Agenda item

PROPOSAL: Residential development (up to 160 dwellings) and associated works including demolition, infrastructure, open space and landscaping.  Vehicular access from the A38.  All matters are reserved.

OFFICER RECOMMENDATION: Minded to Permit

72.2          This was an outline application for residential development (up to 160 dwellings) and associated works including demolition, infrastructure, open space and landscaping with vehicular access from the A38.  All matters are reserved.  The application had been deferred at the Planning Committee meeting on 15 February 2022 for additional information to be gathered in relation to the tenure mix for the social housing requirements; to allow an up-to-date traffic assessment to be carried out; for an independent assessment of the site to be undertaken to establish an appropriate sustainable drainage system (SuDS) for the proposal; and for a meeting to be arranged between the applicant, Planning Officers and residents in order for these issues to be discussed.  The Planning Committee had visited the application site on Friday 14 January 2022.

72.3          The Planning Officer advised that, following the Planning Committee meeting in February, the applicant had submitted an appeal to the Secretary of State against non-determination of the application, as such, the Council was no longer the determining authority but must advise the Secretary of State of its views on the proposal.  As Members would recall, the application site was located off Brook Lane in Down Hatherley and extended to approximately 7.82 hectares, although the site on which the residential development was proposed comprised 4.89 hectares.  The application site formed part of the Strategic Allocation A1 Innsworth and Twigworth in the Joint Core Strategy and was shown to be ‘housing and related infrastructure’ in the Joint Core Strategy indicative site layout proposals map.  This application was made in outline for residential development of up to 160 dwellings and associated works.  Although all matters were reserved, the application documents included an illustrative masterplan and parameters plan which indicated how the quantum of development could be delivered. 

72.4          In terms of three reasons for which the application was deferred, these had been addressed in detail at Pages No. 45-49 of the Committee report; however, as mentioned previously, the applicant had submitted an appeal against non-determination of the application to the Secretary of State and, since publication of the Committee report, new information had come to light regarding the applicant’s position on the required contribution towards education provision and the proposed affordable housing tenure.  Given the context of the current appeal, the change in position on the education provision and affordable housing tenure must be taken into account.  Full details of the assessment could be found in the Additional Representations Sheet, attached at Appendix 1.  In terms of the contribution towards education provision, Paragraph 7.87 of the published Committee report stated that the applicant had agreed on a “without prejudice basis” to enter into an agreement with Gloucestershire County Council to secure the contributions requested by the Local Education Authority towards education provision; however, when the applicant confirmed their agreement to pay the education contributions, this was on a “without prejudice basis” and the applicant emphasised that, in an appeal scenario, they would be starting from the position that no contributions at all could be justified.  As such, the applicant’s Pre-Inquiry Statement of Case clarified that the applicant considered the contribution sought by the Local Education Authority towards education provision was not compliant with the regulations or relevant guidance in numerous regards.  The Local Education Authority had assessed the impact of the development proposal using up-to-date evidence, information, forecasts and data and those assessments had resulted in the request for the contributions towards education provision.  Officers considered that the contributions requested by the Local Education Authority would meet the Community Infrastructure Levy tests, being directly related, necessary, fair and reasonable.  Given the applicant now contested the need for the contribution, the appeal proposal advanced would fail to provide for education facilities.  In terms of the proposed affordable housing tenure, as set out at Page No. 37, Paragraph 7.55 of the Committee report, following continued negotiations during the application process, the applicant agreed to provide the tenure and mix as requested by the Council’s Housing Strategic Housing and Enabling Officer.  The agreed mix was 70% social rent and 30% affordable housing for sale (shared ownership); however, when the applicant confirmed their agreement to this tenure mix, it was again on a “without prejudice basis”.  Based on the information contained within the appellant’s Pre-Inquiry Statement of Case, the applicant considered both social rented and affordable rented should be provided whereas the Council’s Strategic Housing and Enabling Officer sought entirely social rented units.  As such, the type of rented units to be secured was a matter now in dispute.  The requirement for entirely social rented units was based on the latest evidence of need available, the Local Housing Needs Assessment 2020, and indicated that a far greater need existed for social rented units.  Given the Local Housing Needs Assessment provided an up-to-date indication of the current tenure needs, Officers considered that the tenure mix proposed by the applicant would not secure a mixed and balanced community, nor would it satisfactorily meet the needs of the local area which was required by the development plan.  In the absence of a completed planning obligation, there were no arrangements for the direct implementation or financial contribution towards education and library, affordable housing, recycling and waste bin facilities, a Travel Plan, highway infrastructure improvements and the provision of a Locally Equipped Area of Play on site, all of which were required as a consequence of the proposed development. 

72.5          Given the change in the applicant’s position on education provision and the affordable housing tenure mix, a new balancing exercise had been carried out and, when taking into account all of the material considerations and the weight to be attributed to each one, it was considered that the identified harms in relation to the failure to provide adequate provision towards education facilities, the failure to provide a mixed and balance community to meet the needs of the local area, and as there were no arrangements in place for the direct implementation or financial contribution towards the provision of affordable housing, infrastructure and services required as a consequence of the proposed development, would significantly and demonstrably outweigh the benefits in the overall planning balance.  With that in mind, and in the context of the current appeal, the Officer recommendation was minded to refuse and the three reasons for refusal as cited were set out in the Additional Representations Sheet.  The Planning Officer indicated that a representative from the Transportation Consultancy, which had carried out the transport assessment, and a representative from Hydrock, which had carried out the assessment of the site to establish an appropriate SuDS for the proposed development, were in attendance and had both offered to do a brief presentation to detail how the work was carried out and the findings.

72.6          The Chair invited the representative from the Transportation Consultancy to give his presentation.  The representative advised that the Transportation Consultancy was appointed to provide a full and thorough review of the application.  At the heart of the independent review was a traffic impact assessment to determine the impact of the development.  Due to the fact that traffic had not returned to pre-COVID levels, it was not possible or reliable to collect data at this time to aid the review.  Notwithstanding this, an assessment had been undertaken using a comparison of a traffic survey undertaken in 2019 and the data used in the transport assessment.  The results had demonstrated that the transport assessment was a worst-case scenario and the growth factors applied were higher than the actual recorded traffic survey in 2019.  The capacity assessment revealed that the junction and the local highway network operated without any concerns and both Gloucestershire County Council and National Highways were supportive of the proposals, therefore, it had been clearly demonstrated that there were no justifiable reasons for refusal on highways and transport grounds.

72.7          The Chair invited the representative from Hydrock to give his presentation.  The representative confirmed that he had carried out an independent review of the flood risk assessment for the site to establish whether the SuDS principles were acceptable.  He had looked at the original design for the greenfield site and the expectations in terms of run-off rate.  The proposals had been assessed against four criteria: capacity in the wider network; whether the proposals would accommodate a 1/100 year flood event plus 40% additional capacity for climate change; whether the SuDS were appropriate to ensure a storm event above 1/100 year would not impact property on and outside the site; and if the foul water network was sufficient.  The assessment had shown there was sufficient capacity within the network and the run-off rate would largely be an improvement on the existing situation or would remain the same.  The drainage proposals were generally acceptable for a 1/100 year flood event allowing for a 40% increase for climate change – whilst the SuDS were fundamentally acceptable, some items within the modelling could be tweaked to ensure that attenuation volumes were sufficient should the storage within the network be lower than assumed.  The representative confirmed that the proposed SuDS met the guidance and standards and were therefore acceptable in that regard.  The foul drainage arrangements had been reviewed and could not be fully signed off at this stage based on the level of design but there was a strategy in place.  He noted there had been some concern about land being cut off but confirmed that could be addressed by condition as that level of design was not expected at the outline application stage.  Severn Trent Water had raised no objection to the scheme, subject to conditions, and the representative indicated it would not have done that if there was not sufficient capacity.  In summary, the independent assessment had confirmed that the fundamental principles of both the storm and foul water strategy were acceptable, albeit with some minor changes needed at the detailed design stage to secure full sign off.

72.8          The Chair invited the representative from Down Hatherley Parish Council to address the Committee.  The Parish Council representative indicated that, when this application had previously been considered, the Parish Council spokesperson had raised several issues of serious local concern and the long-standing arguments surrounding the significantly increased flood risks to neighbouring settlements represented by the area’s Joint Core Strategy allocation had been highlighted.  Members had also been reminded of the flooding event and catastrophic failure of the infrastructure in Ash Lane in December 2020 resulting in a toxic mixture of sewage and floodwater overwhelming homes, garages and gardens – the representative indicated that some people still could not use their showers at certain times of the day.  The Committee had been informed that the pumping station in Ash Lane was at a pinch point, struggling to cope with the current volumes from several surrounding settlements and local opinion was that the proposal for much of this development to be added to that overburdened system would be totally irresponsible.  Additionally, for years, local evidence had been provided that the Environment Agency flood maps for the area were grossly out of date, hence the flood risk advice being provided to the Committee was totally flawed.  The Parish Council argued that the Lead Local Flood Authority’s statement that the location was entirely in Flood Zone 1 and surface water mapping indicated the site was not at risk of surface water flooding was utter nonsense and the Parish Council representative urged Members to look again at the local evidence to the contrary.  The Parish Council had also raised concerns over the proposed site access; the access road would cross Brook Lane which was unadopted, thus owned and maintained by local residents and the Parish Council had questioned what rights of access the developers had without gaining permission from the residents.  Furthermore, Brook Lane was a bridleway and the Parish Council questioned whether it was legal to put a highway across a bridleway.  The Parish Council considered that access to the site via Brook Lane would be unacceptable; however, many would attempt to use this totally unsuitable shortcut to try to avoid holdups elsewhere which would create a rat-run along Brook Lane and Ash Lane, another private road.  The Parish Council was extremely disappointed to discover that the two assessments commissioned following the deferral did not address the issues raised, therefore, the reports produced from these assessments simply did nothing to alleviate the Parish Council’s concerns.  The fact there had been no further consultation, or challenging, of Severn Trent, the Environment Agency and the Lead Local Flood Authority beggared belief given the flavour of the Planning Committee’s debate on deferral.

72.9          The Chair invited the representative from Twigworth Parish Council to address the Committee.  The Parish Council representative raised concern that the recent Hydrock flood report did not put anything to bed – there were still ifs and buts and things which needed modelling, checking and so on.  For instance, with regard to SuDS, the attenuation ponds depended on groundwater not being too high but it was high - the applicant’s agent had found groundwater at one metre which may be the case during a dry patch but, during a wet time, put a spade half into the ground and the hole would fill up with water.  The hydrologist Professor Iain Cluckie had stated that the site had all of the undesirable aspects imaginable - it had almost no slope, zero infiltration, a high groundwater level which limited the impact of a pond and had made-up land upon which the houses were to be built.  Another key problem area was the Hatherley Brook and all upstream catchment changes to the flow regime of the Brook would impact upon its ability to convey flow.  He stated that the 40% addition for climate change was fairly arbitrary and had increased several times since the development of SuDS.  Professor Cluckie was also concerned about the somewhat arbitrary setting of the risk level in the greenfield run-off calculation to QBAR – the Parish Council felt that was fairly critical as Brook Lane water run-off calculations were based on an average rainfall, not a worst-case scenario as in 2007, or even just a bad-case one as in 2020.  The Parish Council did have rainfall figures which it had given to the Lead Local Flood Authority but had heard nothing back.  The Parish Council’s experts did not agree with the developer’s experts and they were not being paid and did not have any other interest.  The Parish Council representative felt he spoke for everyone in the villages impacted by this development when he said that Tewkesbury Borough Council’s policy seemed to ignore the people who lived there already.

72.10        The Chair invited a local resident speaking in objection to the application to address the Committee.  The local resident indicated that she was speaking on behalf of the residents of Brook Lane who strongly objected to the proposed development.  One of the main concerns was the increased risk of flooding for the homes already situated in Brook Lane, and Ash Lane due to overdevelopment of the land and breaching of the ditches and gullies which was already visible by Brook House where the proposed access would cross Brook Lane.  There was already standing water on the proposed development site and no adequate additional flood prevention or drainage was shown on the plans.  The local resident did not feel the revised report had gone far enough into researching the issues and nobody local had been taken into account.  If the development went ahead, the local resident felt that a condition should be included requiring the gullies and drains to be cleared prior to the commencement of any work and to ensure they were kept clear and improved.  In terms of access, Brook Lane was privately owned and maintained by residents; it was also a bridleway which would be blocked or crossed by the access road to the proposed development.  There had been no communication or consultation with residents regarding the proposed development or the use/obstruction of the lane.  The local resident noted from comments and statements that improvements to road surfaces, bollards and street lighting would be required but, again, there had been no communication or consultation on this matter.  The junction of Brook Lane onto the A38 was unsuitable for a large amount of traffic and access was also required along Brook Lane for properties, horses and refuse collectors accessing parts of that end of Ash Lane.  Despite it being deemed necessary at the February Planning Committee to hold a meeting between Officers, the developer and local residents, this had been refused by the developer and residents felt let down; the local resident had personally asked the developer for a meeting and had also been refused.  The original consultation leaflet on the proposed development sent out to the local residents pitched the development as being in Twigworth, not Down Hatherley, making it appear to be part of the new build already underway – local residents felt this was deliberately misleading, particularly as 160 extra homes would nearly double the size of Down Hatherley.  In addition, the local property character referenced by the developer was flawed as it showed all houses when the surrounding Brook Lane and Ash Lane was a 50/50 mix of houses and bungalows and there were single level properties on Orchard Park which was again misleading those who did not know the local area.  The local resident expressed the view that consultation and communication were two key elements which she felt were sadly lacking on the side of the developer and the Planning department in this instance and she urged Members to be minded to refuse the application.

72.11        The Chair invited the applicant’s representative to address the Committee.  The applicant’s representative noted that the application had been recommended for permission but had been deferred at the meeting in February to allow for a “sense check” with regards to the traffic assessment and for an independent assessment of the site to be undertaken to establish an appropriate drainage system for the proposal.  The two assessments had been carried out and supported the conclusions of the applicant’s professional team and those of the Borough Council’s statutory consultees on those matters.  The position was, therefore, that the site was allocated and so the principle of development had already been established through the plan-making process; relevant statutory consultees raised no objection to the application; Officers had recommended, at the Planning Committee in February, that permission be granted subject to Section 106 Agreements and conditions; third party consultants had since verified the transport and drainage assessments; upon receipt of the additional evidence from third party consultants, Officers maintained that there were no grounds for refusal in relation to traffic and, with regard to drainage, the Hydrock report made clear that the fundamental principles were acceptable and, as set out in the Committee report, a satisfactory drainage scheme taking into account the recommendations, could be secured by condition as was appropriate for an outline application with all matters reserved; and, there was no other evidence to contradict the experts or which could be used to properly substantiate a reason for refusal.  The applicant’s representative confirmed that the planning obligations had all been agreed by the applicant and would, amongst other things, deliver 35% affordable housing in the tenure mix sought by the Council, the agreed education contributions, bus stop improvements on the eastern side of the A38, tactile paving at the junction of Norton Garden Centre and the A38 as well as contributions towards library facilities, recycling and waste bins, travel planning and the provision of an on-site Locally Equipped Area for Play.  The applicant’s representative indicated that the application for planning permission accorded with the development plan and, subject to entering into these planning obligations, there were no other material considerations indicating that this planning application should be determined in any other way than in accordance with the development plan.

72.12        The Chair invited one of the local Ward Members for the area to address the Committee.  The local Ward Member had been interested to note that the Committee report stated that the benefit of the proposal would be that it would help to meet the objectively assessed need for housing in the borough; however, he pointed out that it would actually meet Gloucester City’s needs as none of the housing would count towards Tewkesbury Borough’s need.  The local Ward Member noted that Members had already heard about flooding and other issues so he would go to the crux in planning terms which was infrastructure.  The local Ward Member noted that the planning system had three overarching objectives and, in terms of the social objective, Paragraph 8 b) of the National Planning Policy Framework required development to help support strong, vibrant and healthy communities with accessible services that reflected current and future needs and supported communities – the proposed development did not adhere to this.  Paragraph 11 required plans to align growth and infrastructure and, under Joint Core Strategy Policy A1 – Innsworth and Twigworth, it stated the strategic allocation identified at Innsworth and Twigworth, as shown on policy map A1, would be expected to deliver new primary and secondary schools and facilities as well as mentioning a potential link road between the A38 and A40.  In terms of education provision, it had already been identified that this development did not comply with Department for Education home to school travel and transport statutory guidance, or the Gloucestershire Local Transport Plan, as, at a primary level within the two mile statutory distance, there was no capacity to accommodate children from this development.  At secondary level in this area, Gloucestershire County Council had confirmed the importance of a new secondary school site in the specific areas of housing and identified that, with planned and strategic housing, there would be an eight form entry shortage of places in the area by 2023.  In his view, the impact of the shortages unquestionably illustrated the adverse impacts of permitting development that significantly and demonstrably outweighed its benefits.  The developer had not even agreed to the suggested short-term fix of transporting the children, which even if implemented was not good enough and needed to be in place until a long-term fix was finalised and signed-off.  The local Ward Member indicated this was not a third world country and Members should not allow a precedent to be set for houses being built without the ability to supply basic provisions such as schools.  As such, the local Ward Member felt Members should be minded to refuse the application as contrary to Joint Core Strategy policies SD11, SD12, INF4, INF6, INF7, emerging Tewkesbury Borough Plan policies RES12, RES13, RCN1 and paragraphs 8b) and 11 of the National Planning Policy Framework.

72.13        The Chair indicated that the Officer recommendation was minded to refuse and he sought a motion from the floor.  It was proposed and seconded that the Committee be minded to refuse the application in accordance with the Officer recommendation.  The proposer of the motion raised concern that survey work for the drainage in relation to a neighbouring application at Yew Tree Farm had been in the process of being carried out by the developer along the A38 towards the BP Garage in Twigworth but that had stopped three quarters of the way through.  In addition, the Environment Agency map had shown that the BP Garage had not flooded last year but he disputed that having gone to the site and seen it for himself.  A Member indicated that he was supportive of the proposal but wished to strengthen the reasons for the refusal.  He felt the Design and Access Statement was minimal, vague, unambitious and not of a high standard required by the National Design Guide or in line with the National Planning Policy Framework – in his view, the developer had set a low standard and failed to achieve it.  The Lead Local Flood Authority acknowledged some history of flooding in the area, predominantly due to sewer flooding, yet thousands of houses within the strategic A1 site would all feed into a network which was over 70 years old and, according to the Lead Local Flood Authority, could not cope with existing capacity. Whilst he recognised that nobody from Severn Trent Water was in attendance at the meeting, he wished to know the capacity of the system and what survey work had actually been undertaken – as a Member of Innsworth Parish Council he attended Parish Council meetings and had heard from residents of a new development in Innsworth whose toilets did not flush.  He noted that a contribution of £31,360 had been sought towards library provision and he questioned what that would be spent on specifically – a question he had asked before but had not received an answer to.  He recognised that condition 11 had been updated but asked who was responsible for monitoring that work and whether the three local Ward Members could have regular email updates as to its progress.  In terms of highways, there had been no mention of the speed limit on the A38.  As County Highways had suggested a modification to the paving to make this tactile paving, and bus stops would be on either side of the road which would be used by children during term time, he asked whether it was possible to include a condition to reduce the speed limit to 30mph.  Finally, he asked if something could be done in relation to water pressure in the area as Twigworth, Longford and Innsworth had all been suffering from low pressure for the last 18-24 months with some residents being unable to shower during peak times in the mornings and evenings.  He felt this was unacceptable by today’s standards and needed to be addressed as a matter of urgency.

72.14        In response, the Planning Officer advised that the Design and Access Statement could not be used as a reason for refusal given that the application was seeking outline consent.  Should the Inspector allow the appeal, the Council would be able to put forward a list of conditions which would include condition 5, as set out at Page No. 52 of the Committee report, which required the submission of a Design Principles document prior to the reserved matters application.  Where matters could be addressed by condition or legal obligation that was the preferred approach.  With regard to the issues around drainage, she explained that Severn Trent was a statutory consultee and had raised no objection to the application.  In her view, it would be very difficult to defend an appeal on the grounds of drainage based on the technical evidence from the Lead Local Flood Authority, the Council’s independent review and given that Severn Trent had indicated there was capacity and that could be secured by condition.  In respect of the library contribution, the information contained within the Committee report was the only information received from the County Council; however, she recognised this matter had been raised by the Member previously and she undertook to discuss this with the County Council outside of the meeting to establish if more details could be provided about where the contribution would go.  The concerns about water pressure were not directly related to the development before Members and would need to be taken up with Severn Trent outside of the meeting.  The County Highways representative advised that, in his opinion, the request to reduce the speed limit on the A38 would not meet the necessary tests and could not be substantiated at appeal given that the future of the development did not hinge on that, being part of a wider allocation. In summary, the Planning Officer did not feel any of the additional reasons suggested could be successfully defended at appeal and her recommendation was that the refusal should be on the basis of the three reasons set out in the Additional Representations Sheet, attached at Appendix 1.  The Member asked whether they could be put down as conditions, should the Inspector decide to allow the appeal, and the Planning Officer confirmed that the Council would need to put forward its recommended conditions at the inquiry stage and further discussion could take place prior to that.

72.15        Upon being put to the vote, it was

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