Agenda item

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

OFFICER RECOMMENDATION: Delegated Permit

7.3             This was an outline application for residential development of up to 160 dwellings, associated works, including demolition, infrastructure, open space and landscaping with vehicular access from the A38.  All matters were reserved.  The Planning Committee had been to visit the application site in relation to duplicate application 21/00976/OUT on Friday 14 January 2022.

7.4             The Planning Officer explained that the application site was located off Brook Lane in Down Hatherley and extended to approximately 7.82 hectares.  The site on which the residential development was proposed comprised 4.89 hectares and fell within the Parish of Down Hatherley. The remaining area, as defined by the red line on the submitted site location plan, comprised land consented and currently part-built known as ‘Land at Twigworth’ and was required for access, service and surface water drainage.  This additional land was located within Down Hatherley Parish, Twigworth Parish and Innsworth Parish.  To the immediate north of the site was Norton Garden Centre and several properties along Brook Lane were located immediately to the west.  To the east were the properties on Ash Lane; an intervening parcel of agricultural land separated the site from some of those properties.  To the south of the site, beyond a parcel of agricultural land comprised the ‘Land at Twigworth’ development.  The application site formed part of the strategic allocation 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 including demolition, infrastructure, open space and landscaping.  All matters were reserved for subsequent approval; however, whilst access was reserved for future consideration, an application for outline planning permission must also indicate the area(s) where access points to the development would be situated.  Based on the plans submitted, it was proposed that access to the site from the public highway would be provided from the new roundabout off the A38.  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.  This application sought permission for the same development proposal and would occupy the same site area as another application which Members would be aware of (Reference: 21/00976/OUT); in essence, the application before the Committee today was a duplicate application.  The applicant had submitted an appeal to the Secretary of State against non-determination of application 21/00976/OUT and, at the Planning Committee meeting on 19 April 2022, Members had resolved that, had the Council been the determining authority, it would have refused the application for three reasons: the proposed development would not adequately provide for education facilities; would not secure a mixed or balanced community or satisfactorily meet the needs of the local area; and, in the absence of a completed planning obligation, there were no arrangements for the direct implementation or financial contribution towards education and library provision, affordable housing, recycling, a Travel Plan, highway infrastructure improvements and the provision of Locally Equipped Area of Play on site.  As part of the current application, the applicant had submitted three draft planning obligations by way of Unilateral Undertakings which sought to secure, inter alia, a policy compliant affordable housing quantum, mix, tenure and the contributions requested by the Local Education Authority towards secondary education provision.  In addition, the applicant had confirmed they would enter into a separate planning obligation with regards to the primary school transport funding by way of a bilateral agreement.  Subject to successful negotiations and the completion of Unilateral Undertakings, the putative refusal reasons on the original application would have been addressed.  As set out in the Additional Representation Sheet, attached at Appendix 1, the Unilateral Undertaking with Tewkesbury Borough Council had been agreed and Gloucestershire County Council and the applicant had agreed the Unilateral Undertaking for the secondary education, libraries and highway obligations.  The latest draft of the bilateral agreement relating to the primary school transport funding was still being reviewed by the applicant; however, it was hoped that matter would soon also be agreed. 

7.5             Taking account of all the material considerations and the weight to be attributed to each one, and on the basis the putative refusal reasons on the original application had been addressed, it was considered that the identified harms would not significantly and demonstrably outweigh the benefits in the overall planning balance.  It was therefore considered that the proposed development would constitute sustainable development in the context of the National Planning Policy Framework as a whole and it was recommended that authority be delegated to the Development Manager to permit the application, subject to the resolution of the remaining outstanding matters i.e. satisfactory conclusions in respect of the contribution towards primary school transport funding, confirmation from Natural England that the Shadow Habitats Regulation Assessment was acceptable, no adverse objections raised by representation received from the press notice which could not be successfully overcome, the addition/amendment of planning conditions as appropriate and the completion of an agreement to secure the obligations listed in Paragraph 7.89 of the report (not Paragraph 7.87 as detailed in the Committee report and on the Additional Representations Sheet).  The Planning Officer indicated that this was a revised recommendation because several of the outstanding matters had successfully been addressed.  The Planning Officer apologised for an error in the Additional Representations Sheet under the ‘Additional Representations’ section which stated that a further seven representations objecting to the proposed development had been received which should read “new matters of concern have been raised” as opposed to “the following new material considerations have been introduced”.

7.6             The Chair invited the representative from Down Hatherley Parish Council to address the Committee.  The Parish Council representative indicated that the Parish Council was at a loss to understand why the duplicate application was allowed to be made when there was an appeal outstanding against the original application which the Committee was minded to refuse.  The submission of the duplicate application seemed to be a tactic by an aggressive developer to circumvent previous concerns and decisions which held up its ‘Blitzkrieg’ approach to obtaining outline planning permission on a site targeted in its crosswires for easy profit.  The Parish Council noted the draft Unilateral Undertakings on affordable housing and education which the Planning Officer clearly deemed sufficient to change the recommendation for this duplicate application but, as laypersons, the Parish Council was unsure of what these Unilateral Undertakings actually committed the developer to once the objective of outline planning permission was achieved.  Important as that issue was, it was not the primary local concern which the Parish Council had consistently articulated and long evidenced which had been equally consistently ignored.  The Parish Council representative did not intend to repeat the arguments surrounding the flooding issues and the outdated Environment Agency flood maps leading the Council to make flawed decisions on the flood risks, the creaking sewage and waste water infrastructure – particularly the overburdened, ancient pumping station in Ash Lane – and the questionable legality of the proposed access across the Brook Lane unadopted, private road and bridlepath.  Following the Committee’s discussion on those concerns when the original application was considered, Members had rightly deferred the application for further investigation.  The Parish Council had expected this to result in follow-up consultation with the Environment Agency, Severn Trent Water and the Lead Local Flood Authority in order to evaluate the long-standing claims the Parish Council and many other local residents had repeatedly brought to the Council’s attention but that had never happened.  From a local perspective, those concerns had yet again been kicked into the long grass and, as always, it was the developer who held all the aces.  The developer would undoubtedly say that all of the issues could be dealt with by condition but that was now the crux of the problem as local residents in the surrounding settlements did not trust the developer, or sadly the Planning Authority, to protect them from these very serious concerns.  What the Parish Council needed was to see these issues dealt with upfront before any permission was granted.

7.7             The Chair invited the representative from Twigworth Parish Council to address the Committee.  The Parish Council representative indicated that Twigworth and Down Hatherley had been included in the Joint Core Strategy and it had been claimed that flood risk would be manageable provided there was a coordinated and integrated approach across the area.  The Parish Council reminded Members of an old culvert running down the A38 which the Committee had been persuaded would drain the new development at Yew Tree Farm allowing the water to pass down to the Hatherley Brook; this was based on assurance by the Lead Local Flood Authority that the pipe was certainly working for part of the way and apparently someone would have the rest checked.  Three years on, with many of the houses built, it was still unclear whether the culvert was in working order which did not suggest a coordinated and integrated approach.  Last year, the site at Twigworth Green had used several industrial pumps for weeks on end to clear surface water, flooding the Hatherley Brook and beyond.  Unbelievably, the developers and the Council had claimed that the greenfield run-off would be matched, or even improved upon; however, even after all of the flooding around the site, the Lead Local Flood Authority decided not to include it in its county review.  It was noted that the recent flood report on Brook Lane recommended a number of things be checked and the Parish Council questioned whether they had been.  The Parish Council view was that the developer and the Planning Authority appeared to be oblivious to the reality that residents would continue to be flooded by run-off from the raised, built-upon water-meadows which could not be passed off as a result of climate change.

7.8             The Chair invited a local resident speaking in objection to the proposal to address the Committee.  The local resident indicated that the issues of flooding and sewage had already been referenced so she intended to focus on access and schools.  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 development and she questioned the legality of this.  There had been no communication or consultation with residents about the proposed development or the use/obstruction of the lane despite numerous requests to the developer for a meeting.  The junction of Brook Lane onto the A38 was not suitable for a large amount of traffic and access was required along Brook Lane for properties, horses and refuse collectors accessing parts of that end of Ash Lane.  If the development was to go ahead, local residents wished to see a condition to ensure there was no access from Brook Lane or Ash Lane for any construction or survey vehicles.  In relation to schools, there were no school places – primary or secondary - for the children already living in Down Hatherley, let alone those from another 160 properties, so any school children would be adding to the carbon footprint they were being educated to reduce.  The consultation leaflet on the original application for this development pitched it as being in Twigworth, not Down Hatherley, making it appear to be part of the new development already underway which was deliberately misleading.  The local resident indicated that 160 additional homes would double the size of Down Hatherley and the local property character referenced by the developer was flawed as it showed all houses when the surrounding Brook Lane and Ash Lane were a 50/50 mix of houses and bungalows and there were single level properties at Orchard Park, again misleading those without knowledge of the local area.  The local resident was shocked that the application was recommended for delegated permit given that the original application, of which this application was a duplicate, was unanimously voted as minded to refuse and was currently going through an appeal.  In her view, this application should not have been allowed to be submitted; developers were playing mind games and using bully boy tactics and she urged Members to refuse this duplicate application – not doing so would make a mockery of the planning process.

7.9             The Chair invited one of the local Ward Members for the area to address the Committee.  The local Ward Member indicated that this development was to meet the housing needs of Gloucester City and Tewkesbury Borough Council had no legal obligations from Gloucester City’s needs not being met.  Members had already heard about flooding and other issues so he intended to 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 8b) 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 that the strategic allocation would be expected to deliver new primary and secondary schools and facilities.  He indicated that there was no capacity for school places in the area and it had already been identified that this development did not comply with the Department for Transport 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 by 2023.  Even if the required payments were made, it was contrary to the overarching objectives of the National Planning Policy Framework Paragraph 8b) and 11 as well as Policy INF4 and INF6 of the Joint Core Strategy.  He felt this was too important to leave for later under condition as it would create a dogfight for education spaces in the area.  Transport costs for schooling would make the affordable homes unaffordable, or increase truancy, and that could not be allowed to happen.  The impact of these shortages highlighted the adverse impacts of permitting development that significantly and demonstrably outweighed its benefits.  The Council should not set a precedent of building houses without basics such as schooling provision and he urged Members to refuse the application, or at the very least defer it until the infrastructure was in place to deliver it in a manner compliant with the national requirements and the Council’s vision for Tewkesbury Borough.  If the Committee did resolve to permit the application, he hoped the applicant would have enough respect for the community to withdraw its appeal and stand by its commitments here.

7.10           The Chair indicated that the Officer recommendation was to permit the application, subject to the resolution of the remaining outstanding matters i.e. satisfactory conclusions in respect of the contribution towards primary school transport funding, confirmation from Natural England that the Shadow Habitats Regulation Assessment was acceptable, no adverse objections raised by representation received from the press notice which could not be successfully overcome, the addition/amendment of planning conditions as appropriate and the completion of an agreement to secure the obligations listed in Paragraph 7.89 of the report, and he sought a motion from the floor.  A Member noted this was an identical application to the one which was being determined by the Inspector at appeal and she sought clarification as to whether the application before Members had to be determined today.  She questioned why the developer had submitted an identical application and how much it cost the authority to get the application to this stage as, in her opinion, they were trying to beat the housing land supply calculation.  In response, the Planning and Enforcement Team Leader (South) explained that there was no reason why Members should not be able to determine the application before them.  His understanding was that the application had been submitted to overcome the putative reasons for refusal of the application that was currently at appeal.  The previous application had not been refused for any technical issues, for example, highways or drainage, it was only refused on the grounds there was no agreement on Section 106 obligations; the current application proposed to address all of those matters and there was mutual agreement on those, therefore, there was no technical reason to withhold planning permission today.  He was unsure of the costs in terms of time and resources but obviously it was open to applicants to submit applications if they so wished.  The Member felt that all of the information that had gone to the appeal could have been negotiated with the appeal Inspector rather than submitting a new application.  In response, the Legal Adviser explained that, in relation to the duplicate application points, Government guidance was quite clear that, if there was a problem with an application, it was recommended that the developer and the local authority enter into negotiations to try to resolve and that was what had been done here. The application before Members was valid, and was recommended in order to stop an appeal going ahead; if Members were minded to permit the application, it was likely the appeal on the earlier application would be withdrawn saving the costs and time of the Inquiry itself. 

7.11           It was proposed and seconded that the application be refused due to concerns about the access, drainage - in particular because it was using the sustainable urban drainage system specifically for the Twigworth site - and the problems with water pressure in the area.  The proposer of the motion felt that, in light of the comments made, the appeal in relation to the original application should be allowed to go ahead. In his view, the duplicate application was ridiculous and there were still a lot of unanswered questions.  The Planning and Enforcement Team Leader (South) reminded Members that the application currently at appeal had not been refused on drainage or highway grounds; it had initially been deferred by the Committee to obtain specialist independent advice on those two matters.  Both of the consultants that had been engaged for that purpose had attended the Planning Committee meeting in April and had advised that refusal of the application could not be justified on those grounds.  As he had stated earlier, the only valid reasons for refusal were the putative ones which were effectively a disagreement on the financial contributions towards various pieces of infrastructure, therefore, his advice was that Members could not introduce other reasons now given that this was essentially an identical application.  The proposer of the motion to refuse the application indicated that, whilst he respected the Officer point of view and the legalities which they must inform the Committee upon, he still had concerns about issues not covered by the putative reasons – to his mind, the Committee had deferred the original application for additional information but that had not been found to be satisfactory as the Committee had still been minded to refuse the original application.  The Legal Adviser reiterated that this was a valid application; the original planning application was subject to a non-determination appeal and Members had given putative reasons for refusal and these formed the basis of the Council’s case for appeal.  The current application endeavoured to address those refusal reasons and, therefore, to remove the need for the appeal.  If Members decided to accept the Officer recommendation for a delegated permit, the likely outcome would be that the Unilateral Undertakings and Section 106 Agreements would be transferred to the original application which meant there would be no grounds to object to or refuse the application at appeal.  It should be borne in mind there would likely be a costs application made against the Council at the appeal if there were no valid grounds for objection.  The Planning Officer clarified that the reasons for refusing the original application were outlined at Paragraph 1.12 of the Committee report and there was no mention of drainage or highway infrastructure as the Officer had recommended in the report that those matters had been successfully addressed.  In light of this advice, the proposer of the motion to refuse the application indicated that he wished to withdraw that motion and instead proposed that the application be deferred pending the outcome of the appeal. 

7.12           A Member indicated that he still failed to understand why the developer had submitted a duplicate application rather than approaching the Officers to resolve the issues with the Unilateral Undertakings and Section 106 Agreements.  The Legal Adviser indicated that normally, in the case of an appeal, an applicant would endeavour to address the grounds for refusal; however, in this instance, the applicant had decided not to agree the Unilateral Undertakings and Section 106 Agreements for the appeal but instead to address this via a duplicate application.  They were perfectly entitled to do that whether or not Members considered this to be a logical approach.  The Member asked whether, if the Committee delegated authority to permit the application today, there was any way the developer could renege on the Section 106 Agreements.  The Legal Adviser confirmed the developer would be entering into legal agreements and, generally speaking, all obligations were compiled with.  If they were not it was open to the Council to take the appropriate action to enforce compliance.

7.13           A Member indicated that he would be willing to second the motion to defer the application but felt this should be on the basis that the school transport obligation had yet to be agreed.  Based on his own experience with applications in his Ward, he shared the concerns that had been raised about the developer complying with the legal obligations.  He felt it would be safer to defer the application until all of the outstanding matters had been resolved to give Members as much assurance as possible.  With regard to the suggestion by the seconder of the motion to defer the application that this should be on the basis that the Section 106 Agreement on school transport contribution had not been agreed, the Legal Adviser confirmed that matter could be dealt with under delegated powers so that permission would not be granted until the contribution had been agreed by the Local Education Authority.  Given that an agreement on this matter was close to being reached, to defer the application may expose the Council to a costs application at the appeal.  A Member asked whether, if the original application went to appeal with no Section 106 Agreements and the current application was refused or deferred, there was a risk of ending up with a development without satisfactory Section 106 Agreements.  In response the Legal Adviser explained it was possible but he would normally expect the agreed Section 106 Agreements to be transferred to the appeal; however, the developer did not have to do that and could look to renegotiate what was in the Unilateral Undertakings.

7.14           The proposer of the motion to defer the application raised concern about the fact that the Council could still not demonstrate a five year housing land supply meaning that the tilted balance was engaged, a factor that would be raised against the Council at every appeal.  He recognised this was a strategic site so development was going to happen but it needed to happen in the right way and he believed the case being made by the Council at appeal was justification enough for a deferral – the appeal was going before the Inspector next month so a decision would be forthcoming shortly and he felt the current application should be deferred given it was a duplicate of the subject of the appeal.  The Legal Adviser stressed that the fact it was a duplicate application was to an extent irrelevant from the point of view that it was an application which needed to be determined by the Planning Committee on its planning merits - deferral on the basis of appeal was not a valid planning reason.  The proposer of the motion indicated that, having considered that advice, he would nevertheless seek a deferral for the detail of the Section 106 Agreement in respect of the school transport contribution to be brought back to the Committee to ensure that it had been satisfactorily addressed by the applicant.  The Planning Officer explained it was the Committee’s usual practice to delegate authority to the Development Manager to finalise the legal agreements, it was not normally the case for an application to be deferred in such circumstances.  The Planning and Enforcement Team Leader (South) reiterated that it was unusual for the Committee to require completed Section 106 Agreements although he could understand, given the applicant’s previous reluctance to provide an Agreement, where Members were coming from.  It was further pointed out that, if the application was deferred pending completion of the Section 106 Agreement, the appeal Inquiry was not starting until August so it was possible that this matter would be resolved ahead of the Planning Committee meeting in July.  A Member indicated that the Committee report stated that the Inquiry was in July so she was surprised to hear it was now going to be August; notwithstanding this, the Committee was entitled to make a decision that was not in accordance with the Officer recommendation. 

7.15           Upon being put to the vote, it was

RESOLVED          That the application be DEFERRED due to the absence of a completed Section 106 Agreement in relation to the contribution towards primary school transport funding.