Appeal Decision 4/11 Eagle Wing Temple Quay House Inquiry Opened on 19 May 2009 2 the Square Temple Quay Site Visit Made on 17 September 2009 Bristol BS1 6PN

Home , Alvescot, Barnard Gate, Stanton Harcourt

The Planning Inspectorate Appeal Decision 4/11 Eagle Wing Temple Quay House Inquiry opened on 19 May 2009 2 The Square Temple Quay Site visit made on 17 September 2009 Bristol BS1 6PN

0117 372 6372 by David Rusdale BA DipTP MRTPI email:[email protected] ov.uk an Inspector appointed by the Secretary of State Decision date: for Communities and Local Government 21 October 2009

Appeal Ref: APP/D3125/C/08/2092833 Land to the north of the B4449 Hardwick to Stanton Harcourt Road at former Vicarage Pit, Tar Road, near Stanton Harcourt • The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991. • The appeal is made by Michael Delaney against an enforcement notice issued by West Oxfordshire District Council. • The Council's reference is 09/0011/P/ENF. • The notice was issued on 19 November 2008. • The breach of planning control as alleged in the notice is without planning permission, change of use of land from agriculture to use for stationing residential caravans, other vehicles, static mobile homes and portable toilets together with ancillary excavation, engineering, and other building works for the alteration and construction of accesses, drives, roads and hardstandings, and the provision of pole mounted external lighting throughout the site. • The requirements of the notice are: i) Cease using the land for the stationing of residential caravans and static mobile homes; ii) Cease the use of the land for residential purposes; iii) Remove all caravans and other vehicles, portable toilets, plant, equipment, walls, fences and external lighting from the land; iv) Break up all hardsurfacing on the land; v) Remove from the land all of the materials, rubble and wood arising from compliance with the above requirements; vi) Restore the land to its condition before the breaches took place by levelling the land, laying topsoil and reseeding it with grass or turfing. • The period for compliance with the requirements is ten weeks. • The appeal was made on the grounds set out in section 174(2)(a),(c) and (g) of the Town and Country Planning Act 1990 as amended. • The inquiry sat for 6 days, on 19-21 May and 7, 11 and 14 September 2009.

Decision

1. I direct that the enforcement notice:

a. be corrected by substituting the plan attached to this decision for that attached to the notice and in paragraph 2 substituting ‘[shown edged with a thick black line on the attached plan]’ for ‘[shown edged red on the attached plan]’; and,

b. be varied in paragraph 5 by inserting ‘(other than the perimeter fence)’ after ‘fence’ .

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2. Subject to these corrections and variations I dismiss the appeal, uphold the enforcement notice, and refuse to grant planning permission on the application deemed to have been made under section 177(5) of the 1990 Act as amended.

Preliminary Matters

3. I was assisted in this appeal by Inspector S Roscoe BEng MSc CENG MICE, who assessed matters relating to land contamination.

4. At the Inquiry:

a. The appeal on ground (c) was withdrawn and an appeal on ground (f) was added;

b. With the agreement of the parties, the enforcement notice plan was corrected.

The Appeal on Ground (a)

Background

5. The appeal site, as corrected, is a rectangular parcel of land, some 65 metres wide and about 95 metres deep, bounded by a post and rail fence. It lies in the countryside outside the village of Stanton Harcourt. It is adjoined to the west by the Old Vicarage, a listed building, and Keppel Cottage. Solid wooden fences divide the appeal site into eight similarly sized plots; four each on either side of a central track which leads from the site access to Tar Road, the plots being numbered in an anti clockwise direction from the north west part of the site. The intention is to provide a mobile and a touring caravan on each of the plots: the day rooms shown on the related planning application do not form part of the deemed planning application before me.

6. At the time of my site inspection there was: a mobile home, a touring caravan and a portaloo on Plot 1; two touring caravans and a portaloo on Plots 2, 4, 5 and 6; two touring caravans, a portaloo and a wooden shed on a pallet on Plot 3; and 3 touring caravans and a portaloo on Plots 6 and 8. On the appellant’s evidence, five of the plots are occupied by members of the Delaney family and the remaining plots are occupied by relatives of the Delaneys.

Main Issues

7. At the Inquiry no one disputed the gypsy status of the occupants of the appeal site. On the evidence available to me, I find that all of the occupants are gypsies as defined by Circular 1/2006.

8. The main issues in this appeal are:

(i) whether the appeal development provides satisfactory living conditions for its occupiers in respect of matters relating to contaminated land;

(ii) the effect of the unauthorised development on the character and appearance of the area, including the setting of the Old Vicarage, a listed building;

(iii) the impact on the safe and free flow of traffic and pedestrians on nearby roads;

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(iv) the impact on adjoining residents in terms of noise;

(v) the general need for gypsy sites;

(vi) the specific accommodation needs of the occupants of the appeal site and the availability of alternative sites; and

(vii) the personal circumstances of the occupants of the appeal site.

Land Contamination

9. Part of the appeal site comprises a former landfill facility, and the ground within some areas of the site is emitting significant levels of methane, irrespective of whether the site is classified as made ground or landfill. The main parties however acknowledge that the area subject to the contamination is somewhat imprecise. In some parts of the site, methane emissions are within and also well above the explosive range for the gas.

10. These methane levels place the site in the red National House Building Council traffic light category in terms of methane gas screening values 1. I recognise that the traffic light category system is specific to low rise housing with contained under floor voids. It does however give a reasoned indication of the level of risk in terms of potential gas penetration of enclosed areas above ground level and is therefore relevant to this case.

11. Having identified the potential for gas emissions, I now turn to consider pathways and receptors. The appellant has suggested that caravans and mobile homes on the site could be located on concrete slabs, which would include a gas proof membrane. He has also suggested that slabs could be provided for visiting caravans, and this provision could be regulated by means of an appropriate condition. The main parties agree that such a barrier could provide a satisfactory level of protection from methane emissions for the occupiers of any caravans and mobile homes situated on the concrete slabs. I can see no reason to disagree with this view.

12. The main roadway on the site would be surfaced with tar macadam. Some alterations to this roadway are proposed, and the appellant has provided me with a detail showing gas venting arrangements for the ground below the tar macadam. The appellant has suggested that venting pipes would need to be positioned at 10m centres. I am satisfied that this arrangement would be satisfactory, subject to the agreement of details which could again be controlled by means of a condition.

13. The site is partly surfaced with hardcore. It is proposed that this hardcore is extended to cover the entire site outside those areas having either concrete slabs or tar macadam surfacing. The slabs and tar macadam would not provide any protection to the remainder of the site which is to be capped with hardcore, and some of these hardcore areas would be subject to any gas emissions from the ground. It has been suggested that clayey material, which from trial pit information appears to lie just below the ground surface, would have some capping and barrier qualities. From the information provided

1 Construction Industry Research and Information Association Report C665: The Assessment of Risks Posed by Hazardous Ground Gases to Buildings (Revised): 2007

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however, I do not agree that this would be the case and, in any event, some of the material could be replaced with the existing and proposed hardcore.

14. Accommodation space in caravans and mobile homes is often limited. In my view, this increases the likelihood of the use of outdoor areas and the erection of temporary structures, such as sheds for residents’ storage purposes or enclosures built by children playing. The provision of permanent or temporary residential accommodation, together with associated structures, is a sensitive use. It is thus necessary to adopt a precautionary approach in the assessment of contamination pathways on this site.

15. The appeal site is also likely to attract visitors, and indeed evidence to this effect was given at the Inquiry. Moreover, the plots on the site are large and this again would render the site attractive to visitors and also for the erection of temporary structures. Visitors to the site would be likely to be accommodated in touring caravans. These are generally smaller than more permanent caravans or mobile homes, and there would thus be a greater probability of the use of temporary structures. These may not be positioned on any concrete slabs provided for visiting caravans. Some portable toilets are already located on the site. These are generally situated apart from the caravans and the mobile home on the site and, in the case of the plot currently containing the mobile home, the toilet is off the slab.

16. Temporary structures could easily provide enclosed spaces into which gases could collect using a direct pathway from the ground itself. Furthermore, visitors would be less likely to be aware of the risks posed by gas emissions on the site. I am also not convinced that any management company or warning arrangements could be sufficiently robust to reduce the risks to an acceptable level, particularly with the regular movement of caravans on and off the site. In view of all of the above points, I consider that there would be a reasonable likelihood that pathways would exist between ground methane emissions and sensitive receptors not having the benefit of protection from concrete slabs.

17. I will now consider risks to these sensitive receptors. The concentrations of methane being emitted from parts of the site would require some dilution to achieve concentrations within the explosive range of the gas. A high degree of sealing of any enclosed spaces would therefore not be necessary for dangerous conditions to arise, and air changes in voids below any structures could be restricted by materials stored against their sides. Indeed, the appellant’s expert witness on contamination made an analogy with an upturned bucket, and I was also given an example of a cigarette lit within the confines of a shed.

18. All the expert witnesses have suggested that an accumulation of methane within an enclosed space could be rapid, such as during an overnight period, with catastrophic consequences. Explosive conditions could result from one off short term circumstances. This risk could create an unsafe environment with unacceptable levels of pollution.

19. The data in the appellant’s initial intrusive site investigation and risk assessment report shows there to have been a pressure difference between atmosphere and the borehole head at a number of locations. The text in the report however records there to be no difference. The appellant explained that the text was in error, and I cannot see any reason to disagree. The appellant

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also had concerns that the initial risk assessment may have incorrectly labelled boreholes. Both of these factors cast doubt on the quality of the data and whether it should be included in the assessment as to whether monitoring has been carried out over an adequate period.

20. This difference in pressure would result in gas flow from the ground to the atmosphere, but the flow rate does not appear to have been measured or recorded. The main parties agree that the flows at the time of the monitoring would have been likely to have been very small. They acknowledge however that the monitoring was carried out at a time of high atmospheric pressure. Under falling atmospheric pressure, flow rates could increase. The monitoring therefore, as well as not having measured flow rates, has not necessarily covered the worst case in terms of pressure. Furthermore, the appellant was also of the view that ideally this monitoring should have been carried out at a lower atmospheric pressure. It has been said to me that 12 to 24 months of monitoring may be required to achieve this. I can see no reason to disagree with this suggested period, bearing in mind the need for a precautionary approach on flow rates and pathways in connection with the sensitive receptors on the site.

21. The measurement of flow rates is important to assess whether rapid gas release could occur under certain atmospheric conditions. This is particularly relevant to temporarily enclosed spaces. Under falling atmospheric pressure, the release of gas could increase significantly. At Loscoe, to which I have been referred, a low pressure front caused a significant release of methane from a landfill site with catastrophic consequences.

22. In view of all of the above points, I am of the opinion that the initial monitoring has not been sufficient on which to base a satisfactory risk assessment in respect of methane emissions on the site.

23. Further monitoring was carried out during the course of the Inquiry. Only one of the three monitoring occasions was at a time of low atmospheric pressure. On the occasion however, incremental pressure readings were not taken during the monitoring, and indeed there is some doubt as to the pressure at the time due to the illegibility of a figure on the data log sheet. It has been put to me that a longer period of regular monitoring may miss a relevant falling pressure event. From what I have seen however, I am not convinced that a relevant event has been monitored on this one occasion. A longer monitoring period would give confidence that a relevant event had been monitored and would cover a winter period in which low pressure fronts would probably feature.

24. There is therefore one further monitoring occasion at low pressure, but some doubt as to the value of this pressure and the rate at which it was falling at the time. Whilst this level of risk assessment may be sufficient for a situation where barrier protection is put in place, it is not sufficient for the areas of the site outside of the proposed concrete slabs. The monitoring for these areas is still far short of the 12 to 24 months required, particularly when the above shortcomings and uncertainties on the initial and further monitoring are taken into account. Moreover, there would be no protection to mitigate against the limited number of readings outside of the proposed concrete slabs. Furthermore, all the expert witnesses have said that they would have ideally done more monitoring.

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25. I have also not seen a conceptual model for the site. Such a model would put the monitoring results into the context of the pathways and receptors on the site, and would improve the appreciation of the risks involved. All of the above factors add weight to my opinion on the unacceptability of the risk that I have already identified.

26. The intrusive site investigation carried out on the site has not found any putrescible material. It has been suggested that any such material previously landfilled has already decomposed. There is also an active landfill site on the opposite side of the B4449 to the appeal site, and this has been put forward as a source. Furthermore, the appellant’s initial site investigation and risk assessment report suggests that gas could be migrating from the main body of the former landfill, which is thought to lie to the south west of the appeal site. There thus appears to be a number of potential sources of methane in the area around the appeal site, although the main parties are agreed that the source of the gas being emitted from the site is unknown.

27. The groundwater vulnerability map for the area records that shallow soils in the locality readily transmit non absorbed pollutants. A nearby caravan site, Little Acorn, is situated outside the limit of the former landfill site. It adjoins the location of a borehole monitoring point which has recently provided a methane reading at a concentration within the explosive range for the gas. This supports the suggestion that lateral migration of gas is possible in this area. This methane concentration was also of concern to the appellant’s contaminated land witness, who would have expected the development of the Little Acorn site not to have proceeded until suitable measures had been approved. The fact that some boreholes at the appeal site do not exhibit gas levels does not prove that there is no lateral migration and does not outweigh the evidence of lateral migration at Little Acorn. In summary, the uncertainty in relation to methane sources and lateral migration again adds weight to my opinion on the unacceptability of the risk that I have already identified.

28. The appellant has also suggested that the entire site could be covered with a concrete slab and gas proof membrane, and I acknowledge that this could provide an adequate level of protection to occupiers of the site. The monitoring of borehole pressures and flow rates under falling barometric pressure is key in the design of venting arrangements for such a slab. It is also important in the assessment of lateral migration, which does not appear to have been carried out to date, and would be needed to evaluate the effect of the presence of the slab on adjoining properties. In this respect, I note that when the occupiers of Keppel Cottage moved into their property in 1999 ground water and landfill gases were still being tested from the monitoring boreholes on their land. And the Old Vicarage has a fully enclosed cellar close to the appeal site. Taking into account the monitoring and associated work necessary in advance of the construction of a slab covering the entire site, a start on site could be delayed by between 15 and 30 months.

29. I have already found that the appeal site currently presents an unacceptable risk to its occupiers. Over a 15 to 30 month period it would be similarly unacceptable, and no future security provided by the entire slab would outweigh this risk.

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30. Of the conditions suggested at the Inquiry, the requirement to position mobile homes on concrete bases would not overcome the harm that I have found in relation to the remainder of the site. Conditions which would require the development of a remediation scheme following further monitoring have also been suggested. From what I have seen and heard, there is a distinct possibility that these could result in a scheme that would include a concrete slab over the whole site. This would be substantially different from that comprised in the notice, and the modification would be such that those interested would be likely to wish to comment on it. In terms of the advice in Circular 11/95, such conditions would not therefore be reasonable in terms of modifications to the scheme in the notice.

31. Even if such a condition was reasonable, the advice in PPS23 2 is clear in that risk should be assessed, by the applicant, before an application is determined to address effectively any issues of potential contamination. I have found, in this case, that this has not been done. In circumstances where a risk assessment has been submitted, the local planning authority should satisfy itself that the development is appropriate, that risks are sufficiently well known and that there is a viable remediation option. Only if all of these tests can be met, is it appropriate to use conditions to resolve all the remediation details. In this case, the development may well be appropriate for a site such as this, but the risks are not sufficiently well known. In these circumstances, if planning permission were to be granted, the current occupiers would need to vacate the site and the residential use cease whilst the monitoring was completed and a satisfactory remediation scheme was provided. This would effectively nullify the benefits of such a planning permission for a considerable period and would be unreasonable in terms of the advice in Circular 11/95.

32. I am also not convinced that a slab over the entire site is a viable option, due to the risk of lateral migration and displaced methane. Moreover, retrospective conditions are only appropriate for unsuspected contamination risks. In view of all of the above points, the appellant’s suggested conditions would not satisfactorily overcome my concerns about the contamination of the appeal site.

33. I recognise that there are countless examples of risk management at landfill sites. Good practice however seeks to manage risk prior to the occupation of the site in question. It cannot be right therefore to leave occupiers deliberately exposed to a gassing site with the level of risk that I have identified. Moreover, situations where other planning permissions have been granted are no reason to compromise safety in this case. With a risk of this magnitude the current occupation of the site is no reason to adopt a different attitude to safety than would normally be the case.

34. I therefore conclude that the appeal development does not provide satisfactory living conditions for its occupiers in respect of matters relating to contaminated land. As a consequence, it conflicts with Policies BE2 and BE18 of the West Oxfordshire Local Plan.

2 Planning Policy Statement 23: Planning and Pollution Control

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Character and Appearance of Area

35. The appeal site lies in the open countryside outside the village of Stanton Harcourt. Circular 1/2006 advises that rural settings, where not subject to special planning constraints, are acceptable in principle for gypsy sites. The appeal site does not lie within any national/local landscape or nature conservation designation. There is a dispute between the parties as to whether the setting of a listed building is a ‘special planning constraint’ for this purpose. Leaving this aside for now, the in-principle acceptance of gypsy sites within rural settings does not indicate that all such sites will be suitable and the particular impact of the appeal development on the surrounding rural area has to be assessed.

36. The surrounding area contains a number of gravel workings, most of which have been restored to form lakes. The landfill site on the opposite side of the B4449 is in the process of being restored. Even now, the appearance of this site has been ameliorated by contouring and a partial grass cover, and it does not create a semi-industrial landscape as argued by the appellant. The other mineral workings nearby and the industrial estate on Hall Road lie on the opposite side of the B4449 and are not seen in conjunction with the appeal site. I agree with the Council that, in this vicinity, the character of the area to the north west of the B4449, including the appeal site, is significantly different to that on the opposite side of the road. The area to the north west of the classified road is pleasant, generally open and flat countryside, divided into varying sized fields by substantial hedgerows.

37. Given the variety in field sizes in the area, I do not accept the Council’s argument that the size of the appeal site would appear unduly out of place in this respect. However, whilst the appeal site only contains 8 plots, these are large, Plots 1 and 8 alone each measuring some 30 metres by 30 metres. According to the Council’s uncontested evidence, the plots are about twice the size of those on public run sites in the District. Gypsy sites may be acceptable in principle in rural settings but, given the strict control on development in such areas, I think it is reasonable to restrict the size of gypsy caravan sites in the countryside just as one would limit the size of any housing sites that may be permitted. I agree with the appellant that, in terms of the advice in paragraph 54 of Circular 1/2006, the ‘settled community’ in this case is Stanton Harcourt, not the adjoining two dwellings, and that the size of the site respects the scale of the village. However, because of its excessive size in relation to the numbers of pitches and mobile homes and caravans that are and would be provided, the appeal development constitutes an over-extensive incursion into the open countryside.

38. In terms of public viewpoints, the site is bounded on two sides by mature vegetation, although this lies on land outside the appellant’s control. The other two sides are open to view through the post and rail fence. The appeal development is most easily seen from significant stretches of the B4449 and the informal footpath to the south of the site, from where there are largely unrestricted views into the site. The site is particularly noticeable from the busy classified road. The planting proposed by the appellant on the open sides of the site would reduce the visual impact of the built development on the site. But this would take some time to mature and it would not mask the size of the appeal development in terms of its incursion into the open countryside. I find

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that the appeal development does and would adversely affect the character and appearance of the surrounding area, contrary to Policy H13(b) of the Local Plan.

39. Turning to the setting of the Old Vicarage, the Council did not include this as a reason for issuing the enforcement notice. Although the Council subsequently included it as a reason for refusing the related planning application, it did not pursue this as an issue at the Inquiry. It was, however, pursued by the residents of the listed building.

40. The historical maps submitted by the adjoining owners indicate that the field containing the appeal site formed part of the land based on this listed building until at least 1924. I have no information when ownership of the field was separated from the current curtilage of the Old Vicarage. As it could have been any time within the last 80 years, the historical context could be considerably out of date. Whatever, it is necessary to assess the present situation.

41. The Old Vicarage is a substantial detached house with outbuildings, lying within extensive grounds. It nestles amongst mature trees, with lawns to the south and west. Prior to the appeal development, the surrounding area was mainly agricultural, consistent with the verdant setting of the listed building. The large area of hard surfacing created by the appeal development comes within some 25 metres of the east elevation of the listed building and is completely out of keeping with this setting.

42. The mature vegetation between the Old Vicarage and the appeal site masks much of the intervisibility between the two. However, the photographs submitted at the Inquiry indicate that during the winter the two are seen together, and that views out from the listed building encompass the appeal development against a generally rural backdrop. The long entrance drive to the Old Vicarage, bounded as it is by mature trees, is also a significant aspect of the setting of the listed building. The discernible presence of the appeal development from the drive, particularly at its entrance from Tar Road, materially detracts from the rural setting of the property. I find that the appeal development harms the setting of the Old Vicarage, contrary to Policy BE8 of the Local Plan.

Impact on Traffic and Pedestrians

43. Tar Road is a narrow country lane that stretches for some 6.3 km from its junction with the B4449, about 175m to the southeast of the appeal site entrance, to the B4022, to the northwest, on the outskirts of Witney. For much of its length Tar Road is too narrow for two vehicles to pass, although there are informal passing places at irregular intervals. The lane is lightly trafficked, and in the vicinity of the appeal site has 85 th percentile vehicle speeds of about 38- 39 mph. Signs at the entrance to Tar Road from the B4449 indicate that: it is a single track road with no passing places; it is not suitable for HGVs; and it forms part of a cycle route.

44. There is a dispute between the parties as to the likely traffic generation of the appeal development. The Council has used TRICS data for housing developments to predict that there would be some 88 daily vehicle movements generated. The appellant has interviewed the occupants of the site to

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determine their actual movements, and has suggested that some 24 daily movements are likely.

45. The Council’s prediction does not take account of the family links between the occupiers of the 8 plots, which is liable to result in combined trips. Neither does it take account of the seasonal nature of gypsy occupation, when for a number of months many of the plots may be unoccupied. The evidence given at the Inquiry confirms these patterns. I consider that the Council’s prediction considerably overstates the likely traffic generation from the site. However, I am not convinced that traffic flows will be as low as the appellant estimates. The advice in Circular 1/2006 that projected vehicle movements for gypsy sites should be assessed on an individual basis for each site does not simply mean asking the occupants what their current movements are. A number of the children on the site will reach driving age in the next few years and are likely to generate additional trips, and visitors to the site, of which there appears to have been a number already this year, will add to these. The seasonal nature of the site’s occupation will lead to variation in vehicle movements throughout the year. But, on balance, I consider that the average daily movements generated by the site are likely to be closer to the appellant’s forecast than the Council’s, but that it will be significantly more than 24. Some of these movements will be of commercial vehicles. But the appellant’s suggested planning condition to limit the size of vehicles using the site would restrict the effect of these.

46. The appeal site is only a short distance from the junction of Tar Road with the B4449. This gives easy and quick access to classified roads leading in all directions. In contrast, Tar Road leading northwest from the appeal site is narrow and tortuous for a considerable distance. In these circumstances I would anticipate the vast majority of movements from the appeal site to be to and from the B4449. The stretch of Tar Road to the northwest of the site has a relatively poor accident record. However, I would not expect the small number of additional daily vehicle movements that are likely to take place in this direction as a result of the appeal development to materially increase highway danger or convenience.

47. For much of the distance between the appeal site and the B4449 Tar Road is straight with good visibility. It has two informal passing places in addition to the two vehicle width carriageway where it meets the classified road. There have been no recorded personal injury accidents on this part of Tar Road in the last 5 years. There maybe some additional vehicular conflict on this stretch of Tar Road as a result of the appeal development. But, given the short stretch of road involved, the low traffic flows on the road and the likely low flows from the appeal site, I consider this would be insignificant in terms of highway safety or convenience.

48. The Council accepts that the appeal site is in a sustainable location in terms of the advice in Circular 1/2006. Pedestrian access to the nearest shops and services in Stanton Harcourt is via Tar Road, a crossing of the B4449 and then via Hall Road to the village. There are no formal footpaths on this route until the outskirts of the settlement. There are grass verges alongside the highways on the route, which for the most part allow pedestrians walking to and from the village to avoid conflict with vehicular traffic. However, there is a significant stretch of Tar Road between the appeal site and the B4449 where the verge on

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either side is difficult for pedestrian use because of its steep and uneven surface. Additionally, travelling towards Stanton Harcourt, pedestrians have to cross the B4449 on the inside of a bend where I observed that traffic speeds on the unrestricted classified road are relatively high. In combination, I consider that these factors make the pedestrian route to Stanton Harcourt less than satisfactory and potentially lead to harmful conflict between vehicles and pedestrians. This would not justify withholding planning permission for the gypsy site, but it is an additional shortcoming of the appeal development.

Noise

49. This is an issue that has not been raised by the Council, but is based on objections from the occupiers of the Old Vicarage and Keppel Cottage.

50. Annex E of Circular 1/2006 advises gypsies that, to ensure that a site is suitable to be granted planning permission, they should consider, amongst other matters, respect for neighbouring uses. In this case, the appeal development and the adjoining uses are both residential, there being no commercial or industrial use on the appeal site. The Council’s environmental health department has taken noise readings in both the adjoining dwellings, but has not established that a statutory nuisance is being caused. It seems to me that much of the noise emanating from the site has been created in connection with the building and engineering works associated with its development and that this will cease if and when the development is completed. Nonetheless, the notes made by one of the adjoining residents indicate that they have been disturbed by noise arising from the residential use of the site. This arises from the open air nature of gypsy life and the proximity of the site to the adjoining dwellings. I do not consider that this is materially harmful to the adjacent residents, but it is an additional deficiency of the appeal development.

The General Need for Gypsy Sites

51. There is no dispute that there is a significant national and regional need for additional gypsy sites. The Regional Spatial Strategy (RSS) for the South East 2009 includes an Interim Statement on Provision for Gypsies and Travellers. This states that the regional planning body are currently undertaking a single issue review of Gypsy and traveller accommodation needs in the region. It is noted that as part of the review, local authorities in the region have now completed their Gypsy and Traveller Accommodation Assessments (GTAAs). Draft Policy H7 of the RSS required an additional 1064 gypsy pitches to be provided in the region between 2006 and 2016, of which an additional 14 are required in West Oxfordshire District. To date, 4 additional pitches have been provided in the District, leaving a requirement of just 10 in 7 years. However, as the single issue review is continuing, this requirement may change.

52. The GTAA for the Thames Valley Region, which includes West Oxfordshire, concluded that there was an indicative need for 12 additional permanent pitches in the District between 2006 and 2011. The appellant criticised this figure on the basis that the analysis took account of outward migration as a result of the normal turnover of pitches, but made no corresponding estimate of inward migration resulting from turnover from other districts. In this he is supported by the views of Patricia Niner, University of Birmingham, who is a

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leading authority on gypsy site provision. The appellant suggests that the 31 vacancies due to normal turnover referred to in the GTAA should be deleted, giving an indicative need for about 40 additional pitches between 2006 and 2011. However, Niner’s concern relates to the effect of including likely vacancies on social sites and the appellant’s planning witness stated that his argument on turnover does not make much difference in local authority areas where there are low numbers of caravans on social sites. In West Oxfordshire the number of caravans on social sites is low compared to the numbers on private sites and is not particularly high when compared to other districts. Consequently, if the appellant’s criticism is correct, it seems to me that any upward revision of the indicative need in the GTAA as a result would not be substantial and unlikely to be in the order of 40 as argued by the appellant.

53. Of the other indicators of need, there are no pitches available on the local authority site and there is a waiting list for families requiring pitches. The last five bi-annual counts of gypsy caravan sites shows relatively few unauthorised sites within the District, although it is agreed that these are just snapshots and do not take account of other factors, such as hidden need. There have been few planning applications for gypsy sites in the District in recent years and the Council states that, until recently, there have been very few gypsies observed at the roadside. However, the Council accepted that a current encampment in a lay-by near Minster Lovell, overcrowding on a permitted site at Eynsham and the unauthorised occupation of the appeal site did indicate a recent increase in need.

54. The earliest date for adoption of the Council’s General Housing Sites Allocation Development Plan Document will be December 2011. And a further 12-18 months will be required after this for allocated sites to be come available for occupation. Whilst the numbers of additional sites required by the GTAA and in the draft RSS are low and 4 of these pitches have already been provided, it appears to me that there is a clear and immediate need for additional pitches within the District. On the evidence available to me, however, this need is not as high as claimed on behalf of the appellant. Nonetheless, the present shortage of sites to meet the unmet need should be given significant weight in this appeal.

Accommodation Needs of Occupants and Alternative Sites

55. The Council does not dispute that the occupants of the appeal site have a personal need to live on a gypsy caravan site. Although neither the appellant nor the other occupiers of the site have engaged with the planning system to try to find a suitable site, the Council is unaware of any lawful site to which they could move. There is no current availability on Council run sites within the District. I consider it highly likely that if the appellant and the other occupiers were evicted from the appeal site that they would not have another site to go to. They would have to resort to staying at the roadside or on unauthorised land, with the ever present threat of prosecution. This would not only be harmful to the health and well being of the occupants, but would also be injurious to the community at large. The personal need for the occupants to live on a gypsy caravan site and the current absence of alternative sites are significant factors in support of the appellant’s appeal on this ground.

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Personal Circumstances

56. There are 25 children on the appeal site, at least 15 of whom are of school age. There was some dispute as to the regularity of local school attendance by these children. And there is no evidence that the needs of the children on the appeal site are exceptional or need any more assistance than is normally given to gypsy children at most schools. Nonetheless, a settled base is always beneficial for a child’s education and this is a significant factor in support of the appeal development.

57. With regard to the health of the occupants: John, Michael, Mary and Danny Delaney suffer from high blood pressure; John also has diabetes and heart problems; Elizabeth Delaney (1) was born with a dislocated hip; Harry Connors only has one kidney; Eileen Connors suffers from severe eczema and asthma; Jonny Doran has had chest and stomach complaints; Margaret and Brydie Delaney are celiac; and Martin Rooney has problems with his back and eyesight. In a total population of some 40, I consider that the range and severity of the ailments is not particularly special. Nonetheless, a settled base would be beneficial to the occupants of the appeal site in terms of accessing health care, and this is another significant factor in favour of the development. The significant benefit to the family to be settled on one site to provide mutual support adds to the weight to be attached to these factors.

Conclusions on Ground (a)

58. I have found that the unmet need for gypsy sites in the district, the personal need for the appeal site’s occupants to live on a gypsy site, the absence of alternative sites for them to move to and the personal circumstances of the occupants are significant factors in support of this appeal. However, I consider that the unsatisfactory living conditions for occupants of the appeal site resulting from the contamination of the land, on their own, outbalance these factors, even if the need for additional gypsy sites in the District is as high as the appellant claims. I acknowledge that the appeal site represents previously developed land, the redevelopment of which is encouraged by national policy. It is however contaminated, and its reuse requires a balanced approach between the risk of pollution, the benefit of recycling the land and the damage to the confidence of the community that the presence of the contamination can have. In this case, the risk of pollution has been proven and the benefit of recycling is measurable. There is however no evidence that the natural venting of the undeveloped site was causing any loss in confidence in the locality. Thus, the benefits of the development do not outweigh the risks to occupiers that I have identified.

59. Once the harmful impact of the appeal development on the character and appearance of the area and on the setting of the Old Vicarage and the shortcomings of the development in terms of pedestrian safety and noise are also taken into account, the benefits of the development are outweighed to an even greater extent. And the development conflicts with Policy H13 of the Local Plan.

60. In light of the above, I consider that there is no justification to grant permanent planning permission for the appeal development. And given the

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risks associated with the contaminated land, a temporary planning permission is also not appropriate.

61. With regard to Article 8 of the European Convention on Human Rights, dismissal of the ground (a) appeal will, in all likelihood, require the occupants to vacate the site, which has to be regarded as their home, without any certainty of suitable alternative accommodation being readily available. I recognise that this would represent an interference with their home and family life. However, the harm which would continue to be caused by the development, in terms of its effect upon the economic well-being of the country is considerable. The appeal on ground (a) fails.

The Appeal on Ground (f)

62. The Council agreed that the requirement to remove the perimeter fence from the appeal site was excessive and suggested that the wording of requirement iii) should be varied to allow its retention. As this meets the appellant’s concerns under ground (f) and no one else would be prejudiced, I shall effect this variation. To this extent the appeal on ground (f) succeeds.

The Appeal on Ground (g)

63. Given my findings in the ground (a) appeal that the appeal site is unsuitable for habitation at the present time because of the methane emissions and the danger to the safety of the occupants of the appeal site that arises, I can see no justification for extending the compliance period of the enforcement notice. The appeal on ground (g) fails.

64. I have taken into account all other matters raised in the representations, but have found nothing to outweigh the matters that have led to my decision.

David Rusdale INSPECTOR

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APPEARANCES

FOR THE APPELLANT:

Mr M Rudd Of Counsel, instructed by Green Planning Solutions LLP He called Mr G S Cutting FICE Principal of Prior Associates Consulting Engineers Mr J P Hurlstone BSc(Hons) Managing Director of the Hurlstone CMILT MIHT Partnership Mr M Delaney Occupant of appeal site Mr J Delaney Senior Occupant of appeal site Mr D Delaney Appellant and occupant of appeal site Mrs S Wolstenholme Travel Education Outreach Officer, Oxfordshire County Council Mr M Green Partner in Green Planning Solutions LLP

FOR THE LOCAL PLANNING AUTHORITY:

Mr G Grant Of Counsel, instructed by District Council He called Professor P C Nathanail Professor of Engineering Geology, MA(Cantab) MSc DIC PhD University of Nottingham CGeol EuroGeol SILC Mr J E H Chan BEng(Hons) Senior Transport Planner of Mouchel, on MSc MICIT secondment to Environment and Economy Department of Oxfordshire County Council Mr C Wood BA DipTP Senior Planning Appeals Officer with District Council

INTERESTED PERSONS:

Mr P Crowcroft BA MA MICE CEng SiLC Partner of Environmental Resources Management Ltd, instructed by Stanton Harcourt Parish Council Dr V Heath MA(Cantab) BMBCh Local resident, doctor of medicine Mr N Elliot Local Resident Mr C Mathew Chairman of Stanton Harcourt Parish Council and Oxfordshire County Councillor Mr S Sensecall BA(Hons) DipTP MRTPI Partner in Kemp and Kemp, Property Consultants He called Mr I Renton Of The Old Vicarage Mrs E Hare Of Keppel Cottage

DOCUMENTS submitted following opening of the Inquiry 1 Attendance lists of persons present at the Inquiry 2 Statement of Common Ground on planning matters 3 Statement of Common Ground on highway matters

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4 Additional letters from local residents 5 Letter and attached documents from Dr L Elphinstone 6 Letter and attached documents from Dr V Heath 7 Letter from Mrs J Bury submitted by the appellant 8 Fax from Environment Agency to the appellant dated 16 July 2008 9 Letter from Environment Agency to Green Planning Solutions dated 9 February 2009 10 Additional evidence from Prior Associates and accompanying appendices 11 Extract from NHBC ‘Guidance on Evaluation of Development Proposals on Sites where Methane and Carbon Dioxide are Present’ 12 Additional evidence from Professor Nathanail and accompanying appendices 13 Extract from CIRIA C665 ‘Assessing Risks Posed by Hazardous Ground Gases to Buildings’ 14 Proof of evidence from Mr P Crowcroft 15 Extract from ‘The Quiet Lanes and Home Zones (England) Regulations 2006’ submitted by Mr Hurlstone 16 Extracts from ‘Manual for Streets’ submitted by Mr Hurlstone 17 Signed and dated Witness Statements from John Delaney, Michael Delaney, Eileen Connors and Eileen Rooney 18 E-mails between Mr Green and Patricia Niner, University of Birmingham 19 Planning permission 08/1646/P/FP for The Ark, Main Road, Alvescot 20 Planning permission 09/0568/P/FP for The Paddocks, Weald Street, Weald 21 Planning Explorer entries for gypsy sites at Home Farm, Barnard Gate, Witney and land adjacent Bettys Meadow, Oxford Road, Eynsham 22 Minutes of Lowlands Area Planning Sub-Committee of 17 August 2009 23 Statement by Mr Sensecall and accompanying appendices 24 ‘Notes on Site History’ submitted by Mrs Hare 25 Count of Gypsy and Traveller Caravans 19 th January 2009 26 Extract from The South East Plan 27 School attendance details submitted by Mr Green 28 Extracts from the Witney Gazette of 9 September 2009 29 Committee reports and committee minutes relating to proposed housing developments in Stanton Harcourt 30 Planning permission 09/0866/P/FP for Home Farm, Barnard Gate, Witney 31 E-mail exchange between Mr Wood and Janet Clark of Tribal Group UK 32 E-mails from traveller site officer, Oxfordshire and Buckinghamshire Gypsy and Traveller Services, and Head of Community Services of the District Council 33 Statements from Mr Renton and Mrs Hare 34 Listing details of The Old Vicarage, Stanton Harcourt 35 Appeal decision relating to site at Cricklade, Swindon submitted

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by Mr Sensecall 36 Conditions suggested by Mr Green 37 Extract from the Encyclopaedia of Planning Law and Practice submitted by Mr Grant

PLANS A Corrected enforcement notice plan B Historical Maps of The Old Vicarage and Surroundings C Two maps submitted by Mr Sensecall showing nearby landfill and amenity sites

PHOTOGRAPHS 1 Additional photographs submitted by Mr Wood 2 Additional photographs submitted by Mr Sensecall

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