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 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 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.

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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

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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

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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

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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.

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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 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

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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

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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