TOWN AND COUNTRY PLANNING ACT 1990
Appeal by Davidsons Developments Ltd
Land at Ashfield Farm, Kirkby Road, Desford
Statement of Case on behalf of
Desford Parish Council
by Gary Kirk BA (Hons) MA
- I am Gary Kirk. I am Managing Director of YourLocale, which is a Neighbourhood Plan consultancy. YourLocale has now supported 46 Parishes through a successful examination/Referendum, including Desford. I was appointed to the Neighbourhood Plan Independent Examination Referral Service (NPIERS) in 2013 as an Independent Examiner of Neighbourhood Plans, and undertook work for them for two years until withdrawing following an increased workload with YourLocale.
- The Outline Application 19/01243/OUT by Davidsons Developments Ltd for up to 120 dwellings at Ashfield Farm Kirby Road, Desford was refused by the HBBC Planning Committee on 19 May 2020.
- The reasons for refusal, as identified in the decision notice issued on 20 May 2020 were:
- The application proposes development in the countryside, where its built form would be at odds with the sites current open character. The development does not protect the intrinsic value, beauty and open character of this countryside location and is therefore contrary to DM4 of the Site Allocations and Development Management Policies DPD 2016.
- The development would create an increase in vehicular movements in a location which is adjacent to a school and recreation ground which along with the residual cumulative impacts on Kirkby Road, a narrow approach road where on street car parking is prevalent would result in the development having a severe impact on highway safety and is contrary to Policy DM17 of the Site Allocations and Development Management Policies DPD 2016.
- The housing figure supplied by HBBC in the preparation of the Desford Neighbourhood Plan was for a net total of 90 dwellings to be developed up to 2036. The Neighbourhood Plan has provided for 160 dwellings which is in excess of its minimum requirement. HBBC has commented that the Local Plan, when adopted, may set out ‘significantly different housing figures’ (Neighbourhood Plan Updates – Housing Requirements, November 2020). In order to address this uncertainty about future housing numbers, two reserve sites are incorporated into the Neighbourhood Plan to come forward only if the need for additional development is identified within the new Local Plan, currently in preparation. One of these reserve sites is the proposed development at Ashfield Farm.
- The Examiner of the Desford Neighbourhood Plan was absolutely clear on the status of the reserve sites and makes consistent reference in his examination report to the sites only coming forward on the adoption of the new Local Plan for Hinckley and Bosworth and then only if a need has been identified. To reinforce this, he gave explicit instruction that the reserve sites should remain outside of the Settlement Boundary in order to prevent their immediate development.
- If the appeal site is allocated for development, alongside the development to the north of the appeal site, namely the Jelsons’ site, for a further 60 dwellings, a total of 340 dwellings will come forward immediately, which far exceeds the LPA requirement of net 93 dwellings for the plan period to 2036.
- Such an addition to the village over a short time will negate the whole underpinning of the Neighbourhood Plan which was to provide sustainable housing until the Local Plan is adopted.
- It will put unnecessary and immediate strain on local amenities, especially during construction of the dwellings on the appeal site via completely unsuitable residential roads and via difficult junctions. All these difficulties were accepted by the Independent Examiner, who made the appeal site a Reserve Site conditional on one or both of the sites to the East of the village not proceeding.
Weight to be given to the Neighbourhood Plan
- At the time of the determination of the Planning Committee to refuse the application, on 19 May 2020, the Desford Neighbourhood Plan was at Examination. The weight it could therefore be afforded was not great.
- However, the Neighbourhood Plan passed examination in August 2020 and HBBC issued a decision notice to that effect on 11 September 2020.
- It is only as a result of the Coronavirus Pandemic that the Desford Neighbourhood Plan has been unable to proceed to referendum and to be Made by HBBC. Nonetheless, Updated Planning Practice Guidance states that neighbourhood plans that have passed Examination should be afforded ‘significant weight’.
- The change in policy guidance is reflected in the following extract from the Planning Practice Guidance – Decision-making: Where the local planning authority has issued a decision statement (as set out under Regulation 18 of the Neighbourhood Planning (General) Regulations 2012) detailing its intention to send a neighbourhood plan to referendum, that plan can be given significant weight in decision-making, so far as the plan is material to the application. (Planning Practice Guidance Paragraph: 107 Reference ID: 41-107-20200925 Revision date: 25 09 2020).
- A date for the Neighbourhood Plan Referendum has now been set for 6 May 2021. This date is after the deadline for submitting this statement of case but before the date set for the Public Inquiry. Given the high support locally for the Neighbourhood Plan and the very small number of neighbourhood plans that have failed to pass at Referendum stage, it is very likely that the Desford Neighbourhood Plan will have passed examination and will have been Made by HBBC prior to the Public Inquiry.
- The significance of this is demonstrated with reference to the National Planning Policy Framework (2019) which affords additional powers to neighbourhood plans where they allocate residential development sites in circumstances where the local planning authority cannot demonstrate a 5-year housing supply.
- Paragraph 11 d) of the Framework requires plans and decisions to apply a presumption in favour of sustainable development, which, it says, means:
- ‘where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless:
- the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed6; or
- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole’.
- HBBC cannot currently demonstrate a 5-year supply of deliverable housing sites so the provisions of paragraph 11 of the Framework apply
- However, Paragraph 14 of the Framework goes on to say:
- ‘In situations where the presumption (at paragraph 11d) applies to applications involving the provision of housing, the adverse impact of allowing development that conflicts with the neighbourhood plan is likely to significantly and demonstrably outweigh the benefits, provided all of the following apply:
- the neighbourhood plan became part of the development plan two years or less before the date on which the decision is made;
- the neighbourhood plan contains policies and allocations to meet its identified housing requirement;
- the local planning authority has at least a three year supply of deliverable housing sites (against its five year housing supply requirement, including the appropriate buffer as set out in paragraph 73); and
- the local planning authority’s housing delivery was at least 45% of that required over the previous three years’.
- Each of these four conditions apply in relation to the Desford Neighbourhood Plan and therefore the provisions contained in paragraph 14 of the Framework apply, and therefore ‘the adverse impact of allowing development that conflicts with the neighbourhood plan is likely to significantly and demonstrably outweigh the benefits’.
- Paragraph 12 of the Framework is explicit. ‘Where a planning application conflicts with an up-to-date development plan (including any neighbourhood plans that form part of the development plan), permission should not usually be granted’.
Conformity with Core Strategy/Neighbourhood Plan/Prematurity
- Site Allocations and Development Management Policies DPD Policy DM4 sets out specific conditions which need to be met for development in the countryside to be considered sustainable. These include outdoor sport, change of use of existing building, contributing to economic growth and accommodation for rural workers. None of the conditions listed relate to the application that is the subject of the appeal.
- The intention of the policy is to ensure ‘further development in the rural area and outside of defined settlement boundaries is highly restricted as prescribed through the provisions of Policy DM4’.
- The Desford Neighbourhood Plan is in general conformity with the Development Plan documents and adds local detail which need to be taken into account.
- The Examiner went to great lengths to ensure that the reserve sites did not come forward prematurely. He said ‘I do not consider it appropriate to recommend allocation of a further site or sites at this stage. With the two recent substantial planning permissions, the matter is not urgent and there is a risk that an allocation now could impose excessively on Desford. Rather it would be better for the level of provision in the parish to be considered in its Local Plan process where the relative share of housing supply between Desford and other communities will be considered with the advantage of evidence in respect of both Desford and those other communities and a consideration of the duty to co-operate with Leicester City and other authorities’.
- This is a very clear statement, specifically with reference to the Ashfield Farm site, that further development at this stage could ‘impose excessively on Desford’ hence the identification of the site as a reserve site, rather than a site to come forward immediately.
- The Examiner went further in seeking to protect Desford from further excessive development by stating ‘I do not consider that the settlement boundary should be altered to incorporate land held in reserve. That would in effect make a reserved site an allocated site’. Once again, the Examiner has sought to protect Desford from the negative impact of developing the Ashfield Farm site before the Local Plan is adopted and a justification for its development provided.
- The HBBC Officer’s report to the Planning Committee meeting of 20 May 2020 acknowledged that ‘The site does not fall under any of the categories identified in DM4 as sustainable development and so there is a clear conflict between the proposed development and the policy’. (Paragraph 8.9). The report also references the emerging Neighbourhood Plan and that an alternative site is identified for residential development. It concludes however that as the Neighbourhood Plan has not passed examination it could not be afforded significant weight, though it was identified as a material consideration. The Officer’s report says the following about the Neighbourhood Plan ‘The emerging DNP does not form part of the adopted Development Plan as it has yet to be made. Nevertheless, it is accepted that the bringing forward of development that is not plan-led is harmful in the sense that it removes from the local community the ability to shape its surroundings and environment.’ (Paragraph 9.3).
- Now that the Neighbourhood Plan has passed Examination and is expected to have passed Referendum and to have been Made by HBBC prior to the Public Inquiry, the ‘tilted balance’ described above has changed significantly in favour of the weight to be afforded to the Neighbourhood Plan.
- HBBC agreed the Examiner’s analysis of the housing requirement for Desford. In their formal response to the Examiner’s report in relation to the proposal to introduce reserve sites, the HBBC response was as follows ‘The LPA advise all neighbourhood plan groups that they should build in as much flexibility as they can by allocating additional sites/identifying reserve sites should a housing requirement later set by the borough local plan be in excess of that being planned for in the neighbourhood plan. Reserve sites also allow the group to have a say in what sites may come forward or be allocated in the future if a larger housing need is determined. Reserve sites give the Local Authority and Developers a good idea of what sites the NDP have assessed as sustainable alternative sites, and this would come into consideration when/if allocating through the Local Plan process if a higher need is determined. It would also ensure that all development is planned for, rather than via speculative applications/appeals not considered by the Neighbourhood Plan. Therefore agree with the Examiner that there should be a reserve sites policy to ensure flexibility and to allow sustainable planned development to occur if and when need arises in Desford Parish’.
- It is absolutely clear, therefore, that the Borough Council agree with the Examiner’s conclusion that reserve sites should not come forward until the new Local Plan is in place.
- The Design and Access Statement produced in support of the planning application says ‘The emerging NDP represents a material consideration in the determination of planning applications within the Neighbourhood Area, commensurate with the provisions of Paragraph 48 of the NPPF. However Paragraph 48b of the NPPF limits the weight of this where ‘there are unresolved objections to relevant policies’ which is the case with the Desford Neighbourhood Plan’ (Paragraph 2.29).
- These concerns over ‘unresolved objections’ are repeated in the Planning Statement and used to diminish the relevance of the Neighbourhood Plan but fall away now that the Neighbourhood Plan has passed Examination and, in line with Government guidance, can be afforded ‘significant weight’ or ‘full weight’ depending on the outcome of the Referendum. Any ‘unresolved concerns’ have all been addressed through the examination process.
- Desford Parish Council shares the Examiner’s view that the site should only be considered for development 1) once the Local Plan process has concluded, and 2) that a need for additional housing has been identified AT THAT TIME. Even then, the Examiner was clear that it would not even then be necessary for each site to be allocated. He said ‘If only one is needed that should be determined in accordance with the policies and other material considerations that apply at the time’ (Examiner’s report page 11 para 44).
- The allocation of reserve sites is a common approach to enabling neighbourhood plans to shape future development and to have continued control over the process when housing requirements change as confirmed through new Local Plans. The key is that they should only be utilised when the required conditions are met. To suggest that they should come forward before the stated conditions are met would be to make it a formal allocation rather than a reserve site. This point is piclked up in other Neighbourhood Plan examinations:
- The Examiner of the Hungarton Neighbourhood Plan (Liz Beth – April 2017) addressed this point specifically, concluding ‘… the reserve sites within the Limits to Development boundary could be argued to be acceptable for development now … I have checked with the LPA and the Qualifying Body on this point and they have confirmed that the intention was for the reserve sites to be only available should the need for further allocations be required, as would be expected. I recommend, therefore, that … the reserve sites are excluded from the development boundary’.
- Richard High, who examined the Sileby Neighbourhood Plan in September 2019 shared this view in stating ‘Policy H1 identifies 6 sites which may be considered for residential development if there is a shortfall of housing because the permitted housing sites in Sileby fail to deliver the anticipated level of development, or if further development is required by the emerging Local Plan which will replace the Charnwood Local Plan Core Strategy’.
- The Hallaton Neighbourhood Plan examined by Ann Skippers in February 2021 says about the reserve site allocation in that Neighbourhood Plan ‘In principle it is welcomed that the Plan seeks to allocate a reserve site. PPG indicates the allocation of reserve sites to help address emerging evidence of housing need can minimise potential conflicts and help to ensure policies in neighbourhood plans are not overridden by new local plans’.
- It is clear therefore that the identification of a reserve site is not an invitation to immediately develop the site in question. It has to relate to the specific conditions attached to the purpose of making the site a reserve site rather than an immediate allocation. Until the conditions are met, the site is to be held in reserve and protections are in place to ensure this.
Transport and Traffic considerations
- Policy DM17 supports development where there ‘is not a significant adverse impact upon highway safety’.
- Desford Parish Council considers development to the West of the village centre, with its historic buildings lining the narrow streets, unsustainable without removing through traffic from the centre.
- The negative impact of traffic on the village of Desford was a significant factor in determining the most suitable locations for development when the residential site assessment processes were undertaken as part of the process of determining the allocations within the Neighbourhood Plan. The Neighbourhood Plan Policy T1 seeks to minimise the harmful impact of further traffic generation on the village of Desford.
- The proposed access for the development means all traffic will have to enter and leave via the narrow and antiquated road layout before reaching a main road. The main traffic flows are East/West to and from Leicester, Hinckley and Fosse Park.
- Kirkby Road, at the point of access to the proposed development, is effectively a cul-de-sac, as beyond this point the road becomes a bridle way and is only suitable for farm vehicles. Kirkby Road is also the main feed road to three earlier developments alongside Kirkby Road, namely the St Martin’s Estate, Fletchers Estate and the Primary School, and a smaller Fletchers Development on the west side of Kirkby Road (abutting this proposed development).
- The Parish Council consider that the development would fail all of the following conditions of DM4 in that:
- It does have a significant adverse effect on the intrinsic value, beauty, open character and landscape character of the countryside; and
- It does undermine the physical and perceived separation and open character between settlements; and
- It does create or exacerbate ribbon development;
The village infrastructure would be unable to sustain a development of this size, bearing in mind:
- Two recently approved planning applications – Barns Way (80 dwellings), Peckleton Lane East (80 dwellings)
- The local Primary School is at capacity (420) and this development would require more classroom development; reducing play space. The school has just completed a period of substantial growth up to its current 14 classes (due to the Bellway estate). They are very conscious of the additional financial pressures faced, due to school budgets being based on lagged pupil numbers.
- Bosworth Academy, the secondary school within the village, is also at capacity and mirrors the views of the primary school
- Desford Medical Practice is at capacity and even the West Leicestershire CCG, in a recent planning approval, requested Section 106 money for Ratby Surgery. This recognises the problem in Desford, but does not suggest how it would help Desford residents as there is no direct bus service from Desford to Ratby
- Desford is fortunate in having a Dental Surgery, but again this is at capacity
- The local bus service to Leicester was recently reduced to one per hour from 2 per hour with no service at all on Sunday. This has caused severe hardship to many who have to travel to work in Leicester.
- Focussing initially on construction traffic: there is no suitable way to get heavy traffic safely through the village, nor to sensibly mitigate the mess that inevitably attends a substantial building project. Lorries can only come (and leave)
- westwards via the B452, through the inadequate village centre mini roundabout, then either via High Street or Holmfield Road; both totally unsuitable.
- eastwards via the B582: only a right turn into Holmfield Road is possible
- northwards via Peckleton Lane, requiring turns at the junction with High Street which is already a concern for local road users, or using a rat run of narrow and heavily parked roads via Salisbury Avenue.
- To use any of these routes, heavy and dirty traffic will have to navigate a narrow set of estate roads with substantial roadside parking and will impact on the conservation area at High Street.
- The appeal site should only be developed as an absolute last resort if Desford has no other way of meeting its housing allocations: it has met and exceeded the LPA requirement and thus there is no justification for inflicting these disadvantages, both time limited but specially severe, and longer term cumulatively on the community.
- The development proposal subject to this Appeal is in conflict with the relevant Site Allocations and Development Management Policies DPD 2016 and also with the Desford Neighbourhood Plan which is now subject to a decision notice from HBBC and therefore, at the time of submitting this Statement of Case, to be afforded ‘significant weight’ in decision-making where the neighbourhood plan is material to the application. It is likely that by the time of the Public Hearing the Neighbourhood Plan will have passed Referendum and have been Made by HBBC, therefore affording it full weight in the decision making process.
- The proposal is in conflict with:
- DPD Policy DM4 which restricts development outside of the Settlement Boundary
- NP Policy H1 Settlement Boundary which carefully controls development outside of the settlement boundary
- NP Policy H3 Reserve Sites which requires development proposals for the sites in question (including Ashfield Farm) to be determined by the replacement Local Plan.
- DPD Policy DM17 which resists development where there is a significant adverse impact on highway safety.
- NP Policy T1 which seeks to minimise additional traffic generation and movement through the villages.
- Far from being anti-development, the Neighbourhood Plan has embraced the concept of sustainable development and has identified a site to come forward to meet a local housing need in a location that is preferred by residents. The reserve sites have been incorporated to meet a further need should it be required through the process of finalising the new Local Plan.
- This is at the heart of neighbourhood planning.
- The Borough Council is not yet at this stage and to make this decision now, especially when the Borough Council can demonstrate a 5-year housing land supply, is premature.
- It is the strong view of the Parish Council that approving this planning application will be at odds with the Desford Neighbourhood Plan and in conflict with the aims and intentions of the Neighbourhood Plan process.
- It is also contrary to the spirit and intentions of the Localism Act 2011 which aims “to make the planning system more democratic and more effective, and to ensure that decisions about housing are taken locally”.
- If the Appeal is successful, development of this site would not only undermine the aims and policies contained within the Neighbourhood Plan, but also send a negative message to communities across Hinckley and Bosworth not only to those engaged in the development of Neighbourhood Plans but all those that wish to see decisions about housing and other forms of development guided by and responding to local needs and priorities.
- There is strong local support for the Neighbourhood Plan, whose progress has been interrupted by the onset of the Coronavirus Pandemic. We urge the Inspector to take the policies of the Neighbourhood Plan into account in reaching their decision, to listen to the legitimate views of the community in deciding the best location to meet housing growth across the Plan area.
- It is respectfully suggested that the Appeal is dismissed.