DAW MILL COLLIERY SITE, TAMWORTH ROAD, ARLEY
CLOSING SUBMISSIONS OF HARWORTH ESTATES
INTRODUCTION
1. This inquiry has convincingly demonstrated that Harworth Estates (“the appellant”)
promotes a scheme which is fully in accordance with both the development plan and
national policy. By contrast, the Closing Submissions of both the Local Planning
Authority and the Rule 6 party are striking in the way in which they contain primarily
bluster or unsubstantiated complaints as to points of detail, which are inappropriate for
the consideration of an outline application.
2. The fundamental back drop to the appeal are the familiar words of the Ministerial
Foreword to the National Planning Policy Framework, namely that:
“The purpose of planning is to help achieve sustainable development.
Sustainable means ensuring that better lives for ourselves don’t mean worse lives for
future generations.
Development means growth. We must accommodate the new ways by which we will
earn our living in a competitive world… We must respond to the changes that new
technologies offer us.”
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3. These words set out very clearly the context within which this appeal needs to be
considered. The Daw Mill colliery site offers both significant challenges and
significant opportunities. It represents a legacy of an industry – the coal industry -
which is in decline, and now presents the challenge of a large area of disused and
increasingly derelict industrial land in the heart of the green belt. There is no
reasonable prospect of its restoration by any means. It is poorly connected by road
transport.
4. However, it also offers significant opportunities. It is ripe for redevelopment and it has
the crucial advantage of a functioning signalised connection to the main railway
network, together with sidings. The proposals before this inquiry have shown how the
site can be redeveloped, without any adverse environmental consequences, to bring
back into active use a site for which there would otherwise be no beneficial future. In
so doing, these proposals respond to the fundamental demands of planning policy.
They are sustainable and help “accommodate the new ways by which we will earn our
living in a competitive world”.
5. The appellant proposes by this outline application to redevelop the Daw mill colliery
site for development described in the application as:
“for a maximum of 24,652 m² (265,345 ft.²) of built floor space for employment uses comprising wholly B2 (general industry) Development: ancillary storage areas, associated car parking, servicing yards, gantry crane, infrastructure and utilities retention and use of existing infrastructure including railhead and sidings, site vehicular access, grid connection, electricity substation and reconfigured surface water drainage infrastructure”.
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6. That description of development, however, is not the end of the matter. The appellant
proposes to be bound by conditions which would confine the use of the site to a
primarily railway based usage in order to bring forward one of three forms of railway
related development. These are either a rail manufacturing and construction site, a
train maintenance facility or a train manufacturing facility.
7. The Local Planning Authority (“the Council”), however, maintains three reasons for
refusal, as follows:
“1. 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 impact 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 as 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 that mitigation measures are not fully advanced. The proposal does not therefore record with Policies NW1, NW2, NW3, NW10, NW12, NW13 and NW15 of the North Warwickshire Core Strategy 2014 and the National Planning Policy Framework 2012.
2. 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 reiterated 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 and W 10 and NW 12 of the North Warwickshire Core Strategy 2014.
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3. 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 currently proposed is not clear. A precautionary approach is thus appropriate in determining this application. The proposal is not considered to be in accord with policy and W 15 of the North Warwickshire Core Strategy 2014 and the National Planning Policy Framework 2012.
8. The proposals are also opposed by a local objectors group who term themselves
LAWRAG and who raise a variety of environmental issues.
THE APPEAL PROPOSALS – CONDITIONS
9. It perhaps hardly needs to be stated that the correct starting point for the consideration
of this appeal are the appeal proposals themselves. However, some introductory
submissions are necessary in this case because, first, there has been some evolution of
the appeal proposals in response to changing planning and commercial circumstances
and second, more importantly, because the approach of the Council during the inquiry
appeared to be based upon a wilful misunderstanding of the appeal proposals
themselves and upon attempts to obfuscate that which was clear and in fact already
accepted.
10. Firstly, and briefly, the evolution of the proposals can be considered. The planning
application lodged in June 2014 was for:
“Employment development 11,072 m² of B1 (business) use, 11,072 m² of B2 (general industry) use, 49,723 m² of B8 (storage and distribution) use (including retained building 4) and 2.19 ha of open storage, associated car parking, servicing yards, infrastructure and utilities; and retention of existing colliery buildings and
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infrastructure including existing railhead on site vehicular access, grid connection, electricity substation, Gatehouse, Weybridge and reconfigured/existing surface water drainage infrastructure system.”
11. In response to objections, made primarily on highways grounds, the scope of the
proposals was revised. At the same time, particular interest was received from
Network Rail who invited the appellants to include a particular wording, tailored to
Network Rail’s needs, into the description of development. Those words were always,
however, merely a subset of the development already described and, in truth, were not
strictly necessary in describing a consent which would have met Network Rail’s needs.
Nevertheless, for commercial convenience they were included. They did not change
the legal nature of the development for which permission had been applied.
12. When the application was refused permission, Network Rail, who had a particular
pressing commercial need, decided they must look elsewhere to meet that need.
Accordingly, the words tailored to their particular requirements were removed.
However, that had no impact on the overall scope of the development which was being
applied for. As had always been the intention, the appellant fully intended to utilise
the particular feature of this site represented by the existence of a live rail connection.
There was never any suggestion simply to abandon that particularly attractive feature
just because Network Rail’s commercial imperatives had required it to seek other sites.
They were not, and are not, the only potential occupier.
13. The importance of the rail connection gives rise to the second important aspect of the
appeal proposals, which is the conditions which would be attached to the permission
and the effect they would have in controlling the nature and effects of the
development.
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14. As a preliminary matter, it is trite law that a planning permission is issued with
conditions and that the conditions, as well as the basic description of development,
define what can and cannot take place on the land as a result of the permission. It was
a frankly baffling aspect of the Council’s approach to this inquiry that the Council
seemed simply to want to ignore this basic reality. Contrary to the approach adopted
by the Council, the planning permission sought through this appeal could never give
rise to an unrestricted B2 permission. Instead, the operation of the permission will be
fundamentally constrained to a rail-served development by the following conditions:
x) Within use class B2 the development hereby approved shall only be implemented for any of the following purposes:
a) The manufacturing of rails, sleepers, track, signalling, gantries and associated railway construction, operation and maintenance equipment; b) Train and rail rolling stock maintenance and repair including ancillary stabling of such trains and stock; c) Train and rail rolling stock manufacturing facility.
Reason: In order to define the scope of the permission
i) The rail sidings shown on Rail Zone Plan RZP1 shall be retained and maintained in an operational condition for the lifetime of the development.
Reason: In order to define the scope of the permission and in recognition of the particular circumstances of this case.
ii) The rail sidings so retained shall not be used at any time for an inter- modal freight interchange.
Reason: In order to define the scope of the permission.
iii) Zone 1 as shown on the Rail Zone Plan RZP1 shall only be used for purposes falling within condition (x) which maximise the use of the rail sidings as the primary means of despatch and delivery of goods and materials.
The following criteria shall be used in the definition of “primary” in each of the cases referred to in condition (x) in addition to the requirements of condition (xxxi):
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a) In the case of the use at 10 (a) steel, rails and aggregates to be used in the manufacture of railway equipment shall arrive by rail.
b) In the case of the use at 10 (b) trains and rail rolling stock to be repaired and/or maintained shall arrive by rail and leave by rail once repaired and maintenance is complete.
c) In the case of the use at 10 (c) completed trains and rail rolling stock manufactured at the site shall leave the site by rail.
Reason: In order to define the scope of the permission and in recognition of the particular circumstances of this case.
15. These conditions would be entirely effective in ensuring that the development which
took place would be a rail served development falling within the three types examined
in detail in Mr Clarke’s evidence and then environmentally assessed on that basis by
the appellants technical witness team. In testing that proposition, the Inspector and
Secretary of State need only consider the basic question of whether or not some form
of B2 development which did not comply with those conditions could ever lawfully
take place. The question only needs to be posed for its answer to be obvious.
Accordingly, the Council’s approach of suggesting that something other than a rail
served development was being proposed was utterly misconceived (and, it might be
thought, served only to mask the absence of any true objections to the scheme). In their
approach also ignores the fact, accepted by all parties, that the site is simply not
commercially suitable for a road served development. This is something which Mr
Clarke explained in evidence which was unchallenged.
16. It does not matter at all that, in accordance with the normal process at an inquiry, the
precise scope and wording of the conditions which serve to restrict the development to
a rail served development was refined. The only question for the inspector and
Secretary of State is whether or not they are sufficient to achieve the objective of
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bringing about solely a rail served development. It is clear from the very words of the
condition that they are effective to do so. They are fully compliant with the tests for
conditions in the NPPF.
17. The approach of using conditions in this manner is entirely consistent with the
Council’s own policies. As was accepted by Brown xx AFU:
a. Local plan policy contemplates the grant of planning permission for rail
served uses.
b. Local plan policy TPT5 explicitly endorses the use of planning conditions to
ensure that the rail use of sites is “maximised”.
c. The endorsement of such conditions in local plan policy obviously
contemplates that such conditions would be enforceable and an appropriate
mechanism for controlling the nature of development on industrial sites which
have a rail link.
18. However, Mr Brown then sought to suggest that a previous case indicated that such
conditions could not be relied upon. This was the Birch Coppice Business Park appeal
from 2006 (Brown Appendix 16). However, the Council’s analysis of that case was
simply wrong. As a starting point, despite having suggested to the contrary, Mr Brown
accepted under cross-examination that the appeal was not based upon any legal
submission that the condition was not legally enforceable. He was right to do so, as no
such challenge can be detected in the decision letter.
19. Instead, the case simply turned upon its own facts, upon which the Inspector was able
to conclude that a condition requiring maximisation was inappropriate in that case.
However, the circumstances at that site were fundamentally different to those affecting
the appeal site. The Birch Coppice Business Park was a well-established site which is
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located immediately adjacent to the M 42. Combined with that location, the nature of
the development, a parts distribution centre, made it particularly suitable for supply by
road. No doubt that was why the appellants in that case were able to satisfy the
inspector that a road-only development would have no adverse impact on the highway
network. Finally, by the very nature of a section 73 appeal, the developers were
seeking to overturn that condition.
20. By complete contrast, the entire rationale of this appeal is that this is a rail served
development. That is its primary commercial and planning attraction. Besides the
conditions, the parameters plan also sets out provisions suitable for a rail served
scheme. The location is fundamentally commercially unattractive for a road-based
scheme. Finally, the developers here enthusiastically embrace the imposition of
conditions to support their rail-based development; indeed, it is the developers who
have been proactive in bringing forward such conditions.
21. Finally, it must be observed that any discussion around the possibility of the removal
of any conditions is entirely premature. As is shown by the Birch Coppice decision,
any application to modify or remove the conditions will be the subject of an entirely
freestanding consideration of the planning merits at the time of any section 73
application. Such an application would be assessed in accordance with the statutory
and policy framework in force at the time of such application. At the present time, , the
Council’s own case does not demonstrate that the proposed conditions fail to satisfy
the tests in the NPPF, but instead speculates on unknown future circumstances based
on a site which is not factually comparable. That is no basis for a suggestion that the
conditions are either uncertain or unenforceable.
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22. This simple fact deals not only with concerns about the fact that someone, someday
might, for some entirely unforeseen reason, seek to remove or modify these conditions.
It also deals entirely with the various “Trojan horse” concerns which have been voiced
(in an entirely inchoate form) by both the Council and various third parties and which
seem to form such a violently expressed part of the Council’s Closing Submissions.
Any scheme which sought to move away from the rail served development,
constrained by conditions and the parameters plan, which is promoted in this appeal
would need to be the subject of an application for planning permission during which
the full planning merits, assessed at the time, of any other development would be
considered. Such consideration cannot properly form any part of this decision for the
Secretary of State.
23. Accordingly, the only basis upon which these proposals can be considered is for a rail
served development in accordance with the three potential uses outlined by Mr Clarke.
This appeal is in respect of development as a rail and manufacturing and construction
site, a train maintenance facility or a train manufacturing facility.
THE APPEAL PROPOSALS - NEED
24. The starting point for the consideration of this case is that there is a significant
regional, or even national, need for such facilities.
25. This need was convincingly demonstrated by the evidence of Mr Clarke, evidence
which, as will be submitted in detail below, was essentially unchallenged. The
Council, indeed, advanced no such witness who had any relevant expertise or
knowledge. They do not even rely on Mrs Barrett’s evidence at all in their closing
submissions.
26. Mr Clarke’s evidence conclusively demonstrated that:
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a. A raft of European and Central Government policy firmly supports the
expansion of rail usage.
b. Passenger volumes are steadily increasing and demand is growing.
c. Rail freight volumes, whilst having suffered a recent gradual decline, are
supported by a considerable number of policy initiatives.
d. The expansion of operations is producing a very considerable demand indeed
for new trains. By 2020, it is expected that some 6,000 new railway carriages
will come into service. For the next 30 years, some 12 new vehicles will be
required by the industry every week.
e. There is a deficiency in rail manufacturing capacity in the UK. One recent
tendering process attracted no UK based bidders at all (Clarke proof para
5.17).
f. This is a pressing, current need and it brings with it a requirement not just for
manufacturing facilities but for maintenance and track facilities.
27. Mr Clarke also convincingly demonstrated that the appeal site has a number of features
which make it extremely attractive for meeting this need. In summary, these are:
a. The site’s location in the central UK with ready links in all four directions to
the main rail network and the likely forthcoming route of HS2.
b. Its location on a section of track which has had a recent track and signalling
upgrade.
c. The immediate availability of train paths to and from the site.
d. The size and shape of the site, which makes it suitable in terms of commercial
operational practicality.
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e. The immediate availability of the site and its railway connection. This,
combined with the limited amount of internal and remedial works which
would be needed to bring the site into use is a factor of very great and its
importance in a commercial situation cannot be underestimated. Significance
As Mr Clarke explained, the availability of a live connection could save up to
5 or 10 years in the planning and build process and be worth somewhere in the
order of 2 to £3 million.
28. Finally, Mr Clarke also convincingly demonstrated that the appeal site is relatively
unique in possessing these characteristics. Mr Clarke undertook a wide-ranging study
of other sites in the region, in order to objectively assess the qualities of the appeal site
against other conceivable alternative sites. This exercise revealed that the combination
of suitability and availability offered by the appeal site was rare indeed. It scored best
of all sites in an objectively scored analysis. In combination with a similar analysis of
the planning constraints affecting rival sites undertaken by Mr Rolinson, Mr Clarke
demonstrated that Daw Mill is one of only three sites in the region that is suitable for
the rail related development proposed and it is the only one to have definite, immediate
availability.
29. It is fair to note that Mr Clarke’s evidence represented the product of a deep and
utterly convincing knowledge of the railway industry and it was barely challenged by
the Council. Indeed, both Mrs Barrett and Mr Brown under cross-examination
explicitly confirmed that they had no basis for contesting any of the factual material
forward by Mr Clarke. That must be borne firmly in mind when assessing the criticism
expressed, in unsupportably trenchant terms, in the Council’s Closing Submissions.
The cross-examination of Mr Clarke first relied on the misconceived suggestion –
about which we have already made our submissions – that the application before this
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inquiry was not for such a rail related development. It then proceeded with a series of
disparate suggestions concerning other sites (which appeared to lack any particular
evidential basis and appear to represent a process of “evidence by cross-examination”).
It is notable, indeed, but those sites upon which attention was focused by way of
suggestion that they provided better alternatives than the appeal site were in fact all
sites which had scored within the top group of Mr Clarke’s analysis. Given the need
for a number of railway related sites, the suggestions about other sites did nothing
more than illustrate the fundamental robustness of Mr Clarke’s analysis and
underscored his ultimate conclusion that the appeal site was supremely well placed to
meet a demand which extends to a number of sites.
30. The only other challenge to Mr Clarke’s conclusions was based on the apparent
absence of a development partner or supporting letters from interested parties. In fact,
however, this is entirely unsurprising and provides no evidence to doubt the pressing
need for the appeal site to come forward for railway related development.
Accordingly:
a. it is to be recalled that prior to the refusal of planning permission by the local
planning authority, the site was indeed being promoted with a particular
intended occupier in mind (Network Rail) and as considered in detail already,
the description of development was even amended to accommodate their
request.
b. Given the refusal of planning permission in such circumstances, it is hardly
surprising that no further end-user had come forward at the time of the initial
inquiry sessions.
31. Furthermore, potential end-users have now come forward to register their interest in
the site and to support its development for exactly the rail related uses which Mr
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Clarke’s evidence pointing to. A letter was submitted by CEMEX to indocate their
ongoing interest in the site; Lawrag made an ill-conceived attempt to criticise that
letter on the basis of the fact that the commercial arrangements for shadow in it were
not certain. However, that is a common feature of all pre-permission interest from
commercial operators and does not detract from the force of the letter. Law rag also
attempted to cast doubt on Mr Clarke’s evidence by referring to other sites in the
appellants ownership. In fact, these were sites which are suitable for much higher
value strategic Railfreight interchanges. Mr Clarke had considered, and discarded
those at the early stages of the exercise he set out in his proof of evidence.
32. In summary therefore, the compelling and effectively unchallenged evidence of Mr
Clarke makes absolutely plain that there is an urgent, pressing need for a number of
sites for rail related development to come forward in this region. Such sites are
necessary to support an expansion of infrastructure which is plainly of not merely local
or regional, but national, importance the appeal site is exceptionally well placed to
provide one of a number of sites for such development and it is plain that there is a
strong need for this site to come forward to railway related development. Such need
should weigh heavily in the planning balance in favour of the grant of planning
permission.
33. Accordingly, it is of profound importance to emphasise that this site is suitable,
available and deliverable in the short term. There is a pronounced lack of sites with
those characteristics, particularly with an operating mainline rail connection.
34. This is all the more so when it is considered that the development can be achieved
without any significant adverse environmental impacts. It is to those environmental
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impacts, and firstly the policy background against which they must be considered, that
we now turn.
PDL ISSUES
35. We turn now to the fact that the appeal site is properly defined as previously developed
land. For reasons we develop in detail below, this is dependent upon the clear legal
position to the effect that a restoration scheme which has been agreed in outline for the
site is of no legal effect.
36. Before we deal in detail with the submissions which make good that position, a
number of preliminary observations must be made, as follows:
a. This issue is a matter of law which falls to be determined now as part of the
determination of this appeal. It forms an essential part of the overall planning
policy analysis.
b. It is wholly irrelevant, both as a matter of the processes of this inquiry and as a
matter of law, that various parties (including the appellants’ predecessors in
title) have taken differing positions on this matter over the years. It is only
now, for the purposes of this appeal, that the matter falls to be definitively
determined. No criticism can attach to the appellant for bringing forward this
matter for determination now.
c. It is again wholly irrelevant to consider the commercial considerations which
affected the acquisition of this site by the appellant. The inquiry has, in fact,
that no definitive evidence at all about the commercial matters underlying this
appeal proposal, for the very simple and obvious reason that they are wholly
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irrelevant. The repeated references by, in particular, law rag, but also in the
prejudicial observations in the Council’s closing submissions, as to the price
apparently paid by the appellant to acquire the site and its (presumed)
understanding of the position with respect to restoration, are again wholly
irrelevant. It is clear that the reliance by opposing parties upon those matters
was purely intended to create prejudice against the appellant.
d. Reference has been made throughout the inquiry to “the restoration scheme”.
In fact, all that has been approved is in outline restoration scheme which sets
out, in the broadest terms, the framework for a more detailed restoration
scheme which never has been agreed and does not exist even in any draft
form.
PDL mining issues
Definitions
37. The glossary contained in Annex 2 to the National Planning Policy Framework defines
previously developed land as follows:
“Previously developed land: Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: Land that is or has been occupied by agricultural or forestry buildings; land that has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures …” (emphasis added)
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38. It is clear that the site would satisfy the first part of the definition. Accordingly, the
key question therefore is whether or not Daw Mill falls within the exclusion by virtue
of being “a minerals site where provision for restoration has been made through
development control procedures.” This matter then turns upon the meaning of those
provisions of the General Permitted Development Order 19951 (“the Order”) which
deal with the grant of planning permission for, and the requirement for restoration
schemes concerning, coal mining operations.
39. Class A of Part 20 to Schedule 3 to the Order provided, so far as material, as follows:
“Permitted Development
A. Development by a licensee of the Coal Authority, in a mine started before 1 July 1948 consisting of –
(a) the winning and working underground of coal or coal -related minerals in a designated seam area; or
(b) the carrying out of development underground which is required in order to gain access to and work coal or coal related minerals in a designated seam area.
Conditions
A.1 Development is subject to the following conditions –
(a) ……
(i) ….before 31st December 1995 or before any later date which the minerals planning authority may agree in writing, apply to the mineral planning authority for approval of a restoration scheme;
(ii) where there is an approved restoration scheme, reinstatement, restoration and after-care shall be carried out in accordance with that scheme;
…
1 Now superceded by the 2015 re-enactment of the Order, but still relevant for the purposes of this case
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Interpretation of Class A
A.2 For the purposes of Class A –
“a designated seam area” means land identified, in accordance with paragraph a of the definition of “seam plan”, in a seam plan which was deposited with the mineral planning authority before 30 September 1993;
“restoration scheme” means a scheme which makes provision for the reinstatement, restoration or after-care (or a combination of these) of any land which is an authorised site and has been used at any time for or in connection with any previous coal mining operations at that mind; and
“seam plan” means a plan or plans on a scale of not less than 1 to 25,000 showing-
(a) land comprising the maximum extent of the coal seam or seams that could have been worked from shafts or drifts existing at a mine at 13 November 1992, without further development on an authorised site…”
40. Within the main definitions section in Article 1(2) of the Order, the term “mine” is
defined to mean “any site on which mining operations are carried out” and the term
“mining operations” is defined as being “the winning and working of minerals in, on
or under land, whether by surface or underground working”.
Submissions
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41. The first matter turns upon whether the Daw Mill colliery can properly be described as
“a mine started before 1 July 1948”. If it can be so described, all other conditions for
permitted development rights to apply appear to have been made out.
42. It is important to note that the definition of mine within Article 1 (2) of the Order
refers to an area “on which” mining operations take place. This appears to direct
attention to the surface manifestations of mining operations.
43. Daw Mill cannot properly be so described, for the following reasons:
a. On 1 July 1948 there was no physical manifestation whatsoever of a colliery at
Daw Mill and nothing in existence which was known as a Daw Mill colliery.
There is no evidence whatever that in 1948 even any underground workings
were in the vicinity of the Daw Mill site. That fact alone is, on proper
analysis, sufficient to dispose of the matter.
b. The first development which took place at Daw Mill – with the benefit of
planning permission granted in 1955 – was for the sinking of a ventilation
shaft between 1957 and 1959 for the benefit of Kingsbury and Dexter
workings. The evidence showed that considerable additional engineering work
was required before that shaft was able to be used subsequently in 1965 for the
production of coal.
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c. Daw Mill colliery, with all its associated surface paraphernalia, did not come
into existence in any ordinary natural meaning of the word until 1965 (actual
production began in August 1965). This is borne out by the fact that the
legally required mine manager is attributed in 1964 to the Dexter colliery
whereas in 1966 the “Guide to the Coalfields” had a separate detailed listing
for a Daw mill colliery which had its own manager. d. These conclusions were supported by the evidence of Mr Blenkinsop who had
a long personal history of working in these coalfields. In paragraph 4 of his
statement he noted “by law every mine must have two separate entrances”.
Daw mill only acquired this characteristic when the second shaft was sunk in
1965. e. In paragraph 6 of his statement he stated; “In 1968 [sic] it was decided to
further develop Daw Mill as a stand-alone colliery in its own right. Therefore
a second shaft was sunk to a depth of 1850 feet and was completed in
December 1969 was linked underground to what was now called Daw mill
number one shaft six months later. Although still physically connected to
Dexter, Daw mill could now be developed as a new coal mine. Even after
Daw Mill became a colliery in its own right Dexter coal was still being
mined….” (emphasis added)
This evidence could not be clearer: even on Mr Blenkinsop’s own account,
Daw mill only became a colliery in its own right following the sinking of the
second shaft in (in fact) 1965. This was supported by Mr Blenkinsop’s
answers under cross-examination when he confirmed that the miners would
regard themselves as having worked either at Dexter or Daw mill colliery and
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did not consider themselves as working at some form of composite, linked
colliery. f. Prior to 1965, workings accessed from the Kingsbury and Dexter collieries worked
the coal in seams which were in proximity (both horizontal and vertical) to those
subsequently worked by Daw Mill. However this is entirely unsurprising. Coal does
not exist in isolated blocks or packages, but instead as seams which spread over
extensive areas. No doubt this is the origin of the term “Coalfield”. Seams are
accessed to be mined from various separate locations and it is of course possible to
link these locations by tunnels and ventilation shafts. It is patiently clear from the
evidence that not only Kingsbury, Dexter Daw Mill but also Baddesley colliery were
at various times all connected in one way or another . However, it has never been
suggested that all four were a single mine. Clearly, they were not; they were separate
mines operating within the same Coalfield and accessing from entirely different and
separate locations parts of the same seams. g. This simple reality of coal mining is reflected in the terms of the order. The reference
is to “a mine started before 1 July 1948”” the entire argument advanced by both the
Council and the Rule 6 party focuses upon an extension to existing mines. Such a
concept finds no support whatever in the terms of the order. It must have been
apparent in 1995 that there would be an extensive network of mines which were
linked to one another. However, the order did not seek to address the notion of an
extension from a mine shaft somewhere distant which was sunk before 1948. Instead,
the focus is entirely on whether a mine – with a definition which focuses upon surface
manifestations – was there on 1 July 1948. Clearly, in this case there was no such
mine at Daw Mill. To suggest otherwise would produce an extremely strained
reading of the Order.
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h. Furthermore, the workings in any given mine have to be within a designated seam
area, that being an area identified on a plan deposited with the Coal Authority. In this
case, the relevant seam plan for Daw Mill is before the inquiry. There is no earlier
plan. The plan identifies an area ascribed to Daw Mill, not an area described as an
extension to Kingsbury, Dexter, or Baddesley. The seam plan does not include the
workings at the Kingsbury or Dexter pit heads, nor underground workings the
operative in 1948.
i. It is also imperative to give consideration to the approved Restoration Plan itself.
Even as an outline plan it must relate to a surface area, since the restoration is what
occurs at the surface. The surface area for the restoration plan is, unsurprisingly again,
simply for the Daw mill site with which this inquiry is concerned. It does not extend
to either Dexter or Kingsbury. No doubt this is because by 1995 no collieries existed
at those locations and, as a result, there were no designated seam plans for them.
j. In the absence of designated seam plans, the argument that the mine for the purposes
of the 1995 Order is an extension to Kingsbury or Dexter is untenable. This is further
emphasised by the definition of “seam plan” where in paragraph (a) reference is made
to the “maximum extent of the coal seam or seams that could have been worked from
shafts or drifts existing at a mine at 13 November 1992” at that time the only mine or
shaft existing from which coal could have been worked where the shafts at Daw Mill.
Given that those collieries had closed, the shafts at Kingsbury and Dexter could not
been worked at that date and therefore permitted development rights simply could not
have arisen on the basis of some suggested “connection” or “extension” to those
collieries.
44. Accordingly, it is entirely plain that the Daw mill colliery only came into existence in
1965. It was not in existence on 1 July 1948. As such, the Daw Mill colliery did not
22
ever fall within the scope of Class A, Part 20 so as to have the benefit of deemed
planning permission by way of permitted development rights.
Legal Effect of the Restoration Scheme
45. In those circumstances, the restoration scheme is of no legal effect. This is because the
Minerals Planning Authority which purported to receive and approve it had no legal
power to do so. It also has no power to enforce the purported restoration scheme.
46. It is trite law that a Minerals Planning Authority is a creation of statute and has no
power beyond that given to it, explicitly or implicitly, by Parliament. Accordingly, the
power to receive, approve and enforce a restoration scheme only exists if some
statutory power to do so exists. In this case, as will be considered in detail below, all
parties believed that such power existed only by virtue of the fact that the development
was permitted development.
47. However, for the reasons set out above, there was no such permitted development, and
accordingly no power. Moreover, a Minerals Planning Authority does not possess any
general or free-standing power to approve applications other than those which reach
them by an appropriate statutory route. A Minerals Planning Authority can only
approve any application if it is empowered to receive such an application and consider
it by virtue of the application having been made by a permissible statutory route. In
this case there was none.
23
48. Furthermore, the power to enforce any restoration scheme arises solely out of the
powers contained in the Order. In the absence of such power to enforce any
restoration scheme, there cannot be said to be an effective method “through
development control procedures” to bring about a restoration of the scheme and, as
such, the exception in the NPPF cannot be made out.
49. Finally, it cannot be suggested that some form of quaisi-contractual arrangement has
been entered into between the operators of Daw Mill and the Minerals Planning
Authority. A planning authority is simply not empowered to enter such arrangements,
not least because the consideration and granting of any planning-related application is
a matter in which the interests of the wider public in being involved in such matters are
paramount. This naturally renders unlawful any form of arrangement between a
developer and a planning authority acting in some form of private law quaisi-
contractual way (see in a similar vein relating to conditions, Henry Boot v Bassetlaw
DC [2002] EWCA 983).
Estoppel
50. As to the fact that all parties have to date conducted themselves on the basis that Daw
Mill did indeed benefit from permitted development rights, such that the restoration
scheme was valid, this is wholly irrelevant in law. The only conceivable basis upon
which the previous actions of the parties could have any relevance is if it could be said
that Haworth Estates were now estopped from denying the existence of permitted
development rights and thus the validity of the restoration scheme.
24
51. However, it is now clearly established that the concept of estoppel has no application
in planning law. This was clearly established by the House of Lords in R v East
Sussex CC ex p. Reprotech [2002] UKHL 8.
52. Following on from that case, it was suggested that the principle underlying Reprotech
was that a public authority had to act in the public interest and accordingly could only
operate the law as properly interpreted, irrespective of any previous dealings it had
undertaken. This led to arguments being developed to the effect that a developer, who
was not required to operate in the public interest, could still be subject to estoppel. It
was also suggested that the form of estoppel based upon respective actions, rather than
representations, which is sometimes known as estoppel by convention, had also
survived Reprotech. However, both such arguments were comprehensively dismissed
by the Court of Appeal in Stancliffe Stone –v- Peak District NPA [2005] EWCA Civ
747.
53. Accordingly it can now be said with certainty that the concept of estoppel has no
application in the circumstances of the current case and the previous understandings
and dealings of the parties are wholly irrelevant. The law must be applied correctly,
irrespective of what may have occurred in the past.
54. Accordingly, this land must be regarded as previously developed land. Furthermore,
the restoration scheme is of no legal effect and could never be enforced.
The correct approach if the land is not PDL
25
55. However, even if it is concluded that the land is not previously developed within the
meaning of the NPPF and the restoration scheme is enforceable, that is not an end of
the matter. There is, in truth, a world of difference between a restoration scheme being
enforceable and it actually being enforced.
56. This is a difference of crucial importance, as it sets up the entire approach to the
assessment of the evidence. At the moment, the land is in its current despoiled state. If
the development proceeds the change which will occur is from the current state of the
land to the state of the land with the development upon it. Even if the restoration
scheme is enforceable, it will never come about if the development proceeds.
57. Accordingly, on proper analysis (and only if the Inspector has already concluded that
the submissions set out above are wrong and the restoration scheme is enforceable),
the only relevance which the restoration scheme could have would be as a fallback
position. In other words, if the usual tests for a fallback scheme are met, the Inspector
would be entitled to consider the difference in effect between the impact of the scheme
taking place and the impact of the restoration scheme taking place.
58. However, these considerations are only relevant if the inspector is satisfied that there
would be a realistic possibility of the restoration scheme actually occurring in the
event that permission was refused for the appeal proposals.
59. There is no evidence whatsoever before the inquiry to suggest that this is the case. By
contrast, such evidence as there is points in entirely the other direction. Messrs.
26
Rolinson, Grimshaw and Hesketh put before the inquiry detailed evidence as to the
cost, difficulty, and inherent disturbance involved in actually bringing about the
restoration scheme. That evidence was entirely unchallenged and brings into very
considerable doubt whether a restoration scheme could ever actually come about, even
if the County Council sought to enforce one.
60. Furthermore, despite the fact that the colliery use has now been discontinued after four
years, there has not been the slightest sign that the county council intends to take any
steps to enforce a restoration scheme. Given the nature of this inquiry process, it would
have been an extremely simple step for the county council to give an indication that it
intended to take enforcement action. It has never done so.
61. Accordingly, there is no proper basis upon which the Inspector can conclude that there
is a realistic possibility of the restoration scheme going ahead. Its role as a fallback
position simply does not exist. As such, the proper basis for considering the evidence,
even if the Inspector concludes that the land is not previously developed and the
restoration scheme is enforceable, is to consider the effect of the scheme as against a
baseline of the existing, despoiled state of the site.
APPROACH TO PLANNING/OVERALL CASE
62. With the previously developed status of the land now established, we turn to the
overall structure of the case. Our primary case is that the development is in accordance
with the development plan as a whole and and thus, in line with both section 38(6) and
paragraph 14 of the NPPF permission should be granted without delay.
27
63. We will divide our submissions on the development plan into two broad areas; first we
consider compliance with the “environmental” provisions of the development plan and
will demonstrate that the scheme will have no significant adverse environmental
impacts and complies with those “environmental” provisions of the development plan.
We will then consider the “locational” and economic requirements of the development
plan.
64. The submissions will then proceed to consider whether, in fact, the development plan
is consistent with the NPPF and thus whether paragraph 14 of the NPPF is engaged. It
will be concluded that the development plan is both absent in ceratin crucial aspects
and that relevant policies are out of date.
65. Accordingly within the confines of paragraph 14 of the NPPF we will consider
whether the harm caused by the scheme “significantly and demonstrably” outweighs
the benefits. As part of those submissions we will consider the extent of the harm to
the green belt which is caused by, as is accepted, the inappropriate development which
the scheme represents. It will be concluded that the harm does not significantly and
demonstrably outweigh the benefits
66. Then we will turn, again within the confines of paragraph 14 of the NPPF, to consider
whether green belt policy within the NPPF indicates that development should be
restricted. In this regard, it will be concluded that there do exist Very Special
Circumstances such that there is no basis for a refusal of permission based on
greenbelt considerations.
28
67. Within that framework, therefore, we turn to consider the environmental impacts of the
scheme.
COMPLIANCE WITH DEVELOPMENT PLAN – ENVIRONMENTAL ISSUES
68. The Council’s reasons for refusal make reference in particular to landscape and visual
impacts, noise, ecology and, to a limited extent, traffic. Lawrag have also advanced a
case based on heritage assets and various other suggested impacts. We will deal with
each of those in turn.
69. Before turning to the details, however, it is important to note that the rigour of the
appellant’s approach to assessing environmental impacts has to be contrasted to the
approach taken by the Council, who brought forward a series of witnesses who made
a limited number of detailed technical criticisms (each of which were shown to be
misplaced) but who did not come close to advancing a case that there is any
unacceptable environmental impact.
70. Much the same is true of LAWRAG, who presented a number of inchoate
environmental concerns, many of which did not even purport to be supported by
proper technical evidence. The appellant does not of course criticise a third party
group such as LAWRAG in this regard; however, the weight to be given to their
concerns must be strictly conditioned by the inability of LAWRAG to support their
claims with proper technical evidence.
Landscape/Visual
29
71. The inquiry was presented with a full-scale full landscape and visual impact
assessment through the evidence of Mr Grimshaw. No other expert landscape and
visual evidence was placed before the inquiry and there did not appear to be
maintained any challenge to any of the assessments made by Mr Grimshaw. Indeed,
the closing submissions for the local planning authority appear to make no
freestanding case on landscape and visual impact (as opposed to the contribution of
visual matters to greenbelt considerations).
72. In the absence, therefore, of any challenge to its assessment, Mr Grimshaw’s evidence
is commended to the Secretary of State. Of particular importance is Mr Grimshaw’s
conclusive demonstration that:
a. The landscape is of only local value and comes nowhere near the threshold to
constitute a “valued landscape” within the meaning of paragraph 109 of the
NPPF.
b. As the Inspector will have seen on site, the topography of the area, where the
appeal site sits at the bottom of a shallow valley, the extensive degree of
natural screening, together with the relative paucity of receptors ensures that
the impact of the scheme in both landscape and visual terms is indeed limited,
being appropriately characterised as moderate to minor adverse.
c. Whilst there will be lighting at the site, an appropriate lighting scheme can be
conditioned which given the ability to use directed and/or intelligent lighting
30
and with appropriate controls on brightness can ensure no more than moderate
adverse effects even when the site is operational at night.
Noise
Introduction
73. Before we turn to our detailed submissions on the noise evidence, the following
introductory points should be made:
a. It is not the purpose of noise policies within the planning framework to ensure
that no resident ever hears the sound from a development or indeed, that no
resident is ever disturbed by noise. Instead, the purpose of noise policy is to
ensure that significant adverse noise effects are avoided (Stephenson ReX
AFU). The Noise Policy Statement for England, for example at paragraph 2.7,
makes plain the fundamental change in the approach to noise. Policy now
proceeds on the basis that noise is inherent to development and an adverse
effect is not a reason for an automatic refusal of permission but simply a
matter to be taken into account as part of the balancing exercise. The NPS also
makes plain that weight needs to be given in that planning balance to the
desirability of sustainable economic development.
b. In assessing the weight to be given in the planning balance to any adverse
noise impacts, it is important to consider that, because of the site’s location, on
any view only a very limited number of people will be affected in any way at
all. Indeed, it was notable that the Council’s challenge to the appellant’s noise
case was almost entirely focused upon but a single property, Daw Mill
31
Cottage. It will be recalled that this property lies on the opposite side of a
busy functioning railway line from the appeal site.
c. As will be submitted in detail below, when considering the various noise
measurements and predictions, it is important to recall that they represent an
extremely conservative basis for understanding the noise effects. The reality
which will be experienced by people is likely to represent a far lesser noise
impact even than the predictions suggest.
d. Additionally, it must be recalled that all the noise prediction values are based
upon the scheme being in operation without any mitigation at all being in
place. Once again, the reality which would actually be experienced by the
small number of residents affected would be of the scheme with a variety of
mitigation measures in effect.
e. Finally, in assessing the evidence provided to the inquiry, it is important to
give appropriate regard to the relative experience and expertise of the
technical witnesses who have appeared. Furthermore, it is an entirely flawed
approach to the evidence provided by technical witnesses to suggest that,
unless every individual component part of an overall assessment is recorded,
such part of the assessment has somehow not been performed. The whole
point of receiving evidence from qualified and experienced technical
witnesses is that their body of knowledge and experience is all brought to bear
upon the assessment which that witness ultimately makes. This is a matter of
particular importance in this case given the respective experience of the
32
technical witnesses for each side in dealing with this particular type of
development and given the manner in which the appellant’s evidence was
challenged.
The noise assessment
74. The appellant’s noise assessment is contained in the Proof of Mr Stephenson. It is to
be noted that the Council does not bring to the inquiry any competing noise assessment
or predictions; instead it confined itself merely to an attempt to undermine the
appellant’s assessment on certain discrete points. These submissions will therefore
deal with each aspect of the noise prediction and assessment process and respond to
the Council’s criticisms as they arise.
Baseline
75. The first aspect of the noise assessment process is to establish representative baseline
levels against which changes can be assessed. In this process it is to be recalled that the
lower the measured baseline, the more conservative is the approach taken, since a
predicted level will produce a greater increase when compared to a lower baseline than
when compared to a higher. The robustness of the process undertaken by the appellant
can therefore be judged against the extent to which the parameters adopted in the
measurement process have the effect of either increasing, or decreasing, the
representative baseline adopted.
76. The approach adopted by the appellant manifestly is an extremely conservative
approach, for three reasons:
33
a. First, the measurement of sound energy adopted in establishing the baseline is
the LA90 figure. This is the figure which is exceeded for 90% of the time. In
effect, therefore the quietest 10% of time is excluded from the measurement.
This therefore has the effect of increasing the representative baseline, because
it excludes the very quietest periods.
b. Second, the noise levels were established by a series of measurement periods.
This series of measurements established a range of values for the LA90. Once
this range had been established, the figure chosen as the representative
baseline was the 25th percentile. This means that only 25% of the range was
below that figure and 75% of the range was above that figure. Accordingly,
adopting that 25th percentile again produces a figure which is very much at the
lower, and therefore conservative, and of the possible range.
c. Finally, in undertaking the measurements, all measurements in with the wind
speed exceeded 2 m/s were excluded. BS 4142 only stipulates that
measurements in which the wind speed exceeded 5 m/s should be excluded.
This again has the effect of lowering the representative baseline, since where
wind speed is higher, the movement of leaves et cetera will tend to increase
the measured sound level. By choosing, therefore, to exclude higher noise
measurements which they were perfectly entitled to include, according to the
guidance, the appellants have again demonstrated the robust and conservative
nature of the representative baseline levels against which the predicted noise
levels from the development should be compared.
34
77. Accordingly, whilst the noise assessment proceeds upon the basis of a comparison
with these representative baseline figures, when performing the final assessment of the
extent to which any noise impact at should weigh against the scheme as a whole, it
must be remembered that these baseline figures provide a highly conservative basis for
assessment and, in truth, are very much quieter levels than what the actual occupiers of
these properties would be likely to experience most of the time.
78. The only criticism advanced by the Council with respect to this representative noise
data was with respect to the distances between the monitoring equipment on Debbets
Green Lane and Nuneaton Road East. It was suggested that the properties in respect of
which the monitoring was said to be representative were in fact further away from road
noise sources and would thus have had a lower representative baseline. However, no
attempt was made by the Council to quantify what this effect might be and Mr
Stephenson in re-examination was clear that the effect would be negligible.
Furthermore, when the actual predictions in table 8.3 of Mr Stephenson’s proof are
considered, it is clear that even some moderate increase in the representative baseline
figure would have no effect on the overall assessment of what the noise impact would
be; indeed, in the case of Debits Green Lane the noise effect from the development is
actually lower than the background level. An increase in the representative baseline
figure would therefore only exaggerate that fact.
79. It was also suggested that the fact that the readings at Daw Mill cottage were also used
to generate the representative baseline figure for Wagstaff Farm and Overbarns
Cottage meant that the latter two figures were unreliable. Again, the Council made no
attempt to quantify the effect and again, Mr Stephenson was clear that the effect was
35
negligible. He pointed out that the most significant noise sources affecting those
properties – passing trains on the railway – were of such short duration that they were
excluded automatically from the LA90 figure. This was the only matter referred to in
the critique at para 3.16 Metcalfe Rebuttal. The only other factor was the slightly
increased distances between Wagstaff Farm and the Tamworth Road. (Over Barnes
cottage being accepted to be a similar distance away from the road as Daw Mill
cottage). This is a quantifiable distance and Mr Stephenson was perfectly entitled to
say in re-examination that it would make only a very small difference to the
representative baseline.
80. Accordingly, the first aspect of the noise assessment exercise, the establishment of
representative baselines, illustrates the accuracy and conservatism of the appellants
approach.
Noise Modelling
81. The second aspect of the exercise is to ascertain the nature of the activities which will
take place on the site, to establish the appropriate sound power levels for the
machinery which is to be used and to then develop a model of that machinery in
operation from which noise predictions can be made.
82. Mr Stephenson explained in chief that his modelling of the activities on site and choice
of machinery which would be representative of that to be used on site was based upon
the advice of Mr Clarke. It will be recalled that neither the evidence of Mr Clarke as to
what machinery would be needed, nor the evidence of Mr Stevenson as to the
appropriateness of the sound power levels, was challenged in any way. It is also the
36
case that Mr Stevenson chose to adopt the figure for HGV movement taken from the
Transport Assessment, rather than those suggested by Mr Clarke. This is of some
importance because, as will be submitted in detail later, that figure for HGV
movements was based on an assessment of vehicle movements to the site which
assumed that there would be no rail usage. The latter is clearly a much higher figure
than that which will happen in reality, with this rail-based scheme.
83. The Council’s criticism of the noise prediction methodology consisted of three
elements, one procedural and two substantive.
84. First, as a procedural matter, there was complaint that their noise consultants sharps
read more have not been provided with the actual computer files of the prediction
model. With respect, this was an extraordinary criticism. It is never the practice for
computer files – which are of themselves proprietary matters protected by copyright –
actually to be shared between noise consultants. More importantly, Sharps Redmore
were provided with PDF files enabling them to see the location and noise parameters
of each and every component of the noise prediction model. Whilst the amount of data
provided thereby was necessarily considerable, the Council was nevertheless in a
position to consider each and every one of the assumptions as to location, duration of
operation and sound power levels of each piece of machinery which contributed to the
overall modelling of the operation of the site. Indeed, the Council was able to generate
certain criticisms (with which we deal below) based upon their receipt of those files. A
suggestion that the Council was somehow prevented from advancing its noise case
because of the absence of the actual computer files is entirely unsupportable.
37
Train Location/Operation
85. The second complaint that is that the locomotive modelled in the train sidings was not
modelled as operating at the closest possible location to Daw Mill cottage. Instead, the
modelling took place some 580 metres further along the sidings.
86. It is accepted as a matter of simple physics that is a noise source is closer to a
particular receptor that noise source will receive more sound energy. However, that
simple fact that does not indicate that the modelling is in any way deficient in
providing a robust sensible worst-case prediction. This is for two principal reasons,
both explained by Mr Stevenson in chief.
87. First, the locomotive was modelled as being present on the site and in operation at
idling power for 100% of the time. In effect, the noise model assumed that a
locomotive was sitting in place running its engine at idle all the time. Of course, in
reality that was a wholly unrealistic assumption. The inquiry heard detailed evidence
from Mr Clarke as to the frequency of trains arriving in each of the development
scenarios, whereby the figure predicted was up to 5 train visits per night. Furthermore,
the inquiry heard from both Dr Clarke and Mr Stevenson as to the widespread use of
engine cut-out mechanisms to prevent stationary locomotives from running their
engines for more than a few minutes in an idling position (a device which is plainly
desirable both on environmental and commercial grounds).
88. Five trains arriving each night and then having their engines cut off automatically (if
the driver does not do so first) cannot, on any sensible basis, possibly equate to a
locomotive running at idling at 100% of the time. As Mr Metcalfe accepted under
38
cross-examination it was entirely possible that the total sound energy received by Daw
Mill cottage from a locomotive approaching right up to that cottage in the manner the
council suggested (wrongly, as we shall deal with in a moment), and then turning off
its engine either automatically or manually, then starting up and departing in due
course, would be less that the sound energy modelled as being received by Daw Mill
cottage from a locomotive station further away from running on idle power for 100%
of the time
89. Of equal importance in demonstrating the invalidity of the council’s argument
concerning the locomotives is the clear evidence that the scenario envisaged by the
Council – a locomotive coming all the way down the siding to close to Daw Mill
cottage – was simply implausible. Mr Clarke explained how a locomotive would
invariably reverse its train into the sidings. He even explained the (to a layman,
slightly surprising) fact that freight trains regularly went many miles out of their way
in order to find a suitable point to change direction on sidings to enable them thereafter
to reverse their train into a particular siding off the main line. In short, the locomotive
was modelled where it is most likely operationally to be.
90. Besides somewhat implausible suggestions made in cross-examination by the Council,
(wholly unsupported by any evidence at all) that the operators of the site might seek to
put in some form of loop to enable trains to run right through the site (an arrangement
for which no permission is applied as part of this scheme), all this evidence from Mr
Clarke was wholly unchallenged. Accordingly, the only sensible basis for assessing the
operation of the site is that trains will be reversed into the site. This is of fundamental
importance in assessing the council’s argument with respect to the location of the
39
locomotive’s noise source within the model. When a normal length train is reversed in,
the locomotive will in fact sit almost exactly where Mr Stevenson placed it in the noise
model.
91. On proper consideration, therefore, it can be observed that the effect of the locomotive
on Daw Mill cottage which is modelled on the appellant’s noise predictions is likely to
be far greater than will occur in reality since the locomotive is correctly placed but is
assumed to be operating at a wholly unrealistic 100% of the time.
92. The second criticism expressed by the Council with respect to the modelling itself, is
the suggestion that there has been no modelling of movement of trains within the
sidings themselves. This was suggested to be a particular lacuna with respect to the
possibility of a manufacturing facility for railway vehicles which might require some
element of testing within the site in fact, as explained by Mr Stevenson in his cross-
examination, this is simply not a valid criticism. He explained that the power of the
type of diesel locomotive model was such that low-speed manoeuvring produced
almost exactly the same amount of noise as idling. Furthermore, a powerful modern
diesel locomotives certainly produce far more noise than a light passenger train being
run at the very low speeds which should be the only speeds obtainable in the event that
any moving testing took place in the sidings themselves.
Noise Prediction Results
93. Accordingly, the predicted noise levels produced by the model and reported by Mr
Stevenson can properly be relied upon by the inspector as a robust and conservative
basis for understanding the likely impact on that small number of nearby residents who
may experience some noise impact.
40
94. Those results are summarised in Mr Stevenson’s table 8.2, 8.4 and 8.5 (representing
the three development scenarios). It is to be recalled that these figures represent a
wholly unmitigated scheme.
95. Even on that unmitigated basis, with respect to each and every receptor, and in each
scenario, the following can be observed:
a. During the daytime and evening there are no exceedances at all of the
threshold for significant adverse impact of an increase over existing baseline
of 10 dB suggested in BS 4142.
b. At night, there is a suggestion of a +10 dB increase at Overbarns Cottage and
Wagstaff Farm (in all three scenarios) and at Daw Mill cottage (in one
scenario). However, in each and every scenario the absolute level of noise will
be below both the threshold for the onset of sleep disturbance effects and the
threshold for onset of moderate annoyance which is set out in World Health
Organisation guidance.
c. The effects also need to be understood, as is emphasised in the updated
version of BS 4142, in their context. Whilst the appellant places little reliance
generally in this inquiry upon the previous existence of the colliery, it is
nevertheless relevant to the context of the noise environment at this site that
within very recent memory considerably higher levels of noise than those
which are predicted from this development were being experienced by local
residents.
96. Accordingly, Mr Stevenson’s overall conclusion, that in any scenario that there would
be an adverse but not significant impact due to noise is manifestly well-founded.
Instantaneous Noise Event
41
97. Mr Stevenson also modelled the effect of a single instantaneous noise effect (proof
table 8.6) and demonstrated that for each receptor the noise level was below that which
sleep disturbance that would occur. The basis of that modelling is that Mr Stevenson
who, it will be recalled has very extensive experience of industrial, railway and freight
handling facilities, chose the single noisiest event which he had ever encountered in an
industrial or freight context and then used that as the basis for his modelling. The event
chosen was the dropping of a large container onto hard standing from a crane or reach
stacker and Mr Stevenson demonstrated that the location for the modelling point was
in the heart of the area in which activities in the open air are likely to take place on the
site. (Inquiry document…)
98. This approach was subject to some rather bizarre criticism from the council. It was
suggested that because the proposals do not involve the handling of containers on the
site, such that the event modelled could never happen on the site, it was suggested that
this somehow invalidated the conclusions. With respect, this is a facile approach. Once
it can be demonstrated that the noisiest event which occurs in an industrial context will
not cause adverse effects, it follows as a matter of simple logic that no other event
(including all those events which will actually occur on the site) could produce a
significant adverse effect.
Rating levels
99. A further significant area of dispute between the parties is as to whether a rating
penalty ought to be applied to the predictions supplied by Mr Stevenson on account of
the nature of the noise. This is an approach which is considered in the guidance BS
4142 and the possibility of corrections for tonality, impulsivity, intermittency and
“other”.
42
100. The starting point for the consideration of the dispute must be BS4142 itself. It is of
great importance to remember that this document is specifically aimed at the
assessment of sound of an industrial and/or commercial nature. Section 1 “Scope” of
the document itself states that such noise includes:
“a) sound from industrial and manufacturing processes;
b) sound from fixed installations which comprise mechanical and electrical plant
and equipment;
c) sound from the loading and unloading of goods and materials at industrial and/or
commercial premises; and
d) sound from mobile plant and vehicles that is an intrinsic part of the overall sound
emanating from premises or processes, such as that from forklift trucks, and that
from train or ship movements on or around an industrial and/or commercial
site.” (emphasis added)
101. This makes absolutely clear that the type of sound with which this inquiry considers
concern is exactly that BS 4142 approach was named. There is absolutely nothing
unusual about the type of sound to be produced by this scheme. Accordingly, it should
be considered that there must be some special or particular reason to require a rating
penalty.
102. This is the essential framework within which the quality of the evidence before the
inquiry must be considered. When a fair comparison is made of that evidence, it is
plain that the appellants version should be preferred, For the following reasons:
a. The Council’s witness Mr Metcalfe appeared to base his suggestion of a
rating penalty on a single period of observation of trains at Ely in February
43
2017. He located himself at a distance (hundred and 20 m which
represented the closest that a train could ever come to a single property
which forms part of the group of affected receptors, namely Daw Mill
Cottage. He described a series of “bumps bangs clangs and platters” but
did not appear to have performed any form of objective testing of those
sounds in order to justify a rating correction. It is notable that BS4142
suggests a series of different objective test which may be applied in order
to consider whether or not a rating correction is justified. None of these
formed any part of the Council’s evidence. Furthermore, the apparently
extremely limited experience which Mr Metcalfe brought to bear on this
issue would not enable him to identify whether what he heard at Ely was in
anyway atypical of the noise which BS4142 is explicitly designed to
consider.
b. By contrast, Mr Stevenson presented his extensive credentials in working
with ports, railways and a wide range of other industrial sites. He told the
inquiry that in his 20 years’ experience he had never seen a rating
correction added for normal movement of freight trains within an
industrial site or in sidings.
c. It was this experience which he brought to bear in coming to his view that
no rating penalty would be justified. We have already made our
submissions as to the fallacious nature of an approach which seeks to
criticise an expert for not explicitly recording in his proof every piece of
expertise and experience which bears upon a particular judgement. The
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danger of such approach was readily revealed in re-examination when Mr
Stevenson told the inquiry that some time ago, he had performed the
objective [octave test] on the exact type of locomotive, a Class 66, which
he had modelled for the Daw Mill. It is nothing to the point that he did not
specifically mention this in his proof of evidence; he is an expert witness
of long experience and such matters are simply part of his normal bank of
information and expertise which he brings to bear on the assessment of any
particular scheme.
103. Accordingly, the weight of expertise and evidence, when seen in the context of what
BS 4142 is designed to deal with, suggests that the appellants are overwhelmingly
correct when they say that no rating penalties ought to be implied.
104. As a final matter, the appellants respectfully submit that this is not a matter which is
readily amenable to resolution by the impressions which the Inspector may have
formed during her own site observations. This is not a matter, such as visual or
landscape impact where the inspector’s own impression is better than any expert view.
Instead, this is a matter of detailed technical knowledge and expertise and we do
submit that even if the inspector has, like Mr Metcalfe, on a one-off basis seen
“bumps, bangs, clangs and platters” that cannot substitute for the long experience and
detailed technical analysis provided to the inquiry by Mr Stevenson.
Policy: SOAEL/LOAEL
105. The final area of criticism directed at Mr Stevenson was the suggestion that he had
somehow erred by not attaching a specific numerical value to the SOAEL and
45
LOAEL. This criticism merely reveals a lack of understanding of the purposes and
approach of modern noise policy. SOAEL and LOAEL are not defined in any policy
document in numerical terms precisely because policy recognises that each is
dependent upon the particular circumstances and context of each case. Seeking to
require that a particular numerical value is attached to each is the precise opposite of
what policy actually requires. Indeed, Mr Metcalfe himself appeared to recognise this
in his own proof of evidence.
106. It is entirely clear from a range of numerical values considered by Mr Stevenson – for
example the WHO guidelines and the BS 4142 rating levels – that on any view the
noise generated by this development will be comfortably below the SOAEL and thus,
in accordance with the NPPF paragraph 123 , wholly acceptable.
Noise Conditions
107. Finally, the application is supported by robust noise Conditions. It is clear from the
appellants’ noise case that the strict limits within them are perfectly capable of being
complied with. No criticism can be directed at the appellant are subjecting themselves
to sensible, robust noise Conditions which will give full protection to nearby residents.
Tranquillity
108. The Council also advanced at the inquiry a separate case based upon the issue of
“tranquillity”. By way of introduction it should be noted that – for all the criticism
directed at the appellant for changing their case – that this was an entirely new case
advanced by the Council at the inquiry. An examination of the relevant documents
makes entirely plain just how opportunistic the introduction of this case was.
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109. The policy basis upon which tranquillity was advanced is contained in paragraph 123
of the NPPF which provides, so far as material, that:
“Planning policies and decisions should aim to:
…
• Identify and protect areas of tranquillity which have remained relatively
undisturbed by noise and are priced their recreational and amenity value for
this reason.”
110. However, despite the decision to refuse planning permission post-dating the NPPF,
there was no mention whatever of tranquillity in the Report to Committee (despite that
report containing an extensive consideration of noise impacts) or the reasons for
refusal (as accepted by Mr Bentley xx AFU). There was no mention of tranquillity in
the council’s Rule 6 statement.
111. Moreover, despite the fact that the Council’s adoption of the Core Strategy post dated
the NPPF, there is no policy relating to tranquillity in the Core Strategy and certainly
no identification of any areas which are “prized” for that reason.
112. Indeed, the first apparent mention of Tranquillity in relation to this case is in the proof
of Mr Metcalfe, where a one line suggestion was made simply to the effect that he had
noticed the area was quiet and therefore he suggested that a Tranquillity assessment
was made. The so-called Tranquillity assessment arrived only as an addendum to the
rebuttal proof of Mr Metcalfe.
113. The only reference in anything which remotely resembles a policy document is in the
Landscape Character Assessment for North Warwickshire which notes that in
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landscape terms this is a rural and tranquil area. However, this is the flimsiest possible
hook upon which a case could be built. There is no reference in any policy to this area
as an area of tranquiilty to which protection should apply.
114. Moreover, the so-called “Tranquillity assessment” produced by Mr Bentley was
based upon a wholly unproven and experimental methodology. As Mr Bentley
himself confirmed under cross-examination, it had not been peer reviewed in any
meaningful way. It emerged under cross-examination that the sum total of the peer
review was the fact that it had been spoken of with approval by a Professor and
that one or two universities were interested in working with Mr Bentley in
developing methodologies. His approach is thus entirely untested.
115. Furthermore, Mr Bentley himself confirmed under cross-examination that he had
far less time to make observations than even his unproven methodology specified.
It emerged that the information he obtained as to the value local people attached to
the land came wholly from representatives of law rag, who must be regarded as at
least potentially partial, given their interest in the matter.
116. Given all these limitations it is hardly surprising that the result to which he comes
is somewhat implausible. It is to be recalled that this is an area through which a
railway line, extensively used, runs. The trains are from time to time required to
sound their horns as they pass the site. The Inspector will have noticed on site the
sign instructing them to do so. It is also an area through which a busy secondary
road runs and it is clear that on frequent occasions the area is affected by
disturbance from aircraft departing from Birmingham airport.
117. It is therefore inconceivable that this area can properly be identified, within the
framework of national policy as an area of Tranquillity which is prized for its
recreational and amenity value because of its Tranquillity. Those latter words are
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of importance, because the protection set out by paragraph 123 attaches to areas
which are identified for their recreational and amenity value “for this reason” i.e.
by reason of their tranquillity. Whatever value may be attributed to this area by
local people for recreation or amenity, there was no evidence to say that was
because of any particular Tranquillity.
118. Furthermore, the consequences of a finding that this was an area which require
protection from development because of its Tranquillity should be carefully
considered. In truth this area is no more tranquil (and probably, given the railway
and the flight path, less tranquil) than very many areas of non-urban England. If it
is really to be the case that this area is to be protected under paragraph 123 of the
NPPF then vast swathes of the English countryside will simply be immune from
development on such grounds. There is nothing whatever to suggest that this was
the intention of the policy. Indeed, it is entirely possible to contemplate areas – the
wilds of Northumberland, for example, or the high spine of the Isle of Wight –
which truly afford with this description. This land surrounding the appeal site
patently does not.
119. The Council’s case on tranquillity is not only late but entirely a red herring. It
should be given no weight.
Ecology
120. The proof of evidence of Mr Hesketh provides a comprehensive analysis of the
existing condition of the site, the ecological proposals and the effects of the
scheme. It is commended to the inquiry and was in all material respects entirely
unchallenged.
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121. The scheme will lead to various ecological enhancements, all to be secured by an
ecological management plan to be secured by condition. The illustrative Habitat
Management Plan shows for example, new areas of woodland planting both to
reinforce the existing boundaries and within the site, together with the
improvement of the existing woodland around the perimeter. There would be the
retention and improvement of areas of grassland, together with their mamagement
by hay cuts.
122. On the correct basis of comparison, against the site in its current condition, it was
common ground between the parties that the scheme produces a net gain for
ecology. This was explicitly accepted by Miss English for the Council under cross-
examination.
123. As such the scheme is fully compliant with local plan policies NW12 and NW15.
124. The only matters of concern raised by the local planning authority when the
comparison is made against the baseline of this site as it stands, with respect to a
discreet number of trees and with respect to their statutory duties concerning bats.
Of these, only the matter of bats is relied upon by the Council in their closing
submission.
125. With respect to trees, it emerged in the evidence of Mr Hesketh that only one tree
of interest to the council would even potentially be affected. That tree, T1, is now
protected by condition.
126. With respect to bats, as Mr Hesketh explained in his evidence in chief, the initial
survey in 2014 indicated that the remaining buildings on site had a low potential
for bat roosts, with no roost actually being reported. That was entirely unsurprising
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since the buildings were somewhat vandalised, and were exposed in a sea of hard
standing with no suitable foraging nearby. That of course remains the position.
Furthermore, the buildings were surveyed again by qualified bat specialist in 2016
and the findings with respect to roosts were confirmed. The only outstanding work
to be done is arguably an emergence survey. However, the mere absence of that
survey, when all the other evidence points away from any real potential for bat
roosts, cannot conceivably place the local planning authority in a situation where it
is unable to discharge its statutory duty, as it suggests. The suggestions made in
closing submissions to the contrary merely illustrate again the overstating of its
case which has been typical of the Council’s approach throughout this inquiry.
127. This emerges with even greater force given the way the Council expresses
“particular concern” about barbastelle bats. As Mr Hesketh set out in chief, the
only detection of these bats on site – 2 passes – were at a time of night (2.14 am
and 3.14am) which makes it profoundly unlikely that the bats were anywhere near
their roosts. These bats lodge in ancient woodlands, of which there is none on site
and Mr Hesketh, in unchallenged evidence, made plain that not only was there no
disruption to their foraging but that the improved management, particularly of wet
meadowlands, will enhance important food sources for barbastelle bats.
Restoration Scheme 128. As we have already submitted, a conclusion that the land is not PDL does not
necessarily carry with it the corollary that the effects of the scheme must be assessed
against some hypothetical baseline of a restored scheme. The simple truth is that the
scheme must be assessed against what is actually then now, because what is actually
then now is what will be lost in the event permission is granted and the scheme
proceeds.
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129. The profound difficulties of seeking to undertake that kind of assessment are most
particularly illustrated in the area of ecology. It is of course possible to undertake
an assessment of the effects of the scheme compared to a defined set of ecological
outcomes which might be produced by the restoration. It is also possible to
conclude that a scheme based upon the outline restoration scheme (for, as we have
noted above, that is all that currently exists) could be technically feasible.
130. Indeed, Mr Hesketh explicitly accepts that such a scheme could be technically
feasible and performs an exercise of assessment of one possible set of outcomes for
a restoration. (Section 7 of his proof).
131. However, in truth, neither Mr Hesketh’s assessment nor that of Miss English (such
as it was) provides any real basis for comparing the effects of the scheme against a
nominal restoration scheme. This is because the true state of any restoration is
wholly impossible to determine. Despite the apparently neat codifications of the
effects by Miss English in her offsetting calculation, it emerged during the cross-
examination of Miss English that:
a. Her offsetting calculation was not based upon any particular time point after the
restoration had begun. She had little idea of the point in time after the restoration at
which the various effects would actually occur. For example, her assessment of the
woodland to be created by the restoration scheme was based upon it having
achieved a degree of maturity which is dependent upon several “generations” of
tree growth and was thus wholly unrealistic. b. In claiming that the site would provide a migratory corridor for species which
sought to move from woodland areas of woodland area, she was nevertheless
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entirely unable to provide any indication of which species she was considering and
what their particular needs might be. Given that the woodland on the site is at some
distance from other areas of woodland in the locality, this was a significant
omission. c. She was unable to provide any evidence as to the rates of repopulation of the river
by relevant fish, in the event that the river was unculverted.
132. These examples are not intended as a particular criticism of Miss English; instead,
they simply stand as an illustration of the wholly artificial nature of an attempt to
compare the effects of the scheme with a baseline of a wholly artificial and
unformed restoration scheme.
133. Instead, the correct approach is that set out by Mr Hesketh in his evidence in chief.
Any ecological mitigation scheme will be secured through conditions or a section
106 agreement. Given that this is an outline permission, the appropriate approach
would be to impose such conditions, or require such section 106 obligation, at the
stage of approval of reserved matters. At that point, the detailed design of the
scheme would be clear (and the very obvious potential for additional areas to be
made available for additional onsite ecological enhancements would be capable of
being assessed) and the progress (if any) towards any restoration scheme would be
clear.
Traffic
134. At the conclusion of this case, it appears that the Council maintains no case with
respect to the impact on the highway network of any traffic generated by the
development. All that is contained within its closing submissions are generalised
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complaints about the fact that the development will produce HGVs travelling to
and from a location which is not well served by the highway network. It does not
set out any sort of properly evidenced case alleging any particular harm.
135. By contrast, the Rule 6 party makes a series of detailed submissions about various
detailed aspects of the highway proposals. Before we deal with such of those as it
is necessary to consider in any detail, the following preliminary observations must
be made:
a. In accordance with paragraph 32 of the NPPF, the policy test to be applied is
as follows: “Development should only be prevented or refused on transport
grounds where the residual cumulative impacts of development are severe.”
(emphasis added)
b. The application has been supported by a full Transport Assessment, which
demonstrates that, subject to certain minor matters of mitigation, the scheme
has no adverse effect whatever on the highway network. Indeed, the scheme
produces a minor beneficial effect, as the mitigation measures provide a
benefit to a junction (Green Man, Coleshill) which is already problematic.
c. However, it is important to appreciate that the Transport Assessment was
based upon a scheme which was entirely HGV served. The assumptions made
within the TA were that there would be no use of the rail sidings at all. Of
course, in reality, that is not a representative assessment of the scheme. As we
have submitted extensively above, the scheme will be primarily rail served and
conditions will be imposed to ensure that it is so. Accordingly, the figures for
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trip generation, particularly for HGVs are much, much higher than will ever
actually occur in reality. As such, the Transport Assessment provides an
exceptionally robust and conservative basis for assessment of the scheme.
d. No other transport assessment or appraisal has been placed before the inquiry.
For all the criticism directed at the assessment, there is not a shred of evidence
before the inspector to suggest that any of the matters raised would lead to
anything approaching residual cumulative impacts which were “severe”. That,
it will be recalled, is the only basis upon which permission can be refused on
transport grounds.
136. Turning now to the detailed points taken by the Rule party, the following matters
are essential for a proper assessment:
a. This is an outline application. Accordingly the investigation must simply focus
on whether the scheme is capable, following detailed design, of satisfying the
policy test set out above.
b. In common with usual practice for outline applications, the conditions which
would be imposed on any position require the appellant and the highways
authority to enter into a series of section 278 agreements in order to bring
about the detailed design of the various improvements which the appellants
propose as part of the mitigation scheme.
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c. The Highways Authority, the County Council, were fully consulted and, after
raising queries (in a manner which is entirely normal for a large scheme such
as this), registered no objection.
d. The extra-ordinary twist in this case, however, is that the very highways
engineer who was primarily responsible for dealing with the entire
consultation process at the County Council then appeared at this inquiry to
take the precise opposite view and to seek to persuade the Inspector and
Secretary of State that the scheme is so deficient that permission should be
refused on transport grounds alone. Under cross-examination, and through
further details supplied in re-examination by Mr Cummins, it emerged that in
with respect to all but one of the junction improvement schemes, Mr Bennion
had based in judgements whilst at the County Council on plans which had in
substance the same parameters as the final drawings before the inquiry.
e. However, despite the attempts made by Mr Bennion to persuade his former
employers at the County Council to change their position by deploying all of
his arguments in front of them, the Highways Authority declined to do so and
maintained its non-objection to the scheme.
f. This now leaves the Rule 6 party in its closing submissions in the position of
mounting a full frontal challenge to the competence and integrity of the
highways authority. This is a frankly extra-ordinary position which must be
borne firmly in mind when considering the credibility of Mr Bennion and the
extent to which, given the nature of the criticisms made, it could possibly be
concluded that they are of such significance that, at this outline stage it could
be concluded that the residual transport impact is severe.
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137. Within that framework, the detailed criticisms can be swiftly disposed of. The
Inspector is referred to the detailed consideration given by Mr Cummins in his re-
examination. Accordingly:
a. Mr Bennion’s unfocused concerns about trip generation fall away when it is
considered that he accepted under cross-examination that on any view the
HGV generation from the appeal scheme would be considerably less than a
scheme which included B8 which had been the basis of the original trip
generation figures. Concerns about trip trip generation also have to be
considered in the context of our previous submission about the fact that the
scheme was assessed on an HGV only basis, whereas in reality it will be
primarily rail served.
b. The concerns expressed about junction design are very difficult for Mr
Bennion to maintain given the fact that (save with respect to the Green Man
junction) he himself advised non-objection on the basis of plans which were in
essence identical to those which are before this inquiry. The true lack of
substance in the Rule six party’s case is perhaps illustrated by the fact that
they made repeated complaints that there had not been “a sign off” of those
aspects of junction design where the pre-existing situation on the ground
required a departure from the theoretical best practice set out in the DMRB
guidance document. Such a truly pedantic approach simply ignored the fact
that the highways authority letter of objection was a true “sign off” on all the
highway aspects of the scheme which were necessary to be considered at this,
outline, stage.
c. With respect to the Green Man junction, Mr Cummins made plain in re-
examination that he had modelled a veritable raft of scenarios, including those
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which form the basis of the final mitigation scenario. The current scheme is
entirely suitable to demonstrate that the junction improvement is capable of
being designed in detail to ensure that the necessary mitigation can be
provided.
d. Finally, there can be no realistic doubt as to the ability of the mitigation to be
delivered; indeed, all that is required for the imposition of the necessary
Grampian condition is that the appellant demonstrate that (with apologies for
the double negative) there not be no reasonable prospect of the condition being
complied with. In this case, the only matter which is beyond the appellant’s
control is the making of a TRO to re-arrange disabled parking spaces on
Church Hill, Coleshill. You there is no reasonable basis for considering that
this would present difficulties; indeed it emerged during the inquiry that it
would be perfectly possible to rearrange the existing parking spaces such that
no disabled spaces need to be removed. In those circumstances would not be
necessary at all.
138. In summary, therefore, the objections raised on transport matters are entirely points
of detail which can be resolved at the detailed design stage. There is nothing
whatever which has emerged during the inquiry to suggest that, for the purposes of
this outline application, anything approaching a “severe” residual impact will
occur. Indeed the appellant’s case that there will in fact be a slight beneficial
impact on the overall functioning of the highway network, due to the mitigation
measures, is commended to the Secretary of State.
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Heritage
139. A comprehensive analysis of the effect of the scheme upon heritage assets was
provided in the proof and appendices of Miss Kelly. That analysis is commended
to the inquiry and the Secretary of State. It demonstrates comprehensively that
there are no adverse effects at all on any heritage asset.
140. Neither the Council nor the Rule 6 party advanced any credible competing analysis
or called a relevant witness and the Council do not even condescend to refer to
their “evidence” on heritage issues in their closing submissions.
141. All that is left to consider is the wholly inchoate case advanced by the rule six
party on the basis of their Mr Pearce “doing the best he could” (rule six closing,
paragraph 58). Three matters now seem to be relied upon, as follows:
a. The alleged effect on the Grade 2 listed Over Whitaker House;
b. The alleged effect on the Forest of Arden; and
c. The alleged effect on the relationship between the local church spires and the
site.
142. As a preliminary matter (see Kelly evidence-in-chief), it is to be recalled that, as in
all heritage assessments:
a. The only matter that falls to be considered is the effect on the significance of a
heritage asset.
b. The mere fact of change does not mean there is an effect, let alone an adverse
effect, on the significance of a heritage asset.
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c. The mere fact of inter-visibility does not mean that there is an effect, let alone
an adverse effect, on the significance of a heritage asset.
d. An effect on the significance of an asset can occur as a result of changes in the
setting to that asset, but there is no such concept as the “setting of the setting”.
143. It is also notable that each of the effects alleged by the Rule 6 party is considered
only against the theoretical baseline of the restored site. Furthermore, Mr Pearce
under cross-examination was wholly uncertain as to the categorisation of the
effects he alleged, although he finally appeared to have settled on “less than
substantial”
144. In each case, the suggestion of adverse effects is entirely unsupported by proper
evidence, and consisted of little more than speculation. With respect to Over
Whitacre House, the mere fact that there would be inter-visibility with parts of the
site is irrelevant. Miss Kelly’s evidence, backed up in detail by a consideration of
historical records, the orientation of the building and the topography, was clear that
the setting of the house, and the parkland which surrounded it, extended only so far
as the Tamworth road. In that regard, it is entirely clear that changes on the appeal
site would have no effect whatever on the setting or significance of the heritage
asset.
145. With respect to the Forest of Arden, it is quite impossible to identify any heritage
asset in the vicinity which is in any way capable of being affected by changes on
the appeal site. The rule six party presented not a shred of evidence to suggest that
there was any heritage asset in the vicinity of the appeal site at all.
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146. Finally, the suggestion that there is any adverse impact on any of the heritage
assets represented by the churches in the vicinity simply ignores the basic
topography of the landscape. The churches, quite deliberately, are set upon hilltops.
The appeal site sits at the bottom of a valley. Even allowing for the fact that there
are some significant vertical structures inevitably part of the appeal proposals,
there is simply no basis for concluding that there will be any adverse effect on the
setting of any of the heritage assets because of any intervisibility between them and
the structures on the appeal site.
147. The Secretary of State should entirely reject the speculative and inchoate case
advanced by the Rule 6 party with respect to heritage assets and prefer the careful
and comprehensive analysis advanced by the appellant. There will be no adverse
impact at all on any heritage asset.
COMPLIANCE WITH DEVLOPMENT PLAN – LOCATIONAL ISSUES
148. It is accepted that the scheme does not comply with the settlement hierarchy set out
in policy NW10. However, it is important to apply the proper weight to this
element of non-compliance, when considering the broader issue of whether or not
the scheme complies with the development plan as a whole.
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149. This is because it is entirely plain that NW 10 is already being overtaken by events,
particularly for a scheme of this nature. We will make our submissions below as to
the effect of these developments on whether or not the policy is “up-to-date” for
the purposes of the NPPF. For the purposes of this part of the submissions, these
developments fundamentally affect the weight which is to be afforded to this
accent it non-compliance with relevant planning policies.
150. The Inspector is referred to the comprehensive summary of recent developments
provided by Mr Rolinson in his proof of evidence and amplified in evidence in
chief. Before we make submissions as to these matters, it is important to appreciate
two fundamental matters:
a. First, at the time the Core Strategy was drafted and adopted it was anticipated
that Daw Mill colliery would continue as a functioning colliery for the
duration of the plan period. The closure of the colliery, and therefore the
sudden availability of a large area of developed land with a rail connection was
entirely unexpected and was not taken account of in the CS.
b. Second, the development proposed is not intended to meet a local or even sub
regional need which is taken account of within the normal consideration of
employment land supply. As is made plain by the evidence of Mr Clarke, this
development is to meet a wider regional, even national, need for rail-served
sites to support the expansion and greater utilisation of the national rail
network. In so doing, it supports in a very direct way overall government
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objectives for the expansion of a sustainable mode of transport for goods and
people.
151. Against this context, there are very clear indicators that the breach of NW 10
should be afforded limited weight due to the settlement hierarchy it dictates being
overtaken by events. In considering these factors, it must be borne in mind that
NW 10 is purely a locational policy – it does not deal with the environmental
consequences of the location of a development in any particular place. Those
consequences are dealt with by other policies. Accordingly, it is no answer to our
submissions concerning the settlement hierarchy policy to rely on the fact that this
is a rural location with relatively limited development in the vicinity and relatively
poor road infrastructure.
152. The starting point is that the Core Strategy itself was adopted solely on the proviso
that there would be an early review to deal with issues of increased need for
housing and employment land. The Core Strategy Inspector explicitly commented
that the employment land calculations in the CS related only to local need, not
regional, let alone a specific sui-generis type of need for which these appeal
proposals cater.
153. The fact that the CS does not accommodate regional employment needs was made
plain by the recent (November 2016) appeal decision has been recognised
explicitly both by the Council in its own decision-making and in a highly relevant
recent appeal decision. Thus in the Hams Hall Committee Report (Rowlandson
appendix 15) at 4/151, the Council itself stated:
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“The second [issue] is the employment provision issue. As indicated above this issue carries far more weight today… The Council has a core strategy which identifies and employment need the absence of the Regional Spatial Strategy. The NPPF requires Local Planning Authorities to keep their forward planning policies up-to- date and to manage growth in a sustainable way. The Duty to Co-operate has to some extent replaced the RSS and to this end there is joint working on both housing and employment requirements. That has resulted in independent research and conclusions which have been accepted by the Council in the preparation of its review of the Core Strategy. That evidence is up-to-date and relevant. That is why it is given significant weight. The Council needs to act on it… That evidence points to an employment land gap. Notwithstanding the Green Belt status of this site, its physical attributes are appropriate for accommodating the type of proposal being promoted here… It is also noteworthy that the site is available and that the proposal is deliverable. In conclusion therefore it is considered that in the circumstances outlined here that the weight to be given to this matter retains its significance.” (emphasis added).
154. Equally, in the recent (November 2016) appeal decision concerning St Modwyns’
development at Birch Coppice (Rolinson appendix 12), the Inspector gave
significant weight to the emerging evidence base (and the Council’s own
assessment on it at Hams Hall) in the following terms:
“55.New evidence has emerged which points to the need for additional employment land in North Warwickshire over and above the adopted Core Strategy. The Council’s November 2016 Board Report concerning proposed development in the Green Belt at Hams Hall describes this evidence as up-to-date, relevant and carries “significant weight”. Although the Council has sought to argue that this need will be met by allocations in the emerging Local Plan this is only at a draft stage and may be subject to change. I also find no persuasive evidence that… the need for strategic sites has been adequately met… In this context the contribution that the scheme would make towards the provision of employment land weighs heavily in its favour. …
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93. However, the Framework confirms that decisions must be taken in accordance with the development plan unless material considerations indicate otherwise. In this case there are several material considerations which justify departing from Core Strategy Policies NW2 and NW 19.
94. Firstly, new evidence has emerged since the adoption of the Core Strategy which points to a need for additional employment land. Although it is suggested that there are other, more suitable sites available to meet this need, consultation on the draft allocations is still ongoing. Moreover, the emerging plan does not intend to meet wider than local needs for large sites, and neighbouring Tamworth has a requirement of 14 ha which it cannot provide.…
95. In resolving to support the approval of planning permission for new development in the Green Belt at Hams Hall the Council described the latest evidence concerning employment land is up-to-date, relevant and carrying significant weight. This need exists now and is described by the local Chamber of Commerce as “particularly acute”… … 98. Thirdly, paragraphs 18 and 19 of the Framework confirm that the Government is committed to securing economic growth in order to create jobs and prosperity, and ensuring that the planning system does everything it can to support sustainable economic growth…
99. When considered against the Framework taken as a whole the proposal would therefore resonate with the principles of sustainable development. It would contribute towards building a strong, responsive and competitive economy while supporting growth and innovation in an area where demand is high. Although there would be some loss of countryside…, The evidence provided demonstrate how the scheme has taken account of the different roles in character of the different areas and would maintain a meaningful gap between the two towns (Polesworth/Dordon and Tamworth]..” (emphasis added)
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155. It is worth noting, that as Mrs Barrett accepted under cross-examination, she
produced exactly the same table of available employment land to the St Modwens
inquiry as she did to this inquiry.
156. The emerging evidence base represented, amongst others, by the West Midlands
Land Commission Final Report of February 2017 and the Growth Report of April
2016, has further been recognised by the Council itself in its assessment of whether
or not the existing settlement hierarchy is capable of being maintained. As Mr
Rolinson explained in detail in proof (see paras 10.20) and expanded in his
evidence in chief, in April 2016 the Council’s Committee were presented with a set
of options ranging from a maintenance of the existing settlement hierarchy to
various degrees of abandonment of that hierarchy, including the release of green
belt land. It is entirely plain that even the Council understands that the existing
settlement hierarchy simply cannot be maintained in the face of even the emerging
local and regional needs.
157. The position is made even more stark when the limits to the provision made in the
emerging Local Plan. One can identify three categories of employment land which
are needed. The first is local needs, relevant to the district itself. The second is
regional needs which arise pursuant to the Duty to Cooperate. The third is the
wider than regional need for strategic sites, into which category these appeal
proposals fall. However, the Emerging Local Plan which represents the Council’s
approach, subject to consultation and Examination, is explicit that it does not deal
with wider than regional needs. The Emerging Local Plan provides, so far as
material, as follows:
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“7.46. Unlike during the preparation of the Core Strategy the Borough Council has now been approached to deliver employment land from a neighbouring local authority. Tamworth Borough Council is seeking the Borough to deliver a proportion of 14 ha in partnership with Lichfield District Council. A site allocation has been identified to satisfy a part of these 14 ha.… 7.47. … a Memorandum of Understanding has been agreed on the delivery of additional employment land to address a shortfall in provision from Coventry City Council. There is no additional land requirements [sic] that the Borough must consider. 7.48. In addition, since the preparation of the Core Strategy two studies have made it clear that there is a wider than local need for large sites. This provision does not necessarily have to be provided for within North Warwickshire. The Borough Council will continue to work with other local planning authorities to see what opportunities there are around the East and West Midlands to deal with this need.… It is not therefore considered an issue that North Warwickshire needs to consider further…”
158. Accordingly, even the Emerging Local Plan is explicit that it does not make
provision for any of the “wider than local need for large sites”.
159. As a result, opposition to a proposal for provision for a site for wider than local
needs based solely upon the fact that a settlement hierarchy policy is breached ,
when that hierarchy is already accepted by both the Secretary of state and the
Council itself as being out of date, cannot carry great weight.
160. Finally, it is worth noting that the considerations of employment land need, as
expressed in both the Hams Hall committee report and the St Modwens’ decision,
relate solely to the provision of employment land and the lack of provision of sites
for wider than regional needs. It is no answer to the appellant’s case concerning
the weight to be given to breach of locational policies simply to point out that there
are differences in the physical characteristics of the different sites. On analysis of
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the Council’s closing submissions, such physical differences indeed appear to be
the only basis upon which the Council seeks to rebut the appellant’s case on
locational policies.
COMPLIANCE WITH DEVELOPMENT PLAN - OVERALL
161. It is well understood that different policies in the adopted development plan may
pull in different directions. The task for the decision-maker is to consider the
development plan as a whole and whether or not a scheme complies with the
weight of the plan as a whole. The decision maker must do so considering all the
circumstances surrounding the plan.
162. In this case, a plan exists which supports sustainable economic development. It
seeks to ensure that development is environmentally acceptable. It also provides
for a settlement hierarchy for development.
163. These appeal proposals provide for sustainable economic development and support
a national need and a national objective to further the development of the railways.
They are environmentally acceptable. The breach of the settlement hierarchy
policies is the breach of policy is which are fundamentally out of date, not just in
the view of those advising the appellant but also the Council itself and, on the basis
of the St Modwyns appeal decision, by the Secretary of state through his appointed
inspector
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164. In those circumstances it is entirely right come to the conclusion that the scheme
complies with the development plan as a whole. That is a factor of huge weight in
support of the grant of permission.
IS PARA 14 ENGAGED?
165. However, the development plan is not an end of the matter. A material
consideration of the greatest possible weight is the central government policy
guidance set out in the National Planning Policy Framework. It is necessary in
particular to consider the provisions of paragraph 14, which set out the basis upon
which decision-making is made within the context of the presumption in favour of
sustainable development.
166. The words of paragraph 14 are familiar, but nevertheless are set out here for
completeness, so far as material:
“For decision-making this means:
approving development proposals that accord with the development plan
without delay; and
where the development plan is absent, silent or relevant policies are out of
date, granting permission unless:
- any adverse impacts of doing so would significantly and
demonstrably outweigh the benefits, when assessed against the
policies in this Framework taken as a whole; or
- specific policies in this Framework indicate development should
be restricted.”
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167. It is therefore necessary to consider whether or not the development plan of
relevance to these appeal proposals is either absent, silent or out of date. In this
case, it is clear that it is all three.
Absent and Silent
168. As has already been submitted this is a proposal for an employment development
of a particular type to meet a need for large sites responding to a wider than
regional need. There is no policy within the adopted development plan which deals
with such developments. That much has been made plain by the Hams Hall
committee report, the St Modwens’ appeal decision and the contents of the
Emerging Local plan, in respect of which we have already made our submissions.
The inevitable consequence is that the development plan is absent and Silent with
respect to this particular type of development.
Out of Date
169. The development plan is also out of date. We have set out above the reasons for
which it is out of date. It is necessary, therefore, only now to deal with the
Council’s approach to this matter. In her evidence, Mrs Barrett appeared to believe
that because there was no provision equivalent to paragraph 49 of the NPPF (which
renders by definition housing policies out-of-date if there is no five-year land
supply), the change of circumstances concerning employment land, about which
we have already made extensive submissions, could not have the effect of
rendering employment policies out of date.
170. This approach, which was always unsustainable on the language of the NPPF, is
rendered entirely impossible by the decision of the Supreme Court in the Suffolk
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Coastal/Hopkins Homes case [2017] UKSC 37 in which Lord Carnworth at
paragraph 55 stated:
“It has to be borne in mind also that paragraph 14 is not concerned solely with housing policy. It needs to work for other forms of development covered by the development plan, for example employment or transport. Thus, for example, there may be a relevant policy for the supply of employment land, but it may become out of date, perhaps because of the arrival of a major new source of employment in the area. Whether that is so, and with what consequence, is a matter of planning judgement, unrelated of course to paragraph 49 which deals only with housing supply. This may in turn have an effect on other related policies, for example the transport. The pressure for new land may mean in turn that other competing policies will need to be given less weight in accordance with the tilted balance. But again that is a matter of pure planning judgement, not dependent on issues of legal interpretation.” (emphasis added)
171. The matters set out above, including the pressure for new land to satisfy wider than
regional needs for employment sites, plainly means that the relevant policies of the
Core Strategy are out of date and that paragraph 14, with its “tilted balance” in
favour of development, is engaged. We now turn to consider the application of that
tilted balance.
THE ELEMENTS OF PARA 14 – FIRST LIMB
Benefits
172. Mr Rolinson sets out a detailed summary of the benefits of these proposals in
paragraphs 11.67 and following of his proof. That summary is commended to the
Secretary of State. The benefits from the development of a facility for which there
is a pressing urgent need have already been set out. A considerable number –
between 50 and 500 – of highly skilled jobs will be directly created. An area of
despoiled industrial land will be returned to beneficial use, and environmental
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benefits will be achieved, most notably in ecology and for the wider highway
network..
173. These benefits may be shortly stated but they are directly in line with the overall
intentions of government policy, just as we set out at the very commencement of
these closing submissions. They should command very considerable weight in the
determination of this appeal.
Harm
174. We have already made our submissions as to how these benefits can accrue without
any significant environmental harm or breach of planning policy. However, it is
fairly to be acknowledged that because the site lies in the Green Belt, and will
represent inappropriate development, there is a degree of harm to the green belt
which must be weighed in the balance. It is accepted of course that there is harm by
definition to the green belt and that any other, actual planning, harm must also be
weighed in the balance.
Green Belt Impact
175. In assessing the true weight to be attached to this harm, there are two aspects which
must be assessed. The first is the extent to which the purposes of including land in
the green belt would be harmed by this particular development. The second is the
harm to openness actually caused by the development.
176. Dealing with the first, the harm to the purposes of including land in the Green Belt,
it is of fundamental importance to appreciate the existing nature of this site. This
site is a large area of despoiled hardstanding in the green belt. It cannot in any
sensible way be regarded as open countryside which performs a particular function
in maintaining the purposes of the green belt.
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177. Accordingly, the development proposed would have no greater impact upon the
purposes of including land in the green belt than does the existing land.
Accordingly, bringing the site into active use and developing the necessary
buildings upon it would have no effect on the ability to check the unrestricted
sprawl of large built-up areas the location of the appeal site well away from any
settlement, let alone a large built-up area, means that the addition of buildings to
the pre-existing area of hardstanding would make absolutely no difference to the
first green belt purpose.
178. Much the same is true with respect to the purpose of preventing neighbouring
towns merging into one another. The appeal site is almost equidistant between
Nuneaton/Bedworth and Coleshill and sits in a gap in the green belt which is some
14.5 km wide. The development of buildings upon this piece of existing
hardstanding will again make absolutely no difference to the second green belt
purpose.
179. Similarly, the mere fact of including buildings on a pre-existing piece of
hardstanding could only conceivably result in the most minimal impact upon the
purpose of safeguarding the countryside from encroachment. It is not accepted that
there has been any acceptance by the appellant that there is any encroachment on
the countryside, entirely contrary the assertion made by the Council’s Closing
Submissions at paragraph 5. The Inspector is invited to consult her notes of the
exchange in Mr Rolinson’s cross-examination by Mr Young, where directly denied
that there was any encroachment on the countryside.
180. The appellant’s evidence demonstrates conclusively there is no effect on the setting
and special character of any historic town and thus the fourth green belt purpose
would not be affected.
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181. Finally, given the particular characteristics of the site, with its active rail
connection and the very limited supply of such sites which is available (see the
detailed evidence of Mr Clarke) there can be no basis for concluding that
permitting the development of buildings on the pre-existing hardstanding area
represented by the appeal site would have any adverse effect on attempts to assist
with urban regeneration. Accordingly, there would be no harm to the fifth green
belt purpose.
182. Accordingly, it is clear that there is no harm to the purposes of including land in
the green belt to allow the redevelopment of this pre-existing area of the caning
and despoiled hardstanding in a relatively remote part of the green belt.
183. We then turn to consider the impact on openness. The Council’s case is entirely
focused – and expressed in their closing submissions in dramatic terms – upon the
fact that some large industrial buildings would be permitted within the parameters
of this outline permission. However, that is only a part of the consideration which
must be given to the issue of openness.
184. The correct approach to considering openness was that set out in the Turner case.
The Council in their approach to this case, both in cross-examination of the
appellant’s witnesses and in their closing submission, appears again to wilfully
misunderstand the appellant’s position. It would be nonsensical to claim that
numerical appreciation of the size of the buildings to be erected is irrelevant to a
consideration of their impact on openness. The appellant advances no such case.
All the appellant relies upon from the Turner case is that volumetric calculations
are not the be all and end all. Instead, as Turner makes plain, the concept of
“openness” is a holistic, multi-layered concept which encompasses aspects of
visual and landscape context as well as simple calculations of volume.
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185. When this proper approach is adopted the issue of openness it can be seen that the
matter is rather more complex than the Draconian approach adopted by the
Council. The starting point is, again, that the land is an area of very extensive
decaying hardstanding. It is an area which within very recent memory has had
much larger quantities of buildings upon it than exist now. Until 2013 it was a
thriving operational mining unit in the heart of the green belt.
186. As well as this pre-existing context, the topography is such that even the large-
scale buildings to be erected as part of this development will have a limited
landscape and visual impact. The site’s location at the bottom of a valley, very
well-screened, ensure this. We have already made our submissions as to the
comprehensive and conclusive nature of Mr Grimshaw’s evidence on this matter
and it is to be noted that the challenge to his evidence, such as it was, consisted
almost entirely of reference to the volumetric increases. We have already dealt
with the inappropriateness of a sole focus upon that metric.
187. Finally, if it should be suggestion that the mere fact that considerable volumetric
increases in the built form in the green belt produce a fatal impact in openness,
then this proposition is entirely negated by the Council’s own actions in granting
planning permission at the Hams Hall site. Mr Rolinson in cross-examination
accepted that on a purely volumetric basis the increases produced by the appeal
proposals were “enormous” ; in re-examination, however, he was forced to use an
even more superlative adjective when describing the “humongous” increase which
is brought about by the Hams Hall development. It is plain from the Hams Hall
decision that merely relying upon volumetric increases is a wholly flawed approach
to considering the impact on greenbelt openness. When the correct multi-layered
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approach, required by Turner, is adopted, it can be seen that Mr Rolinson was
entirely correct to characterise the impact on openness as “limited”.
Balance
188. in order for permission to be refused under the first limb of paragraph 14, the harm
caused by the development must “significantly and demonstrably” outweigh the
benefits. This is the tilted balance.
189. In this case the only harm which can be identified on proper analysis is the breach
of locational planning policies which are seriously compromised by being,as
appears to be accepted by both the Council and the Secretary of State, at the very
least out of date and unable to accommodate all the demands for employment land
which now exist and the limited harm to the green belt in respect of which we have
just made submissions.
190. By contrast the benefits of the scheme are extensive. A large area of derelict land
will be brought back into a beneficial use to serve a pressing need in support of
national objectives for sustainable development. A number of environmental
benefits will also result.
191. In all the circumstances, it cannot possibly be argued that this very limited harm is
capable of “significantly and demonstrably” outweigh the very considerable
benefits which this proposal will flow. Under the first limb of paragraph 14,
permission ought to be granted.
PARA 14 – SECOND LIMB
192. it is accepted, of course, that because the site is within the green belt, the second
limb of paragraph 14 applies. In the event that green belt policy indicated that
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development should be restricted, then permission ought not to be granted under
this head.
193. However, even inappropriate development in the green belt is not restricted if Very
Special Circumstances can be established. In this case, such a VSC do exist. The
appeal proposals will bring back into beneficial use a large area of derelict land in
the green belt. Moreover, the beneficial use will be for a rail related development
for which the appeal site is particularly well cited and for which there is a pressing
national need. The appeal appeal proposals will bring a considerable number of
highly skilled jobs and will also bring about environmental benefits.
194. These are very considerable benefits. The site supports a central objective of
national planning policy namely to improve and expand the rail infrastructure so as
to support use of the railways which is a most sustainable form of transport for
both people and goods. These matters manifestly represent Very Special
Circumstances capable of clearly outweighing the relatively limited harm to the
green belt in this particular case.
195. In its closing submissions, the Council relies upon the decision of the Secretary of
State with respect to VSC in the Colnbrook Strategic Railfreight interchange case
[2017] EWHC 947 (Admin). It will be recalled that this is not a case upon which
the Inspector was able to hear proper evidence. Nevertheless it is entirely plain that
the balance between need and harm to the green belt is simply not the same as in
the instant case. In the Colnbrook case, not only was there harm to the green belt,
but that particular part of the green belt was regarded as being particularly sensitive
it fell in a strategic gap, a strategic gap which was itself protected by specific
planning policy. The contrast with the Daw Mill site could not be greater. As we
have already submitted in detail with respect to the green belt purposes, the Daw
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Mill site, which is already a pre-existing area of hardstanding, performs no special
function with respect to maintaining gaps between settlements or preventing urban
sprawl. The balance with respect to VSC is entirely different. In all the
circumstances, no reliance can be placed on this lately submitted case.
196. However, the final word on this issue should be reserved to the Council itself or,
more particularly, to Mr Brown in his report to committee dealing with this
application. At page 4/19, Mr Brown wrote, of these very proposals:
“The applicant however does have a particular argument here that draws back from
this general conclusion [that there are not sufficient benefits for VSC] and that is
that the employment land opportunity here is a rare one – a rail served site. In
other words there is a “special” suitability of the application site for employment
provision. It is acknowledged that this provides a real opportunity and is one that
should carry substantial weight. Indeed this is followed through in the context of
the application. However as described earlier, the application as a whole has not
been framed in that way; there is no compelling evidence submitted that this is the
only such site available, that the need is essential or urgent that the scale of the
development is fully justified or that the controls would be in place to ensure rail
served use.… In the circumstances the weight that can be afforded to this argument
is weakened.” (Emphasis added)
197. Now, however, matters are somewhat different. The application, complete with its
conditions is explicitly directed at a rail served development. Any other form of B2
use is no longer permitted. Compelling evidence has now been submitted
suggesting that this is one of a very few available sites and is the most appropriate
available site anywhere in the vicinity. There is now compelling evidence that the
need is essential and urgency and that the scale of the development is appropriate
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for that need. Finally, very substantial controls, through the suggested conditions,
now exist to ensure a rail served use.
198. Accordingly, Mr Brown’s reasons for suggesting that the weight to be afforded to
this argument is weakened no longer exist. One is drawn back to his conclusion
that this is “a real opportunity” and “one that should carry substantial weight”. He
is right.
199. Very Special Circumstances do exist here. Green belt policy is not offended and
the second limb to paragraph 14 provides no basis for refusing planning
permission.
CONCLUSIONS
200. In conclusion, therefore, this inquiry has demonstrated that:
a. The land is appropriately to be characterised as “previously developed
land” for the purposes of planning policy. This is because in accordance
with the definition of PDL in the NPPF, no provision has been made for
restoration through the development control process. Whilst it is true that
there was the outline of a purported restoration scheme, that scheme was
only drawn up within the context of approvals believed to have been given
by virtue of the General Permitted Development Order in force at the
time. In fact, on proper analysis, that Order never applied to the Daw Mill
colliery because the Order only applied to collieries which were in
existence before 1948. The appellant’s evidence will conclusively show
that Daw Mill was not in existence at that time. The records will she
clearly show that Daw mill as a colliery came into existence pursuant to
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the grant of planning permissions in 1955, 1958 and 1961. Furthermore, a
more recent investigation of documents appears to indicate that the
County Council themselves have on various occasions questioned the
applicability of the GPDO to the Daw Mill colliery.
b. Furthermore, it is the appellant’s case that there is no realistic prospect
Daw Mill actually being restored, either in the form envisaged by the
outline scheme, or at all. The economic and planning constraints on a
restoration suggest that the Inspector should begin her consideration of the
effects of the scheme from a baseline of the site as it is now, rather than
from some hypothetical restored situation2. Indeed, an assessment of the
effects of the scheme against a baseline of a hypothetical restored site
would in truth be wholly artificial exercise.
c. The appellant’s primary case is that the scheme is in accordance with the
development plan, when read as a whole, and therefore that permission
should be granted without delay. It is an inevitable feature of all
development plans that they contain policies which pull in different
directions and when this proposal, for the beneficial reuse of a large area
of disused land in the green belt without any unacceptable environmental
consequences, is assessed against the development plan as a whole, it
complies with it.
2 Although, for completeness the appellant’s witnesses, where appropriate, undertake an analysis of the effects on such a basis
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d. In the event that the Inspector concludes that there is a breach of the
development plan, the appellant will contend that the development plan is
both silent and out of date with respect to these proposals and that
paragraph 14 of the NPPF is therefore engaged. Dealing with the first
limb of that paragraph, taking full account of the impact on the green belt,
it is nevertheless plain that the adverse impacts of the scheme come
nowhere close to “significantly and demonstrably” outweigh the benefits.
Furthermore, dealing with the second limb of paragraph 14, the particular
benefits of the scheme in bringing about the beneficial reuse of disused
land in order to provide support facilities to the railway industry so as to
support the vitally necessary expansion, in the interests of sustainable
development, of the railway network indicate that there are indeed “very
special circumstances” so as to justify a grant of permission in the green
belt. Accordingly, there is nothing in the NPPF to suggest that
development should be restricted.
e. Accordingly, both section 38(6) and paragraph 14 of the NPPF suggest
that planning permission should be granted.
201. In all the circumstances, these proposals are commended to the inquiry and the
Secretary of State. Planning permission should be granted.
ANDREW FRASER-URQUHART QC Francis Taylor Building Inner Temple London EC4Y 7BY 2nd June 2017
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