Agenda item

PROPOSAL: Outline application for residential development (up to 120 dwellings), associated works including infrastructure, open space and landscaping; vehicular access from Fiddington Lane.

OFFICER RECOMMENDATION: Minded to approve.

27.38        This was an outline application for residential development of up to 120 dwellings, associated works including infrastructure, open space and landscaping; vehicular access from Fiddington Lane.  The Planning Committee had visited the application site on Friday 11 August 2023.

27.39        The Senior Planning Officer advised that an email had been received that morning from Network Rail reiterating concerns regarding the proposal.  As Members were aware, this application was being brought to the Planning Committee further to the appeal against non-determination of the application to the Secretary of State. The Council must therefore advise the Secretary of State of its views on the proposal, which was the purpose of this Agenda item.  The application had been submitted in duplicate and that application would be brought to the Planning Committee next month.  The appeal site was situated to the east of Fiddington Lane and comprised an area of some 6.96 hectares, comprising approximately 6.02 ha of land situated to the east of Fiddington Lane with a small inverted ‘L’ shape to the west which was the proposed site for a sewage pumping station.  The remaining parts of the site area were proposed for a new cycleway to the north and pedestrian footway running to the immediate west of Fiddington Lane from the new roundabout to the junction with the main part of the site.  Access was the sole non-reserved matter and was proposed from Fiddington Lane, just to the south of the existing crossroads.  An illustrative master plan showing a potential disposition of the proposed dwellings together with a parameter plan had been submitted to demonstrate how the site could be developed and the application was accompanied by an Environmental Impact Assessment.  The application site lay to the east of the Land at Fiddington, Ashchurch site, which had already been allowed at appeal, where a residential development of up to 850 dwellings was being constructed, along with a primary school, local centre, supporting infrastructure, utilities, ancillary facilities, open space, landscaping, play areas and recreational facilities.  To the north of this was the consented retail outlet centre and garden centre, also part implemented.  Approximately 600m to the west of the site was a further approval at appeal site for residential development of up to 460 dwellings which had been granted planning consent in March 2022 and was also under construction.  The application site comprised agricultural land and was broadly rectangular in shape, with associated boundary hedgerows, scattered scrub and seasonally wet ditches. Adjacent to the eastern boundary was the Bristol to Birmingham main railway line running parallel with the length of the eastern boundary.  The southern boundary was adjacent to an unnamed lane with Homedowns Business Park abutting the lane on its southern side - that site had recently been granted consent for significant redevelopment for employment use.  At the south-east corner, the site abutted the unnamed lane and an unmanned level crossing of the railway line which provided access to pedestrians, cyclists and some landowners.  The western boundary was defined by a hedgerow and the northern boundary was adjacent to an unnamed lane with residential properties abutting part of the boundary. The site was almost entirely located in Flood Zone 1 which was considered at the lowest risk for flooding by the Environment Agency. The north-eastern corner of the site was recorded as being within Flood Zone 2 and 3.  An assessment of the main material considerations could be found at Pages No. 124-152 of the Committee report where a number of key harms and benefits had been identified.

27.40        Turning to the principle of development in this location, Tewkesbury was identified as a top tiered settlement in the Joint Core Strategy settlement hierarchy and was recognised in Joint Core Strategy Policy SP2 as a location where dwellings would be provided to meet the identified housing needs of Tewkesbury Borough 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 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 must 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.  The application therefore conflicted with Policy SD10 and the spatial strategy comprising Policy SP2 and SD10 read together with Policy RES3 of the Tewkesbury Borough Plan as the proposed development had not been allocated through the development plan for residential development.  It was therefore necessary to consider whether there were any material considerations which indicated that a decision should be made other than in accordance with the development plan.  The site lay within the Tewkesbury Garden Town area which advocated a comprehensive, planned development strategy for future housing, employment and infrastructure needs. The published Garden Town Concept Plan identified the appeal site as part of a strategic location for future business development. 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 prejudge the normal operation of the planning system. Nevertheless, the Garden Town status and Government support for growth, in the context of a comprehensive planned development strategy, was a material consideration.  There would be some harm to the landscape by reason of encroachment into undeveloped agricultural land beyond the settlement boundary; however, this was localised and minor considering the presence of built development to three sides of the site. There was potential to further minimise harm through sensitive design, layout and landscaping at reserved matters stage, as such, it was not considered that the harm would be significant.  After considerable discussion with the applicants, neither National Highways nor County Highways had raised objections to the proposal, subject to recommended conditions and the completion of a planning obligation.  As the site was within 10m of the railway, Network Rail was a statutory consultee and had raised an objection to the proposal on the basis of a significant uplift on usage by pedestrians of the Homedowns level crossing situated at the southeastern corner of the site.  Discussions on this matter were ongoing between the applicant and Network Rail.  All parties agreed there would be an impact; however, there was disagreement over the level of impact and what might be the appropriate mitigation to comply with the regulations relating to Section 106 obligations.  The applicant had indicated that ‘policy compliant’ affordable housing and a range of other community facilities and infrastructure would be provided, including formal and informal open space and recreational facilities, together with financial obligations for the provision of library and waste services.  It had been established through the application that limited harms would also arise in respect of the loss of Grade 3 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, heritage, and minerals and waste.  Officers had considered the proposals in terms of the planning balance, as set out at Pages No. 151-152 of the Committee report, and Paragraph 9.15 of the report stated that Officers considered that the proposal represented sustainable development and that the material considerations in this application indicated that they outweighed the weight to be given to the relevant policies of the development plan.  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 approve,subject tothe resolution of the necessary mitigation, via a Section 106 Agreement obligation, occasioned by the increased use of the adjoining railway line crossing and provision of a Section 106 Agreement dealing with affordable housing, library provision, household waste facilities, provision and management of open space and play facilities, travel plan implementation and monitoring and associated Highway Authority requirements.

27.41        The Chair invited the representative from Ashchurch Rural Parish Council to address the Committee.  The Parish Council representative indicated that the application was not in accordance with current policies of the Joint Core Strategy, Tewkesbury Borough Plan or the Ashchurch Rural Neighbourhood Development Plan.  Tewkesbury Borough Council considered it could demonstrate a five year housing land supply so this application should be refused.  The Parish Council questioned how much of a benefit 120 dwellings would be in terms of meeting local housing needs given there were already 1,650 dwellings being built within a mile radius of this site. A short build timeframe had been offered but the developers acknowledged the build on current sites was slow due to market forces and a national shortage of construction workers raising the question of whether 120 houses would delay the current construction sites which, unlike this one, came with school, shops and community centre which were all relied upon to make a development sustainable.  The Parish Council could see no economic benefit in bringing forward this site.  In terms of suggested biodiversity gain, rather than ruining the ecology on a new greenfield site, surely it would be better to complete works on a site which had already been damaged and let it start to recover.  There was a thriving equestrian community which were losing their ability to access the network of bridleways which represented a loss of amenity at a cost to the rural economy.  The objection by Network Rail on safety grounds was yet to be resolved and the noise mitigation required could be oppressive.  It was well acknowledged locally, and confirmed by transport consultants, that there was traffic chaos, not only on the A46 but also from the rat-run which it created in this and the neighbouring borough.  The expansion of this site would lead to further speculative development and loss of amenity and quiet lanes, landscape harm, additional traffic, threat to road safety, harm from construction, flood risk, urbanisation, loss of identity and negative impact on the local rural economy which collectively caused great harm for existing communities.  Members may recall terms such as ‘piecemeal’, ‘opportunist’ development from the recent Garden Town review; this site did not bring any infrastructure of community benefits and any benefits it did provide were outweighed by the considerable harm.  Therefore, Ashchurch Rural Parish Council respectfully requested that Members be minded to refuse the application.

27.42        The Chair invited a local resident, speaking in objection to the application, to address the Committee.  The local resident expressed the view that the site’s proximity to a very busy railway line must surely raise several questions, one being its suitability due to environmental and safety issues.  A proportion of the houses would inevitably have gardens abutting the railway line, with all of the associated safety and environmental issues literally ending up on their doorstep. It stood to reason that these houses would fall into the “affordable” category, hence the subtle imposition of social engineering so that the ones who could not afford the best end were being discriminated against. He questioned why the less fortunate in society should be expected to accept lower environmental and safety protocol standards than the rest and felt it was noteworthy that the Prime Minister had recently warned that we must not end up “concreting over the countryside” and that greater emphasis should be given to developing inner cities and towns.  There were currently four small communities along Fiddington Lane with some 60 dwellings, housing around 140 residents, and 1,310 dwellings being built, all from piecemeal developments so he suggested it was time to take a break until plan-led development could be brought forward.  These were real and pertinent questions surrounding the granting of planning on this piece of land but there were broader issues to consider as well, one being County Highways and the implications concerning the use of the roads and associated traffic volumes generated by another 120 dwellings, both in Fiddington Lane - currently regarded as a quiet lane - and on the A46 itself, yet many single dwelling planning applications had been refused due to objections from County Highways because of too many cars.  The lanes were used by many vulnerable road users, walkers, runners and cyclists, families enjoying the countryside for leisure or commuters who were taking advantage of a quiet, less polluted route and that should be encouraged not hindered.  There was also a wealth of off-road public rights of way in the area, including the Gloucestershire Way, and bridleways used by the many horseriders from the 20 livery stables and two equestrian centres which accessed Fiddington Lane.  If traffic continued to rise it would become increasingly dangerous to connect to the off-road routes, inevitably resulting in the loss of much needed rural businesses and jobs and for the stables in Natton this development would, to all intents and purpose, make them totally superfluous; this surely presented another blow to the quality of the environment and to long suffering locals who were witnessing the steady demise of their rural existence.  The local resident questioned whether this pocket of land which was squeezed between the railway line and Fiddington Lane really needed development and how necessary it was in terms of adding to the housing stock generally.

27.43        The Chair indicated that the Officer recommendation was minded to approve and he sought a motion from the floor.  A Member noted that the sewage plant site was to be located in the dog leg to the west of the site and the Senior Planning Officer had stated there were a number of residential properties in that area; however, she wanted to clarify that was correct as she understood that planning permission had been approved for six homes next to the site and there would also be development on the site from Fiddington 1.  In response, the Development Management Team Manager (Northwest) confirmed that what was proposed was correct; whilst six dwellings had been approved, albeit she could not recall the exact location, there would not necessarily be a conflict with those dwellings in terms of infrastructure.  Fiddington 1 was being built out and this was shown on the plan.  The Member raised concern that very little was included in the Committee report regarding the sewage plant and she asked how big the buildings would be and what levels of noise and odour would be generated as a result.  The Senior Planning Officer advised that this was an outline application with all matters reserved; if the duplicate application was approved in due course there would be a number of reserved matters which needed to be dealt with at that stage.  The Member noted that a local centre was planned as part of Fiddington 1 with routes for pedestrians and cycle links from this proposed site and to access the primary school and local centre and she asked what type of shops were proposed and whether they included a supermarket.  The Development Management Team Manager (Northwest) confirmed that the square footage of commercial floorspace would include shopping floorspace for everyday goods.  With regard to the crossing over the railway, the Member wanted to make the point that the pedestrian gate was not locked and did not prevent pedestrians from crossing. In response, the Development Management Manager clarified that the vehicular gate was locked and there was a latch on the pedestrian gate which could be lifted when seeking to cross from one side of the railway to the other.  Another Member drew attention to Page No. 140, Paragraph 8.35 of the Committee report and asked for clarification on what was meant by Network Rail being granted Rule 6 Party status and was advised that a Rule 6 Party was an interested person that was required to submit a statement of case at appeal.  The Member asked when the appeal would be heard and was advised it was scheduled for late October/early November.

27.44        It was proposed and seconded that the Council be minded to refuse the application on the basis that the Council could demonstrate a five year housing land supply and the site was not allocated for residential development in any plan; there would be a negative impact on the health and wellbeing of residents due to the impact of noise from trains; it posed a real risk to life due to the increased use of the railway crossing; and it would not protect the intrinsic value of the countryside or integrate well with the existing community and therefore was contrary to Joint Core Strategy Policies SP2, SD10, INF1, SD4 and SD14; Tewkesbury Borough Plan Policies RES3 and ENV1, Ashchurch Rural Neighbourhood Development Plan Policies V1 and T1 and National Planning Policy Framework sections 8 and 12.  The proposer of the motion indicated that those who attended the site visit on Friday would be aware that the application site was on a previously undeveloped parcel of land along Fiddington Lane.  Developers would have them believe that, due to the new Fiddington 1 and developments which were across the road from this proposed site, this proposal for 120 homes would integrate well; however, she did not believe that to be the case.  Natton and Homedowns were existing communities, defined as small hamlets within the Ashchurch Rural Neighbourhood Development Plan.  Natton was on record as far back as 1087 and was believed to be one of the first settlements in the Parish, currently accommodating up to nine residential properties and five businesses.  The whole area was a combination of small hamlets which had a thriving equestrian community and associated businesses.  Fiddington Lane provided access to local bridleways and public rights of way and any increase in traffic on this quiet country lane would make access to those local bridleways extremely dangerous.  Members would also have noted the railway line running the length of the side of the development and, to the top end of the site, the Gloucestershire Way which was a well-known walking route.  Fiddington Lane gave a strong boundary between urbanisation of the Fiddington 1 and 2 sites and the rural setting of Natton and Homedowns and, in her opinion, the proposed site would represent unnecessary encroachment into an area with traditional rural character; the Council’s own Landscape Adviser had stated that development of the site represented an intrusion into the countryside and she was in agreement.  On the site visit Members had seen the railway crossing immediately adjacent to the proposed development at the bottom end and they were aware that Network Rail had strong objections to this development on the grounds of public safety.  She pointed out the danger of unmanned unautomated crossings demonstrated by CCTV, published by Network Rail the previous day via various social media platforms and the ITV News, showing members of the public using unmanned crossings to take selfies and letting their children play between the gates as well as school children using the crossing as a playground.  Members had seen the lane that went up to the crossing and the road that joined the other side; that road linked around the back of Natton and rejoined Fiddington Lane at the top end of the proposed site making it an ideal circular route for the new residents of the proposed housing to walk their dogs, run and cycle and for those wishing to use the Gloucestershire Way.  Network Rail was very concerned that use of the crossing would be intensified by the building of these dwellings and she felt this fundamental objection could not be ignored due to the risk to public safety which was contrary to Joint Core Strategy Policy INF1.  This was a major trainline on the national network and the impact of noise from the trains for homes that would be close to the railway track must be taken into consideration.  The noise assessment noted there would need to be substantial mitigation measures to ensure an acceptable noise environment – a combination of earth bunds and acoustic fences.  In her view, the Environmental Health Officer had set out some very real concerns over this issue, stating that the mitigation measures required could be detrimental and have an oppressive impact on habitable rooms and outdoor space and she questioned whether that was acceptable given that it would be contrary to Joint Core Strategy Policies SD4 and SD14.  As she had referenced earlier, existing residents also had some major concerns about the new sewage plant that was proposed within the application, specifically in close proximity to existing dwellings, and she believed the siting of the plant would be contrary to Tewkesbury Borough Plan Policy ENV1.  She was also concerned that the developer was actively promoting this site within their proposals as a quick build out and questioned whether that meant the site would be delivered before Fiddington 1 and 2 came online i.e. before the schools were built and other infrastructure provided.  If so, it could mean that the new residents of these 120 homes would not have access to schools, playing pitches or cycle routes and there would be no facilities with the proposed development.  She considered that this development would not integrate well into the local community, was an intrusion into a rural settlement, would mean a huge loss of amenity for existing residents and would impact the safe use of Fiddington Lane for the existing residents and the equestrian community it served.  The site was proposed on a piece of land that had not been allocated for housing development within the Joint Core Strategy nor the Tewkesbury Borough Plan.  Page 135, Paragraph 8.10 of the Committee report confirmed that the Council could currently demonstrate a 6.68 year housing land supply which meant that the tilted balance was not engaged and the adopted strategic policies within the Joint Core Strategy were still considered to carry full weight. As such, Policy SP2 and SD10 were engaged and stated that housing development on sites not allocated within the Joint Core Strategy would only be permitted where it was previously developed land or met certain criteria, none of which applied to this particular application.  Tewkesbury Borough Plan Policy RES3 also stated that, where applications were proposed outside of defined settlement boundaries, the principle of new residential development would only be considered acceptable where the application met certain exceptions -  again, none of these exceptions applied to the proposed development.  Policy RES4, a policy for small rural settlements such as Natton and Homedowns, restricted housing development to no more than 5% growth based on the number of existing dwellings in the settlement, which she believed was nine so far; the application far exceeded that amount with 1,650 homes being built in the immediate area.  In respect of Ashchurch Rural Neighbourhood Development Plan, this site did not protect the intrinsic value of the countryside, did not integrate well with the existing communities of Natton and Homedowns and therefore was contrary to Policies V1 and T1.  Taking all of this into account, she felt that, on balance, the harms outweighed the benefits, and Members should resolve minded to refuse on that basis.

27.45        The Development Management Team Manager (Northwest) advised that, in terms of the general character of the area, the application had been robustly reviewed with an urban landscape and visual impact assessment submitted.  The Landscape Officer had assessed the proposal and found that, whilst there would clearly be some landscape harm as it was a greenfield site, given the construction and development in close proximity, this would only be minor in nature so that issue would be more difficult to defend at appeal.  In terms of Network Rail’s objection, this had been set out in the Committee report as a potential harm as it was currently unresolved and was subject to discussion between Network Rail and the applicant, as such, that would be an appropriate reason for refusal due to the risk to public safety.  A lot of work had been done in relation to noise impact of the development on new occupiers of the site and the Environmental Health Officer had considered additional information submitted by the appellant, along with that communicated during the course of the application, and a potential form of mitigation had been proposed in the form of a bund and an acoustic fence which could be secured via condition, with the details to be provided as part of the reserved matters application.  Whilst the parameter plan had identified the potential developable area of the site, there was still work to do at the reserved matters stage including the requirement for a noise assessment to establish that noise would be within British Standards, both internally within the dwellings and externally in amenity spaces.  As such, mitigation may mean the development was reduced from what could be seen in the plan currently – the application was for up to 120 dwellings but that did not mean that would be implemented if the assessment at the reserved matters stage indicated that was not the case.  Officers were confident that the conditions proposed could adequately control the noise impact on residents going forward so that would be more difficult to defend.  In terms of the sewage plant and its impact on future residents of this site and the one next door, those details would be discussed and examined at the reserved matters stage and if that gave rise to other issues such as noise or odour, a recommendation could be made at that stage.  Looking at integration into the existing community and the impact on local residents and the equestrian community, a lot centred around the impact on use of the lanes and the value placed on that by the community which Officers fully appreciated.  In terms of highway safety issues, County Highways had raised no objection and there were potentially measures, such as Traffic Regulation Orders, that could be put in place via County Highways to reduce the speed on Fiddington Lane which the appellant had indicated they would be willing to discuss; this was a separate matter which could not be required through a Section 106 Agreement but it was necessary to consider whether a reason for refusal could be defended on that basis.  In terms of the five year housing supply, whilst the site was not included for development in the approved development plan and was contrary to the adopted development plan, it was considered to be a sustainable location for development and that was supported by the Inspector who had considered the Fiddington North and South applications so that had been taken into account as a material consideration when making the recommendation.  The Development Management Manager clarified this was a proposal that had been carefully assessed; it was not supported by policy but had been analysed on the balance of benefits and harms.  It would bring benefits in terms of meeting housing need and adjoining an existing and significant area of ongoing development.  Various technical consultee responses had alluded to localised harms, for example, loss of agricultural land and reference to absence of self-build dwellings.  Officers shared the concerns in relation to the harm identified by Network Rail unless that could be appropriately mitigated and he recommended that as an issue which needed a resolution going into the appeal process.  Based on Officer advice, the Legal Officer recommended that, should Members be minded to refuse the application, it should be on the basis of the concern raised by Network Rail; she pointed out that was not to say the Inspector could not consider other matters put forward and they would be required to take into account the views of local residents.  The Development Management Manager pointed out that there were a range of conditions that could be included to address the technical issues that had been raised in the discussion so far including those regarding drainage.

27.46        A Member indicated that the Committee was required to make a judgement on the application and the proposer of the motion had come up with a variety of reasons for being minded to refuse.  In his view, it must be better to present more refusal reasons at appeal as it could be lost in the event there was a single reason which was not upheld.  In response, the Development Management Manager explained that Officers had provided feedback on the reasons put forward and their advice was to focus on legitimate and reasonable concerns based on technical planning assessment.  The Legal Adviser pointed out that if reasons were not supported with proper evidence and technical advice, the Inspector may suggest the local planning authority had acted unreasonably in objecting which could lead to an application for costs and was why Officers were advising that Members put their efforts into identifying the issues that could be properly justified and which could be sufficiently argued in the appeal process. 

27.47        The seconder of the motion expressed the view that the Network Rail objection was the most robust refusal reason but she noted that they were working with the appellant to find a solution and she questioned whether it was possible that this may be found in advance of the appeal and what would happen in that event.  In response, the Development Management Team Manager (Northwest) confirmed there could be a resolution prior to the appeal being heard and that would go forward as evidence for the Inspector to consider; in all probability they would still wish to examine all of the evidence as they would be the authority making the decision.  The Inspector needed to be satisfied that the potential reason for refusal had been overcome and, in considering all of the consultation responses, could raise other issues for the parties to respond to.  The Development Management Manager reiterated that the Officer recommendation was minded to approve, subject to the resolution of the necessary mitigation occasioned by the increased use of the adjoining railway line crossing and provision of a Section 106 Agreement to secure contributions for affordable housing etc. but there were also recommended conditions to secure relevant details of infrastructure and technical details at the reserved matters stage.  The proposer of the motion indicated that she was in regular contact with residents and knew the impact that Fiddington 1 and 2 was having on them.  This proposal was trying to shoehorn in 120 houses which were not needed as it stood and there would be significant loss of amenity to existing residents of Natton in terms of the equestrian facilities along Fiddington Lane which would be even more unsafe.  The access was right on Natton junction and, even if an agreement was reached regarding use of the railway crossing, she would continue to have concerns about the amenity of residents due to noise which could have a negative impact on mental health.  In her view she had given sound reasons for refusal and believed the objections would be supported by residents; there was no need for this development and the benefits did not outweigh the harm so she stood by her motion and hoped she would receive the support of the Committee.  The Development Management Manager clarified that the only point Officers were comfortable with was in relation to the health and safety issue raised by Network Rail.  The range of benefits of the proposal were set out in the Committee report and he referenced the provision of market and affordable housing, that it was adjacent to existing and ongoing development in a sustainable location with a range of services and there was proposed mitigation for the environmental health and general health concerns raised.   His strong advice was to focus on what Officers considered to be reasonable concerns as raised by Network Rail.

27.48        Upon being put to the vote, it was

RESOLVED           That the Council be MINDED TO REFUSE the application on the basis that the Council could demonstrate a five year housing land supply and the site was not allocated for residential development in any plan; there would be a negative impact on the health and wellbeing of residents due to the impact of noise from trains; it posed a real risk to life due to the increased use of the railway crossing; and it would not protect the intrinsic value of the countryside or integrate well with the existing community and therefore was contrary to Joint Core Strategy Policies SP2, SD10, INF1, SD4 and SD14; Tewkesbury Borough Plan Policies RES3 and ENV1, Ashchurch Rural Neighbourhood Development Plan Policies V1 and T1 and National Planning Policy Framework sections 8 and 12.