Appeal Decisions

Appeal Decisions Inquiry held from 28 November to 6 December 2017 Site visits made on 6 and 7 December 2017 by Alan Novitzky BArch(Hons) MA(RCA) PhD RIBA an Inspector appointed by the Secretary of State for Communities and Local Government Decision date: 16 January 2018

Appeal A Ref: APP/P1940/W/17/3171912 Units 3 and 4, Wolsey Business Park, Tolpits Lane, Rickmansworth WD18 9BL  The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.  The appeal is made by Mr Shamir Budhdeo against the decision of Three Rivers District Council.  The application Ref 16/2497/FUL, dated 24 November 2016, was refused by notice dated 24 February 2017.  The development proposed is the demolition of 2x3 storey office buildings (Units 3 and 4 Wolsey Park) and the erection of a 1x8 storey mixed use building (plus 3 storey basement) to include 401 residential units, leisure and communal facilities (including gym, swimming pool, sauna, steam room, crèche, projector room and coffee shop), retail, roof garden, internal arboretum and parking. Erection of 2x4 storey office (Class B1) buildings. Associated works.

Appeal B Ref: APP/P1940/W/17/3173311 Units 3 and 4, Wolsey Business Park, Tolpits Lane, Rickmansworth WD18 9BL  The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant approval required under a development order.  The appeal is made by Mr Shamir Budhdeo against the decision of Three Rivers District Council.  The application Ref 17/0119/PDR, dated 17 January 2017, was refused by notice dated 14 March 2017.  The development proposed is prior notification: change of use from Office (Class B1) to 120 Residential units (Class C3).

Appeal C Ref: APP/P1940/W/17/3173313 Units 3 and 4, Wolsey Business Park, Tolpits Lane, Rickmansworth WD18 9BL  The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant approval required under a development order.  The appeal is made by Mr Shamir Budhdeo against the decision of Three Rivers District Council.  The application Ref 17/0112/PDR, dated 17 January 2017, was refused by notice dated 14 March 2017.  The development proposed is prior notification: change of use from Office (Class B1) to 60 Residential units (Class C3).

https://www.gov.uk/planning-inspectorate Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

Appeal D Ref: APP/P1940/W/17/3175599 Units 3 and 4, Wolsey Business Park, Tolpits Lane, Rickmansworth WD18 9BL  The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission with all matters reserved for later decision.  The appeal is made by Mr Shamir Budhdeo against the decision of Three Rivers District Council.  The application Ref 17/0046/OUT, dated 10 January 2017, was refused by notice dated 24 March 2017.  The development proposed is the demolition of 2x3 storey office buildings (Units 3 and 4 Wolsey Business Park). Construction of replacement building to include office (Class B1) and residential use (274 apartments) with associated facilities and underground parking for 661 cars.

Appeal E Ref: APP/P1940/W/17/3175585 Units 3 and 4, Wolsey Business Park, Tolpits Lane, Rickmansworth WD18 9BL  The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission with all matters reserved for later decision.  The appeal is made by Mr Shamir Budhdeo against the decision of Three Rivers District Council.  The application Ref 17/0015/OUT, dated 5 January 2017, was refused by notice dated 24 March 2017.  The development proposed is the demolition of 2x3 storey office buildings (Units 3 and 4 Wolsey Business Park). Construction of replacement buildings to include office (Class B1) and residential use (332 apartments) with associated facilities and underground parking for 851 cars.

Appeal F Ref: APP/P1940/W/17/3174879 Units 3 and 4, Wolsey Business Park, Tolpits Lane, Rickmansworth WD18 9BL  The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission with all matters reserved for later decision.  The appeal is made by Mr Shamir Budhdeo against the decision of Three Rivers District Council.  The application Ref 16/2735/OUT, dated 22 December 2016, was refused by notice dated 24 March 2017.  The development proposed is the demolition of 2x3 storey office buildings (Units 3 and 4 Wolsey Business Park). Construction of replacement buildings to include office (Class B1) and residential use (403 apartments) with associated facilities and underground parking for 943 cars.

Appeal G Ref: APP/P1940/W/17/3175597 Units 3 and 4, Wolsey Business Park, Tolpits Lane, Rickmansworth WD18 9BL  The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission with all matters reserved for later decision.  The appeal is made by Mr Shamir Budhdeo against the decision of Three Rivers District Council.

https://www.gov.uk/planning-inspectorate 2 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

 The application Ref 16/2709/OUT, dated 20 December 2016, was refused by notice dated 24 March 2017.  The development proposed is the demolition of 2x3 storey office buildings (Units 3 and 4 Wolsey Business Park). Construction of replacement buildings to include office (Class B1) and residential use (416 apartments) with associated facilities and underground parking for 943 cars.

Appeal H Ref: APP/P1940/W/17/3183853 Units 3 and 4, Wolsey Business Park, Tolpits Lane, Rickmansworth WD18 9BL  The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission with all matters reserved for later decision.  The appeal is made by Mr Shamir Budhdeo against the decision of Three Rivers District Council.  The application Ref 17/1179/OUT, dated 2 June 2017, was refused by notice dated 18 August 2017.  The development proposed is the demolition of 2x3 storey office buildings (Units 3 and 4 Wolsey Business Park). Construction of replacement building to include 643 flats with underground parking for 1176 cars.

Decisions

1. Appeal A: The appeal is dismissed.

2. Appeal B: The appeal is dismissed.

3. Appeal C: The appeal is dismissed.

4. Appeal D: The appeal is dismissed.

5. Appeal E: The appeal is dismissed.

6. Appeal F: The appeal is dismissed.

7. Appeal G: The appeal is dismissed.

8. Appeal H: The appeal is dismissed.

Preliminary Matters

9. The descriptions of the proposals are those adopted in the Statement of Common Ground (SoCG).1

10. Appeals D, E, F, G, and H applications are in outline with all matters reserved for later decision. Drawings submitted with these applications will be regarded as illustrative of ways of carrying out the developments.

11. The development plan comprises the Core Strategy (CS) adopted 17 October 2011 and covering the period to 2026; the Development Management Policies Local Development Document (DM) adopted July 2013; and the Site Allocations Local Development Document (SA) adopted November 2014. The CS, which preceded publication of the National Planning Policy Framework (NPPF), is

1 Doc 20 https://www.gov.uk/planning-inspectorate 3 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

based on the East of England Plan (Regional Spatial Strategy, now revoked) and National Planning Policy Statements.

12. In response to the NPPF, the Council is currently preparing a new Local Plan which it aims to submit for examination in 2019. However, no emerging policies were put before the Inquiry. The Council commissioned a Strategic Housing Market Assessment (SHMA) and an economic study - the South West Hertfordshire Economic Study (ES)2 – to inform its preparation. Both studies were published in February 2016. The SHMA assesses the Objectively Assessed Need (OAN) for new housing as 514 dwellings per annum, as against the CS requirement, which historically has been achieved fairly comfortably, of 180 dwellings per annum.

13. The SoCG notes3 that the current land supply would provide 1,435 dwellings, which equates to less than a three year Housing Land Supply (HLS) against the OAN. Paragraph 49 of the NPPF notes that relevant policies for the supply of housing should not be considered up-to-date if a five year supply of deliverable housing sites cannot be demonstrated. CS Policy CP2 (Housing Supply) is, therefore, out-of-date in this respect and NPPF paragraph 14 is engaged.

14. The fourth bullet point of NPPF 14 applies and there are no NPPF policies which indicate development should be restricted. Therefore, subject to the weight of relevant development plan policies, planning permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole.

Main Issues

15. The main issues for Appeals A, D, E, F, G, and H are:

 The effects of the proposals on employment land supply  The sustainability of the site’s location  The character, appearance, and design of the proposals, including the effects on neighbours and occupants  Housing mix and the provision of affordable housing  The fall-back position

16. The single issue for Appeals B and C is whether the proposals comprise permitted development.

Reasons

Site and Surroundings

17. The SoCG gives a full description of the Site and Surrounding Area.4 In summary, the site area of some 1.36ha contains Units 3 and 4, probably built in the early 1990s, which both face the A4145, Tolpits Lane, and are 3 storeys - some 15m - high. Unit 3 has a gross internal area of a little under 4,000sqm

2 Council’s Hearing Statement, Appendix AG 3 Doc 20, para 9.5 4 Doc 20, Section 3 https://www.gov.uk/planning-inspectorate 4 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

and is currently in use under a temporary planning permission by the Reach Free School, but will revert to Class B1 (office) use in August 2018. Unit 4 has a gross internal area of a little under 2,000sqm Class B1 floorspace. Both buildings have prior approval permitted development rights (PDR) allowing change to residential use and planning permissions for accompanying operational development. The 107 dwellings which would result are included in the HLS figures.5

18. The Tolpits Lane Employment Site Allocation (SA Policy SA2 E(b)) of which Wolsey Business Park is a part, is surrounded by, but excluded from, the Green Belt.6 Nearby Fitzroy (formerly Kenwood) House has been converted from office use and extended to create 48 one and two bedroom dwellings, and Unit 35 Metro Centre has PDR for change of use to 12 dwellings. An Article 4 Direction came into effect on 5 August 2017 to prevent further conversion of office space to residential use under PDR.

19. The Employment Allocation is bounded to the north by the Ebury Way, National Cycle Route 6, a disused railway line which links Rickmansworth and Watford, beyond which is Croxley Common Moor SSSI. There are no conservation areas nearby and no heritage assets on the site, which lies within Flood Risk Zone 1.

20. Residential and employment areas lie to the north and east of Croxley Common Moor. To the south, the land dips steeply to the River Colne, which runs parallel with Tolpits lane, beyond which is the Merchant Taylors’ School and then ribbon housing development further south. A group of two or three interwar houses lie between Tolpits Lane and the River.

Appeals A, D, E, F, G, and H

First Issue - Employment Land Supply

21. CS Policy CP6 (Employment and Economic Development) appears consistent, to a high degree, with NPPF policies. In particular, NPPF 22 notes that planning policies should avoid the long term protection of sites allocated for employment use where there is no reasonable prospect of the site being used for that purpose, and that land allocations should be regularly reviewed.

22. Accordingly, CS Policy CP6(n) aims to release office space from employment use where this is expected to be surplus to employment needs across the plan period, as indicated by an up to date Employment Land Study. The ES can be regarded as the up to date Employment Land Study.

23. CS Policy CP6(i) supports development that reduces the need to travel by promoting mixed-use development. However, the Policy also notes that the SA DPD will identify sites with the potential to accommodate mixed use development. Mixed use potential is not identified in SA Policy SA2 E(b) (Tolpits Lane), a position supported by the Article 4 Direction.

24. The ES Site Assessment of Tolpits Lane Business Park7 notes that occupancy rates are good throughout the site. That, overall, it is a good quality and intensively developed business park catering for a range of employment

5 Housing Land Supply Update, December 2016 in Anna Holloway’s Appendix 4.5, p. 10 6 Doc 12 – Context Map 7 ES paras 8.135 – 8.139 https://www.gov.uk/planning-inspectorate 5 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

activities and sectors, and that there is little evident development potential. It recommends the Council should seek to support employment uses at the site.

25. From the wider perspective of South West Hertfordshire, the Study tells us that the greatest demand for office space is likely to be in St Albans city centre and Watford town centre, two locations capable of attracting major investors due to their access to London and town centre locations, however both are severely constrained.8 In conclusion, it notes that even if all intensification and redevelopment opportunities at existing sites were delivered, there would still be a shortfall in the scale of employment land required.9 On a general reading, therefore, the ES does not support release of the appeals site for alternative or mixed use development.

26. The Appellant points to the ES analysis of the number of office space deals made between 2006 and 2015, which shows that Three Rivers District Council (TRDC) experienced the fewest of the five authorities in the Study, and also the smallest quantum of office floorspace take-up.10 However, this should be compared to the number of office units available, which is also seen to be the fewest in TRDC,11 and the level of currently available supply, which at 3.5 years is similar to that of the other authorities.12

27. The Appellant notes that demand is focussed on the smaller units required by small and medium enterprises (SMEs) with 55% of deals being for units of 185sqm or less. However, the histogram for office floorspace take-up13 shows a relatively modest cumulative total for smaller compared to larger units across all authorities, with TRDC showing a proportionately greater take-up for larger units compared to the remaining authorities. In any event, the appeals site floorspace could be subdivided to meet market demand.

28. The ES also notes a supply shortage of new or refurbished - which may imply Grade A - space in TRDC.14 However, refurbishment of the appeals site floorspace may be an option.

29. The Appellant points out that the ES takes into account neither that, at the time of the Study, Unit 3 was in temporary use as a school, nor the conversion of Kenwood House to residential use. However, it could be argued that these factors act to diminish supply, making retention of the remaining supply all the more important. In addition, the ES observes that office supply in South West Herts has been adversely affected by a large number of conversions of office accommodation to residential use under PDR.15

30. Overall, the ES does not appear to indicate the presence of a surplus of office space necessary to allow release under CS Policy CP6(n).

31. The Appellant draws attention to marketing evidence. That in the Design and Access Statement (DAS)16 for Appeal A scheme, from Brasier Freeth and from

8 ES para 9.44 9 ES paras 9.33 and 9.46 10 ES paras 5.14, 5.15 and 5.24 11 ES Fig 5.7 12 ES para 5.29 13 ES Fig 5.2 14 ES para 5.30 and Fig 5.9 15 ES Para 5.8 16 Appellant’s Statement of Case, folder 1/3 https://www.gov.uk/planning-inspectorate 6 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

Knight Frank, dates from late 2014. It describes the letting history and prospects in discouraging terms and notes Wolsey Park’s lack of public transport, local infrastructure, and amenity provision. However, there is no evidence of an active marketing exercise having taken place.

32. The marketing evidence accompanying the proofs is more recent. Brasier Freeth’s report reiterates Wolsey Park’s history and criticises the mix of uses and poor public transport, but does not include a marketing exercise.17 Five short emails are shown separately as a Response to Marketing.18 They are anecdotal, include no background details of any marketing exercise which might have been undertaken, and convey little of relevance. I am not persuaded that adequate marketing in depth has taken place.

33. All of the schemes considered here, except Appeal H scheme, include replacement office floorspace, described by the Appellant as Grade A space. In addition, the complementary retail and leisure facilities, and subsidised bus service proposed for the first five years, might help compensate for the site’s relative inaccessibility and attract greater office use. However, the schemes involve a 60% to 65% loss in office floorspace, or 100% for Appeal H scheme.

34. This loss is significant and would certainly conflict with CS Policy CP6 and NPPF 22. Some temporary employment benefit would spring from the construction phase of the proposals, but this would bring little benefit in the long run. Any benefit to the sustainable technologies industry would probably be of little local relevance. The PDR fall-back position is considered below. However, on the analysis made within this issue, the effects of the proposals on employment land supply are significantly harmful.

Second Issue - Sustainability of the Site’s Location

35. Sustainability matters relating to the energy and emissions characteristics of the schemes’ buildings are not at issue. These characteristics are regarded as a benefit in the planning balance. Rather, the sustainability of the appeals site in terms of its location is considered here.

36. The appeals site comprises previously developed land. However, it does not feature in any part of the settlement hierarchy set out in the CS,19 in and around which future major development in TRDC should be focussed.

37. CS paragraph 3.14 notes that major development in other parts of the District needs to be carefully considered because of lower accessibility but is not necessarily precluded. It tells us, development may be appropriate in these areas, particularly where it offers opportunities to rectify specific deficiencies in vital services and facilities or where it provides development necessary to sustain centres as providers of employment, shopping and other services.

Public Transport 38. The appeals site is not well located with regard to access to rail and underground services. The Appellant’s transport witness, Mr Nichols, notes that Croxley Green underground station, on the Metropolitan Line, lies some

17 Anna Holloway’s proof Appendix A4.9 18 Anna Holloway’s proof Appendix A4.10 19 Doc 3, Spatial Strategy, pp.15-18 https://www.gov.uk/planning-inspectorate 7 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

1,500m or 20 minutes walking distance from the appeals site. The route involves taking the unlit and uneven footpath north across Croxley Common Moor, then the bridges over the River Gade and the Grand Union Canal, and then negotiating a final steep section of track.

39. Not only does it exceed the suggested acceptable walking distance for commuting of 1,000m set out in IHT guidance,20 but would be unsafe at night, unsuitable for those with mobility impairment and might be unsatisfactory in its effect on the SSSI. The alternative walking route would be a little under 3,000m, well above the IHT suggested maximum, and involve walking along Tolpits Lane with its lack of provision for pedestrians, the cycle route west of Holywell housing development, and then alongside the canal. Ebury Way could be used as a slightly longer route, instead of Tolpits Lane.

40. Walking routes to the other stations in the area, Moor Park, Rickmansworth, and the stations which would be available with the proposed extension to the Metropolitan Line, Cassiobridge and Vicarage Road, are all much further. They were not considered as options by Mr Nichols.

41. Turning to existing bus routes, Mr Nichols notes that the nearest bus corridor is the A412 Watford Road, 1,500m or 20 minutes walking distance to the north, which provides services to Watford and surrounding settlements. The walking routes to the bus corridor would be similar to those taken to reach Croxley Green Station. The SoCG21 shows bus stops on Caxton way, Croxley View and Greenhill Crescent. These are all noted as 1,000m or more walking distance from the appeals site, far greater than the 400m normally considered acceptable, and the routes and destinations they serve are not clear from the evidence.

42. The Appellant offers a subsidised bus service, operated by Arriva, for a period of five years, after which it would continue only if commercially successful. The service is shown as running between the appeals site (with a bus stop on Tolpits Lane) and Watford Junction Station, calling at the proposed underground station at Vicarage Road, Watford General Hospital, and Watford town centre. The details supplied22 indicate use of single micro-hybrid vehicles running at approximately half hour intervals. No details have been given of the passenger volumes the service could handle, or of anticipated demand.

43. The bus service would undoubtedly aid connectivity to an important centre, and it could be used by others working or living in Wolsey Park. It might discourage use of the private car to some extent. However, uncertainty regarding its continuation beyond the initial five year period is a significant concern, and it cannot be regarded as offering a satisfactory solution to rectify a specific deficiency in vital services. Whilst the presence of local employment opportunities, both within the proposals and in the Tolpits Lane area generally, could reduce the need to travel to work, this benefit is likely to be available to only a small proportion of residents.

20 Institute of Highways and Transportation Guidelines for Providing for Journeys on Foot, in Christopher Nichols’ proof Appendix 2 21 Doc 20 Appendix 1 22 Anna Holloway’s proof Appendix A4.11 https://www.gov.uk/planning-inspectorate 8 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

44. The amount of car parking provided within each scheme could be limited by condition, to help avoid encouraging to the use of the private car through the availability of parking. Also, the proposed car club and the facilities for use of electric cars and bicycles might mitigate the use of private cars to a small extent. However, despite the lack of objection on local sustainability grounds from the Highways Authority, none of these aspects would alter the basic picture of limited public transport and probable reliance to large degree on the private car.

Local Facilities 45. The SoCG gives an indication of distances from local facilities.23 The nearest primary school, Holywell, is shown as being a little less than 1,000m away, and several primary schools as between 1,000 and 2,000m distant. The nearest secondary school is Westfield Academy at 1,189m. Holywell Surgery is shown some 1,450m away, and Holywell Community Centre and Play Area as 800m. The nearest supermarket is Morrisons, Holywell, some 800m away by foot, and a little under 3km by car.

46. These distances are not ideal for such a large residential population. The proposals’ large residential population compared to that of Fitzroy House is a significant point of difference in their relative sustainability. Moreover, the proposed bus service would not assist accessibility to local facilities unless further stops were introduced.

47. The on-site facilities proposed for all except Appeal H scheme, especially the shop, café, and gym and pool, would help a little on a day to day basis. However, the difficulties of accessibility to education, health care, and major shopping facilities would remain. Moreover, the proposals cannot be seen as providing development necessary to sustain the appeals site or nearby centres as providers of local employment, shopping or other services. 48. The Three Rivers Settlement Appraisal places Tolpits Lane and Croxley Business Park at the foot of the ‘good’ category, just above ‘fair’.24 However, it shows the population as an astonishing 91,067. Reading the stated methodology, this figure may be the aggregate population of Watford intruding into TRDC, shared with Leavesden and Garston to the north and Oxhey Hall to the south. In any event, Croxley Business Park is much more closely integrated with settlement facilities to the north than is Tolpits Lane. The Settlement Appraisal is, therefore, much too blunt an instrument to assist in the present analysis.

Conclusion 49. Despite the proposed buildings’ energy efficiency and emissions projections, the proposals conflict with CS Policy CP1 (Overarching Policy on Sustainable Development) in several important respects, including those relating to accessibility and the provision of infrastructure necessary to support development. They also conflict with the sustainability aspects of Policy CP2 (Housing Supply), notwithstanding its being out-of-date in terms of housing figures. Also with Policy CP10 (Transport and Travel) in their failure to be

23 Doc 20 Appendix 1 24 Doc 13, Table 4.4 https://www.gov.uk/planning-inspectorate 9 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

located in areas highly accessible by the most sustainable modes of transport and to minimise the impact of travel by motor vehicle. 50. CS Policy CP3 (Housing Mix and Density) aims to make the most efficient use of land and to promote higher densities in locations that are highly accessible to public transport, services and facilities. The proposals all carry exceptionally high densities. As such they conflict with Policy CP3 because of their poor accessibility, a factor arguably of greater importance in a new housing development than in an established employment area, or a temporary school use. 51. In the aspects noted, these policies are consistent with NPPF 17, bullet 11, actively managing patterns of growth to make the fullest possible use of public transport, walking and cycling. The proposals comprise significant development and the evidence does not indicate that the appeals site can be made sustainable. These policies are also consistent with NPPF 32, 34, and 37 in their emphasis on the promotion of sustainable transport. The sustainability of the site’s location is unacceptable to a significant degree.

Third Issue - Character, Appearance, and Design

52. CS Policy CP12 (Design of Development) and Policy DM1 (Residential Design and Layout) together with DM Appendix 2: Design Criteria are consistent with NPPF Section 7: Requiring good design.

53. All of the schemes considered here have a similar footprint. This comprises a main wing facing Tolpits Lane, extending to almost the full length of the appeals site. There are three substantial rear wings running northwards to a line at or near the back of the internal access road’s footway, their upper levels extending some metres further and overhanging the carriageway. The schemes also have projecting wings set between the main rear wings, built northwards to a much lesser degree. In addition, Appeal A, E, and F schemes have lower pavilion or island blocks to the north of the appeals site, set between the rear wings. Their upper levels also project over the carriageway.

54. The schemes vary between five and eight storeys in height. The glazed skin enveloping Appeal A scheme gives quite a different appearance to that of the other schemes with their facades shown mainly of brick framed openings.

Appeal A Scheme 55. CS Policy CP12 expects proposals to have regard to the local context. Also, to make efficient use of land whilst respecting the distinctiveness of the surrounding area in terms of density, character, layout and spacing, amenity, scale, height, massing and use of materials.

56. The existing context of the appeals site is one of mainly three storey office buildings in brick, generally positioned near to Tolpits Lane, and two storey office, industrial or storage buildings in lightweight cladding, mostly further north. The buildings, fed by access roads, are set in fairly generous plots, with associated parking and soft landscaping. They form a low key, unremarkable arrangement, largely screened from the valley to the south by a belt of woodland south of Tolpits Lane, and from the north by the intermittent tree screen along Ebury Way.

https://www.gov.uk/planning-inspectorate 10 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

57. The landmark event in the arrangement is the Camelot building, an L-shaped structure to the north east of the roundabout at the junction of Dwight Road and Tolpits Lane. Its wings face each road and present a tall curved glass entrance atrium at their intersection, oriented towards the roundabout and looking out across the valley, with some sightlines clear of the screen of woodland to the south. Although, perhaps, not a particularly distinguished building architecturally, it acts as a point of visual focus seen along Tolpits Lane and from the south from some viewpoints.

58. The Appellant points to a lack of distinctiveness in the local context and proceeds to pay it little regard. However, this is to misinterpret Policy CP12, which does not necessarily invite an imitative approach, but rather one which recognises the nature of the context and responds in a complementary manner so as to enhance it.

59. The Appeal A proposal ignores the context. At eight storeys, accommodating 401 flats, it would be in the region of twice the height of the Camelot building and much more than twice the height of its neighbours to the north. It would be of considerably greater bulk than all its neighbours in terms of site coverage and visual massing. However, it would not act as a coherent landmark or a constructively contrasting element in the built context. Rather, it would be an alien intrusion, failing to form a productive relationship with its commercial and industrial neighbours to the north and west, and clashing visually with the Camelot building to the east.

60. Its visual impact would be overwhelming in closer views, such as from the junction of Dwight Road and Tolpits Lane, where its bulk would be thrown into emphasis by its proximity to the kerb line where, at present, Unit 3 is set back. In views along Tolpits Lane it would dwarf neighbouring buildings and, despite the tinted one way glazing, would not reflect and thereby take on the appearance of the woodland foliage south of Tolpits Lane to any significant extent. This is because of the lack of planar elevations arising from the incorporation of projecting solar panels. Its looming presence would be inescapable from a wide range of locations in the Tolpits Lane area.

61. It would be seen clearly in the approach from the east along Ebury Way, where it would dominate the Camelot building in front of it. It would also be visible from the footpath crossing Croxley Common Moor as a substantial intrusion above the tree line, and glimpsed through openings from the Grand Union Canal Walk. From the footpath network to the south, on the other side of the valley, it would be seen from positions near the Merchant Taylors’ School, its bulk hovering on the horizon. Its presence in many views would be intensified by sunlight glinting off angled glazed surfaces.

62. Having regard to the five storeys projecting above the access road, the proposed building would form an overbearing relationship with the neighbouring building to the north. The indicative bird’s eye image in the DAS25 is misleading since the shadows cast appear to me only possible, if at all, with the sun at its maximum height in mid-summer. At any other time of day or season, the shadows would be much longer and be cast over the face of the

25 Appellant’s Statement Vol 1/3, Pp 67/68 https://www.gov.uk/planning-inspectorate 11 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

neighbouring building. No exercises to verify the effects of sunlight and shadow have been produced in evidence.

63. The proposal is unlikely to have an overbearing effect on the dwellings to the south east, The Dell, Glendale, and the Oaks. These buildings are tucked well down the valley slope. They are shielded by the woodland belt even in winter, this shielding made the more effective by the low topographical elevation of the dwellings.

64. Turning to design aspects of the scheme, the presence of large public atria provides the opportunity for mingling and engagement with the facilities offered. However, it results in a very inward looking scheme. This is reinforced by the visual inactivity of the building’s envelope, arising from its uniformity of appearance, the use of tinted glazing allowing no glimpses inwards, and the lack of clearly visible entrance points. Whilst the open roof space is intended for the use of the occupants, any activity would not be seen from the vast majority of external viewpoints. One of the few sources of visual activity would be the smallish inset balconies, when the weather allows their use.

65. The overall impression might well be one of corporate sterility, which does little to enhance residential schemes, particularly those outside the dense environment of a city centre. Moreover, there would be little scope to mitigate this impression through soft landscaping. This is partly because of the loss of open space caused by the extensive site coverage of the building, especially to the north, and to the east with the loss of an effective setback from the traffic roundabout. Also, partly because it would be ineffective in relation to the bulk of the building.

66. Taking into account the scheme’s balconies and roof gardens, the amenity space provided would be a little less than half that indicated by the Council’s standards, albeit flexible to an extent.26 This calculation does not take into account any additional open space which might be required under Policy DM11. In addition, by its nature, the roof garden would be more exposed and less usable than ground level space, and would be unlikely to satisfactorily support ball games. Also, very many of the balconies would not receive direct sunlight.

67. The Appellant points to the large areas of internal public space and to the scheme’s leisure facilities. These might compensate, to an extent, for the large under-provision of amenity space, but would not provide the quality of associated external space important for residential accommodation, especially in a non-urban environment.

68. With regard to the occupants’ living conditions, the situation of those living in the flats at the junction of the small and large projecting rear wings would be unsatisfactory. Because of the one-way glass, there would be no loss of privacy, except in relation to the balconies or any open windows. However, the outlook from many of the flats, especially those in the main rear wings closest to the frontage wing, would be extremely poor. Moreover, the use of tinted, one way glass is a poor solution since, in my view, clear direct visual contact with one’s surroundings is psychologically important in dwelling places.

26 DM LDD Appendix 2. See also the Council’s Hearing Statement para 6.86, Table: Summary of Amenity Space Requirements & Indicated provision. https://www.gov.uk/planning-inspectorate 12 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

69. None of the inward or north facing accommodation in the rear wings – perhaps the majority of flats in the scheme – would receive direct sunlight. They would be gloomy, with a restricted outlook. The use of fibre optic transfer of natural light might provide some relief. However, it would not be a satisfactory substitute for direct sunlight, instead giving the impression of a somewhat artificial intervention.

70. Appeal A scheme makes efficient use of land (CS Policy CP12d) and uses innovative design to reduce energy and waste (CS Policy CP12f). However, in my view, it does not fall into the category defined in NPPF 63, of outstanding or innovative designs which help raise the standards of design more generally in the area. Overall, it conflicts with CS Policy CP12 and Policy DM1, through the harm identified. Equivalent conflicts arise in relation to the NPPF. It is significantly unacceptable with regard to its effects on character, appearance and design.

Appeal D Scheme

71. Appeal D scheme, providing 274 flats over five storeys, would be a little higher than the existing buildings on the appeals site, Units 3 and 4, and the Camelot building. It would be much higher than its neighbours to the north. The amenity space would be almost up to DM standards because the area of roof space would serve fewer dwellings than it would in Appeal A scheme. However, criticism of the ability to make use of the roof level amenity space remains.

72. From the indicative details, there appear to be fewer solar panels to the elevations and the balconies appear to project from the face of the building, rather than being inset. Because of the different elevational treatment, the glinting of sunlight in views of the building would be less pronounced than in Appeal A scheme.

73. Despite the absence of island blocks, the plot coverage would still be very high. Moreover, the projections of the rear wings towards the neighbouring building to the north, cantilevering over the access road, would be similar, if a little less pronounced. Apart from mitigation due to the above points, principally the reduced height, criticisms of the effects of the building with regard to character, appearance and design remain largely as in Appeal A scheme.

74. The proposal conflicts with CS Policy CP12 and Policy DM1 overall and equivalent conflicts arise in relation to the NPPF. It would be unacceptable with regard to its effects on character, appearance and design.

Appeal E Scheme

75. Appeal E scheme, providing 332 flats over five storeys, would be similar in form to the Appeal D scheme, with the addition of island blocks to the north, between the main rear wings. The deficit in amenity space would be a little greater than that in Appeal D scheme. Criticisms of the effects with regard to character, appearance and design are, therefore similar but more pronounced.

76. The proposal conflicts with CS Policy CP12 and Policy DM1 overall and equivalent conflicts arise in relation to the NPPF. It would be unacceptable with regard to its effects on character, appearance and design.

https://www.gov.uk/planning-inspectorate 13 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

Appeal F Scheme

77. Appeal F scheme, providing 403 flats over six storeys, would be similar to Appeal E scheme, including the island blocks. The deficit in amenity space would be significant at approximately 20% below DM standards. Criticisms of the effects are similar, but more pronounced because of the additional height.

78. The proposal conflicts with CS Policy CP12 and Policy DM1 overall and equivalent conflicts arise in relation to the NPPF. It would be unacceptable with regard to its effects on character, appearance and design.

Appeal G Scheme

79. Appeal G scheme, providing 416 flats over seven storeys, would be similar to Appeal F scheme without the island blocks. The deficit in amenity space would be some 30% below DM standards. Criticisms of the effects are similar, but more pronounced with regard to height.

80. The proposal conflicts with CS Policy CP12 and Policy DM1 overall and equivalent conflicts arise in relation to the NPPF. It would be unacceptable with regard to its effects on character, appearance and design.

Appeal H Scheme

81. Appeal H scheme, providing 643 flats over seven storeys, would be similar to Appeal G scheme, again without the island blocks. The amenity space would be some 60% below DM standards, and the effects would be exacerbated because of the lack of ancillary leisure facilities available in the other schemes. Criticisms of the effects are similar to those of Appeal G scheme.

82. The proposal conflicts with CS Policy CP12 and Policy DM1 overall and equivalent conflicts arise in relation to the NPPF. It would be unacceptable with regard to its effects on character, appearance and design.

Fourth Issue – Housing Mix and Affordable Housing

83. CS Policy CP4 (Affordable Housing) seeks an overall provision of around 45% of all new housing as affordable housing of which, as a guide, 70% is to be social rented and 30% to be intermediate. It tells us that, in assessing affordable housing requirements, including the amount, type and tenure mix, the Council will treat each case on its merits, taking into account site circumstances and financial viability.

84. A schedule of housing mix and affordable housing, based on the planning application forms, is set out in the SoCG.27 Only Appeal H scheme, a private sector rental development, would provide the equivalent of the 45% affordable housing target sought in Policy CP4. The other schemes would provide between 4% and 16%. The Appellant offered revised provision in a note issued to the Inquiry,28 of between 6.6% and 21.2%. These figures are based on a split between affordable rented and shared ownership of approximately 50%/50% for Appeal A, D, E, and F schemes, and 70%/30% for Appeal schemes G and H.

27 Doc 20, Fig 2 28 Doc 17 https://www.gov.uk/planning-inspectorate 14 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

85. The Council considers that the aim of Policy CP4, providing 45% affordable housing, is achievable in full. This position is supported by a series of reviews of the Appellant’s viability reports.29

86. The matters in dispute regarding viability and hence the ability to provide affordable housing, identified in the SoCG,30 concern building costs and benchmark land value. There is agreement on the gross development value arising from the proposals.

Building Costs 87. The first point of disagreement regarding building costs concerns the gross internal area (GIA) of the building to which costs per square metre should be applied. The Council takes the net internal area (NIA), essentially the floor area of the flats excluding building circulation and ancillary areas, as 85% of the GIA, this being the norm for flatted developments. This is then extrapolated to a GIA figure, to which a rate per square metre is applied.

88. However, in the appeals schemes, the NIA is a much lesser proportion of the GIA, because of the extent of atria and local facilities within their envelope. Much built area would, therefore, be ignored in the costings. The Council notes that the common areas are likely to be cheaper to build than the private residential areas, and that a detailed study of building costs for each element should be undertaken by a quantity surveyor to arrive at a realistic estimate of overall costs.

89. The Appellant tells us that such a cost planning exercise is rarely undertaken at outline stage. Moreover, applying a median figure to the actual overall GIA would allow any lesser costs of the common areas to be used to recoup the additional costs of the high specification residential areas.

90. I agree that the proposals as submitted should be used to assess costs, rather than a theoretical scheme with reduced common areas. However, Appeal A scheme is fully detailed and is amenable to a cost planning exercise, based on the Royal Institute of Chartered Surveyors (RICS) Building Cost Information Service (BCIS) construction cost rates modified by the examination of costs within particular areas. The outcome of this exercise would probably more nearly reflect the Appellant’s calculations than the Council’s, which omit a substantial built area from consideration altogether.

91. The second point of disagreement concerns the particular BCIS rate to be applied. The Appellant thinks this should be the median rate derived from historic information no more than five years old, thus taking account of any recent changes to building regulations. The Council prefers the default period of 15 years, which covers a much larger sample of historic data and, therefore, may be more accurate. This is a technical point which could have been resolved quite easily by the expert witnesses. In any event, the difference is likely to be small enough to matter little to the outcome.

29 Council’s Hearing Statement Appendices 30 Doc 20 para 12.1 https://www.gov.uk/planning-inspectorate 15 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

Benchmark Land Value 92. The Appellant’s and the Council’s analyses are both based on existing use value (EUV) calculations. In addition, the Appellant makes a case for an alternative use value calculation (AUV), derived from existing and potential PDR for the appeals site.

93. The Appellant takes the RICS ‘Red Book’ EUV carried out by G L Hearn (GLH),31 as more up to date than the valuation carried out by Cushman and Wakefield C&W),32 and applies a landowner’s return necessary to prompt the decision to sell. This return (or premium), was initially set at 15%,33 but was revised to 25%34 on consideration of GLH’s analysis of the PDR options for the appeals site. Thus, the EUV of £10,700,000 increases by 25% to a benchmark land value (BLV) of £13,375,000.

94. The Council’s calculations35 result in a EUV of £13,850,000, subject to reductions because of inherent costs. The Council used ARGUS Developer software to take account of these costs, which results in a figure of some £8,500,000. Adding a landowner’s premium of 15% brings the BLV to the figure of £9,775,000.

95. The Appellant criticises these reductions, in particular that arising from refurbishment after vacation of the premises by the Range Free School and that arising from the need to deduct developer’s profit. The Appellant tells us that School’s lease includes the obligation to fully reinstate the building, and that developer’s profit would not apply since the return would be through the long term investment income from the property.

96. From the evidence, I am satisfied that this is likely to be the case, and that the Appellant’s approach is the more realistic. However, for reasons explored in the next main issue - Fall-back Position - in my view the AUV option is weak. Because of the limited window of availability, development based on PDR could only realistically apply to the 36 dwellings of Unit 4, and even then the time available would be very limited. In these circumstances, the Appellant’s initial assessment of the landowner’s premium of 15% appears more applicable than the revised assessment of 25%.

97. Overall, it seems that the appeal schemes would be insufficiently profitable to give rise to 45% affordable housing provision generally. However, a little more affordable housing provision than offered by the Appellant would still leave the proposals viable. Housing Mix 98. CS Policy CP3 (Housing Mix and Density) requires that housing proposals take into account the range of housing needs, in terms of size and type of dwellings identified by the SHMA and subsequent updates. Figures from the February 2016 SHMA,36 setting out the estimated requirements in terms of mix in TRDC

31 Andrew Leahy’s Appendices 6 and 7 32 Council’s Hearing Statement Appendix S, internal Appendix 3 33 Andrew Leahy’s proof para 4.10.6 34 Andrew Leahy’s proof para 4.10.10 35 Council’s Hearing Statement Appendix R 36 Table 48 and 49 in Anna Holloway’s proof Appendix A4.7, reproduced in Appendix A4.2 Fig 7 and Council’s Statement of Case Appeal H scheme Appendix 1, Para 7.4.1 https://www.gov.uk/planning-inspectorate 16 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

from 2013 to 2036, are reproduced in various forms in the evidence and are shown in summary below:

1 Bed 2 Bed 3 Bed 4+ Bed Market 593 2,131 3,186 1,763 7.7% 27.8% 41.5% 23% Affordable 1,689 1,157 1,198 88 40.9% 28% 29% 2.1% Total 19.3% 27.9% 37.1% 15.7%

99. The SoCG37 sets out a schedule of the accommodation proposed in the appeal schemes. It can be seen that, whilst Appeal A scheme is closest to the SHMA figures, all the schemes over-provide studio and one bed flats and under- provide three and four bed flats, some quite substantially. They also over- provide two bed flats, but to a lesser degree. 100. Further, for South West Hertfordshire as a whole, in its Conclusions, the SHMA expects the focus of new housing provision to be on two and three bed properties. For affordable housing, it tells us that there is a greater proportional need for one and two bedroom properties. However, it notes that the delivery of larger affordable properties is important in meeting acute housing need and releasing existing properties for other households.38

101. Set against this policy picture, the Annual Monitoring Report published in October 2016 shows gross dwelling completions between 2001 and 2016 for TRDC compared with the targets set out in the explanatory text to CS Policy CP3. These completions are below the CS target of 30% for one bed flats, approximately on the target of 35% for two bed flats, a little below the target of 34% for three bed flats and well above the target of 1% for four bed flats.39

102. The explanatory text notes that the targets may need to be adjusted for specific schemes to take account of market information, housing needs and preferences and specific site factors. However, little or no evidence on market signals has been put before the Inquiry.

103. Overall, in terms of market housing, I find that the proposals’ housing mix does not match policy requirements particularly well. Moreover, apart from Appeal H scheme, affordable housing provision is poor due to viability considerations. However, because of its lack of compensatory local facilities and its extremely high population and density, Appeal H scheme performs very poorly in terms of sustainability of location. Moreover, it involves the complete loss of an existing employment use on land allocated for employment.

104. The provision of affordable housing proposed in the schemes accords with Policy CP4 to a reasonable extent, given viability considerations. However, the

37 Doc 20 para 4.5, Fig 2 38 Paras 10.66 and 10.56 39 Anna Holloway’s proof Appendix A4.6, par 4.34 and Table 4.9 https://www.gov.uk/planning-inspectorate 17 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

resulting mix of differing sizes of market and affordable housing does not match Policy CP3 well, a significant consideration for a set of proposals which are not sited on land allocated for housing and which would significantly harm employment land supply. These policies are consistent to a high degree with policies in the NPPF, Section 6: Delivering a wide choice of high quality homes. Overall, the proposals’ housing mix and provision of affordable housing are not acceptable.

Fifth Issue -The Fall-back Position

105. The Appellant’s fall-back position relies on the PDRs granted prior approval for the conversion of Unit 3 and Unit 4 Wolsey Park to residential use, and the accompanying planning permissions for external alterations.40 Unit 3 could be converted to 71 dwellings, subject to completion by 20 August 2018, and Unit 4 could be converted to 36 dwellings, subject to completion by 10 August 2018. The Article 4 Direction prevents extension of these dates.

106. Unit 3 is currently occupied by the Reach Free School whose lease, I understand, expires on 4 August 2018. The Appellant points to the school term finishing on 6 July 2018 and the possibility of negotiating early release of the building. However, no evidence of the progress of negotiations has been submitted. Some additional doubt must exist if the School is obliged to reinstate the building under its lease, as suggested by the Appellant when considering viability, since reinstatement would follow on from the finish of the school term.

107. However, if vacant possession were to be granted immediately after the end of the school term, some six weeks would be available for all building works. In my professional experience, I find this an impossibly short period of time for the work involved.

108. The Appellant questions the expediency of enforcing against conversion works already under way. However, the making of the Article 4 Direction, which was confirmed without the Secretary of State objecting, indicates how seriously the Council regards the retention of this land in employment use. The risk taken by the Appellant of invoking enforcement action would be substantial. Overall, I place very little weight on the fall-back position with regard to Unit 3.

109. Turning to Unit 4, the time available for conversion works would not be generous, but completion of the works might be possible. The fall-back scenario of 36 dwelling units could then be compared to a minimum of 274 and a maximum of 643 dwellings under the proposals, with a loss of 60% to 65% office floorspace, or 100% loss for the Appeal H scheme. However, under the fall-back option, Unit 3’s portion of the appeals site would remain in full employment use, as would the undeveloped area of Unit 4’s portion of the site. Greater harm by far would come from implementation of the proposals compared to development under Unit 4’s PDR.

110. In these circumstances I do not place a large measure of weight in the planning balance on the fall-back position with regard to Unit 4, or on the fall- back position overall.

40 Anna Holloway’s proof Appendix A4.3 https://www.gov.uk/planning-inspectorate 18 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

The Planning Balance and Conclusions

111. I find overall that the proposals would not constitute sustainable development because the harm arising from their effects would significantly and demonstrably outweigh their benefits. These benefits include their energy and emissions characteristics, the provision of a substantial quantity of housing, and the use of previously developed land excluded from the Green Belt. This is so, assessed in relation to the development plan, with which they conflict overall, despite the lack of a five year HLS, and against the policies in the NPPF taken as a whole.

112. The suggested conditions and the subsequent suggested modifications were discussed during the Inquiry, as was the s106 unilateral undertaking, submitted in completed form. Together, they would secure essential points were the proposals to go ahead, such as the bus service contribution, a footway and cycleway contribution towards improvements on the north side of Tolpits Lane, travel plans, measures to secure the energy and carbon characteristics of the proposals, and the provision of fire hydrants, amongst other matters. However, they are not sufficient to outweigh the significant and demonstrable harm remaining after consideration of the planning balance.

Appeals B and C

113. The Appellant tells us that the prior approval applications for Units 3 and 4 Wolsey Park comprised schemes contained within the footprints and heights of the existing buildings. However, the proposals would not be possible without substantial alterations to the roofs and the structure of the elevations, to accommodate the five domestic storeys proposed within the existing three commercial storeys. These external changes are operational development under s55 of the Town and Country Planning Act 1990 (the 1990 Act).

114. They are not permitted development under Schedule 2, Part 3, Class O of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (GPDO 2015). Since Part 3 of Schedule 2 is headed ‘Changes of use’, it appears clear that this is so, despite operational development not being excluded by the restrictions of paragraph O.1 of Class O.

115. This position is supported by case law in Patrick Keenan v Woking Borough Council and the SSCLG [2017] EWCA Civ 438, discussed in Inquiry closings. Lindblom LJ held at para 33 that, to be permitted development in the first place, the development in question had to come fully within the relevant description of the ‘Permitted development’ provided for within each class.

116. Paragraph W13 of Part 3, Schedule 2 of the GPDO 2015 states that the local planning authority may grant prior approval unconditionally or subject to conditions reasonably related to the subject matter of the prior approval. The Appellant suggest that the Council should have given prior approval subject to a Grampian condition requiring that operational development should not commence unless and until approved by the Council.

117. The Appellant also suggests that a condition preventing the implementation of the operational development would have been appropriate. However, it would

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have been impossible to carry out the change of use for which prior approval was being sought without implementing the operational development.

118. Since the nature of the operational development is quite substantial, it seems to me it should be subject to the notifications and consultations of a planning application. Therefore, such a condition attached to a grant of prior approval would not be appropriate. In any event, the condition would have required the submission of a significant amount of detailed information. The Appellant could have made these in the form of a planning application immediately after receiving notification of the Council’s intention to refuse prior approval. In this way, the programme for the Appellant’s proposals would have remained the same or very similar to that had a conditioned prior approval been given.

119. In these circumstances, I find that the proposals do not comprise permitted development and that the Council acted appropriately in relation to Appeal B and C schemes.

Further Legal Submissions 120. Further submissions of law were made by the Council after the close of the Inquiry.41 They argued that, under s79(1) of the 1990 Act, the Secretary of State may deal with the application as if it had been made to him in the first instance. The determination should, therefore, be in accordance with the law as it stands at the date of that determination.

121. The Article 4 Direction, removing Class O PDR from the Tolpits Lane employment area, came into effect on 5 August 2017. Therefore, the Council argues, no power exists to grant the prior approvals sought through Appeals B and C at the present time.

122. In the Appellant’s response42 it was argued that ‘in the first instance’ embraced the time at which the application was first made. Whilst all material considerations should be taken into account at the time of decision, Article 4 is a procedural instrument with specific and limited legal effects but is not a material consideration of the sort to be considered at the time of decision.

123. The Appellant suggests that the exercise should be the same as that undertaken in enforcement notice appeals and certificate of lawful development appeals, where the Secretary of State looks at the position retrospectively as at the date of the notice or application. Moreover, the Appellant is entitled to hear the opinion of the Secretary of State on the question of disputed validity.

124. I note that the appeals were made under s78 of the 1990 Act, rather than s174 or s191/192, and would therefore be more likely to fall under procedures for planning rather than enforcement appeals. Moreover, I see no reason to regard the coming into effect of the Article 4 direction as other than a significant material consideration. I have considered the further legal submissions but see no reason to depart from my decision based on those heard at the Inquiry.

41 Doc 29 42 Doc 30 https://www.gov.uk/planning-inspectorate 20 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

Overall Conclusions

125. The appeals are dismissed.

Alan Novitzky

Inspector

https://www.gov.uk/planning-inspectorate 21 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

APPEARANCES

FOR THE LOCAL PLANNING AUTHORITY

Timothy Comyn Of counsel He called:

W A Charles DIP TP MRTPI MCMI Principal, Portchester Planning Consultancy

David Coate BSc (Hons) MCIOB ACIOH Associate Director, Adams Integra

Alex Medhurst BSc (Hons) MRICS Dip Associate Director, Adams Integra Surv

FOR THE APPELLANT

Meyric Lewis Of counsel He called:

Andrew Leahy BSc FRICS MIoD Director, Bespoke Property Consultants

Thomas Hegan MRICS Partner, Turner Morum Chartered Surveyors

Christopher Nichols BA (Hons) MSc Director, Nichols Consulting Ltd

Nik Vyas BA (Hons) March RIBA Twelve Architects and Master Planners

Anna Holloway BSc (Hons) MSC MRTPI Optimis Consulting

DOCUMENTS

1 Appeal Notifications and list of people notified 2 Opening Submissions on behalf of the Appellant 3 TRDC Local Development Framework Core Strategy adopted 17 October 2011 4 TRDC Local Plan Development Management policies Local Development Document adopted July 2013 5 TRDC Local Plan Site Allocations Local Development Document adopted November 2014 6 TRDC Local Development Framework Spatial portrait of Three Rivers, March 2010 (extract) 7 Metropolitan Line Extension update, (from TfL website) 8 Financial viability in planning, RICS Professional Guidance, 1st edition (extract) 9 BCIS Quarterly review of building prices, Construction Issue 143, December 2016, RICS (extract) 10 TRDC Suggested Conditions 11 Updated note: Comparison of dwelling numbers and densities, Kenwood House and Site proposals 12 Context Map 13 Three Rivers Settlement Appraisal, update March 2010 14 Draft Unilateral Undertaking

https://www.gov.uk/planning-inspectorate 22 Appeal Decisions APP/P1940/W/17/3171912, APP/P1940/W/17/3173311, APP/P1940/W/17/3173313, APP/P1940/W/17/3175599, APP/P1940/W/17/3175585, APP/P1940/W/17/3174879, APP/P1940/W/17/3175597, APP/P1940/W/17/3183853

15 Appellant’s revision to suggested Condition C32b (Doc 10), Affordable Housing Mixes, Appeals A; Condition C22b, Appeals D, E, F, and G 16 Email from Andy Leahy to David Coate, dated 4.12.17, appraisal assumption sheet for SoCG re: viability 17 Affordable Housing Conditions redrafted to reflect Mr Leahy’s comments accompanying Doc 15 – not acceptable to LPA 18 Justification against CIL regulations for obligation requested by HCC Highways 19 Council’s revision to suggested Condition 22a, Appeal H 20 Statement of Common Ground, agreed 6.12.17 21 Dacorum Borough Council application for planning permission 4/03441/15/MFA (The Beacon), documentation 22 Closing Submissions of TRDC 23 Submissions of TRDC re: Notification for Prior Approval application 17/0119/PDR (Appeal B) 24 Submissions of TRDC re: Notification for Prior Approval application 17/0112/PDR (Appeal C) 25 Closing Submissions on behalf of the Appellant 26 HC Judgment [2012] EWHC 3708 (Admin) Zurich vs North Lincolnshire Council 27 Supreme Court Judgment [2009] EWCA Civ 333 Samuel Smith vs SoS for CLG 28 Completed Unilateral Undertaking 29 Further submissions of law by TRDC 30 Response on behalf of the Appellant to Document 29

https://www.gov.uk/planning-inspectorate 23