North Warwickshire Borough Council Proof of Evidence Jeff Brown
North Warwickshire Borough Council
Appeal by Harworth Estates
Land at Daw Mill Colliery, Tamworth Road, Arley, CV7 8HS
PROOF of Evidence of Jeffrey Brown BA, DipTP, MRTPI
Planning Inspectorate’s Ref: APP/R3705/W/16/3149827
Council’s Ref: PAP/2014/0339
January 2017
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
1. Preliminaries
1.1 My name is Jeffrey Brown. I have worked in the Planning Division at North Warwickshire since 1974. From 2006 I have been Head of Development Control.
1.2 I hold a BA degree in Geography and I have a Diploma in Town Planning. I am a Member of the Royal Town Planning Institute.
1.3 I have worked in North Warwickshire in both the forward planning and development control sections and have a thorough understanding of the Borough.
1.4 The evidence in this Proof is true and is given in accordance with the guidance of my professional institution.
1.5 I provide a summary of my evidence for this Inquiry in Section 2.
1.6 The Proof will describe the appeal site and outline the national and local planning policy background. As the site is in the Green Belt the Proof will take a sequential approach first by considering whether the proposal is appropriate or not appropriate development before assessing Green Belt and other harm. The appellant’s material planning considerations will be identified and I will conclude by addressing the final planning balance.
1.7 Many of the documents referred to are Inquiry Core Documents. Other documents will be attached as Appendices.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
2. Summary
2.1 The appeal site is a former colliery which has been sealed preventing further extraction of coal. It has been cleared of its buildings and coal stacks and appears now as an open area of large concrete hardstandings. It has retained its rail connection to the adjoining railway line.
2.2 The site is in a wholly rural location surrounded by open countryside and within the valley of the River Bourne. There are dispersed dwellings and farmsteads in the surrounding area. It is some distance from the strategic highway network and the surrounding network is rural in character and in highway designation. Routes to that strategic network pass through several road junctions which are approaching their operational capacity.
2.3 The Development Plan for North Warwickshire includes the Core Strategy of 2014; saved policies of the North Warwickshire Local Plan 2006 and the Arley Neighbourhood Plan 2016.
2.4 The Council has recently published a new draft Local Plan for North Warwickshire which reviews the Core Strategy in light of recent housing and employment needs arising from local growth and as a consequence of growth from the Borough’s urban neighbours.
2.5 The appeal site is in the Green Belt.
2.6 The site is not included in either the Core Strategy or the draft Local Plan as an allocated site for new development.
2.7 There is an approved restoration plan for the appeal site. The Council gives this substantial weight as it is recognised as a lawful plan by the Warwickshire County Council acting as the Minerals Planning Authority.
2.8 The appeal proposal involves the industrial redevelopment of the site for a B2 General Industrial use including new buildings, outside storage areas ad new infrastructure. The appellant argues that the site, as a rail served site is “rare”, providing an opportunity for an occupier to use the rail connection so as to create a sustainable form of development meeting the Council’s employment needs and providing local employment.
2.9 The Council considers that this proposal is not appropriate development in the Green Belt. As a consequence it is harmful to the Green Belt. It thus carries the presumption of a refusal. Moreover the proposals result in substantial actual harm to the openness of the Green Belt. It also conflicts
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
with the purpose of safeguarding the countryside - one of the purposes of including land within the Green Belt. Green Belt harm is thus considered to be substantial. This harm arises whether the base-line is taken to be the restored site or as the site in its existing state.
2.10 Other harm is caused. There would be significant landscape and visual harm caused as well as cumulative harm caused by adverse impacts on residential amenity through levels of noise and light. There would be less than substantial harm to local heritage assets. There would also be harm to bio- diversity. The Highway Authority has not raised an objection subject to off-site mitigation measures for some of the surrounding road junctions. However if such measures are not delivered then harm will be caused. These harms arise whichever base-line is used.
2.11 The Council has assessed the total level of harm and has to balance this against the benefits that the appellant has proposed. The test for this balancing exercise is that the harm has to be clearly outweighed by these benefits.
2.12 The Council does not consider that this test has been passed as the claimed benefits do not clearly outweigh the harm caused. The reasons for this are that the proposal is not considered to be sustainable development; that it does not deliver on its ambition of being rail served, that it is not required to meet the existing and future employment needs of the Borough and that it does not clearly mitigate both Green Belt and other harm
2.13 The conclusion is therefore that planning permission should be refused.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
3. The Appeal Site a) Description
3.1 The appeal site is that of the former Daw Mill colliery. It is south of the B4098 Tamworth Road about 800 metres east of its junction with the B4114 and just over a kilometre east of Furnace End. The Birmingham to Leicester railway bounds the site to the south and Daw Mill Lane is to the east. To the west is agricultural land. The setting is of a wholly rural character with open agricultural land surrounding the site. Shustoke and Coleshill are 3.3 and 5.3 km respectively to the west and Old Arley is 1.8km to the east. Nuneaton is 6km to the north-east and Coventry is some 8.8km to the east. The M6 and M42 Motorways are several kilometres distant.
3.2 The site is in the valley of the River Bourne and the land rises to both the north and south. To the north the rise is around 20 metres whereas to the south it is some 30 metres. There is mixed woodland and dense continuous scrub land along the northern boundary with the B4098, as is the case to the east along Daw Mill Lane and to the south-east. There is an open outlook to the south and towards the west. The river runs in a substantial culvert under the site before re-emerging near to the attenuation ponds at the western end of the site. In addition the Ballard Brook runs in a culvert under the site from the B4098 to the north-east to join with the River Bourne culvert. There are public footpaths around the periphery of the site. One runs north-south across the site in the location of the attenuation ponds (the M391) and a second runs east–west alongside the railway (the M436). There are other paths both to the north (the M435) and south of the site (the M375 and M376).
3.3 Vehicular access into the site is directly off the B4098 with a right hand turning lane in that road.
3.4 The former colliery operations were generally grouped into two main areas. The mine shafts; coal preparation plant and associated offices, baths, canteen and stores buildings were located in the eastern third of the site. The larger part of the site – some 66% - to the west was used for above ground coal storage and blending operations. The rail sidings ran along the southern boundary.
3.5 All of the former colliery buildings, plant, equipment and structures have been demolished apart from three smaller ones; the memorial garden and the electricity substation. The remaining surface coal stocks have also now been removed but the former rail sidings and connections remain. The site now comprises two distinct and generally flat areas both hard surfaced
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corresponding to the areas described in general terms above. The western part includes the retained rail sidings and connections and is at a lower level than the eastern part closest to Daw Mill Lane and the B4098.
3.6 The appeal site amounts to 31.12 hectares. This encompasses the operational areas of the former colliery as described above and the attenuation ponds. The appeal site comprises some 70% of the total land holding.
3.7 There are residential properties in the locality. The closest is Daw Mill Cottage in Daw Mill Lane to the south-east of the site (50 metres from the site boundary). There are others on the Nuneaton Road to the north-west (400 metres distant); Slowley Green Farm to the east (500 metres away), Over Whitacre House and Saddlers Meadow off the B4114 Nuneaton Road to the north (300 metres away). Additionally there are residential properties to the south (some 500 metres away).
3.8 A general location plan is attached at Appendix 1. The public footpath network is shown at Appendix 2. b) Background
3.9 Coal has been mined in North Warwickshire for some considerable time. From around 1900 the Kingsbury colliery and its other pit head at Dexter, from the mid 1920’s, both worked the coal seams running in a southerly direction. These pitheads were some distance to the north of Daw Mill, but the coal was worked in a southerly direction. In the late 1950’s a ventilation shaft was sunk from the present Daw Mill site in order to facilitate the southern extension of these workings. Prior to this the Daw Mill site had been agricultural land.
3.10 In the 1960’s it became more difficult and inefficient to work from Kingsbury and Dexter. Production ceased here in the late 1960’s and early 1970’s. A new shaft was sunk from Daw Mill and extraction commenced in 1965. A second shaft was commissioned in the early 1970’s. Both mined the Warwickshire Thick seam south of the site - a continuation of the earlier seams worked from Kingsbury and Dexter.
3.11 Following a fire in 2013 all production ceased; the shafts were sealed and the site cleared to the extent that is seen today.
3.12 The Warwickshire County Council as the Minerals Planning Authority approved a restoration scheme for the site in November 1996. The scheme would return the site to a countryside appearance. This decision was pursuant
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to the requirements of Part 20 of the Town and Country Planning (General Permitted Development) Order 1995.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
4. The Appeal Proposal
4.1 The appeal proposal is an:
“Outline planning application (with all matters reserved for the subsequent approval other than access) for the redevelopment of the site for a maximum of 24,652 sq.m (265,345sqft) of built floor space for employment uses comprising wholly B2 (General Industry) development; ancillary open storage areas, associated car parking, servicing yards, gantry crane, infrastructure and utilities, retention and use of existing infrastructure including rail head and sidings, site vehicular access, grid connection, electricity sub-station and reconfigured surface water drainage infrastructure”.
4.2 This is not the proposal that was considered by the Council in November 2015 which gave rise to a refusal of planning permission and to this appeal. This is explained below.
4.3 The original application for the redevelopment of the appeal site was submitted to the Council in June 2014. This was for:
“Employment development: 11,072 sq.m of B1(Business Use); 11,702 sq.m of B2 (General Industry Use) and 49,723 sq.m of B8 (Storage and Distribution) use – including retained building 4 – and 2.19 has of open storage, associate car parking, service yards, infrastructure and utilities and retention and use of existing colliery buildings and infrastructure including existing rail head and site vehicular access, grid connection, electricity sub-station, gatehouse, weighbridge and reconfigured/existing surface water drainage infrastructure system”.
4.4 This application was subsequently amended in October 2014. This gave rise to the following proposed development:
“Outline planning application (with all matters reserved for subsequent approval other than access) for the redevelopment of the site for employment purposes comprising: 11,344 sq. m of new B1 (Business) development and 41,080 sq. m of new B2 (General Industry) development with ancillary open storage areas; associated car parking, service yards, infrastructure and utilities and retention and use of existing colliery buildings (2,376 sq. m) and infrastructure including existing rail head and sidings, site vehicular access, grid connection, electricity sub-station, gatehouse, weighbridge and re- configured/existing surface water drainage infrastructure”.
4.5 A further amendment was then made in July 2015. It was this that was the subject of the November 2015 refusal. This was an
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
“Outline planning application (with all matters reserved for subsequent approval other than access) for the redevelopment of the site for a maximum of 24,652 sq.m. (265,345sq. ft. of built floor space for employment uses comprising either wholly B2 (General Industry) development or part B2 (General Industry) and a rail distribution depot for the purposes of maintaining rail infrastructure comprising the stabling of trains and the storage, handling and processing of railway related materials; ancillary open storage areas, associated car parking, servicing yards, gantry crane, infrastructure and utilities, retention and use of existing infrastructure including rail head and sidings, site vehicular access, grid connection, electricity sub-station and reconfigured surface water infrastructure”.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
5. The Refusal
5.1 The Council’s had three reasons for the refusal of planning permission of the development proposed in para 4.5.
5.2 The first was that:
“The site is in the Green Belt. The proposals represent inappropriate development which causes substantial harm to the openness of the Green Belt and the purposes of including land within it. There is additional harm caused by adverse impacts on the landscape character, visual amenity, the natural environment and residential amenity of neighbouring occupiers through noise and lighting impacts. There is also considered to be moderate highway impact as a consequence of whether the mitigation proposed has a reasonable prospect of being implemented. The material considerations put forward by the applicant are not of sufficient weight to amount to the very special circumstances necessary to outweigh the harms caused by the inappropriateness and the other harm caused. This is due to the generic nature of the proposal; that it contains alternatives and mitigation measures are not fully addressed. The proposal does not therefore accord with Policies NW1, NW2, NW3, NW10, NW12, NW13 and NW15 of the North Warwickshire Core Strategy 2014 and the National Planning Policy Framework 2012”.
5.3 The second reason was:
“The development is likely to cause disturbance due to noise. Central to this adverse impact is the continuous operation required for the proposed wholly B2 use. Physical measures could provide some mitigation, however a restriction on continuous operation is likely to be necessary to fully resolve this impact. The applicant has re-iterated that continuous operation is essential to the proposal. The use of conditions to restrict operations is therefore not considered to be appropriate. The proposal is not considered to be in accord with Policies NW10 and NW12 of the North Warwickshire Core Strategy 2014”.
5.4 The final reason was:
“There is concern over the impact of the proposals on bio-diversity. The National Planning Policy Framework is clear that if significant harm to bio- diversity cannot be avoided, adequately mitigated or compensated, then planning permission should be refused. The net impact of the development is not clear. A pre-cautionary approach is thus appropriate in determining this application. The proposal is not considered to be in accord with Policy NW15
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of the North Warwickshire Core Strategy 2014 and the National Planning Policy Framework 2012”.
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6. The Development Plan
6.1 The determination of planning applications must be made in accordance with the Development Plan unless material planning considerations indicate otherwise (Section 38 (6) of the Planning and Compulsory Purchase Act 2004).
6.2 The Development Plan for North Warwickshire comprises the North Warwickshire Core Strategy – adopted in October 2014 – and referred to here as “the Core Strategy” and the saved policies of the North Warwickshire Local Plan – adopted in 2006 – and referred to here as “the Local Plan”.
6.3 The Arley Neighbourhood Plan was adopted in December 2016 following a Referendum earlier in the year. The eastern part of the appeal site is within the Arley Parish and thus covered by this Neighbourhood Plan. a) The Core Strategy
6.4 The preface to the Core Strategy explains that, “the key priority is to keep the rural nature of the Borough and to ensure that when entering North Warwickshire, it is clearly defined as being rural, with a high quality environment” (page 2). The spatial portrait of the Borough explains that North Warwickshire is a rural Borough with over 50 settlements; that “the rural nature of the Borough is important” and that “the Borough has an open character which is unique compared to many of the surrounding urban areas” (paragraph 2.2).
6.5 The spatial vision for the Borough set out in the Core Strategy seeks, among other things, to see that “the rural character of North Warwickshire will be retained and reinforced to ensure that when entering the Borough it is distinctive from surrounding urban areas…. New homes, new employment proposals……will be integrated carefully into the Borough’s existing areas respecting local distinctiveness and identity through good quality inclusive design”. In respect of employment provision the spatial vision explains that, “employment generation will benefit local residents and ensure long lasting benefits to the Borough, including improved skills, reducing out commuting and regeneration of industrial estates where appropriate”.
6.6 Several Core Strategy policies are included in the three reasons for refusal. Others are also relevant. All of the policies referred to below are in the Core Documents. These policies are consistent with the National Planning Policy Framework and should be accorded full weight.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
6.7 Policy NW1 sets out the Council’s basic approach towards the promotion of sustainable development within the Borough.
6.8 Policy NW2 defines the Borough’s settlement hierarchy. It explains that development within the Borough will be distributed in accordance with this hierarchy, which steers most development to the main towns. There is then a cascade approach for other settlements, with very little development in the countryside.
6.9 Policy NW3 defines the Green Belt. There is no reference in here as to how new development is to be managed. As such, this is to be undertaken in accordance with the NPPF.
6.10 Policy NW9 deals with employment. It explains that between 2011 and 2029 a minimum of 60 hectares of local employment land will be provided and that the employment land will be directed towards settlements appropriate to their size and position in the hierarchy and will be appropriate to the scale and size of the settlement.
6.11 Policy NW10 identifies a number of considerations which are to be considered for all planning applications. Amongst other things they include that new development should avoid and address unacceptable impacts on neighbouring amenities as a consequence of overlooking, overshadowing, noise, light, fumes or other pollution.
6.12 Policy NW12 sets out the Council’s policy regarding the quality of new development. Its reasoned justification explains that North Warwickshire is made up of a number of communities with differing styles and that “with the Borough having over 50 settlements, it is important that local distinctiveness is reflected in any development” (paragraph 7.60). It continues by saying that “Quality developments rely on a combination of factors including aesthetics of the buildings; how water is dealt with and how development fits within the landscape, both rural and urban” (paragraph 7.62). The policy requires all development proposals “to demonstrate a high quality of sustainable development that positively improves an individual settlement’s character and the appearance and environmental quality of an area”.
6.13 Policy NW13 seeks the protection and enhancement of the quality, character, diversity and local distinctiveness of the Borough’s natural environment.
6.14 Policy NW14 seeks to conserve and enhance the quality, character, diversity and local distinctiveness of the Borough’s historic environment.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
6.15 Policy NW15 requires new development, amongst other things, to help ensure that there is a net gain of bio-diversity by avoiding adverse impacts in the first place and if this is not possible then by providing appropriate mitigation measures and seeking positive enhancements wherever possible.
6.16 Policy NW16 requires new development, where appropriate, to demonstrate how it maintains and enhances green infrastructure.
6.17 Policy NW17 seeks to broaden the employment base within the Borough and to improve employment choice and opportunities for local people by delivering employment generation uses. b) The Local Plan
6.18 The Council has not relied on saved policies from the Local Plan in its refusal reasons as it is considered that those in the Core Strategy carry more weight given that they are adopted and accord with the NPPF. c) Arley Neighbourhood Plan
6.19 The Neighbourhood Plan is part of the Statutory Development Plan against which the appeal will be determined unless material considerations indicate otherwise. The eastern part of the appeal site is covered by this Plan. The Plan contains no direct policy references to the appeal site. However the Plan’s “overriding goal” is to “retain the peaceful and quiet countryside of the Parish together with its diversity of agricultural business and woodland.” – Policy ANP1. (Appendix 4 refers). The justification for this Policy is based on the “overwhelming support for defending the Green Belt” and “maintaining access to a quiet, rural countryside by protecting rights of way and footpaths” – para 1.1. Moreover “Villagers are strongly in favour of only allowing development in the countryside that is in harmony with its surroundings and that are in the long term interests of the whole community” – para 1.3. Policy ANP 3 seeks to “maintain the balance between the natural and built environment that has evolved to give us Arley as it is today”. The Plan says that “it is not surprising that there was almost total support in our survey responses for the national policy towards Green Belt development” – para 3.1.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
7. Other Material Planning Considerations a) The Draft Local Plan for North Warwickshire 2016
7.1 When the Core Strategy was adopted in 2014, the Council proposed to adopt a Site Allocations Plan and a Development Management Plan to supplement that Strategy and to provide greater detail.
7.2 In 2012 the Council started preparation of the Site Allocations Plan. A draft submission Plan was then made available for consultation in the summer of 2014. This draft Plan showed allocations of employment land to meet the requirement set out in the 2014 Core Strategy. In preparing this Plan, the Council also identified a number of reasonable alternatives. The appeal site was not included as an allocation or as a reasonable alternative.
7.3 Also in 2012 the Council started preparation of the Development Management Plan and following public consultation the Council agreed a set of policies in August 2016.
7.4 At the time of its adoption, the Core Strategy recognised that in addition to delivering North Warwickshire’s development needs, there was also a potential requirement to consider the needs of adjoining Authorities. At that time these needs were unclear and paragraph 1.9 of the Core Strategy explicitly provides for an early review of the Core Strategy in the event that the needs to be accommodated in the Borough changed.
7.5 In 2015 the Council decided that because the emerging growth figures from neighbouring Authorities were then becoming clearer, it would be appropriate to carry out that early review of the Core Strategy. The two draft Plans - the Site Allocations Plan and the Development Management Plan - would then be brought together into a new Local Plan which would include the strategic policies from the Core Strategy, updated as necessary to reflect the change in circumstances and the quantum of development now required in the Borough.
7.6 A draft Local Plan for North Warwickshire (the “emerging Local Plan”) was published in September 2016 with a consultation period expiring at the end of March 2017.
7.7 The appeal site is not proposed for any allocation in that emerging Local Plan.
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b) The National Planning Policy Framework
7.8 This Framework (the “NPPF”) is a material consideration in all planning decisions – paragraph 13 of the NPPF. As is made clear in paragraph 12 of the NPPF however, it does not change the statutory status of the development plan as the starting point for decision making: “Proposed development that accords with an up to date Local Plan should be approved and proposed development that conflicts should be refused unless other material considerations indicate otherwise”
7.9 Paragraphs 6 and 7 explain that the purpose of the planning system is to contribute to the achievement of sustainable development and that there are three dimensions to sustainable development: economic, social and environmental. Paragraph 8 explains that these roles should not be considered in isolation, because they are mutually dependent.
7.10 Paragraph 10 says that plans and decisions need to take local circumstances into account so that they respond to the different opportunities for achieving sustainable development in different areas.
7.11 Paragraph 17 sets out the Government’s core planning principles which provide that, amongst other things, planning should:
Be genuinely plan led, empowering local people to shape their surroundings Proactively drive and support economic development to deliver the homes, business and industrial units, infrastructure and thriving places that the country needs. Take account of the different roles and character of different areas, promoting the vitality of our main urban areas protecting the Green Belts around them recognising the intrinsic character and beauty of the countryside and supporting thriving rural communities within it.
7.12 Section 4 explains that in preparing Local Plans local planning authorities should support a pattern of development which, where reasonable to do so, facilitates the use of sustainable modes of transport (para 30). However paragraph 34 indicates that the maximisation of the use of sustainable transport modes particularly in rural areas needs to take account of other policies set out the NPPF.
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7.13 Section 9 deals with protecting Green Belt land. Great importance is attached to Green Belts whose essential characteristics are their openness and their permanence (para 79). The NPPF recognises five purposes for the Green Belt – checking the unrestricted sprawl of large built-up areas; preventing neighbouring towns from merging into one another, assisting in the safeguarding of the countryside from encroachment, the preservation of the setting and special character of historic towns and assisting urban regeneration by encouraging the recycling of derelict and other urban land (para 80). When considering planning applications, local planning authorities are required to ensure that substantial weight is given to any harm to the Green Belt. (para 88). Inappropriate development is by definition harmful to the Green Belt and should not be approved except in very special circumstances (para 87). These circumstances will not exist unless the potential harm to the Green Belt by reason of its inappropriateness and any other harm is clearly outweighed by other considerations (para 88). The NPPF at paragraph 80 states that the construction of new buildings should be regarded as inappropriate in the Green Belt. A number of exceptions are defined in the same paragraph including proposals that are located on previously developed land subject to conditions. The NPPF at paragraph 90 also defines other forms of development that are also not inappropriate in the Green Belt but subject to the same two conditions.
7.14 Section 11 says that the planning system should contribute to and enhance the natural and local environment by protecting and enhancing valued landscapes; recognising the wider benefits of ecosystems, minimising impacts on bio-diversity and providing net gains where possible, preventing existing development from being put at unacceptable risk or being adversely affected by unacceptable levels of noise pollution, amongst others, and where appropriate remediating and mitigating despoiled degraded, derelict contaminated and unstable land. (para 109). In the determination of planning applications local planning authorities should aim to conserve and enhance bio-diversity by refusing planning permission if significant harm cannot be avoided or adequately mitigated para 118). Planning policies should aim to avoid noise from giving rise to significant adverse impacts on health and quality of life as a result of new development and mitigate other adverse impacts on health and quality of life arising from noise from new development including through the use of conditions. Additionally planning decisions should aim to identify and protect areas of tranquillity which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason. (para 123). Good lighting design should limit the impact of light pollution on local amenity, intrinsically dark landscapes and nature conservation (para 125).
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7.15 Section 12 requires Local Planning Authorities to have positive policies for the conservation of the historic environment. In this regard they should assess the particular significance of any heritage asset that may be affected by a proposal and consider the impact on that significance. Paragraph 132 says that great weight should be given to the asset’s conservation and paragraphs 133 and 134 provide guidance if there is harm found to an asset. c) The Coventry and Warwickshire Joint Green Belt Study 2016
7.16 In undertaking work for the evidence to underpin the emerging Local Plan referred to above, Coventry City Council and the Warwickshire Districts commissioned a Green Belt study to assess how the Green Belt performed against the five purposes of including land in the Green Belt. Neither the appeal site nor the land around was identified as a specific “parcel of land” for assessment, but the wider area in which it is located was examined – defined as Broad Area 10. The extent of this Area is illustrated in Appendix 5. It was found to make a “considerable contribution to these purposes” - (para 4.16 of Appendix 5). d) The North Warwickshire Landscape Character Assessment and Capacity Study 2010
7.16 This Study was commissioned by the Borough Council in order that the different landscape areas in the Borough could be identified in order to better inform future site allocations in the work being undertaken to produce the Core Strategy. It would also inform the Council in respect of assessing the impact of new development proposals on the character and distinctiveness of the Borough’s landscape. The Study undertaken by professional Landscape Architects identifies a number of different landscapes covering the Borough. Each is accompanied by a description of the key landscape characteristics that “define” the areas, as well as key landscape management factors that can be used in the planning process. The appeal site falls within the “Church End to Corley – Arden Hills and Valleys” area. The description of this is contained in full at Appendix 6. It identifies an area described as being “deeply rural and tranquil” and with a landform that creates an “intricate and small scale character”. e) Recent Planning Decisions i) The Hams Hall Rail Freight and Distribution Centre
7.18 In 1994 the Secretary of State granted a planning permission for an International Channel Tunnel Freight Terminal and an industrial and distribution park for uses with Classes B1, B2 and B8. Its location is shown at
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Appendix 7. The site was that owned by the former Powergen PLC and comprised the site of two of three demolished coal fired power stations. As a consequence of this permission the Council removed the land covered by the consent from the Green Belt in the predecessor Development Plans to the Core Strategy. The Site of the third demolished power station was deliberately excluded from the application by Powergen at it wished to retain it as a site for any future power generating proposal.
7.19 The 1994 planning permission was fully taken up and the site was recognised in the former Regional Spatial Strategy as a Regional Logistics Site.
7.20 The retention of the third power station site remained in the Green Belt and E.ON the successor to Powergen, retained ownership. Its future interest in this site continued throughout the preparation of the Core Strategy. As a consequence the draft Site Allocations Plan – see para 7.2 – therefore included a policy to safeguard this site for future energy generating uses – see para 2.23 and 2.24 of that Plan attached as Appendix 8.
7.21 In early 2016, E.ON was prepared to dispose of the site – see Appendix 9. An outline application was submitted by Pro-logis in mid-2016 for the whole of the third power station site - 20 hectares. The proposal was for the redevelopment of the site for B2 and B8 uses. The Borough Council resolved that it was minded to support the proposal and that the matter be referred to the Secretary of State under the 2009 Direction – being for inappropriate development in the Green Belt. He did not request to “call-in” the case for his own determination, thus leaving it to the Borough Council to issue the Notice, once a Section 106 Agreement had been signed.
7.22 The Council’s support of this proposal materially differs from the Daw Mill case in the following regards:
The site had been safeguarded for redevelopment through an energy generating proposal. The Green Belt Study – para 7.16 above – included the site and its surrounds as a specific parcel of land to assess. The Study concluded that it was a “low scoring” parcel in respect of its performance against the five purposes of including land in the Green Belt. - see Appendix 10. It is adjacent to and physically linked and connected in terms of its access to an established and sizeable manufacturing and distribution estate. It has direct access to the strategic highway network as well as access to the Strategic Rail Freight Terminal at Hams Hall. It accorded with the new evidence on employment requirements used in connection with the emerging local plan.
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The proposal was for significant B8 use which reflects the shortfall found in this evidence It is located in the particular area of the Borough where the evidence found a significant shortage of strategically located sites suitable for B8 use. It is a site identified in the emerging local Plan. ii) The St Modwen’s on the A5
7.23 This is an open area of land south of the A5 in the north of the Borough between Junction 10 of the M42 Motorway to the west and the established Birch Coppice Industrial and Distribution Park to the east. Its location is shown at Appendix 7. It is not in the Green Belt. The Birch Coppice estate has redeveloped the former Birch Coppice colliery and the surrounding land following planning permissions in the 1990’s. There is also a rail freight terminal.
7.24 This part of the Borough is close to the urban area of Tamworth. The Core Strategy contains Policy NW19 which seeks to maintain a “Meaningful Gap” between Polesworth and Dordon and Tamworth. The former are the two closest settlements to Tamworth – see Appendix 11. The Council defined the Meaningful Gap to aid the interpretation of this policy – see Appendix 12.
7.25 In 2016 St Modwen submitted an application for the use of some 25 hectares of land south of the A5 for B1(c), B2 and B8 uses – with no more than 25% being for B1 (c) and B2 uses combined. The site was wholly in the area defined by the Council as being in the Meaningful Gap. Planning permission was refused on the grounds of incursion into this Gap. An appeal was allowed in November 2016.
7.26 Whilst the site is in the proposed Gap, the Inspector found that the evidence submitted in respect of the shortfall in the Borough’s employment needs and requirements was significant; that the proposal being mostly for B8 met the nature of that shortfall; that the site was located within the area identified as having the greatest shortfall for B8 use and that there was direct access to the strategic highway network. He concluded too that the application site did not contribute to the purpose for retaining the Gap as worded in NW19. In the final balance he considered that the employment need outweighed the issue about the Gap.
7.27 Whilst the Council defended its refusal here, it does consider that there are material differences with the Daw Mill appeal case.
The Daw Mill site is in the Green Belt and is subject to the planning balance as set out in the NPPF.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
The nature of the St Modwen proposal was for substantial B8 use which met the up to date employment evidence It is located in the area defined by that evidence where there is a shortfall of B8 use It has direct access to the strategic highway network and is close to the Rail Freight Terminal at Birch Coppice It is adjacent to an established and sizeable industrial and distribution estate.
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8. The Approach of the Council a) The Appeal Proposal
8.1 The Refusal Notice which triggered this appeal relates to the proposal which the Council determined in November 2015. This is not the same proposal as is being considered at this Inquiry. The Council stands by the refusal reasons and requests that the Inspector in this appeal gives them substantial weight. However the Council will comment where appropriate, on the changed circumstances. b) The Status of the Restoration Plan
8.2 There is a difference of view between the Council and the appellant on the status of the appeal site in respect of whether or not it is “previously developed land”. The Warwickshire County Council as Minerals Planning Authority considers that the 1996 restoration plan is lawful – Appendix 13 to follow. In this circumstance, the site is not previously developed land. The Borough Council gives that conclusion substantial weight as it is based on actual evidence of the coal mining history of the site.
8.3 From this conclusion, the Council considers that the 1996 restoration notice and plan is lawful. c) The Base-Line
8.4 This conclusion is a material planning consideration of substantial weight in this appeal. As a consequence, the Council gives it weight as being treated as a base-line for the consideration of the assessment of impacts arising from the appeal proposal.
8.5 Should the Inspector take a different view, then this Proof also provides the Council’s assessment of those impacts against a base-line of the existing condition of the appeal site.
8.6 For the avoidance of doubt the Council will not be using the former use of the site as a base-line to assess impacts. It considers that that use is abandoned in planning terms. d) Rail Use
8.7 The appellant’s case is based on the use of the site being rail served. The Council’s position on this will be dealt with more fully in the final planning balance.
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9. The Green Belt a) Appropriate or Not Appropriate Development
9.1 The site is in the Green Belt. The NPPF attaches great importance to the Green Belt and it requires that the Council gives substantial weight to any harm caused to the Green Belt. The construction of new buildings is inappropriate development by virtue of the NPPF. As inappropriate development is harmful to the Green Belt, it should not be approved except in very special circumstances. In other words there is a presumption of refusal. This is the starting point in the assessment of the current proposal as it involves new built development.
9.2 As explained above in para 7.13 there are a number of exceptions to treating all new buildings as inappropriate development. One of these is relevant to the appeal proposal – that dealing with proposals for the redevelopment of previously used land. However it is first necessary to point out that another potential exception – the replacement of buildings – does not apply here as the new buildings would be in a different use class to those they replace.
9.3 Turning back therefore to the other exception, this is that new buildings need not necessarily be inappropriate if they amount to the limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use. There are conditions attached, but the key issue is first to establish whether the site involved is previously developed land. The NPPF provides a definition of this in its second Annex. This is land which is or was occupied by a permanent structure and any associated fixed surface infrastructure. Given the former use of the appeal site this land would appear to fall into this definition. However the definition excludes a number of categories of land from this. The relevant one to this case is “land that is or has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures”. The County Council considers that the 1996 restoration scheme is lawful. It came about as a consequence of development control procedures – namely through the 1995 Permitted Development Order. As a consequence this exclusion does apply and the land is not previously developed land. For the avoidance of doubt the Borough Council does not consider that the land falls within another of the exclusions – “where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time”. This is because such structures and plainly visible today with very little in the way of natural re- generation.
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9.4 The Borough Council therefore takes the view that the appeal proposal is not appropriate development in the Green Belt and thus carries the presumption of refusal. b) Green Belt Harm
9.5 The appeal proposal is harmful to the Green Belt by definition and thus substantial weight is given to this conclusion.
9.6 It is also necessary to establish the actual level of Green Belt harm resulting from this appeal proposal. As explained above (para 8.4) the Council will be using a restored site as a base-line on which to make the assessment of actual harm. As the weight given to the 1996 restoration scheme is being challenged, the Council will also make an assessment of actual harm using the present state of the site as an alternative base-line.
9.7 The NPPF identifies two measures against which to assess Green Belt harm – the impact on the openness of the Green Belt and whether there is conflict with the five purposes of including land within it. Each will be looked at in turn.
9.8 There is no definition of openness in the NPPF or the Development Plan. In planning terms it is generally taken to mean the “absence of development”.
9.9 Starting with the base-line of a restored site – using the 1996 scheme – then that provides for an “open” outcome, free of new built or surface development. The proposal would introduce large, tall, solid buildings and structures as well as extensive outside storage areas and activity across the whole of the application site. It would be illuminated during the night time. There would thus be an adverse impact on the openness of the restored site. Because of the scale and extent of the proposal it is considered that the impact on the openness of the Green Belt would be substantial in respect of using the restored site as a base-line. The same conclusion would be arrived at if the existing site was used as the base-line. Regardless of its appearance, it is still a large area of open land. It is accepted that there are existing buildings here, but these are relatively immaterial when it comes to a comparison with that proposed. Overall therefore in both instances, the actual harm to the openness of the Green Belt is considered to be substantial.
9.10 Each of the five Green Belt purposes will now be looked at in turn.
9.11 The first is “to check the unrestricted sprawl of large built up areas”. The appeal site is not adjacent to or close by a large built up area being in a wholly rural setting. There is thus no conflict with this first purpose whichever base- line is adopted.
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9.12 The second is “to prevent neighbouring towns merging into one another”. For the same reason there is no conflict here whichever base-line is adopted.
9.13 The third is “to assist in safeguarding the countryside from encroachment”. The existing site is within a wholly rural and countryside setting. The restoration plan would enhance and preserve this setting. As such the proposed development can be said to encroach on this in a substantial way as the countryside character would be materially affected because of the scale and extent of the proposal. In respect of the existing site as the base-line, then the conflict would be less as this already encroaches into the countryside setting, but the development would go further by changing the character of the setting of the site due to its scale and scope.
9.14 The fourth is “to preserve the setting and special character of historic towns”. This is not applicable here.
9.15 The final one is “to assist in urban regeneration, by encouraging the recycling of derelict and other urban land”. If the base-line of the restored site is taken then there will be harm, as the preference for previously developed and derelict land would be compromised. There would be less degree of conflict if the base-line is the existing site as it is not in countryside use, but it is not in an urban location.
9.16 In overall terms therefore the greatest degree of conflict is with the purpose requiring the safeguarding of the countryside. That degree of conflict is substantial whichever base-line is used.
9.17 The Green Belt Study referred to in para 7.16 above specifically looked at the five purposes of Green Belts within North Warwickshire. The appeal site was not identified as a separate parcel of land for the purpose of that Study nor was it included in any specified wider parcel. The site however is within a broad area of Green Belt – known as Area 10 – for the purposes of that Study. It concludes that the area “makes a considerable contribution to all of the Green Belt purposes” – (para 4.17 of the report – Appendix 5). The appeal site is therefore in Green Belt terms, part of a much wider area which delivers on all of the five Green Belt purposes
9.18 The NPPF requires that great importance has to be given to any harm in the Green Belt and identifies their essential characteristics as permanence and openness. The integrity of the Green Belt is thus diminished where there is substantial harm to these characteristics. It is considered that there will be substantial harm here to the Green Belt whichever base-line is adopted.
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10 Other Harm a) Landscape Character
10.1 The NPPF has as two of its guiding principles that planning should “contribute to conserving and enhancing the natural environment”, and that it should “recognise the intrinsic character and beauty of the countryside” (para 17). It develops these themes in Section 11 where the policies should “protect and enhance its distinctive landscapes” (para 114).
10.2 The Core Strategy at Policy NW15 places these matters in a local context where it says that, ”within identified landscape character areas development will conserve, enhance and where appropriate restore landscape character”.
10.3 It is considered that the 1996 restoration scheme accords with Policy NW15
10.4 The Borough’s landscape character areas are to be found in the Appraisal of 2010 – see para 7.17. The appeal site falls within the Church End to Corley – Arden Hills and Valleys Area – see Appendix 6. The key attributes within this area are elevated farmed landscapes with low rounded hills, steep scarps and small incised valleys. This landform combined with extensive hilltop woodlands and tree cover creates an intricate and small scale character, punctuated by numerous scattered farms and hamlets. The majority of the area is deeply rural and tranquil.
10.5 The landscape management strategies put forward include conserving the rural character by restricting changes in the use of rural land; maintaining the quiet peaceful character of the area and looking to integrate new development within the landscape. There is also explicit reference to seeking restoration plans for Daw Mill in keeping with the area’s unique character.
10.6 These are the matters that provide the basis on which to assess impact and thus in terms of the NPPF whether the proposal protects and enhances distinctive landscapes and in respect of the Development Plan, the conservation, enhancement and restoration of landscape character.
10.7 I am not a Member of the Landscape Institute and I have not carried out an LVIA. However I have read the work done by the appellant and I am very familiar with the countryside of North Warwickshire. I have visited the site and its setting. I therefore feel able to express a view on the landscape and visual impact of the proposal, as indeed most Planning Inspectors do in the appeals that they consider. I conclude that because of the descriptions identified here, this landscape is sensitive to change and that its capacity to absorb new
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development is limited. In this respect it is considered that as a matter of fact and degree, the introduction of large scale industrial buildings and infrastructure would not naturally fit within the description set out above and thus there would be substantial harm because of the sensitivity of accommodating such a development within this landscape. The proposals would not conserve; enhance or protect the landscape to use the terms of the NPPF or Policy NW15. This would apply whichever base-line is used.
10.8 However the setting of the actual site is within a valley and this does limit the scale of this adverse impact. This is explicitly recognised in the 2010 Landscape Appraisal. It says that “Daw Mill Colliery is nestled within the base of the central valley adjacent to the rail line and has little influence on the wider landscape”. In other words there is some capacity in the local setting here to absorb new development. However the colliery is no longer here and the assessment of harm has therefore to be made against the existing site. The proposals will introduce new tall buildings into the existing landscape. These will have a mass; and be located at the southern and western more open ends of the site. There will also be lighting columns and infrastructure including a gantry crane. The proposal covers the whole site. The proposals would still include widespread open storage areas; site lighting and 24 hour activity. It is considered that in these circumstances there would still be an impact on the landscape character – described by the Appraisal as being “deeply rural” and “small scale and intricate”. It is agreed that the local landscape conditions here are a mitigating factor. As a consequence the impact of the new development on landscape character would be reduced to significant harm. This would apply whichever base-line is used.
10.9 Mitigation measures proposed are essentially more landscaping. It is accepted that this would have an impact, but it would not disguise the introduction of a large industrial development into a countryside setting. The proposals therefore do not accord with Core Strategy Policy NW15 which requires conservation, enhancement and where appropriate, restoration of landscape character. It is not considered that the proposals achieve these objectives. b) Visual Amenity
10.10 The NPPF indicates that planning should recognise the intrinsic character and beauty to the countryside and secure high quality design and a good standard of amenity (para 17). Paragraphs 57 and 58 extend this to ensuring that developments should add to the quality of the area not just for the short term but over the lifetime of the development.
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10.11 Policy NW12 of the Core Strategy requires development proposals to positively improve the appearance and environmental quality of an area.
10.12 The appeal site is wholly within a rural setting displaying rural characteristics. The proposal would introduce industrial characteristics. There will be a consequential impact on visual amenity.
10.13 There is a small resident population in the locality within scattered and dispersed houses, farmsteads and small groups of houses. Because of the topography of the area, the site is generally only visible from those residents occupying property on the rising ground of the valley south of the site, together with houses on the southern side of the B4114 to the north of the site. However there would be substantial visual impact in terms of the outlook from these properties when taken together, as the development would be visible and permanent.
10.14 Visibility from the local road network is limited with glimpsed views of the site particularly at the entrance and along Daw Mill Lane. However drivers would have visibility from the lanes on the rising ground to the south. These glimpses however would be transitory and thus limited.
10.15 Train passengers would experience significant visual impact due to the sudden change in character, but this too would be transitory and thus limited.
10.16 Footpath walkers would experience significant impact and for longer periods of time than road and rail users. This is because of the number of footpaths in and around the site – Appendix 2. They extend along the western and southern boundaries (the M391, M392, M436 and M375) as well as on the higher ground to the south and north (the M375, the M376 and the M435). The physical evidence on these paths is that they are well used. Because of the routes of these paths, visual impacts would not be transitory unlike drivers or train passengers. Walkers would be exposed to the site for some time.
10.17 In order to illustrate this, Appendix 14 contains a bundle of photographs taken at various viewpoints along the footpath network. The Appendix identifies which footpaths are referred to and identifies the locations and direction of the viewer. Attention is drawn to the existing “open“ nature of the site notwithstanding its location in a valley; the overlooking of the site, the proximity of some of the paths to the site itself and the visibility of the existing remaining buildings and lighting columns on the site. The proposals will have a material adverse impact on the visual amenity of footpath walkers. Even additional screening would not disguise the presence of a large industrial concern.
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10.18 In all of these circumstances it is considered that there would be significant visual harm if the base-line used is that of a restored site. In respect of using the existing site as the base-line then there would still be a significant impact because of the introduction of large buildings and infrastructure with twenty- four hour activity onto open land. Mitigation measures proposed are essentially additional landscaping. However these cannot disguise the introduction of industrial development into a countryside setting. The proposals are not considered to positively improve the appearance and environmental quality of the area as required by Core Strategy Policy NW12. c) Heritage
10.19 The Council is under a statutory duty to have special regard to the desirability of preserving a listed building or its setting and to pay special attention to the desirability of preserving or enhancing the character and appearance of a Conservation Area (paragraphs 66 and 72 of the Listed Buildings and Conservation Areas Act 1990). This is reflected in the NPPF at paragraph 132 where great weight is to be given to the impact of proposed development on the conservation of heritage assets. The NPPF identifies two levels of harm – substantial or less than substantial harm. It also sets out a series of criteria against which this harm can be assessed – paragraphs 133 and 134.
10.20 Core Strategy Policy NW14 follows on from this requirement by requiring the quality, character, diversity and local distinctiveness of the historic environment to be conserved and enhanced.
10.21 It is agreed that there is no above ground or below ground heritage assets on the site itself.
10.22 There are two nearby listed buildings to the appeal site of high significance – both Churches. They are St. Cuthberts, a grade 2 star building to the north– west some 570 metres from the appeal site boundary and St. Leonards, also grade 2 star, to the north – some 500 metres from the appeal site boundary. (Appendix 3).
10.23 In respect of St. Cuthberts then this dates from the 13th Century with 14 and 15th Century additions (the nave and tower). It is set in its own churchyard with a 15th Century cross which is also a Scheduled Ancient Monument. The Church is constructed in coursed sandstone with plain tiled roofs, end parapets and gable crosses. It stands on high ground. The significance of this asset is in its local historic connection with its surviving and still active local community. Its architectural character reflects the history of this long standing building. The significance of its setting is that is highly visible from a wide
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area standing on high ground and has a landscape presence over a wide ranging area
10.24 In respect of St. Leonards, then this dates from 1766. Its original dome was replaced by a spire in 1850. It is constructed of stone ashlar with a shallow pitch slate roof and pedimented gable ends. The significance of the asset is again local in scope and reflects a local connection with its community. The setting of the asset is again that the church is a landscape feature visible over a wider area standing on high ground.
10.25 It is considered that there is also a cumulative significance because of the contribution of the two Churches to a wholly traditional rural landscape. Their locations complement each other.
10.26 There is unlikely to be any direct adverse impact on the actual historic and architectural attributes and characteristics of the two churches from the proposed development. Impacts may arise in respect of their settings both individually and combined. Given the local topography, the separation distances, the intervening woodland and tree cover as well as the scale of the development in terms of the heights of the buildings, then it is considered that any impacts will be less than substantial. The combined landscape presence of the two churches will remain.
10.27 The other listed building in the vicinity (550 metres to the north of the appeal site boundary) is Over Whitacre House. This is a Grade 2 Listed building. Its significance is as a 19th Century country single dwelling house within a small parkland. Its architecture reflects this history. There would be no direct impact on this significance and less than substantial impact on its setting due to separation distances and intervening tree cover. ( Appendix 3)
10.28 The remaining listed buildings are individual farm houses and buildings located further afield. Their significance is as surviving traditional rural buildings and dwellings reflecting a variety of architectural styles. The impact of the proposals would be less than substantial on this significance due to separation distances and intervening land form and tree cover.
10.29 In terms of Scheduled Ancient Monuments, then the Furnace End Bridge is 425 metres to the west. It dates from the 14th and 15th Centuries and was widened in the 17th and 20th Centuries. It provides the road crossing (the B4114) over the river Bourne. Its significance is as a surviving historic crossing point. There would be no direct harm on the historic or architectural character of the bridge and neither on its setting. However increased traffic could impact on its structural stability. But it is difficult to calculate what direct impact the development would cause given the general traffic growth forecast. It is concluded that harm here would be less than substantial. (Appendix 3)
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10.30 There are Conservation Areas affected by the proposal – the Coleshill and Fillongley Areas. Fillongley is about 2.5km to the south-east along the B4098. The Area was designated in 1970. It covers the village centre. Its significance is that it represents the historic core of the village. The only direct impact on this significance would be the increased traffic on the B4098 which passes directly through the Area. Again it is difficult to assess the direct impact of the traffic to be generated by the development as opposed to the general forecast increase in traffic. Harm is considered therefore to be less than substantial.
10.31 The Coleshill Conservation Area was designated in 1969. Its significance rests in that it covers a substantial section of the town reflecting its growth along a ridgeline giving a distinct linear character. It has a predominantly Georgian architecture. There would be no direct impact on this built form or its architecture. Direct traffic impacts again would be difficult to distinguish from general growth. There is however an important indirect impact. The proposals include a number of off-site highway improvements. One affects the traffic circulation at the northern end of the town and its’ Conservation Area. These could involve greater traffic flows on a minor road (Church Hill) and the loss of on-street car parking on that same road. This could affect the general ambience and therefore character of Church Hill. However as full details are not yet known, the harm is difficult to address.
10.32 As a consequence it is considered that in the terms of the NPPF the combined harm to heritage assets is “less than substantial”. This would apply whichever base-line is used.
10.33 However the Council points out that because of the wording of the NPPF, even although there is less than substantial harm, that does not remove the conclusion that harm is caused and therefore the strong presumption of refusal remains. d) Flooding and Drainage
10.34 The NPPF requires local planning authorities to ensure that flood risk is not increased elsewhere in their decision making (para 103). This is reflected in Policy NW10 of the Core Strategy where measures to reduce the impact of climate change are outlined as well as an indication given that potable water supplies are to be protected.
10.35 The majority of the appeal site falls within Flood Zone 1 and therefore at “low probability” of flooding. The southern boundary is in Flood Zones 2 and 3. However the site is elevated by several metres above the original flood plain and the river is in culvert. The development would retain and adapt the existing retained colliery drainage infrastructure including the culverted watercourses, settlement ponds and attenuation pools. The Environment
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Agency is satisfied that there would be no impact on flooding. The actual details of the drainage system to be implemented would be a matter for consideration at reserved matters stage.
10.36 It is considered that there would be no adverse impact arising if the existing state of the site is taken as the base-line. The impact on a base-line using a restored site would be unknown due to the change in ground levels almost certainly resulting in the site moving into a different Flood Zone - because the 1996 restoration scheme shows the de-culverting of the River Bourne and a series of ponds. Fresh investigation would thus be necessary. The appellant has not undertaken this investigation and thus the degree of harm cannot be assessed. e) Ecology
10.37 The NPPF requires planning authorities to plan positively for the creation, protection, enhancement and management of networks of bio-diversity and green infrastructure (para 114) and to promote the preservation and restoration and re-creation of priority habitats (para 117). In determining applications authorities should refuse planning permission if significant harm cannot be avoided, mitigated or compensated (para 118).
10.38 Core Policies NW13, NW15 and NW16 together set out the Council’s approach reflecting the general themes expressed in the NPPF. NW15 in particular requires new development to ensure there is a net gain in bio- diversity.
10.39 The restoration of the site would substantially enhance the bio-diversity of the site. The impact of the proposal on that position would thus be substantial as it would deny the implementation of the restoration scheme. The impact of the development on the existing site would not match that of a restored site. Moreover it is not clear as to the extent to which the appeal proposal would enhance the bio-diversity of the existing state of the site. If not the applicant has not offered Bio-Diversity Off-setting as part of the proposals or in mitigation of the loss of the restoration scheme. Harm would thus be caused through the proposal not according with the Core Strategy policies.
10.40 The Proof of Evidence of Miss English expands on the conclusions reached above. f) Highways
10.41 The NPPF supports patterns of development which, where reasonable to do so, facilitate the use of sustainable modes of transport (Para 30). Paragraph
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32 requires that opportunities for sustainable transport modes should be taken up. The same paragraph also says that development should only be refused on transport grounds where residual cumulative impacts are severe.
10.42 Policy NW10 of the Core Strategy requires developments to provide proper vehicular access, sufficient parking space and for the encouragement of sustainable forms of transport.
10.43 The Warwickshire County Council is the Highway Authority. It did not raise objection to the proposals considered formally by the Borough Council that led to the refusal notice. It considered that that proposal would not have a detrimental impact on the safe and efficient operation of the local highway network and that suitable mitigation could be identified. As such the cumulative impacts would not be “severe” in terms of the NPPF guidance.
10.44 The Borough Council gave this response substantial weight as it came from the statutory highway authority.
10.45 The County Council’s assessment was based on a cleared site and used a “worst – case” scenario in terms of traffic generation. As such it is considered that the response would not materially change whichever base- line is used.
10.46 The Borough Council would point out that the Highway Authority’s position is based on highway considerations alone. There are planning considerations that also need to be addressed as that position has necessarily to be balanced within the planning process of determination. The Highway Authority’s response is conditional upon off-site mitigation measures. It is in this regard that the Council has some queries around the deliverability of those measures.
10.47 Firstly, it is understood that there is still more technical work to be undertaken with the mitigation schemes and the outcome of that is unknown – eg. additional land beyond highway land may have to be incorporated into a scheme. Secondly, the measures at Coleshill would it appear, also need to be the subject of separate Traffic Regulation Orders and public consultation. There is thus an issue as to whether there is a prospect of these Orders going ahead as the outcome is outside of the control of the appellant. Thirdly, one of the measures – that affecting Coleshill - will have an impact by increasing traffic flows along Church Hill. The consequence of this does need assessment in terms of the impact on the heritage asset of the Coleshill Conservation Area. Additionally the impact of those flows on the general circulation of traffic in this area needs to be assessed. Finally, it is not wholly clear whether the mitigation measures are a direct consequence of the impact of traffic generated by the proposed development itself, or if they are
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measures that are needed to overcome existing problems because of the general rise in traffic. The County Council, in its response says that the mitigation will provide significant betterment for the safe and efficient operation of the highway by improving junctions which are approaching their operational capacity, some of which have poor accident records. This conclusion raises doubt about the scope and purpose of the mitigation measures.
10.48 It is considered that these issues raise doubt. If the mitigation measures cannot proceed for whatever reasons, then there will be a harmful highway impact as the County Council’s response is conditional upon these measures. That harm will occur whatever base line is used.
10.49 In respect of the Coleshill mitigation measures the Council does consider that adverse highway impacts can be harmful and should be taken into account in the final planning balance even although that harm is some distance from an appeal site. It would refer the Inspector to a relevant appeal decision – see Appendix 15.
10.50 The Council’s position is that because of the Highway Authority’s response, there is no highway harm arising from the proposal whichever base line is used. However it would invite the Inspector to re-examine the Highway Authority’s analysis in view of the issues raised above and to consider, as the Council has done, if there is sufficient doubt about the delivery of the mitigation measures. If so, then some degree of highway harm may well be caused. g) Noise
10.51 The NPPF says that planning decisions should aim to “avoid noise from giving rise to significant adverse impacts on health and quality of life as a result of new development”. Additionally, areas of tranquillity which have remained undisturbed by noise and are prized for their recreational and amenity value for that reason, should be identified and protected.
10.52 Core Strategy Policy NW10 says at point 9, that development should avoid and address unacceptable impacts on neighbouring amenities through overlooking, overshadowing, noise, light, fumes or other pollution”.
10.53 One of the key characteristics of the landscape in which the site sits is described in the Landscape Character Appraisal as being “deeply rural and tranquil” – Appendix 6. This is reflected in the Core Strategy – its Spatial Portrait; Spatial Vision and is Spatial Objectives – paras 2.20 to 2.22, 3.2 and 4.1. Moreover in the Council’s Green Space Strategy 2008 – 2018, the Parishes of Arley and Whitacre are identified as a “key area” to help meet the standards for green space provision by supporting “improved access to the
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countryside through the promotion of footpaths and route-ways through the area”. This is a priority – see Appendix 17. The site is surrounded by a network of well-used public footpaths and the restoration plan enables public access. As a consequence of these matters it is considered that the area is prized for its recreational and amenity value. The overall rural ambience and character has remained relatively undisturbed by noise pollution. It is considered that the proposal will disturb this ambience and thus not accord with para 123 of the NPPF.
10.53 The Proof of Evidence of Messrs Metcalfe and King identifies omissions in the appellant’s noise assessment such that it cannot be given weight, This is of such significance that the test under paragraph 123 of the NPPF is not met and as such the proposal would not accord with Policy NW10 of the Core Strategy. h) Light
10.54 The NPPF says that planning decisions should “limit the impact of light pollution from artificial light on local amenity, intrinsically dark landscapes and nature conservation”.
10.55 Core Strategy Policy NW10 also includes reference to unacceptable levels of light.
10.56 The site would be lit overnight. There is no detail in the proposals to assess the overall lighting impact. This is a rural location with limited night time lighting. There would be an impact arising from the introduction of lighting to a restored site as well as to the introduction of lighting to the existing cleared site. That lighting would have to satisfy Health and Safety legislation in view of the proposed operations at the site - rail handling activities; the use of open yards and the gantry crane. The standard of lighting would thus be to a different specification than rural street lighting; a residential estate or to a leisure activity. Greater levels of luminance would be needed. It is agreed that lighting technology and standards have developed since the time when the colliery first operated. It can be expected that external lighting could be designed and controlled to limit its impact to the wider setting or in terms creating sky glow or reflections, thus potentially reducing impacts to limited harm. However that is not to say that the residential amenity of neighbours would not be affected as the site would still be permanently lit at night time. When combined with 24 hour working and the visual impact of the proposal, that residential amenity would be affected to a degree that would render the proposal not to be in accord with Policy NW10.
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11 The Harm Side of the Planning Balance
11.1 The proposed development is not appropriate development in the Green Belt and thus substantial weight is to be given to the harm caused by this inappropriateness. In this case too there is substantial actual harm to the openness of the Green Belt and to the purpose of including land in the Green Belt in respect of safeguarding the countryside from encroachment. This Green Belt harm applies whichever baseline is used - a restored site or the current site.
11.2 There is also other harm caused. There would be significant landscape and visual harm caused as well as cumulative harm caused by the adverse impacts on residential amenity through levels of noise and light. In particular adverse noise impacts are themselves considered to be significant. This would apply whichever baseline is used. There would be harm to heritage assets whichever base-line is used. There would be substantial harm to bio- diversity if the restoration base-line is used, less so in the case of the current site as the base-line, but the opportunity has not been taken in this regard to positively enhance bio-diversity and the ecological value of the existing site. The Highway Authority has not raised an objection subject to off-site highway improvements, but if any of these are not delivered then harm would be caused – again whichever baseline is adopted.
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12. The Benefits Side of the Planning Balance
12.1 The applicant has set out essentially four planning considerations which in his view should be weighed against the harm caused by his proposals. These are that the site has the necessary infrastructure to deliver an unmet sub-regional need for rail served B2 employment sites which cannot be met from non- Green Belt sites alone; the proposal would provide an opportunity for enabling a shift from road to rail freight movements, the proposal would broaden and support the rural and local economy and it would provide potentially 680 on- site job opportunities.
12.2 My colleague – Mrs Barratt – has submitted a Proof in which these considerations are assessed.
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13. The Planning Balance
13.1 In the case of development that is not appropriate in the Green Belt, the NPPF states that it should not be approved except in very special circumstances. These will not exist unless the potential harm to the Green Belt by reason of inappropriateness and any other harm, is clearly outweighed by other considerations. It is thus necessary to undertake that balancing exercise. The central issue is to assess whether the benefits put forward by the appellant, clearly outweigh the harm caused.
13.2 It is considered that they do not for the following reasons. a) Is the proposal “clearly” sustainable development? The site is outside of any settlement as defined by Policy NW2 of the Core Strategy and thus does not accord with Policy NW2 of that Strategy. Moreover it is inappropriate development in the Green Belt and has as its starting point a presumption of refusal. Whilst the ambition and main argument put forward by the applicant is that this is to be a rail served development, its location and the use sought is still dependant on the local highway network – potentially 1400 vehicle movements and 50 HGV movements a day. This is of a scale that requires off-site mitigation measures in order to accommodate it. Indeed the evidence from Mrs Barratt in respect of the CBRE report concludes that Daw Mill “has a remote rural location and will require significant site remediation” and that it has very poor road access and the likely occupier demand is limited (para 5.29 of Mrs Barratt’s Proof). It is not considered that the proposal results in a balance between the three dimensions of sustainable development as set out in the NPPF. b) Can the proposal “clearly” deliver on its ambition of being a rail served, development thus fully utilising the specific assets of the site? An argument that the site is a “rare” opportunity that should be taken does not mean that there is an automatic assumption that a planning permission has to be granted. Whilst the appellant during the planning application process, advocated the rail asset this was not followed through with any evidence of prospective interest in the site by a potential tenant or occupier. No evidence of marketing the site has been submitted with the appeal proposal. There was however at one stage an interest expressed by Network Rail and by a cement sleeper manufacturer. These were given weight by the appellant and the Council engaged with those prospective occupiers, but they then withdrew that interest. The appeal submission contains no further evidence of interest in the site.
The Council has experience of two rail freight terminals in the Borough – Hams Hall and Birch Coppice. In both cases the planning permissions for their development only required the safeguarding and maintenance of the facility so
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as to enable rail use if required. They do not require rail use by an occupier. In the appeal case the site is in the Green Belt and thus there will be a final planning balance to be struck in establishing whether very special circumstances exist to outweigh Green Belt and other harm. Substantial harm to the Green Belt is identified here along with other harm. In order to potentially achieve a situation where that combined harm is clearly outweighed, the use of the site as a rail served site should carry a strong probability of being delivered and being sustained. The Council notes that the appellant is suggesting a planning condition to require “primary” use of rail by a future occupier. The Council has experience of such a condition. At the Birch Coppice site the Council attached a similarly worded condition to a new warehouse development. It was appealed and the appeal allowed. The decision letter is attached at Appendix 16. That Appendix also includes a copy of the Development Plan policy upon which it was based – Policy TPT5 of the 2006 Local Plan. Paragraph 7 of the decision letter concludes that, “…….national, regional and Structure Plan policies encourage the use of rail rather than force it. In contrast Condition 22 of the October 2000 permission effectively requires the majority of the goods received at the appeal site to be transported by rail and in this respect I consider that it imposes a greater burden than required by these policies”. The Inspector’s reasoning is outlined in paragraphs 10 through to 12 of his letter - the policy does not “force” or “require” rail use and rail use is often outside the control of the occupier, and alternative HGV use would not cause an adverse traffic or highway impact. Additionally its suppliers and its markets too can change and the whole enterprise is dependent upon Network Rail consents. The condition was seen as reducing flexibility and opportunity – the very factors forwarded here by the current appellant. Paragraph 173 of the NPPF may thus not be satisfied here in that such a planning condition could be seen as a “burden” as was the case in the appeal referred to here. That site was not in the Green Belt. The appeal site is and it is considered that the appellant’s considerations are weakened by the reasoning that led to this appeal decision.
Whilst the NPPF advocates sustainable travel opportunities, it does not advocate restrictions or conditions to satisfy use of such opportunities. There is also some doubt as to the enforceability of such a condition. This was explored in the appeal case referred to – what is meant by “primary” and by what measure is that evidenced? Additionally a breach of conditions notice would have to weigh the impact of the condition on the business of the occupier.
For all of the above reasons it is not considered that the prospect here of a rail served use as advanced by the appellant can be clearly established.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
c) Does the nature of the proposal “clearly” fulfil the appellant’s ambition of a rail served site? Apart from the issues raised above and the lack of evidence submitted in respect of interest shown in the site, the appeal scheme is still for a B2 use. The matter that makes the proposal distinguishable from any B2 use is the potential for rail served activity but as explained above there is no certainty of this being delivered. To add weight in the planning balance, additional surety is needed. d) Does the proposal “clearly” meet the Borough’s existing and future employment needs and requirements? The conclusion from Mrs Barratt’s Proof is that the need for additional employment land should be given limited weight – para 6.1 of her Proof. This is because the Borough Council has recognised the importance of identifying and planning to meet employment needs. It has therefore grasped the nettle of growth and has a good track record of working positively to meet its own needs and those needs arising outside of the Borough. It has a good record of working positively as is demonstrated by the draft Local Plan and of providing employment land opportunities to meet the wider than local needs. Specifically, it has provided land to meet Tamworth’s needs and plans to deliver sufficient employment land to cater for the increased housing to meet Birmingham’s needs. While the provision of employment land is a consideration that weighs in favour of the appeal, the weight to be afforded to that benefit is reduced because there are alternative sites in the Borough sufficient to meet the land requirements over the plan period. e) Does the proposal “clearly” mitigate Green Belt harm? The NPPF says that “any” harm to the Green Belt should carry substantial weight. It therefore cannot be ignored. It carries substantial weight in the final planning balance. One of the essential characteristics of the Green Belt is its permanence. The 1996 restoration plan is a material planning consideration of substantial weight. It was brought about through a legislative change which shows that even mining is a temporary use of the land. In this case restoration is to open countryside, thus reflecting its contribution to the permanence of the Green Belt. Even if it is acknowledged that there might be support for the appeal proposal in the final balance, it does not enable restoration in a material way and thus does not mitigate harm to the permanence of the Green Belt.
The second essential characteristic is its openness. The proposal covers the site of the former colliery and thus prevents its return to open land. It does not enable restoration in a material way and thus does not mitigate harm to the continued openness of the Green Belt. f) Does the proposal “clearly” mitigate other harm? Other harm, even if not causing adverse impacts and thus attracting a refusal reason, can be added
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to the harm side of the planning balance as the NPPF allows for the cumulative level of harm to be the hurdle. The Council considers that harm to landscape character and visual amenity cannot be fully mitigated; that lighting impacts cannot be fully mitigated and that that there still remains harm to heritage assets with doubts about the level of highway harm. In these circumstances the NPPF test is not satisfied.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
14. Conclusion
14.1 The determination of planning applications must be made in accordance with the Development Plan unless material planning considerations indicate otherwise. In this case the Development Plan is up to date and consistent with the NPPF. The appeal proposal does not accord with the relevant policies of the North Warwickshire Core Strategy 2014 – specifically NW1, NW2, NW3, NW10, NW12, NW13 and NW15. In particular the site is in the Green Belt and it is considered that the proposal is not appropriate development. As a consequence there is a presumption of refusal. I conclude that there is substantial Green Belt harm as well as other harm to the landscape, visual amenity, to residential amenity as a consequence of noise and light impacts as well as to bio-diversity. The Appellant’s arguments outlining the benefits of the proposal are not considered to clearly outweigh the total harm caused. This is because the proposal is not considered to be sustainable development; that it does not deliver on the ambition of being rail served, that it is not needed to meet the existing and future employment needs of the Borough and that it is does not clearly mitigate both Green Belt and other harm. In the final balance it is not therefore considered that the benefits amount to the very special circumstances necessary to outweigh the harm.
14.2 The relevant policies in the Core Strategy are up to date and should be accorded full weight. Even if the Inspector concludes that the presumption in the second bullet point of para 14 of the NPPF applies, my view is that the adverse impacts of allowing this development, significantly and demonstrably outweigh the benefits, for the reasons set out in my Proof.
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North Warwickshire Borough Council Proof of Evidence Jeff Brown
Daw Mill Proof Appendices
Appendix 1 General Location Plan
2 Public Footpath Plan
3 Heritage Assets
4 Arley Neighbourhood Plan (2015 – 2030): Policies ANP1 and 3
5 The Coventry and Warwickshire Joint Green Belt Study 2016
6 The North Warwickshire Landscape Character Assessment and Capacity Study 2010
7 Hams Hall and St Modwen Location Plan
8 Draft Site Allocations Plan 2014 – para 7.2
9 E.ON’s Letter of 10/5/16
10 The Joint Green Belt Study
11 Core Strategy Policy NW19
12 Extent of the Meaningful Gap
13 WCC Letter on the Restoration Plan
14 Photographs taken from Public Footpaths
15 Highway Appeal Decision in Lancashire
16 Appeal Decision – The rail use condition
17 North Warwickshire Green Space Study 2008 - 2018
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