The Appeal Inspector concluded that the proposed 28 houses, community allotments, highway improvements and associated landscaping. would seriously harm the character and appearance of the Frogmore area, which is in the South Devon Area of Outstanding Natural Beauty. The developer’s appeal has been turned down.
He concluded that the development would “diminish the perception of a deeply rural rolling patchwork agricultural landscape” and that “This sizeable urban addition would detract from the setting of Frogmore and have a significant adverse effect upon the natural beauty and landscape character of the AONB.”
FARMLAND LOST
He also noted, “The agricultural use of the site would be permanently lost and it would erode the rural landscape setting of the village.”
AONB AN ECONOMIC ASSET
The Inspector makes the point that “The high-quality environment within the South Hams is also important to the local economy, not least in attracting visitors and the income this generates to local services and businesses.”
VISUAL IMPACT UNDER-ESTIMATED
The Inspector disagreed with the developer’s Landscape and Visual Impact Assessment that the protected landscape is of High-Medium sensitivity” and confirmed, it’s “High Sensitivity.” He also say’s the developers under-estimated (again!) the landscape and visual impact of the proposed development on the landscape
CONSERVING AND ENHANCING LANDSCAPE
He has reiterated that the National Planning Policy Framework sets out that “great weight should be given to conserving and enhancing the landscape and scenic beauty in the AONB.” The scale and extent of development should be limited and planning permission should be refused for major development other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest.
THE HARM CAUSED
In this instance, the proposal would involve a substantial extension of a very modest-sized settlement along the lower slopes of an unspoilt river valley (Ria Valley). The number of new buildings and the extent of likely internal roads, footways, hard surfaced areas and street lighting on this sizeable area of land would be of a significant scale in this part of the AONB. It would comprise major development within the AONB. As a consequence, it would harm the distinctive characteristics of the iconic wide, unspoilt and expansive panoramic views include long framed views along combes, river valleys, estuary creeks and green lanes.
EACH CASE IS DIFFERENT
The Council also drew his attention to another appeal decision in respect of 15 dwellings elsewhere in the district which was found to comprise major development. The Inspector points out that “Each case must be determined on its own merits and none of these other decisions set a precedent that must be followed.”
The benefits of the proposal do not amount to exceptional circumstances necessary to justify major development within the AONB and outweigh the environmental harm that the Inspector identified. Whilst there is support for the proposals by some local residents there is much opposition, including strong objections from the Parish Council.
COUNCIL TO CONSERVE AND ENHANCE THE AONB
The Inspector noted “the appellant’s argument that within the Council’s 2017 Strategic Housing and Economic Land Assessment the only available sites for housing at Frogmore are within the AONB and that development in much of the district is constrained by landscape and environmental protection policies. However, the Council has informed me that sites are being brought forward through the eJLP and these have been carefully selected to ensure that the AONB is conserved and enhanced.”
UNFORTUNATE REMINDER
The Inspector says “The appellant, as a local landowner, should be commended for the continuing effort to help meet the housing needs of the local community. It is perhaps unfortunate that a scheme could not be worked up with the support of the Parish Council.” For anyone with detailed knowledge of the evidence presented at the Frogmore wind turbine Public Inquiry, the Inspectors point will ring lots of bells about the ‘openness and transparency’ issues involving the ‘then’ Parish Council, in that case
THE ‘LYTE LANE’ PLANNING APPEAL – REFUSED – 26TH MARCH 2019
The Friends of South Hams and the South Hams District Council help to protect the Countryside and Area of Outstanding Natural Beauty
ON ITS MERITS
Every Planning Appeal is considered on its own merits, and like the Frogmore wind turbine Public Inquiry decision, the Lyte Lane, West Charleton Appeal can also act as ‘study guidance’ for anyone with an interest in the protection of the countryside, and in particular, the South Devon Area of Outstanding Natural Beauty.
The main issues in the case were:
• the effect of the development on the character and appearance of the area, including the landscape and scenic beauty of the South Devon Area of Outstanding Natural Beauty (AONB);
• whether the proposal would constitute ‘major development’ in the AONB; and
• if constituting major development, do exceptional circumstances exist, and would the development be in the public interest.
Looking North across the proposed development site
Lyte Lane Appeal – Review
Introduction
The Lyte Lane Planning Application, the subsequent Written Appeal, and the Inspectors Decision, display a number of notable features for anyone committed to protecting the unique countryside of the South Hams. It is quite unusual to clearly see so many of the arguments, presented in the letters of representation, finding their way into an Inspectors Planning Appeal Decision.
The reasons given by the Inspector for his Decision will be of great interest to anyone who wishes to object to planning applications for inappropriate developments in the South Hams – particularly those within the designated and highly protected landscapes which are such a vital asset the people of Devon and all those who visit our wonderful towns, villages, countryside, estuaries and coast.
Following the Society’s first letter of representation, the SHDC Officers Report and the Development Management Committee decision to refuse the Application, it became clear that there was considerable ‘convergence’ in the position of the Society and the Council in regard to the material planning matters affecting the Application. The Appeal was conducted ‘In Writing’ and normally only the main parties are required to submit papers. The Society was able to cite the ‘new information’ contained in the Officers Report and the Appellant’s Statement of Case to justify making an additional ‘fresh’ representation to the Appeal Inspector. This second (updated) representation was accepted and considered by the Planning Inspector.
Overview of Lyte Lane Appeal – Decision date: 26 March 2019
The controversial proposal to build 24. houses on productive agricultural land in the nationally protected South Devon Area of Outstanding Natural Beauty (AONB) has finally been turned down by the Planning Inspectorate. The proposed development was strongly opposed by the members of South Hams community and South Hams District Councillors.
After representations from the South Hams Society and local residents and the expert professional advice of the SHDC Planning Officers, the original planning application was refused by South Hams Councillors in March 2018. The landowner/developer did not accept the Council’s decision and Appealed to the Planning Inspectorate for approval.
During the Appeal, the landowner had argued that the visual harm that would have been caused to the farmland and highly protected countryside could be reduced by sympathetic design and that planting schemes would ‘improve’ the landscape. The South Hams Society and District Council disputed these claims. The Planning Inspector has supported their view.
The Appellant also argued that the development would not be a ‘major development’ within the protected area of the AONB and that even if it were that there were ‘exceptional circumstances’ which supported the proposal. Both the South Hams Society and Local planners argued against the landowner’s claims. Again, the Society and SHDC arguments have been supported by the Inspector’s decision. His decision was that “whilst the provision of up to 24 dwellings on the site would serve a general need, and therefore provide a general public benefit, this would not in itself demonstrate the existence of “exceptional circumstances.” Consequently, he gives only limited weight to the scheme’s general provision of housing.
The South Hams Society and the Council have also provided evidence for the recent approval of housing schemes within the district, on sites outside the AONB, indicating that scope for such development exists within less sensitive locations. There is no particular reason to consider that the costs of developing in these locations would significantly differ from that of the appeal site. The appellant did not challenge the evidence and so the Inspector decided there is no pressing need to develop the site for housing.
Contrary to the developer’s claims, the Inspector found no evidence to show that the development is necessary to provide support for existing services and agreed with the South Hams Society that there would not be any adverse consequences to the local services in the absence of the development.
The Appellants had claimed that 24 houses would represent a small percentage increase in the overall number of dwellings within West Charleton. The Society disputed the Appellants claim. The Inspector has now ruled that the Appellants claim was “of no particular significance.” because it has little bearing on the negative impact that the development would have upon the landscape.
The Society drew the Inspectors attention to appeal APP/K1128/W/16/3156062 (Garden Mill Kingsbridge) within which it was considered that a scheme of 32 houses would not constitute major development in the AONB, and another case (Selworthy Court) in which the Council accepted that a development of 18 houses would not constitute major development in the AONB. Whilst both cases illustrate a differing approach to identification of major development, he noted that the specific circumstances of each of these cases differed from that of the current appeal scheme. In particular, Society pointed out that the appeal scheme referenced was considered to have a minimal impact on the landscape, and as such, the cases had affected the Inspectors assessment of the proposed development.
The South Hams Society had also pointed out that the cases cited by the developer in support of their proposal were in fact so dissimilar to the proposed site in the open countryside that they did not support their case. The Inspector has agreed with the Society’s views on that point.
The South Hams Society had questioned the Applicants claims that surrounding the heritage assets on the proposed site with housing did not deliver any significant heritage benefits to weigh against the harm that the development would otherwise cause. The Inspector has, again, agreed with our view.
The Society argued that some ecological enhancements proposed by the Appellants to reduce the effect of the harms the development would cause could be achieved simply by the provision of more varied planting and that the ecological enhancements could however equally be achieved within the context of the site in its current use. The Inspector agreed.
The Society had also made the point that most of the ‘so-called’ benefits of the development claimed by the appellants would have been the products of required mitigation, and therefore not benefits at all. The Inspector has agreed.
The Inspector has concluded that whilst the provision of affordable housing and market housing would each provide some public benefits, including to the economy, no exceptional circumstances exist which would outweigh the harm that would be caused to the AONB. As such the development would not be in the public interest. Consequently, paragraph 172 of the National Planning Policy Framework indicates that planning permission should be refused.
The Inspector has agreed with the Societies arguments and he concludes that the development would have an unacceptably adverse effect on the character and appearance of the area, including the landscape and scenic beauty of the AONB. It would therefore conflict with Policies CS9 of the South Hams Local Development Framework Core Strategy 2006 (the CS) which states that development will not be permitted where it would damage the natural beauty, character or special quality of the AONB, Policy DP2 of the South Hams Local Development Framework Development Policies Development Plan Document 2010 (the DPD), which seeks to conserve landscape character, including by avoiding unsympathetic intrusion into the wider landscape; and part (e) of Policy DP1 of DPD, which seeks to secure development that enhances views conflict with Policies Lan/P1 and Lan/P5 of the South Devon AONB Management Plan 2014-2019 which seek to conserve and enhance the landscape, and protect views. In its decision the Council also referenced Policies SPT11, DEV24, DEV27 within the emerging South West Devon Joint Local Plan 20142034 (the JLP), which is now at an advanced stage of preparation and so carries moderate weight. Insofar as each seeks to support the conservation of landscape and scenic beauty, the development would conflict with these emerging policies.
In the matter of costs the Inspector has concluded that the Council did not act unreasonably on the grounds claimed by the applicants. As such, no unnecessary or wasted expense was incurred by the applicants in making the appeal. The Appellants application for costs was therefore dismissed.
Looking Southwest from the proposed development site
SUMMARY CONCLUSIONS
Wrong development in the wrong place.
The proposed development would result in the permanent loss of productive agricultural land in highly valued countryside and would fail to conserve the landscape and scenic beauty of the South Devon AONB
The area around the appeal site is described by the County Council as being a “jewel in the crown of Devon”.
While it is for the Inspector to now decide, the Society and SHDC Officers concluded that the appeal proposal is a major development in the AONB.
And that the adverse landscape impact arising from the proposed development, rendered the proposal unsustainable.
They also concluded that the dramatic views through the surrounding countryside and over the estuaries in the SD AONB would be harmed and that development which is uncharacteristic and visually intrusive over wide areas or results in the linear spread of development along the roads between villages should be resisted.
The local housing needs survey which identified a local need for affordable homes is now over 5 years out of date. The Garden Mill case, cited by the appellants, 6 refers to there being approval for some 300 houses including affordable homes in the Kingsbridge area. Which we believe is a more up to date indicator of housing need and demand in the local area.
In any case, we believe that a general need for more homes, on its own, is not a compelling reason to allow major development in the AONB
We do not believe that the appellants have convincingly demonstrated that there would be any significant social or economic cost to the village if this development were not to proceed.
It is clear that parts of the appeal development would appear, from sensitive views within the designated landscape, as an alien pocket of development, having little or no relationship with the village. We do not believe that the harms that would be caused would be overcome through mitigation landscaping or sensitive design.
The Appeal proposal would detrimentally affect existing views of the site, particularly when approaching the village from the East but also the panoramic views from the South.
The benefit of a small public space is not a reasonable substitute for the amenity value provided by the existing high-quality landscape and the “stunning” views in this highly sensitive part of Devon and its Area of Outstanding Natural Beauty.
The appeal development would clearly encroach into the existing green buffer between West and East Charleton. This would erode the distinction between the two villages.
The Appeal proposal would fail to conserve and enhance the quality, character, diversity and local distinctiveness of the natural environment, and would fail to avoid unsympathetic intrusion in the wider landscape and would have a detrimental impact on the character of views from public vantage points.
The areas experiencing these impacts fall within the South Devon AONB, and the appeal site that would experience the most significant impacts also lies within the Undeveloped Coast.
The appeal development fails to conserves or enhance what is special and locally distinctive about the landscape character; and would fail to avoid unsympathetic intrusion in the wider landscape; that respects the unspoilt nature and tranquillity of the area.
The appeal proposal does not demonstrate any exceptional circumstances that are demonstrably in the public interest and that having regard to the significant adverse landscape impact, it is not sustainable development.
It is now for the Inspector to decide what weight is to be given to the material considerations, and whether the proposal is considered to be a major development. The Selworthy application does not support the appellant’s argument that the appeal development should not be considered by the Inspector as a major development.
The landscape characteristics of the Kingsbridge Garden Mill site are so dissimilar to the Lyte Lane appeal site, with its widespread views of the proposed development from the surrounding designated countryside, that we believe the case does not support the appellant’s point.
We do not believe that introducing housing development, that would have an alien and high visual presence within the near and wider countryside can reasonably be described by the appellant as conserving the landscape and scenic beauty of the AONB, or an enhancement of the existing high-value
The mitigation screening will not be as effective as the appellant suggests. The proposed planting is not characteristic of the appeal site and the mitigation measures would inevitably interrupt the existing wide panoramic views South and West, across the AONB, towards the Frogmore and Kingsbridge estuaries, or the existing views North West towards the hill ridgeline.
The representations received from village residents at the application stage showed that six residents objected, four were undecided and one supported the proposal. In total, the letters produced twelve objections, five undecided and one in support.
We do not believe that the appeal development would make positive contribution to the landscape character and visual amenity of the AONB and Undeveloped Coast or acts to conserve the landscape and scenic beauty of the AONB and an enhancement of existing, valued landscape and historic features or introduce of additional natural features characteristic of the areas Landscape Character.
The appeal proposal would significantly erode the existing green open space that currently the visual separation of East and West Charleton.
You may well remember the controversial unauthorised two-storey garage, tennis court and skateboard bowl, built without planning permission at Gerston Point in the heart of the South Devon Area of Outstanding Natural Beauty and the designated Heritage Coast. This is a case which has attracted local community opposition, some support, some anger and even national interest. In part, this is because it involves a serious planning violation but also because the landowner in question is the founder of the well known White Stuff chain. Who owns the land is not our concern but the material planning issues raised by this controversial case certainly are. Whilst our District Council is still considering the Applicants mitigation planting proposals, we have been surprised to find that the illegal build has attracted world-wide interest – apparently!
One of our members, who had hoped for a quiet retirement from the South Hams Society’s volunteer planning team recently wrote a few comments on a SHS Facebook post about Gerston Point. Outlining his personal concerns, he wrote about one of the retrospective planning application documents. The document – an ecological appraisal – had been submitted by an experienced independent local ecologist commissioned by the landowner. The appraisal stated that there was evidence of bat droppings, and that bats might be roosting in the roof space of the garage shed which the Council had previously ordered to be demolished.
Having outlined his concerns about the bat report, our ex-colleague was surprised to be expertly cross-examined by another Facebook contributor – who was very well informed, both about the Gerston affair, and the ecologist’s appraisal. Nothing unusual in that you might think. A robust exchange of views online, surely that is par for the course with social media. But the new contributor was from outside the South Hams. Again, so what? The Gerston story has already made it way over the borders into most of the national papers, and on to BBC news desks. No, the surprise was that the contributor was from New Zealand – again, apparently!
In response to the challenge, our ex-volunteer explained his concerns about the sudden appearance of bats in the complicated mix of planning issues involved in the Gerston affair, and pressed the ‘post’ button. At this point others supporting the applicant got engaged. A planning consultant suggested he should explain himself and his criticisms directly to the author of the Ecological Appraisal in question – a copy of our member’s open letter is available here. The views expressed in the letter are his own and do not necessarily reflect the position the SHS has taken in this controversial case. The Society’s views are contained in their Letter of Representation to the South Hams District Council is available via this link, and on the Planning File.
Meanwhile the Council’s decision on whether to approve or refuse the (second) retrospective planning application for this highly sensitive site is eagerly awaited. Council Leader, Councillor Judy Pearce, said recently – “It’s a question of whether the offer of 1,000 trees is enough to offset the damage being done by what really is a big shed, almost a warehouse, in the back garden, where they must have known it wouldn’t be allowed.”
There is an old saying in countryside protection circles – if you can’t control local development planning, then all you have left are trees and bats! It seems that the unlawful development at Gerston is about to stress test that point. If the Council decides to grant approval, after turning down the first retrospective application, what a green light that will give to those in the South Hams who are prepared to ignore the law.
The Government consultation seeks views on each part of a package of proposals for reform of the planning system in England to streamline and modernise the planning process, improve outcomes on design and sustainability, reform developer contributions and ensure more land is available for development where it is needed.
The full Planning For the Future consultation document is available here. The section EFFECTIVE STEWARDSHIP AND ENHANCEMENT OF OUR NATURAL AND HISTORIC ENVIRONMENT (proposals 15 -18) is of particular interest to FOSH, and so we have posted that section here. It states:
“The reformed planning system will continue to protect the places of environmental and cultural value which matter to us. Plans will still play a vital role in identifying not just areas of defined
national and international importance (such as National Parks and Sites of Special Scientific Interest), but also those which are valued and defined locally (such as Conservation Areas and Local Wildlife Sites).
However, the planning system can and should do much more than this. In line with the ambitions in our 25 Year Environment Plan, we want the reformed system to play a proactive role in promoting environmental recovery and long-term sustainability. In doing so, it needs to play a strong part in our efforts to mitigate and adapt to climate change and reduce pollution as well as making our towns and cities more liveable through enabling more and better green spaces and tree cover. Several initiatives are already laying the foundations for this. Nationally, the Environment Bill currently before Parliament will legislate for mandatory net gains for biodiversity as a condition of most new development. And the Local Nature Recovery Strategies which it will also introduce will identify opportunities to secure enhancements through development schemes and contributions. We will also deliver our commitment to make all new streets tree-lined, by setting clear expectations through the changes to the National Planning Policy Framework which will be consulted on in the autumn, and informed by the outcome of this summer’s consultation on the England Tree Strategy. And we are also assessing the extent to which our planning policies and processes for managing flood risk may need to be strengthened along with developing a national framework of green infrastructure standards.
Once the proposals in this paper for reformed Local Plans begin to be implemented, it will be important for authorities to consider how the identification of different categories of land, and any sub-areas within them, can most effectively support climate change mitigation and adaptation.
For example, in identifying land for inclusion within the Growth area, or the densities of development appropriate in different locations, the ability to maximise walking, cycling and public transport opportunities will be an important consideration.
Proposal 15: We intend to amend the National Planning Policy Framework to ensure that it targets those areas where a reformed planning system can most effectively play a role in mitigating and adapting to climate change and maximising environmental benefits.
These measures, and reform of our policy framework, provide important opportunities to strengthen the way that environmental issues are considered through the planning system.
However, we also think there is scope to marry these changes with a simpler, effective approach to assessing environmental impacts. In doing so, we will want to be clear about the role that local, spatially-specific policies can continue to play, such as in identifying important views, opportunities to improve public access or places where renewable energy or woodland and forestry creation could be accommodated. In reviewing the Framework, we will also want to ensure that it provides a clear and robust basis for development management decisions more generally, so that reliance no longer needs to be placed on generic policies contained in Local Plans.
Proposal 16: We intend to design a quicker, simpler framework for assessing environmental impacts and enhancement opportunities, that speeds up the process while protecting and enhancing the most valuable and important habitats and species in England.
It is vital that environmental considerations are considered properly as part of the planning and development process. However, the current frameworks for doing so – which include Strategic Environmental Assessment, Sustainability Appraisal, and Environmental Impact Assessment – can lead to duplication of effort and overly-long reports which inhibit transparency and add unnecessary delays. Outside of the European Union, it is also important that we take the opportunity to strengthen protections that make the biggest difference to species, habitats and ecosystems of national importance, and that matter the most to local communities.
To succeed, a new system will need to meet several objectives:
•Processes for environmental assessment and mitigation need to be quicker and speed up decision-making and the delivery of development projects. The environmental aspects of a plan or project should be considered early in the process, and to clear timescales.
National and local level data, made available to authorities, communities and applicants in digital form, should make it easier to re-use and update information and reduce the need for site-specific surveys.
•Requirements for environmental assessment and mitigation need to be simpler to understand and consolidated in one place so far as possible, so that the same impacts and opportunities do not need to be considered twice.
•Any new system will need to ensure that we take advantage of opportunities for environmental improvements while also meeting our domestic and international obligations for environmental protection. This will be the subject of a separate and more detailed consultation in the autumn.
Proposal 17: Conserving and enhancing our historic buildings and areas
in the 21st century. The planning system has played a critical role ensuring the historic buildings and areas we cherish are conserved and, where appropriate, enhanced by development. The additional statutory protections of listed building consent and conservation area status have worked well, and the National Planning Policy Framework already sets out strong protections for heritage assets where planning permission or listed building consent is needed. We want to build on this framework as we develop the new planning system. We envisage that Local Plans will clearly identify the location of internationally, nationally and locally designated heritage assets, such as World Heritage Sites and conservation areas, as well locally important features such as protected views.
We also want to ensure our historic buildings play a central part in the renewal of our cities, towns and villages. Many will need to be adapted to changing uses and to respond to new challenges, such as mitigating and adapting to climate change. We particularly want to see more historical buildings have the right energy efficiency measures to support our zero carbon objectives. Key to this will be ensuring the planning consent framework is sufficiently responsive to sympathetic changes, and timely and informed decisions are made. We will, therefore, review and update the planning framework for listed buildings and conservation areas, to ensure their significance is conserved while allowing, where appropriate, sympathetic changes to support their continued use and address climate change. In doing so, we want to explore whether there are new and better ways of securing consent for routine works, to enable local planning authorities to concentrate on conserving and enhancing the most important historic buildings. This includes exploring whether suitably experienced architectural specialists can have earned autonomy from routine listed building consents.
Proposal 18: To complement our planning reforms, we will facilitate ambitious improvements in the energy efficiency standards for buildings to help deliver our world-leading commitment to net-zero by 2050.
The planning system is only one of the tools that we need to use to mitigate and adapt to climate change. Last year we consulted on our proposals to move towards a Future Homes Standard, which was a first step towards net zero homes. From 2025, we expect new homes to produce 75-80 per cent lower CO2 emissions compared to current levels. These homes will be ‘zero carbon ready’, with the ability to become fully zero carbon homes over time as the electricity grid decarbonises, without the need for further costly retrofitting work.
We welcome the Committee on Climate Change’s response to the consultation and we have considered the points they raised. We will respond to the Future Homes Standard consultation in full in the autumn. As part of this, we intend to review the roadmap to the Future Homes Standard to ensure that implementation takes place to the shortest possible timeline. Our ambition is that homes built under our new planning system will not need retrofitting in the future. To work towards ensuring that all new homes are fit for a zero carbon future we will also explore options for the future of energy efficiency standards, beyond 2025.
All levels of Government have a role to play in meeting our net zero goal, and Local Authorities are rising to this challenge. Local Planning Authorities, as well as central Government, should be accountable for the actions that they are taking, and the consultation response will look to clarify the role that they can play in setting energy efficiency standards for new build developments.
We will also want to ensure that high standards for the design, environmental performance and safety of new and refurbished buildings are monitored and enforced. As local authorities are freed from many planning obligations through our reforms, they will be able to reassign resources and focus more fully on enforcement. Ensuring that planning standards and building regulations are met, whether for new homes or for retrofitting old homes, will help to ensure that we deliver homes that are fit for the future and cheaper to run.
Friends of South Hams 