Nonetheless, the site was not allocated for housing in the Joint Core Strategy and therefore needed to be considered against Joint Core Strategy Policy SD10.  Proposals for unallocated sites would only be permitted in certain circumstances, none of which applied in this case; therefore, the application conflicted with Policy SD10 and the spatial strategy comprising Policy SD2 and Policy SD10 read together.  Members would be aware of the current circumstances surrounding the five year housing land supply position in respect of the Ashmead Drive appeal decision, the Inspector’s treatment of past oversupply in the calculation of the five year supply and the subsequent High Court judgement.  More recently the Council had received two appeal decisions following public inquiries where the issue of oversupply was debated and which provided support for the inclusion of oversupply in the calculation.  Officer advice was that a 4.39 year supply could currently be demonstrated; however, since that fell below a five year supply of deliverable housing, the presumption in favour of sustainable development was engaged in this case.  Notwithstanding this, the Tewkesbury Borough Plan was at an advanced stage in the examination process with the main modifications having been approved by Council and currently out to consultation with an anticipated adoption date of spring 2022.  It was expected that, on adoption, the Plan would provide a housing land supply of 6.48 years up to 2029/30 based on a trajectory which took into account oversupply which had been approved by the Borough Plan Inspector.  Given the advanced stage of the Borough Plan, it now carried significant weight in the plan-making process and therefore the five year housing land supply position as set out in the Borough Plan was a material consideration in the determination of the application.  Officers had considered the extent to which the appeal site would contribute towards the five year housing land supply; the appellant had stated that the site would provide early delivery, and be delivered in its totality within five years, but had not provided evidence through the application to demonstrate this.  The permitted scheme for 850 dwellings had not come forward at the speed it was projected and it was estimated that the earliest realistic date that the first 50 dwellings could be delivered on site was 2023/24.  Furthermore, the appeal scheme was reliant on the access from the permitted scheme and, on the basis of the current pace of delivery of the permitted scheme, Officers considered that the projected housing delivery from this appeal scheme was over-optimistic with no evidence to demonstrate how it would make a timely or meaningful contribution towards five year supply.  In view of the limited contribution that the appeal scheme – and the permitted scheme – would make to five year supply, Officers considered that the weight to be attributed to the contribution of these schemes to the borough’s five year supply of housing land was diminished.  The Development Management Team Leader (North) went on to explain that the appeal site lay within the Tewkesbury Garden Town area which advocated a comprehensive, planned development strategy for future housing, employment and infrastructure needs.  The recently published concept plan identified the appeal site as a strategic location for future residential development; however, at the current time the concept plan did not have any status as a planning document and the inclusion of the application site within it did not prejudice or pre-judge the normal operation of the planning system.  Nonetheless, the Garden Town status and government support for growth, in the context of a comprehensive, planned development strategy, was material consideration.  In summary, the development was in conflict with the housing policies of the adopted development plan for the area.  As the Council could not demonstrate a five year supply of deliverable housing sites, the presumption in favour of sustainable development was engaged; however, the appellant had not demonstrated that the site would be deliverable, or make a significant contribution to the supply of houses, within the five year period.  Moreover, by that time the Council would have an adopted plan with a five year housing land supply and the site would not, therefore, contribute to the overall supply.  Officers considered this weighed heavily against the proposal in the planning balance.

43.5           Moving to some of the other material considerations, the Development Management Team Leader (North) explained that indivisible with the principle of new dwellings in this location was the impact a development of this scale would have on the local landscape.  Whilst the development was not considered to cause wider harm to the setting of the Area of Outstanding Natural Beauty, Officers felt that the local landscape harm that would arise from the development would be a permanent, significant and adverse impact and would represent a significant intrusion into the rural landscape which weighed against the proposal.  In terms of highways, the impact of the development on the local and strategic highways networks had been assessed by statutory consultees.  The Council had also appointed a transport consultant to independently review the traffic and transportation information submitted in support of the application.  The report of the consultant, in the form of a technical note, was included in the Additional Representation Sheet, attached at Appendix 1, and the transport consultant was in attendance to address any questions in that regard.  County Highways was satisfied that the impact of the development on the local highway network could be addressed, subject to appropriate conditions and obligations.  In terms of the strategic highway network i.e. the M5 and A46, National Highways had provided a response which recommended that planning permission should not be granted for a period of three months – that period had not yet expired.  National Highways had requested additional information from the appellant to settle outstanding matters which, to date, remained unresolved.  It was understood that National Highways was still in the process of reviewing the information and would provide a response to the Inspector in due course.  The Council’s independent transport consultant had concluded that, based on the information submitted, and subject to National Highways’ final response, there was no justifiable reason to maintain an objection to the proposal on highway grounds and, in that respect, the development accorded with national planning policy.  Notwithstanding this, in the absence of a final response from National Highways, at this stage Officers considered that the application had not demonstrated that there would be an acceptable impact on the strategic road network which was in conflict with the development plan and weighed heavily against the proposal.

43.6           The appellant had indicated that ‘policy compliant’ affordable housing would be provided along with a range of other community facilities and infrastructure.  A number of consultees had also requested planning obligations that would need to be secured to make the proposal acceptable in planning terms; however, to date no legal agreements had been provided or completed by the appellant to secure the provision of those benefits which also weighed against the proposal.  It had been established through the application that limited harms would also arise in respect of the loss of agricultural land; however, subject to imposition of appropriate planning conditions and obligations, the development would not give rise to unacceptable impacts in relation to flood risk and drainage, accessibility and local highway safety, noise, vibration, contaminated land or minerals and waste.  In terms of the benefits of the scheme, considerable weight was to be given to the economic gains that would arise from the proposal.  The development would also contribute towards the supply of housing over the plan period, albeit the quantum over the period was questioned and considered to be limited.  Nevertheless, the delivery of housing attracted significant weight.  Other benefits included the delivery of affordable housing and biodiversity net gain.

43.7           Turning to the planning balance, given that the Council could not currently demonstrate a five year supply of deliverable sites, the tilted balance was engaged.  Taking into account all of the material considerations and the weight to be attributed to each, Officers considered that the identified harm in relation to the impact of the development on the strategic road network alone would significantly and demonstrably outweigh the benefits in the overall planning balance.  There was also harm to the plan-led system and to the landscape as well as loss of agricultural land.  Taken together, it was considered that the harms significantly and demonstrably outweighed the benefits meaning that the proposal was not considered to constitute sustainable development in the context of the National Planning Policy Framework.  Furthermore, the absence of signed Section 106 Agreements constituted reasons for refusal in themselves.  In view of the matters set out in the Committee report, and in the context of the current appeal, Members were requested to consider a recommendation of minded to refuse for the reasons set out which, along with the Committee report, would be submitted to the Planning Inspectorate to inform the appeal.  The Development Management Team Leader (North) drew attention to the Additional Representations Sheet which set out minor amendments to refusal reasons three and five to resolve typographical errors and the recommended reasons were amended accordingly.

43.8           The Chair indicated that there were no public speakers for this item.  The Officer recommendation was minded to refuse and he sought a motion from the floor.  A Member sought clarification as to what would happen at the appeal if the Committee was minded to permit the application.  In response, the Legal Adviser explained that, had the appeal not been lodged and the Committee determined that the application should be permitted, that would have been subject to legal agreements to secure various obligations.  In this situation given that there was an appeal, if Members were minded to permit, assuming those legal agreements had been secured, the Council would state that no information was being presented against the proposal.  An alternative would be to contact the appellant to request that they submit a duplicate application and put the appeal on hold in order for the duplicate application to be determined; the appellant may reject that proposal in which case the appeal would go ahead and the Inspector would make a decision.  The Member asked if there were any examples of situations where the authority had put forward a minded to permit decision to the Inspector and the Legal Adviser indicated there had been a very similar situation for Perrybrook which had been called-in by the Inspector which the Committee had been minded to permit.  The appeal had still gone ahead as that was also an opportunity for members of the public and other parties to put forward their views which may be contrary to the local authority; in practical terms, it would make the appeal shorter than one where the local authority had resolved minded to refuse.  It was proposed and seconded that the application be minded to refuse in accordance with the Officer recommendation.  The proposer of the motion indicated that she had questions in relation to the weight afforded to the fact that the Council could not demonstrate a five year housing land supply.  Officers had clearly illustrated that this particular application would not actually go towards meeting the five year housing land supply trajectory, therefore, she did not believe that was a benefit of the proposal.  Page No. 49, Paragraph 8.2 of the Committee report suggested that the delivery of housing should be attributed significant weight, but Page No. 19, Paragraph 7.1.26 of the Committee report set out that the weight was diminished and that had been reiterated by the Development Management Team Leader (North) in her speech today.  Furthermore, the harms identified at Page No. 49, Paragraph 8.3 of the Committee report stated that the application had not demonstrated that there would be an acceptable impact on the strategic road network which weighed heavily against the scheme and the proposer of the motion felt that needed to be strengthened to ‘significant’ weight.  She pointed out that 18 months ago, County Highways had said that no more housing would be allowed along the A46 route until measures had been put in place to alleviate the issues currently experienced on that road; she was very surprised that County Highways was not supporting the minded to refuse recommendation on that basis and had been equally surprised that had also been the case in relation to the application for 850 houses and the application in Pamington.  By changing the statement to ‘significant’ weight, as suggested, she felt it would be clear at the appeal that the Council did not believe the housing provided by this development would go towards meeting the five year housing land supply and that significant weight had to be applied to the impact on the strategic road network.  The Legal Adviser clarified that, should the Committee vote in favour of the minded to refuse motion, the refusal reasons would remain as set out in the Committee report; however, the points raised would be reflected in the Minutes of the meeting and would be taken into account at the appeal.

43.9           A Member drew attention to Page No. 3, Paragraph 1.12 of the Committee report which stated that one of the broad development proposals was for up to 460 units, including 40% affordable housing, with the average density being 40 dwellings per hectare and he asked why this was not in accordance with the Council’s policy of 33 dwellings per hectare.  With regard to Tewkesbury Town Council’s submission, referenced at Page No. 9 of the Committee report, he asked for confirmation as to whether otters and their habitats were protected.  Moving to Page No. 11, Paragraph 5.2 of the Committee report, he asked whether the latest flood map was available to overlay the application site and surrounding area in light of the petition agreed at Council with regard to major applications and flood impact.  In terms of Page No. 47, Paragraph 7.13.4 of the Committee report, he wished to see a breakdown of the £90,160 which Gloucestershire County Council had requested for library provision – this was something he had asked for previously in relation to other applications but had not yet received a response.  Later in the same paragraph a contribution of £156,630 was requested towards the A38/Shannon Way junction improvement but it was his recollection that the Inspector had declined to agree to that at the last Fiddington appeal.  He also sought clarification as to the reason for the commuted sum for outdoor sports provision and how much had been suggested.  In response, the Development Manager Team Leader (North) advised that the density of 40 dwellings per hectare had been put forward by the applicant and had not been negotiated with the Council.  Natural England and the Council’s Ecological Adviser had examined the application and had not raised any issues regarding otters’ habitat.  The Tirle Brook would be protected in terms of water quality and the amount of water going into the Brook.  Whilst the latest flood map had not been overlayed for the application site, the majority of the site was within Flood Zone 1 and the Environment Agency had raised no objection.  A small area to the north of the site was in Flood Zone 2 and overlapped with other permitted schemes which had previously been assessed.  In terms of library provision, she confirmed that more detailed responses had been received from Gloucestershire County Council which had been summarised in the Committee report and she would be happy to share the full responses with Members.  Outdoor sports provision was included in the application for a sports field and new changing rooms.  Other provision had been identified, with figures put forward by the Community Team, and that would be negotiated with the appellant.  She confirmed that discussions would continue with the Town Council in relation to the points raised up to the appeal.

43.10         The representative from County Highways clarified that County Highways was not the highway authority for the strategic road network and therefore could not comment on the points made in respect of the A46 which was outside of its remit.  Each application was considered on its own merits and this proposal did not impact on the local road network. In terms of the A46/Shannon Way junction, a planning obligation of £289,000 was linked to a previous application and the appellant had taken the methodology of a proportionate contribution for this scheme on the basis there was a funding shortfall for the junction. 

43.11         The Member indicated that the petition to Council was a major sticking point for him as he could not see any reference to this within the Committee report and he asked for advice as to how it fit with the Council decision on major applications.  All of the reasons for the Officer recommendation were justified in his view; however, they were closely aligned to that of the Fiddington appeal.  Unfortunately, the Statement of Common Ground for that appeal was still relevant today. Paragraph 8.8 stated that “regardless of the approach taken it is agreed that the tilted balance of paragraph 11d is engaged”; Paragraph 8.9 stated “…the main parties agree that the extent of the shortfall is substantial”, Paragraph 8.10 stated “it is agreed that the five year land supply shortfall will worsen from now and in the coming years…”; Paragraph 8.11 stated “it is agreed that the Joint Core Strategy identifies that there was a plan shortfall of 2,455 homes.  It is agreed that there is no plan in place to address this”.  With regards to prematurity, Paragraph 8.13 stated “…no grounds to refuse planning permission on the grounds of prematurity having regards for Paragraphs 49 and 50 of the National Planning Policy Framework”; Paragraph 8.14 stated “it is agreed that the appeal proposal would not prejudice any potential future Garden Town…”; Paragraph 8.16 stated “…as set out in Mr Hitchens proof of evidence…presumption in favour of sustainable development is engaged as some of the most important development plan policies are out of date…”; and Paragraph 8.17 stated “when the tilted balance is applied it is agreed that any adverse impacts of granting planning permission would not significantly and demonstrably outweigh any adverse impact”.  The Member indicated that he would have liked to have proposed a deferral; however, given that option was not available, he wished to propose minded to permit in order to retain control of the development and put in place conditions.

43.12         A Member sought further clarification from County Highways as to what improvements were actually proposed for the A46/Shannon Way junction and was advised that it was intended to introduce an additional left hand lane, taking away the straight ahead lane on the Tewkesbury side and therefore increasing throughput.  It was a small improvement that would have meaningful benefits.  Further detailed appraisal was needed but this application provided a commitment to allow the improvement to take place.  The Member indicated that there was already a left turn lane from the A438 into Shannon Way which had been there for a number of years. In response, the County Highways representative explained that the current situation was a straight ahead lane and a straight ahead and left lane and the proposal was to include a left turn lane and two straight ahead lanes.  The Member continued to express concern that the proposal did not seem to alter the existing situation and the County Highways representative indicated there was little more he could add at this stage other than to reiterate there was already a scheme which included improvements to that junction and this application would provide a contribution towards that.  Another Member expressed the view that the requested highway improvements would be thrown out by the Inspector as last time, particularly if the improvement was already there.  The Legal Adviser advised that it was her recollection that it had been a matter over timing rather than provision which had been an issue in the previous Fiddington appeal. 

43.13         A Member questioned how conditions would be determined, should Members be minded to refuse the application but it was then permitted at appeal and whether the representations made by the Council would have an impact.  In response, the Development Management Team Leader (North) confirmed that the Council would work in advance with the appellant on a set of conditions both parties could agree to.  These were usually very comprehensive and picked up all issues raised by consultees and any other matters which needed to be addressed.  The Inspector had the opportunity to comment although it was such a thorough process that, as with the Fiddington appeal, there may be very few fundamental changes to make.  The Legal Adviser explained that where the parties could not agree on certain conditions these would be debated before the Inspector who ultimately made a decision.  A Member agreed this would allow the Council to put forward suggestions for conditions which would have to be taken into account by the Inspector but he personally felt it was important to take control.  He asked how much the Fiddington appeal had cost and what the potential cost would be if the Council lost this appeal.  The Legal Adviser indicated that she did not have the costs of the Fiddington appeal to hand; however, an appeal of this nature would be in the region of tens of thousands of pounds.

43.14         Upon being put to the vote, it was

RESOLVED          That the Committee be MINDED TO REFUSE the application in accordance with the Officer recommendation.