Case Officer: Tony Wallace File No: CHE/14/00269/FUL Tel. No: 345787 Plot No: 2/1292 Date: 28th October 2013 ITEM 3
FAMILY TRAVELLER SITE WITH 2 PITCHES AND ASSOCIATED FACILITIES AT GARAGE SITE, HADY LANE, CHESTERFIELD. S41 0DE for MR JAMES CASH
Local Plan: Open Countryside and Other Open Land Ward: St Leonards
1.0 CONSULTATIONS
Ward Members No representations received
Coal Authority No objection
Community Safety Officer No objection
Derbyshire Constabulary No comments received
Derbyshire County Council No objection Waste Management
Derbyshire County Council No objection Public Rights of Way Team
Derbyshire County Council No comments received Legal Services
Derbyshire County Council Planning Services No comments received
Derbyshire Wildlife Trust No objection
Drainage Services No objection
Environment Agency No objection
Environmental Services (CBC) No objection
38 Estates (CBC) No specific comments made on the proposal
Housing (CBC) No objection
Leisure Services No specific comments made on the proposal
Private Sector Housing (CBC) No comments received
DCC Highways No objection
Severn Trent Water No comments received
Spatial Planning Team (CBC) No objection
Tree Officer (CBC) No objection
Yorkshire Water No objection
Neighbours/Site Notice/Publicity In totality: 103 letters and emails objecting to the development and 1 letter of comment.
1.1 Publicity has been by ‘neighbour’ letters, site notices and in the local press. The publicity has been carried out under article 13 of the Town and Country Planning (Development Management Procedure) (England) Order 2010, the application being for a ‘minor’ development. The site address was given incorrectly and so the initial publicity was incorrect. Hence a second round of publicity by letters and site notices was carried out. The publicity included reference to the development affecting a public right of way on the basis of pre-empting designation of the proposed footpath near to the site as a public right of way. The statutory period of consultation and publicity has expired.
2.0 SITE LOCATION
2.1 The site is approximately 1.3km to the east of Chesterfield Town Centre within the ward of St Leonards, within a wider area of ‘open land’ which is to a greater degree surrounded by existing development, primarily residential in use. This existing residential development consists of ‘Hady’ to the east and north, and ‘Spital’ to the south and west. The site is approximately 50m to the west of Hady Lane an unclassified highway
39 and minor road from which the site has an existing vehicular access. Hady Lane joins the classified Hady Hill (A632) 500m to the north and Hady Hill links Chesterfield Town Centre to the settlement of Calow and beyond. Hady Hill also serves Chesterfield Royal Hospital which is approximately 1.0km to the north of the site. To the south east, Hady Lane joins Calow Lane, a classified highway linking Calow and Hasland.
3.0 SITE DESCRIPTION
3.1 The application site is approximately 1500sqm in area and sits within a wider area of land at least 25ha in area, designated in the Replacement Chesterfield Borough Local Plan (2006) as a mixture of ‘Open Countryside and Other Open Land’, sports pitches and playing fields and wildlife sites. The playing fields are to the north of the site and the wildlife area, a wood to the south west. This wider area of land contains predominantly sports pitches, woods, hedgerows, shrubs and grassed fields, itself being to a greater degree surrounded by existing residential development. The ‘open’ land ‘connects’ to allotments and Spital Cemetery to the north west and (bar crossing Spital Lane) to the open land adjoining Spital Brook to the south east.
3.2 The open land is criss-crossed by informal paths, and a designated public right of way runs across the northern edge of the sports pitches approximately 170m to the north of the site (No.118). To the south is designated route 139 running along the former railway line route from Hady Hill to Spital to the west. A ‘proposed’ public right of way links the two routes referred to above and which runs through land to the west of the application site (No.129).
3.3 Whilst the wider area has designations as ‘Open Countryside and Other Open Land’, Sports Pitches and Playing Fields (in the Regulation 22 (1) (b) Submission Policies Map), the designations also cover land containing the following elements of development:
Hady Primary School (approximately 310m to the north of the site); A row of three large detached dwellings (approximately 130m to the south east of the site); A landfill gas burner/flare (approximately 280m to the east of the site (a significant part of the open land being a former landfill site); A sports pavilion building (approximately 80m to the north east of the site);
40 A disused and overgrown garage court consisting of hard standing and kerbing (the application site) A disused and overgrown parking court to the west of the application site. An area of parking adjacent to a vehicular access which serves the ‘open land’. A Local Wildlife Area (as identified in the Council’s Green Infrastructure Study) and deciduous woodland.
3.4 There is an existing vehicular access to the wider open land which is situated approximately 50m to the east of the site. It meets Hady Lane at an unmarked ‘T-junction’ and provides access to the open land, sports pavilion and recycling area. It is also used to provide access to the now disused garage court (application site), the disused parking area and the applicants own land to the west. A section of this access is owned by the Derbyshire County Council and leased to the Chesterfield Borough Council. It is a section of around 17m in length running from the gated access into the unauthorised traveller site to the west of the application site towards Hady Lane. At least half of this section is within the red edged line of the application site. The remainder of the application site is on land owned by the Chesterfield Borough Council.
3.5 The site is a rectangular plot of land enclosed to a degree by a combination of vegetation and fencing. The northern boundary is unenclosed. The eastern boundary of the site is enclosed to a degree mainly by what appears to be Hawthorn trees to an estimated height of at least 3.0m, with undergrowth and the remnants of a fence. The southern boundary enclosure is similar but with a post and rail fence in a lesser state of disrepair albeit there not being a complete enclosure of land, a track being evident through the site and western perimeter. The western boundary is a mixture of vegetation and post and rail fence beyond which is the former parking court and the applicant’s existing unauthorised development (private family traveller site). The application site has hard surfacing visible, but also extensive areas of ground covered by vegetation. The adjacent section of land corresponds to a car park ‘extension’ which was provided at the time of the nearby pavilion on the playing field to the north. This land has a track running through it passing from the north boundary through the south boundary. The division between the former garage site and the parking court appears to approximate to the edge of a former landfill site (which ceased operation in 1979) which stretches to the west and sits under a significant part of the wider open land. The site contains several trees,
41 mainly self-set Goats Willow and also some Ash trees. A fruit tree is also present as well as a dead tree on the east boundary.
3.6 The site would not fall within the definition of previously developed land in the National Planning Policy Framework (NPPF) given that vegetation now covers the majority of hard surfacing on the site.
4.0 SITE HISTORY
4.1 The following ‘planning’ history of the site is relevant to the consideration of the proposal:
CHE/13/00089/FUL Family traveller site with two pitches and associated facilities. WITHDRAWN.
CHE/882/465 Renewal of Garage Site Consent (the final permanent permission in a series of temporary permissions). GRANTED 16.11.1982
4.2 The following ‘planning’ history of adjoining and nearby sites is relevant to the consideration of the proposal:
CHE/12/00052/COU Family traveller site with 2 pitches and associated facilities. REFUSED PERMISSION 15.05.2012.
The decision was made at Planning Committee on the 14th May 2012 for the following reasons:
1. In the opinion of the Local Planning Authority it is considered that insufficient information has been submitted to demonstrate that the site can be adequately serviced with sewerage and therefore to assess the development against saved policies HSN8 (b) and EVR12 of the Replacement Chesterfield Borough Local Plan..
2. A land contamination assessment has not been carried out by any party in respect of the development applied for and it is considered by the Local Planning Authority that one is necessary to be able to determine the suitability or otherwise of the location for the development applied for and to assess it against saved policies EVR15 and EVR23 of the Replacement Chesterfield Borough Local Plan and the National Planning Policy Framework
42 CHE/11/00405/FUL Use of field for paddocks and erection of storage timber sheds resubmission of CHE/10/00464/FUL. GRANTED 10.08.2011
CHE/10/00464/FUL Use of field for paddocks and erection of storage sheds to hold horse feeds and riding equipment , paddock area and sheds to be used for ponies. REFUSED 18.10.2010
CHE/07/00941/FUL Land Adjacent To Farm Cottage 148 Hady Lane Chesterfield Derbyshire. 2 Houses and garages (Re-submission of CHE/07/00416/FUL). GRANTED 12.03.2008
CHE/07/00416/FUL Land Adjacent To Farm Cottage 148 Hady Lane Chesterfield Derbyshire. 2 Houses, triple garage and double garage REFUSED 06.08.2007. APPEAL DISMISSED
CHE/04/00121/FUL Land Adjacent To Farm Cottage 148 Hady Lane Chesterfield Derbyshire. Erection of three detached houses with garages. GRANTED 04.05.2004
CHE/0284/0078 Permission for playing fields and allotments including pavilion and associated car parking on land off Hady Lane. GRANTED 19.04.1984
5.0 THE PROPOSAL
5.1 The proposal is a full planning application for the following development as per the description of development submitted by the applicant’s agent:
‘Family Traveller Site with Two Pitches and Associated Facilities.’
5.2 The applicant identifies his family and himself as Irish Travellers.
5.3 The application was submitted with the following supporting information:
Design and Access Statement 1:2500 Location Plan with a red line and blue line
43 1:500 Site Plan showing indicative areas of existing hedgerow ‘to be retained’, an area to be covered by a gas membrane’ (and in effect hard surfacing), a new boundary fence to form a northern and western enclosure with a gated access, siting of 2 touring caravans, two ‘dayroom’ buildings and two ‘mobile homes’. 1:50 Elevation Plans showing the elevations of two single storey pitched roof structures with doors and windows described as prefabricated ‘day rooms’ not involving operational development. Phase II Environmental Assessment with results of soil chemical testing and gas monitoring (T.J Booths Associates dated 26th March 2014)
Amount and Land Use
5.4 The design and access statement refers to 2 residential Traveller pitches, each containing a ‘mobile home’, a ‘touring caravan’ and a timber structure described as a ‘day room. Also provision for two additional visiting ‘touring caravans’ which is unlikely to occur on more than 6 two week periods annually.
5.5 The proposal is for the change of use of the land for the siting of 5 caravans. The design and access statement submitted explains that the proposed day rooms will be ‘prefabricated… which require no foundations. The[y] will merely rest on the surfaced areas’. It also explains that ‘No other structures representing operational development are proposed’.
5.6 It is noted that the proposal does include operational development in the form of new boundary fencing shown on the submitted site plan and also works to mitigate land contamination (engineering works to form a new raised and layered surface), as detailed in the submitted Phase II land contamination assessment. Furthermore, operational development off-site and under the ground will be necessary to install the mains drainage connection proposed.
5.7 The design and access statement confirms that:-
5.8 No lighting columns are proposed and any lighting would be fixed to perimeter fencing and that the applicant will accept a condition requiring details of such lighting to be approved prior to development commencing.
44 5.9 ‘An electricity supply has already been provided from the mains to the adjacent site to the west, with the consent of the statutory undertaker.’ ‘Mains water will be brought to the site’. ‘With regard to foul drainage, agreement has been reached to connect the site to the main sewer in Hady Lane’
5.10 It is not clear from the submitted information if the development will need to rely on the existing unauthorised electricity block within the unauthorised traveller site to the west or if this is to be relocated. Either way it represents development for which permission is required.
Scale
5.11 The structures described in the submission as ‘dayrooms’ are shown with dimensions of 6.0m length x 3.0m width 2.0m x height to eaves and 3.0m height to ridge. These would be relocated from the unauthorised site to the west.
5.12 The ‘touring caravans’ and ‘mobile homes’ as shown on the site plan would be within the dimensions prescribed in Section 29 (1) of the Caravan Sites and Control of Development Act 1960 as modified by Section 13 (1) of the Caravan Sites Act 1968. The prescribed maximum dimensions are: length (exclusive of any drawbar); 60 feet (18.288 metres); width: 20 feet (6.096 metres); overall height of living accommodation (measured internally from the floor at the lowest level to the ceiling at the highest level): 10 feet (3.048 metres).
5.13 The area of the site shown on the site plan is approximately 1500 sqm.
5.14 Whilst not on the submitted plans the Electricity block off-site to the west is of the approximate dimensions of 1.0m width x 1.0m length x maximum 1.0m height.
Appearance
5.15 No information has been provided on the appearance of trailer caravans or mobile homes. It is expected that their appearance will be typical of touring caravans and ‘mobile homes’. The proposed ‘dayroom’ structures are described as ‘single storey timber buildings’, in contradiction to the agents assertion that they are not operational
45 development. The electricity block whilst off-site and not applied for, is flat roofed and constructed with concrete.
Layout, Access and Parking
5.16 The submitted layout plan shows a rectangular area enclosed by some form of vegetation (it not being specific on the plan whether the irregular areas marked are wholly existing or proposed vegetation and if so what species). The marking of the plan appears to be indicative only following a site visit and not precise in respect of the crown spread of trees and area of vegetation on the site, the existing hard surfacing being significantly overgrown. A 2.0m tall fence of indeterminate design is shown running along parallel to the access track forming a northern boundary with a gated access to its eastern end, and also along the western boundary of the site.
5.17 What appears to be the approximate route of proposed public right of way (No.129) is shown on the layout plan to the west and outside of the application site.
Landscaping
5.18 The site plan depicts vegetation in an indicative manner. It is not fully clear from the plan what is existing vegetation, versus proposed. The design and access statement refers to existing hedgerows and fences providing good screening of the site. It also claims that the hedgerow to the east of the site will be unaffected by the contamination protection measures proposed and that additional hedgerow planting will be provided to reinforce the existing screen planting. It appears that some removal of vegetation would be required to facilitate the land contamination mitigation and siting shown of mobile homes on the submitted layout plan. No further detail’s of planting (e.g. species, quantities, height’s) has been provided.
6.0 CONSIDERATONS
Environmental Impact Regulations
6.1 The Local Planning Authority carried out a screening of the proposal on the 5th May 2014, under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 to 2006. The development would not be Schedule 2 development, and no significant environmental impacts are thought to be likely.
46 Consequently an Environmental Statement/Assessment is not considered necessary. A screening for ‘Appropriate Assessment’ is not necessary given the small scale of development.
Planning Policy - The Development Plan 6.2 Section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990 require that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise’. The relevant Development Plan for the area comprises of the saved policies of the Replacement Chesterfield Borough Local Plan adopted June 2006 (RCLP) and the adopted Chesterfield Local Plan: Core Strategy (2011-2031). Replacement Chesterfield Borough Local Plan Policies (‘RCBLP’) 6.3 The saved Local Plan policies relevant to the decision are: EVR2 Development in the Open Countryside and Other Open Land POS4 Sports Pitches and Playing Fields
Chesterfield Local Plan: Core Strategy 2011 -2031 6.4 The policies relevant to the decision are:
CS1 Spatial Strategy CS2 Principles for Location of Development CS3 Presumption in Favour of Sustainable Development CS4 Infrastructure Delivery CS6 Sustainable Design and Construction CS7 Managing the Water Cycle CS8 Environmental Quality CS9 Green Infrastructure and Biodiversity CS10 Flexibility in Delivery of Housing CS12 Sites for Travellers CS18 Design CS20 Influencing the Demand for Travel
47 National Planning Policies 6.5 The Sections of the National Planning Policy Framework (NPPF) relevant to the consideration of the proposal are; Building a Strong, Competitive Economy Promoting Sustainable Transport Objectives Delivering a Wide Choice of High Quality Homes Requiring good design Promoting Healthy Communities Meeting the challenge of climate change, flooding and coastal change Conserving and Enhancing the Natural Environment 6.6 The National Planning Policy for Traveller Sites (PPTS) published in March 2012 is also a material consideration Other Relevant Policy and Document 6.7 Supplementary Planning Documents relevant to the decision are; SPD - ‘Successful Places’ (adopted July 2010). SPD - Designing Out Crime (adopted June 2007). 6.8 Other relevant documents include; Assessing local housing authorities’ progress in meeting the accommodation needs of Gypsy and Traveller communities in England (Equalities and Human Rights Commission) 2009 CLG Circular 06/05. Chesterfield & North East Derbyshire Sustainable Community Strategy (2009-2026). Designing Gypsy and Traveller Sites: Good Practice Guide (DCLG May 2008) Derbyshire Gypsy and Traveller Accommodation Assessment (the DGTAA) (Opinion Research Services) 2008 Environmental Protection Act 1990:Part 2A Contaminated Land Statutory Guidance (DEFRA April 2012) Green Infrastructure Study (CBC May 2009)
48 Inequalities Experience by Gypsy and Traveller Communities: A Review (Equalities and Human Rights Commission) 2009 Lighting in the Countryside: Towards Good Practice (DCLG 1997) Manual for Streets 2 (DfT March 2007) National Planning Practice Guidance Parks and Open Spaces Strategy (CBC 2002) Progress Report on Gypsy and Traveller Policy (DCLG) July 2009 The Landscape Character of Derbyshire (Nov 2007) DCLG Consultation: planning and travellers (Sep 2014)
7.0 Key Issues
1. Principle of Development in Open Countryside 2. Infrastructure 3. Community Safety, Cohesion and Fear 4. Visual Amenity and Local Character 5. Residential Amenity 6. Pollution Control 7. Highway Safety 8. Biodiversity 9. Flood Risk 10. Land Stability 11. Equalities Act 12. Other Considerations
1. Principle of Development in Open Countryside
7.1 The site is located within an open area of land defined in the Local Plan as ‘Open Countryside and Other Open Land’ and is not within a ‘green wedge’ or ‘strategic gap’ on the Core Strategy Key Diagram. The Local Plan makes no distinction between what is Open Countryside and what is Other Open Land and provides no definition from which to do so. National policies similarly do not define countryside nor ‘rural’ areas. Chesterfield Borough is not classified as a rural area and is classified as ‘other urban’ in the Department for the Environment and Rural Affairs (DEFRA) classification of Local Authorities in England. However, it has open land around its fringes where a tight boundary is drawn between it and the rural authority of North East Derbyshire District Council.
49 7.2 The majority of the existing ‘Hady’ settlement/development to the east of the application site constitutes housing built post World War II, the earlier pattern of dispersed dwellings and farms related to ‘Hady Hill’ which persisted into the 1920’s, disappearing within the scale of this later housing development on open land. Whilst arguably as a consequence of this development the ‘rurality’ of the immediate locality has declined considerably since WWII, Hady as a settlement is still predominantly surrounded by open land. In this instance open countryside is taken to be predominantly open land outside settlement boundaries with visual and functional links to wider tracts of open land surrounding Chesterfield. Consequently the proposal is considered to be located within open countryside. The land is not identified on the Regulation 22 (10) (b) submissions policy map as an existing park or open space, a sports pitch or playing field or allotments.
7.3 Accordingly the Development Plan has policies of particular relevance to the principle of the development which address the matter of development in open countryside. Core Strategy policies CS1, CS2, CS9, CS12 and saved policy EVR2 from the 2006 Local Plan. The other Core Strategy Housing Policies i.e. CS10 and CS11 are not considered relevant as these were specifically adopted and worded to deal with ‘bricks and mortar’ housing, policy CS12 being specifically adopted to cover Traveller Site provision.
7.4 It is noted that the LPA cannot currently demonstrate a deliverable 5 year supply of housing sites and that Paragraph 49 of the NPPF states that ‘relevant policies for the supply of housing should not be considered up-to-date if the LPA cannot demonstrate a five-year supply of deliverable housing sites’. The Borough Council’s Spatial Planning Team (in summary) has advised that as a matter of policy the Core Strategy policy for Traveller Sites (CS12) is not ‘out of date’ in relation to paragraph 49 of the NPPF and still carries significant weight. Also, that Section 6 of the NPPF (and so paragraph 49) does not specifically cover Traveller sites given the publication of the PPTS following the publication of the NPPF.
7.5 Hence when considering the principle of the proposed private family Traveller site in open countryside the relevant Development Plan policies are saved RCBLP policy EVR2 and Core Strategy policy CS12. The proposal would fail to accord with RCBLP policy EVR2 in that this policy was restrictive in principle to development for anything other than that necessary for the needs of agriculture and forestry or; that related to recreation tourism or other types of farm or rural diversification.
50
7.6 However, the approach in EVR2 is in direct conflict with Core Strategy policy CS12 which accepts the principle of the proposed development in open countryside provided it is not in ‘Green Belt’ or a ‘Local Green Space’. Policy CS12 appears consistent with the NPPF and PPTS and so is a more ‘up to date’ policy than EVR2 and should carry more weight than EVR2. Similarly, EVR2 is also contradictory to the PPTS in that the PPTS does not preclude Traveller sites in open countryside.
7.7 In considering the matter of the principle of development in open countryside it is acknowledged that previously in relation to a refused permission on the unauthorised site to the west, the Council considered that the NPPF and Planning Policy for Traveller Sites did not explicitly permit Traveller Sites in Open Countryside. However appeal decisions have clarified the matter, an example being Appeal APP/N2739/A/12/2182714 in which the Government’s appointed Inspector states that ‘Policy C of the Government’s Planning policy for traveller sites (PPTS or ‘Traveller Policy’) accepts that sites for showpeople are acceptable, in principle, in the countryside. The aim, therefore, must be to minimise not necessarily avoid harm’.
7.8 The PPTS states local planning authorities should strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan. Local planning authorities should ensure that sites in rural areas respect the scale of, and do not dominate the nearest settled community, and avoid placing an undue pressure on the local infrastructure. The NPPF also requires that decisions on such development should recognise the intrinsic character and beauty of the countryside.
7.9 The PPTS also sets out considerations to be taken into account for sites in rural areas and the open countryside. Accordingly, it is evident that PPTS envisages that rural and open countryside sites may be considered acceptable in certain circumstances and that the NPPF and PPTS do not preclude Traveller accommodation in open countryside in principle per se.
7.10 The site is near to (and not ‘away from) an existing settlement and the scale of the development would not physically dominate the nearby existing settlements of Hady and Spital. Whilst the site is not allocated for any development it is a material consideration that the LPA has not got an up to date accommodation needs assessment for Travellers, has
51 not set local targets for provision and has not carried out a Local Plan process of identification of a 5 year deliverable supply of sites with associated allocation’s.
7.11 Based on current information (as detailed later in this report) there appears to be an unmet need for sites and the LPA has failed to identify a 5 year deliverable supply to meet this need. The PPTS is clear in Policy H paragraph 25, that if a local planning authority cannot demonstrate an up–to-date five-year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission. Whilst the proposal is not for temporary permission, the LPA must bear in mind the option of a temporary permission when considering the proposals planning merits.
7.12 The consideration of whether or not any ‘special circumstances’ exist and if so whether or not these outweigh the impact on the intrinsic character of this area of open countryside, require further analysis and are considered later in this report.
2. Infrastructure
7.13 The Core Strategy policy CS4, NPPF and Planning Policy for Traveller Sites require adequate provision of infrastructure for new development and also that new development does not lead to a deficiency in infrastructure (green, social and physical).
Accessibility to Public transport, Employment, Services and Facilities
7.14 The location of the development is within approximately 1.3km of Chesterfield Town Centre, and within 800m of bus services on Hady Hill including the Stagecoach ‘Castleline’ with a frequency of up to 2 services per hour and a lesser number and frequency of services on Hady Lane. The site is within 400m of a primary/infant school which the Council’s Community Infrastructure Study (2009) identifies as having a deficit of pupils on its ‘register’. The site is also within a 2km catchment area of a secondary school albeit with a surplus of pupils and within 2.5km of a secondary school with a deficit of pupils based on the same infrastructure study. The study identifies the north east of the Borough (not Hady) as having the longest journey times to key facilities. Hady has no local shops (albeit an extant planning permission for the redevelopment of a Social Club to include a local convenience store) and relies on Chesterfield Town centre, other local and district centres
52 for employment, services and facilities. It is considered to be reasonably accessible on foot to some community services and also to public transport via which the necessary employment, services and facilities to meet essential day to day needs can be accessed. As such in respect of accessibility and the capacity of existing health and educational facilities the proposal would not conflict with of Core Strategy policies CS2(e)(f) and CS12(c), the NPPF and PPTS.
Open Space
7.15 The site is within metres of playing fields, and a significant area of informal open space. It is also within approximately 360m of the Locally Equipped Area of Play (LEAP) within Hady to the south east. The Council’s Open Space and Play Provision SPD (now withdrawn) and Parks and Open Spaces Strategy (not up to date) indicated a need for a Neighbourhood Equipped Area of Play (NEAP) in Hady, specifically on Hady Playing Fields. This need has not been met to date. The proposal in itself would not lead to a requirement in terms of planning policy for a contribution towards new or enhanced open space provision and would not be so poorly served as to conflict with Policy H paragraph 24(c) of the PPTS or the NPPF.
7.16 Whilst the site has not been identified as critical or important to the provision of open space in Hady in the withdrawn Open Space and Play Provision SPD and out of date Parks and Open Spaces Strategy, or through consultation with the Borough Council’s Housing, Estates and Leisure Services, objections have been received which attribute significance to the site as a place for social interaction, appreciating ‘nature’ and walking and also as a location for a new recreational or sports facility.
7.17 The Council’s ‘Sustainability Officer’ has identified the site as being of ‘great wildlife value’ and that the site is likely to merit retention as an urbanised wild space for which the community of Hady would benefit, in effect attributing the site value as an area of informal public open space.
7.18 The site would, based on representations appear to have significant value to the local community as an open space. The application site is conveniently located for residents of Hady and is large enough (being in excess of 1000sqm) to cater for a NEAP. Less positively the site lacks natural surveillance and is likely to require mitigation given its proximity to the former landfill site to the west. Furthermore the site represents a
53 small part of a wider area of open space which includes a Local Wildlife Site, hedgerows, woodland, grassland, playing fields, informal open space and a LEAP all of which are accessible to the public. There are also several other locations where a Neighbourhood Equipped Play Area (NEAP) could be located including the existing location of the LEAP off Barnes Road. There is insufficient evidence to conclude that the loss of the application site would have a significant adverse effect on open space provision in the Borough.
7.19 The site is not identified as a proposed play area in the Issues and Options Sites and Boundaries DPD consultation document. The LPA is aware that an application has been made to Derbyshire County Council to designate the application site and a wider area as a Village Green. This is being processed by DCC but as no designation has occurred yet no weight is given to this. Furthermore, the site is not proposed as a Local Green Space in the Local Plan Issues and Options Sites and Boundaries document, nor is there a relevant neighbourhood plan in preparation or adopted.
7.20 The proposal will undoubtedly result in the loss of the existing overgrown character within the site However, there is insufficient evidence to support a stance that the site is critical to planned provision of open space in Hady to meet community needs or critical to achieving the aims and objectives of the Council’s ‘Green Print’ and Local Biodiversity Action Plan. Furthermore, the adverse impact on existing provision and potential for future provision would be minor given the availability of other open space. The proposal would not conflict with Core Strategy policies CS4 CS12(a)(b) and saved RCBLP policies POS1 and POS4.
Physical Infrastructure
7.21 Yorkshire Water Services do not identify a need for further sewerage capacity arising from the proposal and make the observation that the local foul water system has no additional capacity for surface water discharge. Severn Trent has been given the opportunity to comment on the application and has not responded. Given this, and the nature and scale of the development it is unlikely that the proposal will result in a deficiency in water supply in the Borough or the locality.
54 7.22 In respect of the provision of specific infrastructure and facilities for the application site in respect of day to day living, the applicant has (according to CBC’s estates team) secured the option of connecting to an existing electricity supply (overcoming the need for generators) and a mains water supply. He also has the option of connecting to the main sewage system which exists to the north east in Hady Lane, the agent confirming that an agreement has been reached to do so. No specific details of the agreement reached referred to, has been provided by the applicant’s agent. The Council’s estates team has previously confirmed that subject to the correct procedure and appropriate compensation there would be no legal barrier to the applicant running services through the Council’s land.
7.23 In respect of a water supply Severn Trent previously confirmed in relation to the refused Traveller Site application to the west, that there are 2 mains water pipes to the east in Hady Lane. However they commented that no further information can be provided to the LPA as a consequence of data protection laws. The land between the application site and water supply is owned by Chesterfield Borough Council however connection to both a mains water and electricity supply appears to be a realistic prospect.
7.24 Soakaways have been proposed for surface water drainage but no specific details of feasibility or design, although the applicant’s land contamination consultant has confirmed that strips of vegetated land can be maintained inside the perimeter of the proposed site, which would provide areas for water to drain to.
7.25 In terms of foul water provision, a connection to mains is proposed but no specific details of the means of connection have been provided other than that a pump will be required. Yorkshire Water raise no objection but make the observation that sewage pumping is likely to be required from the site. The Council’s Drainage Services has previously commented that the site is not at risk of flooding on the Environment Agency’s flood map, that there are no foul water issues subject to connection agreements being obtained from Yorkshire Water.
7.26 The prospect of a mains sewerage connection is less clear cut. The applicant’s land contamination consultant has had regard to the provision of services and recommends mitigation, whilst the applicant’s agent has claimed that agreement has been reached to connect to mains. The LPA has no evidence to dispute the agent’s claim. Yorkshire Water and the Council’s drainage engineers have confirmed
55 that connection is theoretically possible (with pumping on the site) to the mains system to the north of the site (approximately 250m distant) near the junction of Hady Lane and the vehicular access to the primary school to the north. The provision of a connection may prove expensive and a package treatment plant or septic tank may prove less expensive. However, the provision of a septic tank or package treatment plant would require separate consideration, being a materially different development with materially different implications.
7.27 In considering whether or not to accept the level of information submitted on foul water provision, and if it is appropriate to apply conditions which require approval of the full details of foul sewage provision and also to prevent the site being occupied until full details had been approved and implemented, the LPA must have regard to the National Planning Practice Guidance (NPPG) (paragraphs 21a-005- 20140306 to 21a-024-20140306).
7.28 In considering the guidance in the NPPG a condition requiring further details and also provision of a foul water system is necessary to meet planning requirements. Given that the applicant has proposed a mains connection it would seem reasonable to conclude that the applicant and his advisors have considered the matter of cost and concluded that a mains connection is viable. No technical obstacle that would preclude a mains connection has been identified and evidenced by consultees and objectors, cost appearing to be the main constraint.
7.29 In respect of enforceability, a condition which prevents the occupation of the site from beginning until the condition has been complied with would be appropriate, given that the requirements of the condition (including the timing of compliance) are so fundamental to the development permitted that otherwise it would be necessary to refuse the whole permission.
7.30 Consequently it is considered that sufficient information has been submitted to apply a condition that will ensure that the site will be adequately serviced in respect of foul water, drinking water and electric supply and in these respects, would not conflict with Core Strategy policies CS4 and CS12(e) the NPPF and Planning Policy for Traveller Sites.
56 3. Community Safety, Cohesion and Fear
7.31 The application has generated representations from the local community similar to that expressed in relation to the refused planning application for the Traveller families current unauthorised site to the west and also the enforcement investigation into that unauthorised development. Following the refusal of the retrospective application for the unauthorised development, the Council was required to consider the matter of enforcement action. The Council resolved on 15th October 2012 that:
Planning Committee note the continued unauthorised occupation and consequential operational development of Land to the West of the Garage Site, Hady Lane, Chesterfield and that due to the new information received and changed circumstances that enforcement action is warranted as the long term residential occupation of the land is unacceptable.
That appropriate investigations be made with housing officers into finding an alternative site which the travellers could relocate to and which could provide a temporary or long term solution to address the risks to the safety of the travellers arising from the occupation of the former landfill site.
Planning Committee further resolve that if the occupants of the unauthorised development do not engage positively with the Council in the next 6 months to be appropriately relocated then enforcement action including injunctive proceedings, if required, are authorised to remove them from the existing site on Hady Lane.
7.32 In arriving at this resolution the Council considered the risk to the family from the former landfill waste and also considered the deliverability of alternative sites. The consideration of alternative sites was not done via the Development Plan process but as part of the enforcement investigation. Where as officers received written confirmation that the travellers would work with the Council in finding an appropriate relocation site, the process of considering alternative sites was pre- empted by the application on the site currently under consideration. This was submitted within 6 months of the committee resolution referred to above. This is referred to later in the report however the Council did not pursue the search further in order that the suitability of the application site could be determined first.
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7.33 Some of the objectors making representations believe that the open space within which the application site exists is of great amenity, landscape, recreational and wildlife value. They also have expressed a view to the Council, that the application site should be put to a recreational use or used as public parking and that the Council is obliged to not consider the current planning application whilst other more policy compliant uses are theoretically possible.
7.34 However, the LPA are not in receipt of a planning application for any other development of the site and other Council Department’s have not provided details of any schemes submitted to them. The LPA are also not in receipt of a robust and up to date open space assessment from objectors or information from the Council’s Leisure Services that there is a need to protect the site to be developed as recreational open space, which cannot be provided elsewhere. Some objectors believe that the Council must investigate the opportunity for the site to be used for recreational and other uses before even considering the planning application. However, this is a misunderstanding given that when a valid planning application is submitted it must be considered on its individual merits, the Council having no choice in the matter. The Council has not identified a Green Wedge or Strategic Gap over land upon which the site would be located in its Issues and Options consultation document for the Sites and Boundaries DPD.
7.35 There is concern that the same rules should apply to all and that there is consistency with a previous decision to refuse development for an equestrian use on the unauthorised site to the west. Also there is widespread opposition in the local community to the application and also allegations concerning the applicant’s intentions having regard to previous applications and development on the unauthorised site to the west. National and local planning policy on development in open countryside applies equally to applications for planning permission from Travellers and the settled population. In Chesterfield the Core Strategy currently has identified broad locations for new land for house building for the settled community (taking account of population change including migration), including greenfield locations in open countryside whereas it has not identified any land within the Borough for the Travelling community to reside on, hence the presence of a policy (CS12) to cater for individual applications made by the Travelling community for sites. The Council still awaits the publication of an up to date Derbyshire wide Traveller Accommodation Assessment, and without this it cannot set local targets for provision through the Local
58 Plan process should a need be identified. The result is a situation where in England there is insufficient allocated or authorised sites to meet national need, this being manifested at a local level in Chesterfield as unauthorised development.
7.36 There is no disputing that the applicant currently occupies a site to the west without the benefit of planning permission and that the related change of use is a breach of planning control and is unlawful. There is, however, statutory provision to apply for planning permission in such circumstances, as the applicants have done and also to seek alternatives to their current site. The fact that development has already taken place is not relevant to assessing the planning arguments arising from the current application. The applicants past and future intentions in respect of the site are similarly not relevant to assessing the planning arguments arising from the application.
7.37 There is no substantive evidence to support a view that there is a significant threat to the local community of anti-social behaviour and criminal activity from the occupation of the site by a family of the applicant’s ethnicity. The Community Safety Officer and Derbyshire Constabulary have raised no objection to the proposed land use or to the applicant’s current occupation of the unauthorised site to the west. There is no evidence of a significant concentration of Traveller sites in Hady and this small residential caravan site for two pitches for one extended family, would respect the scale of and not dominate the nearest settled community.
7.38 Concern has been raised that residents are avoiding the use of the wider open space within which the proposal sits on the basis of a fear of the occupants of the site and their pets. There is no substantive evidence to justify a view that the family pets and indeed the land use applied for are a significant threat to the personal safety of users of the open space with only one allegation being received of a dog walkers dogs been attacked. Consequently only limited weight should be given to the expressions of fear received in representations. Two dogs have been observed outside the nearby unauthorised site barking at officers on the application site however this could be remedied by use of appropriate fencing within the proposed development which could be secured by condition.
59 7.39 The Derbyshire Constabulary has previously advised that there may be surveillance issues with the degree to which the site will be screened, however raise no objection. The site is isolated and needs to form defensible space given the surrounding land uses and public access and therefore screening is considered appropriate. Consequently provided that adequate locks are provided on caravans, day rooms and the sites gate, it is considered that a sufficient level of security will be provided to avoid conflict with Core Strategy policy CS18 (l) the Planning Policy for Traveller Sites and the NPPF.
7.40 An issue was previously raised by a local resident to the withdrawn application which preceeded the current application, that the presence of the unauthorised Travellers Site to the west, the Council toleration of the unauthorised development and what is seen as collaboration with the applicant’s is causing resentment in local residents to the point that their health could be adversely affected, as a consequence of the perceived injustice of applying different ‘rules’ to Travellers than to those not of that ethnic group. However, no evidence has been provided of such an effect and no representations received on this basis.
4. Visual Amenity and Local Character
Landscape Character
7.41 Core Strategy policy CS9 (e) requires that development conserves or enhances the local distinctiveness and character of the landscape. The NPPF requires that the intrinsic character and beauty of the countryside should be recognised in decision making and that planning should protect and enhance valued landscapes. The NPPF in paragraph 109 requires that the planning system ‘protects and enhances valued landscapes and in paragraph 115 requires that great weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty (para 115). The site is not within an area which the NPPF affords great weight to conserving landscape and scenic beauty. However, it is acknowledged that the site is within an area where there is an element of local character which requires protection and enhancement as supported by the landscape characterisation carried out by the Derbyshire County Council (The Landscape Character of Derbyshire Nov 2007)
60 7.42 The site lies within a landscape type categorised in the ‘The Landscape Character of Derbyshire’ as ‘Coalfield Village Farmlands’ (Character Area 38). The key characteristics of this landscape are stated as:
Gently undulating landform. Dairy farming with pasture and localised arable cropping. Relict ancient semi-natural woodland, copses and linear tree-belts. Dense streamline trees and scattered hedgerow trees. Towns and villages on ridge lines surrounded by remnant medieval strip fields. Network of small irregular lanes between larger urban roads. Small villages with sandstone buildings expanded by red brick former mining terraces and ribbon development.
7.43 Tree cover in this landscape is described as, ‘essentially a small scale, organic landscape with small woodlands, copses, linear tree belts and hedgerow trees’. The pattern of enclosure appropriate to this location is described as, ‘complex, reflecting a diverse history of enclosure and the impact of opencast coal extraction
7.44 The application site forms only a minor part of the landscape character, and whilst little evidence of former garage development remains, it is visually well delineated from the wider open space by existing vegetation. It is also located close to Hady Lane and the settlement near the edge of the wider open space. Subject to reinforcement of existing hedges and provision of a new hedge to the northern boundary (obtainable by condition) the visual effect of vehicles, caravans, hard surfacing, domestic paraphernalia and movement on landscape character beyond the sites boundaries would be neutral. Given the proximity of the site to a parking area used in connection with the recreational use of the wider open space, the impact of vehicular activity on landscape character would also be limited. However, screening and the location of the site would not completely remove the urbanising effect of light pollution from external lighting on the site and also light from within the day rooms and caravans. The light pollution from external lighting could be minimised through design and timing controls, however light from within caravans could not. Consequently the impact of light pollution from the site would be adverse on landscape character, albeit limited in scale. This limited adverse effect could be regarded as contrary to Core Strategy CS9 (e) and the NPPF.
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Tranquility
7.45 The NPPF (paragraph 123) requires that planning decisions should identify and protect areas of tranquillity which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason. Previous representations to the refused Traveller Site to the west opined that the wider open space has attractive qualities in terms of tranquillity and natural beauty with reference to the visual impact of the development, noise and activity. No evidence was or has been presented on existing noise levels or background noise levels, nor qualification of what is meant by tranquillity.
7.46 Tranquillity is recognised as an emotional state and is to a degree subjective. Despite the presence of subjectivity the Governments Rural White Paper (DEFRA 2000) acknowledged that tranquillity and a lack of noise and visual intrusion are key factors that contribute to the unique character of the British countryside. The CPRE has carried out a mapping exercise of ‘tranquillity’ across the UK. However, tranquillity is not the absence of all noise, activity and buildings. Research has found that many rural activities, such as farming and hiking, and natural noises such as birdsong and cows lowing, enhance people’s experience of tranquility.
7.47 The Council has not adopted its own definition of tranquillity nor a method of assessing tranquillity. However, tranquillity arguably is part of the intrinsic ‘character’ of countryside and methods have been developed for assessing tranquility (Tranquility Mapping: Developing a Robust Methodology for Planning Support: January 2008).
7.48 There are members of the local community who perceive a loss of tranquillity and the urbanising of the application site will adversely effect tranquillity based on a knowledge of the indictors of tranquillity identified in relevant research, which include ‘birdsong’, wide open spaces, trees in the landscape and the converse such as the presence of other people, urban development and any signs of human impact and vehicle noise.
7.49 Bearing in mind the absence of a tranquillity study to set a baseline, it is likely that the main impacts of the development applied for on tranquillity (subject to appropriate screening planting) would be from noise, vehicular movements and light pollution. In respect of noise and vehicular movements these will be in close proximity to an existing
62 access already serving and providing parking for the wider open space and sports fields. As such the impact of vehicular activity is not considered to be likely to significantly affect the wider open areas tranquillity. Light pollution from caravans, day rooms and vehicles and noise from within the site (voices, dogs) is however unlikely to prove so insignificant in close proximity to the site. There would be an adverse impact on tranquillity and the ‘character’ of the locality contrary to Core Strategy policy CS9 (e) and paragraph 123 of the NPPF, however this would be minor in scale.
7.50 It was noted during a site visit that two pet dogs were able to exit the unauthorised site to the west and come in close proximity to officers, whilst barking. The ability of pet dogs to do so adversely effects the appreciable pleasant qualities of the wider open space, including tranquillity. Accordingly it would be necessary if granting permission to apply a condition requiring an inner mesh fence within the site to prevent pets such as those observed, from straying into the wider open space in the interests not just of the areas ‘character/tranquillity’ but also to reduce the opportunity for such anti-social behaviour and fear of anti-social behaviour in accordance with Core Strategy policy CS9 (e), CS18 (l) and paragraph 58 of the NPPF.
Visual Amenity
7.51 Core Strategy policy CS12 (g) requires that Traveller Sites have satisfactory boundary treatments to ensure privacy and to maintain visual amenities. The NPPF requires that the intrinsic character and beauty of the countryside should be recognised in decision making.
7.52 The development applied for is associated with vehicles, timber structures and caravans, and domestic paraphernalia, the majority of which are likely to be in colours which make them conspicuous in a ‘countryside’ area. Whilst conditions could be applied to the mobile homes to ensure a subdued colour these being available in green, such a condition applied to touring caravans would be onerous and unreasonable given that the standard colour for such vehicles is white.
7.53 The wider open area within which the site is located is used by the local community for informal and formal recreational purposes and wooded elements of which have locally and potentially county level significance in terms of biodiversity. This open land sees considerable day time activity in the form of walkers, parents collecting children from school, people playing on the sports fields and football matches. It possess
63 attractive visual qualities and other qualities of amenity value, these being mainly attributable to a mix of open fields, woods and a predominant lack of buildings and vehicles. Representations received indicate that members of the public value the open space for its ‘tranquillity’, natural beauty and open character and consider that the development has a significant and adverse impact on this.
7.54 The number of people likely to see the site is high given its proximity to the access track into the wider open space and the presence of the route of a proposed footpath through it. However vantage points of the site are limited in number and views from other parts of the open space and Hady Lane are severely restricted by existing vegetation with the exception of the playing fields to the north when within 50m of the site. The closest dwellings with views are those on the west side of Hady Lane to the south east of the application site. Views are also possible from the 7 dwellings on the southern extent of High View Close to the north and also from at least 13 dwellings on Hady Lane.
7.55 Given the existing restricted visibility of the site and the feasibility of further soft landscape screening, the use and associated vehicles, structures, caravans and paraphernalia would not be visually intrusive and would have an insignificant impact outside of the application site. Any adverse effect would be negligible and not sufficient to conclude that a conflict exists with RCBLP policy EVR2, Core Strategy policies CS12 (g) and the NPPF.
7.56 It is acknowledged that to completely screen the development would give a visual sense of isolation of the site from the nearby settled community. Planting would need to ensure an effective visual screen between the proposed footpath and the area of the proposed development where caravans and dayrooms would be located. However, the site is already isolated to a greater degree visually and screening would not be at odds with the existing visual qualities of the wider open land within which the application site sits. Furthermore given the context, the provision of a small length of fencing and bolstering of boundary vegetation with hedgerow planting around the site would not conflict with paragraph 24 (d) (Policy H) of the national Planning Policy for Traveller Sites which seeks to prevent sites being enclosed with so much hard landscaping, high walls or fences, that the impression may be given that the site and its occupants are deliberately isolated from the rest of the community
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5. Residential Amenity
7.57 Whilst elements of the site are likely to be visible from the upper floors of the three properties to the south east on the west side of Hady Lane and properties to the east and north east, it is considered that the site is a sufficient distance from nearby residential properties to afford a reasonable degree of privacy between existing dwellings and the development. The provision of appropriate planting to reinforce boundary hedges and fencing on the northern boundary of the site to protect the applicant family from views from the adjacent proposed footpath, would further minimise any overlooking into the site and ensure a reasonable degree of privacy.
7.58 With regard to noise, the development applied for is a residential use and if occupied in a reasonable manner should be compatible with nearby residential land uses. Representations have been made which object to the noise from dogs barking and also vehicular activity on a commercial scale. The application is for a residential use and not a mixed use, and it is considered on this basis. Furthermore, it would not be reasonable to refuse planning permission for a residential development on the basis that the residential land use applied for will be incompatible in terms of noise and general disturbance with other residential land use in the locality. The Council’s Environmental Health team has investigated a noise complaint at the applicant’s dogs barking but during investigations have not found an enforceable statutory nuisance.
7.59 The proposal is for a residential land use and therefore it is considered to be appropriate in terms of impact, on existing residential properties. Any adverse impact which arises as a consequence of unreasonable behaviour or a material change of use to a mixed use would be controlled by the Environmental Protection Act 1990 and Planning Acts respectively. Consequently it is considered that in respect of impact on residential amenity the proposal would accord with Core Strategy policies CS2 and CS18 and the NPPF paragraph 17. There has been no objection from the Council’s Housing team in regard to the ability of the site to be licensed for the number of pitches proposed and therefore it is assumed that the site would have sufficient space to satisfy licensing requirements and to afford reasonable daylight, sunlight and outlook for the occupiers of the caravans.
65 7.60 The good practice guide, Designing Gypsy and Traveller Sites (2008) is not limited to socially provided sites. It provides relevant guidance but it recognizes that not all aspects of it will necessarily be met and that it should not be used in isolation to decide whether planning permission should be given. There would be no deviation of significance with the proposed development from relevant principles in the good practice guide.
6. Pollution Control
7.61 The land to the west of the application site on which no changes are proposed is located on part of a former landfill site closed in approximately 1979 and is currently managed by Derbyshire County Council. The application site is outside the boundary of the former landfill. The former landfill is managed by means of a ‘cap’ (in this instance a layer of earth likely to be of varying depths in relation to its original laid depth) and also the provision of a methane burning unit (flare). The Environment Agency has previously in connection with the refused retrospective application to the west, confirmed that the landfill is currently classified as containing ‘hazardous waste’ under UK waste regulations. The Hazardous Waste (England and Wales) (Amendment) Regulations 2009 and WM2 2008 (updated 2009) guidance defines such waste as that which is chemically hazardous or infectious to humans or the environment.
7.62 The Council has records of a 1996 report to members on the ‘rapid decombustion’ of the landfill as a consequence of burning off gas, and a subsequent ‘dramatic but variable sinkage’ of land with ‘undulations and broken land drainage’. Furthermore that ‘for the foreseeable future it is likely that subsidence will continue…which precludes the possibility of undertaking extensive remedial works to bring all the [sports] pitches back into use’. Representations have also been received giving the opinion that the site is unsuitable for human habitation and a threat to the public given the risk of gas migration (caused by the weight of the development and land movement), explosion, dioxins and possible breaching of the landfill site capping layer.
7.63 The NPPF in paragraph 120 requires that planning decisions should ensure that new development is appropriate for its location in order to prevent unacceptable risks from pollution and land instability. It also requires that the effects (including cumulative effects) of pollution on health be considered. The natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse
66 effects from pollution, should be taken into account. Where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and/or land owner.
7.64 The NPPF goes further as follows:
Paragraph 121: - Planning policies and decisions should also ensure that: the site is suitable for its new use taking account of ground conditions and land instability, including natural hazards or former activities such as mining, pollution arising from previous uses and any proposals for mitigation including land remediation or impacts on the natural environment arising from that remediation;
after remediation, as a minimum, land should not be capable of being determined as contaminated land under Part IIA of the Environmental Protection Act 1990; and
adequate site investigation information, prepared by a competent person, is presented.
Paragraph 122: In doing so, local planning authorities should focus on whether the development itself is an acceptable use of the land, and the impact of the use, rather than the control of processes or emissions themselves where these are subject to approval under pollution control regimes. Local planning authorities should assume that these regimes will operate effectively. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities.
7.65 The Core Strategy in policy CS2 requires that all development will be required to have an acceptable impact on the amenity of users or adjoining occupiers, taking into account things such as odour, air quality or other environmental impacts. Policy CS8 requires that proposals for development on land that is, or is suspected as being contaminated or unstable will only be permitted if the land is capable of remediation and fit for the proposed use and shall include: a desk top study with the planning application; a phase II study and strategy for remediation and final remediation may be necessary where the desk top survey indicates remediation may be necessary, on any full or reserved matters planning applications. Also that a programme of
67 remediation and validation must be agreed before the implementation of any planning permission on contaminated and/or unstable land. The requirement to undertake this programme will be secured using planning conditions.
7.66 The new national planning policy guidance which replaces the technical annexes to PPS22 has been replaced by the following paragraphs:
‘To ensure a site is suitable for its new use and to prevent unacceptable risk from pollution, the implications of contamination for new development would be considered by the local planning authority to the extent that it is not addressed by other regimes.’ ‘Contamination is more likely to arise in former industrial areas but cannot be ruled out in other locations including in the countryside’. ‘Only a specific investigation can establish whether there is contamination at a particular site, but the possibility should always be considered particularly when the development proposed involves a sensitive use such as housing with gardens, schools or nurseries’. The guidance contains a flow chart as follows:
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7.67 The guidance further states that: ‘Local planning authorities should work with developers to find acceptable ways forward if there are concerns about land contamination. For example, planning permission can be granted subject to conditions and/or planning obligations can be sought in the light of the information currently available about contamination on the site and the proposed remediation measures and standards. However, local planning authorities should be satisfied that a proposed development will be appropriate for its location and not pose an unacceptable risk’.
7.68 The “unacceptable risk” referred to in the Planning Policy Guidance means a risk of such a nature that it would give grounds for land to be considered contaminated land under Part 2A of the DEFRA Contaminated Land Statutory Guidance. The DEFRA guidance states that ‘Only land where unacceptable risks are clearly identified, after a
69 risk assessment has been undertaken in accordance with this Guidance, should be considered as meeting the Part 2A definition of contaminated land’ and further to this that: ‘All risk assessments of potentially contaminated land will involve uncertainty, for example due to scientific uncertainty over the effects of substances, and the assumptions that lie behind predicting what might happen in the future. When building an understanding of the risks relating to land, the local authority should recognise that uncertainty exists. The authority should seek to minimise uncertainty as far as it considers to be relevant, reasonable and practical; and it should recognise remaining uncertainty, which is likely to exist in almost all cases. It should be aware of the assumptions and estimates that underlie the risk assessment, and the effect of these on its conclusions’.
7.69 The Applicant has submitted a phase II Land Contamination Assessment that includes the results of soil chemical testing and gas monitoring following on from a phase I preliminary risk assessment carried out for the adjacent unauthorised site to the west. The phase II reports that two soil samples (boreholes to a depth of 4m) were taken (S1 and S2) and shows the locations of these. S2 lies outside the red line boundary of the application site whilst S1 lies within the application site. The samples were tested for common contaminants and sample S1 was found to be ‘clean’ although sample S2 showed elevated levels of arsenic, lead and nickel (above the levels recognised as a acceptable for residential development).
7.70 The gas testing undertaken was fortnightly over a three month period and encompassed stable and varying climatic conditions (high low and falling atmospheric pressures). The results indicate that the site does suffer from the ingress of ground gas from the adjacent landfill, with readings to the east of the site being low with no or very little CH4 (Methane) and low CO2 (Carbon Monoxide), becoming greater to the south west with low to medium CO2 and low to high CH4. The assessment concludes that the sampling carried out of gas provides a conservative quantification of risk and places the site in the very low risk category, although the readings from the borehole outside the site to the west if included within the site, would suggest an increase to a low risk classification.
7.71 The assessment acknowledges the need for further investigation of mine shafts on the site and for remediation dependant on the findings of the investigation. The recommendations of the assessment are:
70 Level the site with only clean/inert material being imported or excavated, using geogrid reinforcement over existing coal mine shafts (subject to agreement with the Coal Authority and further site investigation).
Taped and sealed gas resistant membrane to be laid over the whole site (amended to be over the site excepting a perimeter strip of landscaping).
Not less than 400mm of clean/inert fill over the gas membrane with not less than 100mm of clean/inert topsoil to landscaped areas and 100mm of clean/inert hardcore to road/track and living areas.
Any caravan coverings to have vents.
All amenity rooms/sheds to have a vented underfloor void.
Validation of remediation works.
7.72 Having regard to the assessment submitted, the relevant consultation advice received by the LPA is summarised as follows:
7.73 One of the Councils Environmental Protection Officers (EPO) initially commented as follows:
I have no objection to the application. Mr Cash, and his family, have been on an adjacent plot of land since late 2011. Complaints were made regarding noise (particularly with reference to three dogs which the family own), and the investigation which followed found that no actionable noise nuisance was being caused. The monitoring found that the dogs barked in response to people (usually themselves with dogs) walking in the immediate vicinity. There is no indication that the family has had an adverse effect on the neighbourhood.
I understand that the County Council (as waste authority) has objected in the past to a similar application due to the possibility of the migration of gases from the landfilled materials in the tip which operated for some 20 years until 1979. I defer to their expertise in this matter.
71 7.74 Further to this a more senior EHO has commented on the development specifically in respect of land contamination, as follows:
As discussed I have now read through the Phase I Environmental Audit, the Design and Access Statement, the Coal Mining Risk Assessment and the Environmental Phase II Letter Report.
With regards to the first 3 documents listed above I have no comments to make. With regards to the Environmental Phase II Letter Report I have the following comments to make:
· I am in agreement with TJ Booth Associates and how they have planned their site investigation.
· I see that a range of contaminants were tested for (including PAH's - polyaromatic hydrocarbons) which could be present in oil/fuel spillages with the site previously being used for as a 'garage site'.
· I am in agreement with the method that has been used to sample the gas monitoring; i.e. over a period of time which takes into account rising/falling atmospheric pressures.
· I am in agreement with the remediation method chosen and would further add that it would need to be demonstrated that soils have been taken off site (i.e. waste transfer notes and photographic evidence) and all soils brought onto site must be tested and validated at source, prior to importation onto site. The imported soils shall be approved, in writing by Chesterfield Borough Council prior to importation onto site.
· The remediation process must be followed by a validation process; documented in a report and supported by appropriate evidence. I can provide further guidance on this as necessary.
7.75 The LPA received queries (which were in part forwarded to the Applicants land contamination consultant, Derbyshire County Council and the Borough’s EHO for comment) from objectors concerning the adequacy of the Phase II assessment submitted. The queries covered the following issues:
the potential for gas migration due to the weight of the proposed importation of surfacing materials;
72 the identification of elevated levels of arsenic, lead and nickel in a soil sample taken from a location outside of the application site (S2). The safe levels of such materials for human consumption; Concern that an ‘impartial’ assessment is required for a planning decision.
7.76 In relation to the first matter, the Borough’s senior EHO has commented that:
I am unable to provide comment on gas migration as this is a very specialist subject
7.77 Yet the senior EHO does not object to the conclusions of the applicant’s land contamination consultant. In relation to the second issue the senior EHO raises no objection given the proposed remediation. In relation to the last issue, impartiality is not relevant to the decision making in so far as pollution control is concerned whereas competency is. There is no evidence provided by objectors to demonstrate that the Applicant’s land contamination consultant is not competent, conversely there is evidence that the consultant is a competent person in respect of carrying out such assessments. No concerns have been raised by the senior EHO over the competency of the applicant’s consultant or adequacy of the assessment.
7.78 In respect of Derbyshire County Council as the relevant Local Waste Authority with responsibility for the former landfill’s waste, its Environmental Services (Mr S Lloyd) has commented as follows:
I believe that as all the fill material will be on the area of the former garage site and not on the landfill the effect of increased ground pressure will be insignificant and unlikely to affect the migration of gases from the landfill site.
Although the site is not ideally positioned being on the boundary of a known gassing landfill it is considered to be acceptable from a safety point of view which has been the County Council’s main reason for objection to the current development. Obviously no guarantee can be given that landfill gas will not enter the development in the future.
The only addition the County Council would suggest to the proposed remediation measures is that the gas membrane should be protected against puncture by the addition of suitable geotextile layers immediately above and below the membrane. If all the remediation
73 measures are completed as proposed in the document No.11624871, supporting information, from the Applicant’s consultant T J Booth Associates, the County Council has no objections to the granting of permission.
7.79 Representations have also been received from the public providing their own opinion on the risk posed to the development, the public and lead to the conclusion that the site is not a suitable location for the nature of development applied for. No robust evidence has however been submitted to support the conclusions that the site in effect is undevelopable for the proposed Traveller Site.
7.80 There is still incomplete information on exactly what operational development requiring excavations forms part of the application in respect of foul water drainage. However the applicant’s Land Contamination consultant has confirmed in writing that services can be brought to the site as normal excavations to the east of the site from Hady Lane, and then brought in above the gas membrane on the east boundary of the site (subject to a fine sand bedding above the gas membrane).
7.81 The risk assessment is not faulted by the Borough Council’s Senior Environmental Health Officer, or Derbyshire County Council and it has been prepared by a competent person. Objectors provide no counter evidence to fault the assessment. Accordingly, significant weight should be given to the assessment. It is clear that the assessment relies on the assumption that the landfill site will continue to have gas drawn off but in the remediation proposed acknowledges that there is no guarantee of gas never migrating under the site.
7.82 The relevant planning policy and guidance seek to ensure that there is no unacceptable risk in order that the land is able to be considered as suitable. The relevant National Planning Policy guidance is clear on the definition of an ‘unacceptable risk’ as defined in Part 2A of the DEFRA Contaminated Land Statutory Guidance. Part 2A of the DEFRA Contaminated Land Statutory Guidance sets out a method of identifying unacceptable risks in particular to human health. The risk assessment identifies remediation measures to make the application site suitable and concludes that there would not be an unacceptable risk from the development (to those who would be on the site and surrounding occupiers) subject to remediation measures.
74 7.83 There is no robust evidence that the submitted risk assessment has not been carried out by a competent person and is not adequate for planning purposes. The Council’s senior EHO, Derbyshire County’s Waste Authority and Environment Agency raise no objection and no concerns at the adequacy of the assessment and mitigation. On this basis the proposal would be suitable in terms of risk from land contamination (including gas) to human health of the future occupiers and existing neighbouring occupier’s and consequently to determine that the proposal does not in this respect conflict with the NPPF and Core Strategy policies CS2 and CS8.
7. Highway Safety and Public Rights of Way
7.84 The development applied for would utilise an existing vehicular access serving existing land uses. The access is approximately 5.0m in width as it meets Hady Lane. Visibility is relatively unrestricted in the ‘non- critical direction’ (north) but is limited by a hedgerow which adjoins the highway footway, the footway only being approximately 1.3m in width. The access and surrounding hard surfacing is already subject to use by pedestrians and vehicles, serving the public use of the open land/countryside within which the application site is located and the waste recycling facility. The applicant has previously confirmed that he has a right of access along the access track which serves the application site (but not into the application site) from Hady Lane and information from the Land Registry has indicated that this is the case. The applicant already owns the land to the west on which the unauthorised development is located.
7.85 The Local Highway Authority (LHA) has provided comment that the proposal is acceptable in principle albeit with a means to limit the level of occupancy and have regard to the proposed additional two touring caravans on no more than 6 two week periods annually. No off-street parking and manoeuvring is shown on the submitted plans and the LHA suggest that the LPA may wish to consider if a plan showing this ought to be provided and conditioned to avoid doubt. Otherwise the LHA raise no objections and recommend conditions as follows:
1. The use of the site shall be restricted to occupancy of the mobile homes only and the number shall not exceed two i.e. the touring caravans shall not be occupied on site as permanent residences and only two touring caravans shall be allowed within the site on a permanent basis. Up to two additional touring caravans at any one
75 time will be accepted in respect of visiting family members for short stays not exceeding two weeks at a time.
2. There shall be no business or commercial activities or storage of materials associated with such activities at the site.
3. Space shall be maintained within the site curtilage for the parking and manoeuvring of vehicles and caravans to allow entry and exit in a forward gear.
7.86 Significant weight is given to the comments of the LHA. The LHA has been made aware of representations that relate to parking provision on the site. In particular the submitted application forms which state that there are 2 existing light goods vehicle (LGVs) spaces on the site and that 2 further such spaces will be added. The LHA has responded that whilst the issues raised in the comments are appreciated, the LHA does not consider that a recommendation of refusal could be upheld in the event of an appeal.
7.87 The application form indicates that there is space for 2 cars, 2 LGVs and a further 2 LGVs. The parking of four commercial vehicles on the site would appear disproportionate to a residential use for one extended family in two mobile homes, and would occupy a significant part of the application site to the detriment of residential amenity and would be likely to leave inadequate space within the site for visitors especially if towing two touring caravans. A condition is necessary to control the number of vehicles parked to two LGVs and 2 cars (plus one visiting car) at any one time.
7.88 Representations have been received which give the opinion that the proposal will pose a threat to children travelling to and from school and pedestrians in general; also that the Travellers visitors are using hard standing on the former garage court as parking preventing others using it when wishing to use the facilities and amenities afforded on the wider open land/countryside. However, given that the Highway Authority do not anticipate a significant problem it is not considered that the residential land use for which permission is applied for will generate sufficient traffic to pose a significant threat to pedestrian safety.
7.89 Allegations have also been received claiming that the unauthorised site to the west is in mixed use and sees commercial traffic. Whilst this may or may not be the case, what is applied for is a residential use and it is on this basis that the application is considered. The applicant’s agent
76 previously has been asked by the LPA to identify any storage areas and the nature and number of daily vehicle movements from the site. The agent responded by stating that no areas for storage are proposed or required and that traffic movements will be less than that generated by two 2-bedroomed dwellings; anticipating an average of no more than 12 vehicle movements (6 in, 6 out) per day.
7.90 It is considered that in light of the Highway Authorities comments on the need to limit vehicular activity to a residential level in proportion to the scale of development applied for and the objections raised by the public, that condition’s to this effect would be necessary and that a mixed use would not be appropriate in this location. The parking of the applicant’s work vehicle on the site is not considered to represent a commercial use, however the storage of plant and machinery would be. Consequently the Highway Authorities conditions are accepted as being necessary and according with Planning Practice Guidance.
7.91 The Highway Authority has been made aware of a representation received by the LPA which shows on-street parking problems during school drop off an collection times and which seek the use of the application site as off-street parking to mitigate the existing problem. However, there are no proposals for the re-use of the site as parking and off-street parking for the school could be provided elsewhere. The Highway Authority do not consider the issues as being sufficient grounds to the refuse the proposal permission.
7.92 The development applied for is not considered to be likely to pose a significant threat to highway safety and would have a suitable safe access onto the highway network subject to conditions and would not conflict in this respect with Core Strategy policies CS18 and CS20 and the NPPF and the national Planning Policy for Traveller Sites (PPTS).
7.93 With regard to the presence of a proposed footpath adjacent to the site, the development can occur without obstructing the route. A condition is considered necessary to ensure that the boundary treatment prevents dogs access and egress to protect the footpath route in the interests of ensuring accessibility to the countryside to promote exercise and sustainable alternatives to the use of cars, reduce community tensions in accordance with Core Strategy policies CS9, CS18 and CS20, the NPPF and PPTS.
77 8. Biodiversity
7.94 The Derbyshire Wildlife Trust (DWT) initially confirmed (25th April 2013) that they were not aware of any substantive nature conservation interest associated with the development site and, as such, did not anticipate any ecological impacts arising as a result of the proposal. The LPA prior to this had requested a phase I habitat assessment from the applicant due to the site being previously developed land which had ‘regenerated’ with vegetation. The DWT were asked by the LPA for further advice on the site and need for ecological assessment. The DWT concluded following a site visit that the site was indeed of low botanical interest and diversity and not of sufficient quality to meet the selection guidelines as a local wildlife area. Also that a dead tree on the site did not contain any features suitable to support roosting bats and there are unlikely to be any other protected species issues arising with the application. The DWT further advises that the vegetation on the sites perimeter should be retained and enhanced by the addition of native trees and shrubs via a scheme to be secured by condition, and that a limitation should be placed on any permission to prevent disturbance to breeding birds during site ‘clearance and preparation’.
7.95 Local residents opposed to the development invited the Council’s ‘Sustainability Officer’ Mr Peter Corke onto site. Mr Corke has subsequently provided comment on the current planning application that ‘the site is of great wildlife value and would merit a detailed species assessment that I feel would justify its retention as an urbanised wild space for which the community of Hady would benefit. This also strongly supports current initiatives to create wild areas at the edges of housing estates’. Also that the site is extremely species rich. The Derbyshire Wildlife Trust were made aware of Mr Corkes opinion and responded that the Trusts comment to the LPA is based on current relevant national and local planning policies and legislation in relation to biodiversity in order to enable a planning decision to be made that could be robustly defended at a planning appeal, should the situation arise.
7.96 Furthermore that their comments reflect an assessment of a sites potential to meet local wildlife site selection criteria taking into account the presence of protected and priority species and habitats provides a good indication of its biodiversity value, the assessment of the site on the 1st May 2013 identified that the site was not of sufficient nature conservation value upon which to base a refusal on ecology grounds.
78 7.97 The LPA requested that the DWT re-assess the site in light of Mr Corkes comments, and the DWT revisited the site on the 15th July 2014. The visit was carried out by two local wildlife sites officers whom concluded that the habitats present on the site had not changed since the previous visit in May 2013. The DWT confirmed that whilst the site may have local interest it does not support any habitats or species of substantive nature conservation interest and the advice of the DWT provided on the 1st May 2014 was still relevant.
7.98 Significant weight is given to the opinion of the DWT and it is concluded that there are unlikely to be any significant ecological impacts arising from the development subject to conditions to protect and enhance existing perimeter vegetation. The development would provide the opportunity for an increase in tree and hedgerow planting and there is no evidence to give rise to the suspicion raised by local residents that protected species or habitats will be affected, and no requirement to apply the derogations of the EU Habitats Directive. It is considered that the development would not conflict with Core Strategy policy CS9, the NPPF and the National Planning Policy for Traveller Sites.
9. Flood Risk
7.99 Land owners have the primary responsibility for assessing the flood risk to and from their property. The site is not identified to be at risk of any forms of flooding including surface water with regard to Environment Agency records. The Environment Agency (EA) has raised no objection to the development subject to a condition relating to the identification of contamination during development. It is considered that the EA comment should be given little weight as it is not apparent how relevant considerations have been taken into account. What is of significance is that the EA has raised no issue in respect of flooding. The nature and scale of the development and its location are such that a flood risk assessment is not considered necessary (having regard to the advice in the Practice Guide to the NPPF and the Environment Agencies standing advice). Given that the sites area is mostly covered by hard standing albeit with vegetation over much of it, any increase in surface water run off from the presence of caravans and ‘dayroom’ is likely to be insignificant, and a surface water drainage system to reduce rates would not be a reasonable or proportionate requirement. What is considered necessary is details of measures to prevent pollution to the water environment from fuel and oil spills in relation to vehicles on the site and any such items stored. Subject to a condition covering this
79 matter the proposal would not conflict with Core Strategy policy CS8 and the NPPF.
10. Land Stability
7.100 The site is within an area of historic coal mining and a referral area for the Coal Authority. The application has been referred to the Coal Authority and the Coal Authority previously comment that their records identify three redundant mine shafts within the application site boundary and they have no information on what treatment these shafts may have received. The Coal Authority previously advised that the proposed pitches/structures are within the ‘zone of potential ground disturbance’ should the mine shafts subside or collapse and referred to shallow underground mine workings which could adversely affect the development if these workings cause subsidence. The Coal Authority also refer to the potential for ‘hazardous’ mine gases to reach the surface.
7.101 The Applicant’s land contamination consultant has carried out a coal mining risk assessment, which the Coal Authority accepts as adequate. The assessment identifies a need for further investigation (intrusive site investigation) and the Coal Authority concludes that the issue can be addressed by imposition of a ‘planning condition’ (site investigation and remediation if necessary), to take effect prior to any development being carried out.
7.102 Significant weight is given to the comments of the Coal Authority and it is concluded that an assessment of the threat from historic coal mining by a competent person has been submitted and is acceptable. Subject to a condition as recommended by the Coal Authority in this respect the proposal would accord with Core Strategy policy CS8 and paragraphs 120, 121 and 122 of the NPPF.
11. Equalities - Equalities Act 2010
7.103 In carrying out its duties the Council must have due regard to the provisions of the Equalities Act 2010 in particular sections 149 and 150. In effect these impose a duty, known as the public sector equality duty, on the public bodies listed in Schedule 19 to have due regard to three specified matters when exercising their functions. The three matters are:
80 Eliminating conduct that is prohibited by the Act, including breaches of non-discrimination rules in occupational pension schemes and equality clauses or rules which are read, respectively into a person’s terms of work and into occupational pension schemes.
Advancing equality of opportunity between people who share a protected characteristic and people who do not share it.
Fostering good relations between people who share a protected characteristic and people who do not share it.
The second and third matters apply to the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, ethnicity, sex and sexual orientation.
7.104 Gypsies and Travellers are recognised as having protected characteristics under the Equality Act 2010. Case law has also established that the Government has a duty to facilitate the Gypsy way of life for ethnic Gypsies and Travellers under the Human Rights Act. The applicant and family are Irish Travellers and as such have protected characteristics in law. Their need for cultural appropriate accommodation is a material consideration as are their personal circumstances.
7.105 Equality of opportunity and life outcomes is a fundamental theme of the Equalities Act and related Code of Conduct, the Equalities Review (Cabinet Office 2007) suggesting ten key life outcomes as indicators of equality. These outcomes are:
Longevity of Life Health Physical Security Education Standard of Living Productive and Valued Activities Individual, Family and Social Life Participation, Influence and Voice Identity, Expression and Self-respect Legal Security
81 7.106 A sustainable community would be one where nobody is excluded, whether by disability or any other characteristic i.e. ethnicity, and where everyone can make their own contribution to the life of the community as a whole and have equal opportunity to achieve life outcomes.
7.107 Irish Travellers are identified in research by the Equalities and Human Rights Commission and by Government as being subject to inequalities in terms of life outcomes and a key cross-cutting factor is the lack of a secure settled base from which to access healthcare and education. To not accept the principle of the development in open countryside would indirectly discriminate against the family’s as Irish Travellers given their specific ethnicity and accommodation needs. The impact of the development must be considered against the other material considerations which weigh in favour of the application i.e. accommodation need, lack of alternative accommodation and personal circumstances
7.108 Indirect discrimination occurs when a criterion, requirement or condition is applied to everyone, but in practice a much smaller proportion of some groups can comply with it than is the case for others. In other words, the effect is to operate procedures that systematically put some groups of people at an unfair disadvantage. To take a stance that presumed against Traveller sites in open countryside in principle, regardless of circumstances, in a situation where no provision had been made through allocations in a Local Plan would be indirect discrimination.
7.109 Several representations have been received which raise concerns that the Council has not dealt with the application as it would do with others (i.e. the settled community) and inference made to a nearby site where permission was refused for an equestrian use and three associated storage buildings (albeit a re-submission being permitted subject to changes in the siting of the buildings, reduction in enclosures and hard surfaced area). Consistency of decision making in respect of the current application and the aforementioned refusal and also the refusal of an equestrian use and storage on the application site is also raised. The inference is that should the Council accept the principle of the residential development in open countryside, then it would be making an inconsistent decision and also be positively discriminating for the applicant and family and discriminating against the settled community. Furthermore, that to grant permission would in effect endorse the continuation of development undertaken without permission and
82 damage the credibility of the planning process as a whole and undermine public confidence in the fairness of the system.
7.110 The applications referred to in representations materially differ from each other in nature scale and also with the current application. There is also a material difference in respect of personal circumstances, again a material consideration. The Council has therefore a substantially different set of considerations to balance.
7.111 There is no evidence provided by objectors that in having regard to the applicant’s ethnicity, personal circumstances and accommodation need and giving weight to these factors, the Council would materially disadvantage the settled communities life outcomes. In not giving weight, as is clearly what objectors seek, the Council would fail to have regard to all material considerations and discriminate.
12. Other Considerations
The Existing Level of Provision and Need for Sites
7.112 The Government’s guidance document on the revocation of Regional Strategies advises that Gypsy and Traveller Accommodation Assessments form a good starting point for any review of levels of provision. The current Derbyshire Gypsy and Traveller Accommodation Assessment (DGTAA), was published in 2008 and used evidence researched in 2007.
7.113 The East Midlands RSS has now been revoked however its evidence base is still able to be take into account. The RSS relied on biannual caravan counting and also GTAAs such as the DGTAA. The RSS acknowledged that: ‘GTAAs will need to be updated regularly to provide evidence for subsequent reviews of this policy and inform Local Development Frameworks beyond 2012’. Consequently whilst the DGTAA is a ‘good starting point’ it is due a review, its evidence having been collected in 2007, 6 years ago.
7.114 The DCLG also has biannual records of numbers of caravans on authorised and unauthorised sites provided by Local Authorities in the area. However, as the DGTAA points out:
‘The best quantitative information available on the Gypsy and Traveller communities derives from a biannual survey of Gypsy and Traveller caravans which is conducted by each local authority in England on
83 a specific date in January and July of each year. This count is of caravans and not households which makes it more difficult to interpret for a study such as this. It must also be remembered that the count is conducted by the local authority on a specific day and that any unauthorised encampments which occur on other dates will not be recorded. The count also only features those caravans the local authority is aware of. Therefore, it may not reflect all of the Gypsy and Traveller caravans in the authority.’
7.115 The following paragraphs set out what the current position is thought to be based on the DGTAA, biannual caravan counts and permissions for new sites since 2008. It should be noted that the LPA has sought an update since consideration of the refused permission for the applicant’s unauthorised Traveller site immediately to the west of the current application from Bolsover and North East Derbyshire but has received no comments back. Furthermore the conclusions of the recently undertaken Derbyshire Traveller Accommodation Assessment have not been finalised and published so cannot be taken into account. The following information is as was considered last year.
Existing Level of Provision in Chesterfield Borough
7.116 Chesterfield Borough has no public or private Traveller sites with planning permission, allocated in the Local Plan or identified as part of the evidence base for the draft Core Strategy. The Council has no transit or residential allocated sites within the Local Plan and whilst the Local Plan Inspector during the Examination in Public of the Core Strategy was satisfied that their was insufficient evidence to justify such an allocation based on the 2008 GTAA and RSS he accepted that the evidence base needed to be updated. He was satisfied that the Core Strategy included a criteria based approach to consideration of sites.
Existing Level of Provision in adjoining Boroughs/Districts
7.117 North East Derbyshire District Council has one public site at Corbriggs which has permission for a total of 20 pitches. 4 of these pitches were granted permission post 2008. It also has 3 private sites with permission for 11 pitches, located at Dark Lane Calow, Clay Cross and Dark Lane North Wingfield. Of these 3 sites, 7 pitches received permission post 2008. The site manager for Corbriggs has stated that there is a perennial waiting list of ‘around half a dozen’ for the site for permanent pitches and with similar for transit pitches.
84 7.118 Bolsover District Council has now provided a summary of its site provision and need in its draft Core Strategy which differs to the information given to officers of CBC when considering the applicant’s previous application for his unauthorised site. Bolsover has in fact four sites (all private) at Blackridge (near Pleasley), Carr Vale, Shuttlewood and Blackwell. A table is provided to illustrate provision.
Sites No pitches Caravans Blackridge (nr Pleasley) 21 42 Blackwell 2 5 Shuttlewood 1 2 Carr Vale, Bolsover 3 7
Total 27 56 No of
The majority of the above pitches (21) were granted permission in 2005 and then amended in 2012 (Bolsover District Council application reference 11/00118/FULMAJ).
7.119 The 2012 report related to application reference 11/00118/FULMAJ states that:
While the regional and national policy applicable to Gypsy and Traveller sites is in a state of flux, as the proposal does not relate to the provision of a new site but rather the improvement of a validly consented site, policies concerning levels of provision are not relevant. Indeed the level of provision as permitted on this site has been included in the GTAA. The loss in pitches is made up elsewhere in the District as a further site has been granted planning permission in Carr Vale (6 pitches) providing total Gypsy and Traveller Accommodation in excess of requirements identified in the latest GTAA available, as expressed through the RSS.
7.120 The draft Bolsover Core Strategy (Local Plan) states that:
At the time the former East Midlands Regional Plan was published, assessments had been carried out identifying needs up to 2012. The identified need in Bolsover District was for 1 extra pitch to ensure a minimum provision of 16 pitches. Beyond 2012 the Regional Plan advocated a growth projection on the basis of 3% compound growth per year. This would require a total provision of 29 pitches in the district
85 by 2031. ……………….. with regard to gypsies as of October 2012, 27 pitches had been already been granted planning permission – some of which have already been implemented and are occupied.
7.121 The High Peak Borough Council has no ‘authorised’ sites. Available information to date indicates that since 2008 a total of 11 pitches have been provided in North East Derbyshire District and between 2 and 7 pitches in Bolsover.
Existing General Need for Sites
7.122 It was acknowledged by Government in 2006 (CLG: Gypsies and Travellers: Facts and Figures) that there was a ‘serious shortage’ of authorised pitches to meet accommodation needs. Whilst measures were taken to address the shortfall and provision has increased, there is still a shortfall of authorised sites. The Department for Communities and Local Government estimated in January 2013 that there were almost 18,730 Gypsy and Traveller caravans in England (DCLG Count of Gypsy and Traveller Caravans – July 2011), 14% of these on ‘unauthorised sites’.
7.123 The now revoked East Midlands RSS in 2009 acknowledged a serious shortage across the East Midlands of authorised Traveller Sites. Part of the evidence base for the RSS included the Derbyshire GTAA which in 2008 identified a general need for new sites in Derbyshire totalling a provision of 58 pitches. No specific pitch requirement was identified for Chesterfield Borough in the DGTAA or the East Midlands RSS. However, the DGTAA acknowledged that:
Much of the remainder of the provision is required for those on waiting lists for a site in North East Derbyshire District and South Derbyshire District areas. The apparent need in each of these districts for 15 extra pitches has by default been provisionally allocated to North East Derbyshire District and South Derbyshire District to provide for those on waiting lists…(DGTAA paragraph 8.44)
However, it should be noted that this requirement is based on the waiting lists for existing public sites in the authorities, and that authorities with no authorised public sites by definition cannot have a waiting list. Therefore, potentially the waiting lists could reflect a wider requirement for pitch provision in southern and north eastern Derbyshire rather than in the specific local authorities. (DGTAA paragraph 8.45)
86
This would imply that potentially the requirement for public sites in South Derbyshire District could be met in areas of Amber Valley Borough, Derbyshire Dales District or Erewash Borough. Similarly the requirement for North East Derbyshire District may potentially be able to be met in Bolsover District, Chesterfield Borough, Derbyshire Dales District or High Peak District. (DGTAA paragraph 8.46)
7.124 The need for provision in ‘north eastern Derbyshire’ allocated to North East Derbyshire District Council’s area by the DGTAA and subsequently the East Midlands RSS was 19 pitches. Bolsover District was allocated a need of 1 new pitch and the High Peak District 0 pitches. To date the need for 19 new pitches in ‘north eastern Derbyshire’ and attributed to North East Derbyshire District Council’s area (as a consequence of NEDDC having a public site and waiting list) in the DGTAA, has not been met with a shortfall of 8 pitches. The need identified in the DGTAA for Bolsover would appear to have been met upto 2012 but now according to the Bolsover draft Local Plan, shows a shortfall of 2 pitches up to 2031.
7.125 The biannual caravan count for Chesterfield Borough indicates that 3 unauthorised caravans were identified in 2012 and 2011, 0 in 2010 and 9 in 2009. The Chesterfield Borough Council’s Housing Team has acknowledged that the biannual count is insufficient when assessing the level of encampments in the Borough as they occur on an irregular basis. They have provided figures to supplement the biannual count (and are inclusive of the biannual count) as follows:
2008 1 caravan 2009/10 29 caravans 2010/11 18 caravans 2011/12 3 caravans 2012/13 3 to 5 caravans 2013/14 5 caravans
7.126 With regard to NEDDC the following figures are recorded in the biannual counts:
87
Year/Month No. Caravans on No. Caravans on Authorised Sites Unauthorised Sites Jan 2014 35 0 Jul 2013 34 0 Jan 2013 49 0 Jul 2012 32 0 Jan 2012 33 2 Jul 2011 33 2 Jan 2011 35 0 Jul 2010 36 0 Jan 2010 31 2 Jul 2009 5 5 Jan 2009 32 8 Jul 2008 31 0 Jan 2008 48 5
7.127 With regard to Bolsover the following figures are recorded:
Year/Month No. Caravans on No. Caravans on Authorised Sites Unauthorised Sites Jan 2014 43 0 Jul 2013 22 1 Jan 2013 36 3 Jul 2012 23 1 Jan 2012 34 4 Jul 2011 21 1 Jan 2011 29 1 Jul 2010 12 6 Jan 2010 12 8 Jul 2009 13 10 Jan 2009 10 0 Jul 2008 22 3 Jan 2008 16 0
7.128 The information available would appear to indicate that there is still currently some general need across Derbyshire albeit increasingly so in Chesterfield and less so in North East Derbyshire District. It is also of note that the Borough Council’s Housing Team confirm that the applicant, his family and his extended family occupied a site within the curtilage of an industrial premises in Chesterfield Borough, located within the ‘A61 Corridor Area of Major Change’ (also known as ‘Waterside’) for in excess of 2 years prior to moving to their current unauthorised site to the immediate west of the application site. The current application appears to be a local manifestation of the wider
88 need in north east Derbyshire indicated by the DGTAA, biannual caravan counting and recording of unauthorised encampments.
The Availability (or lack) of Alternative Accommodation For The Applicants
7.129 Planning Policy for Traveller Sites paragraph 22 requires consideration of the availability of alternative accommodation for the applicants. The Council’s Housing Team has no record of the applicant making a request for accommodation previous to their occupation of a site in Chesterfield off Brimington Road and the application contains no evidence of what attempts the applicant had previously made to find a site and what alternatives were considered before occupying the application site. However, there is no requirement in planning policy or case law for an applicant to prove that no other sites are available or that particular needs could not be met from another site (South Cambridgeshire v SSCLG & Brown [2008] ) and therefore little weight is given to this lack of an ‘alternative sites search’ by the applicant.
7.130 Upon refusal of a planning application for the applicant’s unauthorised site to the west the LPA has considered the matter of enforcement against the applicant’s development and has come under pressure from members of the settled community to remove the applicant from the site. The LPA concluded that the current unauthorised site is unsuitable being on the former landfill site, a stance which differed to that taken by Planning Committee when determining the refused application for the applicants existing site. The change in stance was a result of materially different consultation comments from DCC in relation to the enforcement investigation. As part of the enforcement investigation and flowing from the committee resolution the LPA has sought to identify alternatives within the Borough which are suitable, affordable, available and acceptable (Doncaster MBC v FSS and Angela Smith [2007] EWHC 1034 (Admin)). Officers sought the availability of potential sites for relocation through enquiries with Housing, Leisure Services, Kier Property Services and Derbyshire County Council. Derbyshire County Council responded confirming that they had no available sites. Leisure Services identified one site however this was discounted being located within the Green Belt area. Kier provided a list of all the land currently on the market and which were land at Angel Yard (£175,000), land at 73 Sheffield Road (£120,000), land at Thompson Street (£120,000), plot 3 at Ireland Business Park (POA) and land at Marsden Street (£150,000). The sites were considered to be unsuitable by officers because of either their location in the town centre or industrial area or
89 because they were regarded as too expensive. Terms were also being agreed in respect of one of the sites in respect of a sale. Discussion with Housing confirmed the availability of bricks and mortar property but that at the time they had not identified the sale of any land. However it was concluded whilst the bricks and mortar option should be considered, to offer such an option to the travellers would be inappropriate having regard to their search for land to maintain their way of life. The unused garage site adjacent to the applicants existing land was referred to as a possible site for relocation however the suitability and availability of the site were not assessed at the time. Council officers have therefore failed to identify any such relocation sites to date and no Council decision has been taken to lease or sell any land to the applicant. Therefore it is currently the case that the Council has no alternative sites to put forward. The Council’s Housing section prepared a report to members on the acceptability or otherwise of the Council permitting the applicant and his family to reside on the application site as tenants, given that the land is vested with the Housing Section. However, no decision was made and this is a separate matter and not relevant to the consideration of the planning application.
7.131 The current Local Plan (Core Strategy) sets no specific targets for Traveller Site provision, despite the presence of the applicant’s family in the Borough and the lack of an authorised site for them being known. The Council has publically consulted on a ‘Local Plan: Sites and Boundaries’ Development Plan Document (SBDPD), the ‘Issues and Options’ SBDPD took the stance that a ‘specific’ need for a Traveller Site in Chesterfield Borough had not been identified in the now outdated DGTAA and so none would be allocated unless an updated assessment identifies a need for sites in the borough. Also that depending on the timescale of the updated assessment and any proven need for sites, proposals would need to be raised at ‘preferred options’ stage in order to inform the preparation of the Local Plan: Sites and Boundaries (SBDPD). Otherwise, a proven need for sites would trigger a review of the Local Plan: Sites and Boundaries.
7.132 The intention is to publically consult on a preferred option SBDPD in the near future and taking account of an updated Traveller Accommodation Assessment for Derbyshire which is expected very shortly. The intention is to have an adopted SBDPD by the autumn 2015.
90 7.133 Currently in the absence of allocated sites via the Development Plan process, there is a set of criterion in policy CS12 for the assessment of sites which are not allocated. This policy sets out an approach to assess the location of sites effectively restricting acceptable locations to existing settlements or the countryside and preventing sites in the Green Belt, Local Green Spaces, Strategic Gaps, Green Wedges, Wildlife Sites or other protected green spaces (i.e. playing fields, play areas). The site is not on land designated as any of these restricted areas or identified as having the potential to be designated as such.
7.134 Looking beyond Chesterfield Borough, it can be appropriate to take account of possible alternative sites beyond the boundary of a local authority. However in doing so it would also be necessary to consider the need in those other areas. As already noted, the East Midlands RSS specified a requirement for 19 additional pitches in North East Derbyshire District in the period 2007-2012. Moreover the DGTAA identified 15 applicants on the waiting list for the public site at Corbriggs. Whilst NEDDC’s Housing Team previously confirmed a recent vacancy at the Corbriggs site they also confirm that this is an infrequent occurrence. The site manager when contacted in 2012 and 2013 has confirmed a waiting list on average for at least 6 permanent pitches, with similar for transit. The other sites in North East Derbyshire are smaller occupied private family sites. In these circumstances, it would appear unreasonable to consider it appropriate to take the authorised sites in North East Derbyshire District into account as being realistically available to meet need in Chesterfield Borough.
7.135 With regard to Bolsover District the 2012 permission for 21 permanent residential pitches now affords (when combined with the smaller private sites) almost sufficient provision to meet need up to 2031 based on available needs evidence, being short of 2 pitches. However, the biannual caravan count indicates that there are still unauthorised encampments in Bolsover District. In these circumstances, it would appear unreasonable to consider it appropriate to take the authorised sites in Bolsover District into account as being realistically available to meet need in Chesterfield Borough over the Local Plan period.
Existing Local Need for Sites
7.136 There is no evidence to suggest that the family has abandoned a nomadic way of life, nor that they do not fall within the definition of ‘Gypsies and Travellers’ for planning purposes. It is considered that the applicant, his family and extended family have a need for a site, given
91 their cultural background, whilst their desire to live together as a family unit is also given weight. There is still no authorised Traveller site in the Borough, and no reasonable alternatives in adjoining Boroughs, consequently it is accepted that the applicant’ family and extended family have a need for a ‘family’ site. The accommodation need of the applicant, his family and extended family and the lack of an alternative site in the Borough carry significant weight in favour of the development.
Other Personal Circumstances Of The Applicant
7.137 The agent has previously in relation to the refused application for the applicants existing unauthorised site, submitted a form of ‘family statement’ which states that; ‘the family are Travellers and as such do not know any other way of life but that of living in caravans’. The family occupying the site consists of the applicant’s immediate family (his wife and two young children), and his extended family (his mother and her son). A local connection is cited with emphasis on the applicant’s previous stays in Barlow and reference is made to the applicant’s trade of garden and patio work. The statement also refers to Mr Cash as travelling away for work and for traditional family gatherings. The statement explained that one of Mr Cash’s children is enrolled in a local school and that the extended family is registered with a local doctor’s and dentist’s surgery. The family would like to have a base from which to travel and also access health care in particular his youngest child of 18 months (now older).
7.138 It is acknowledged that a secure base for Traveller families and access to health and education services is fundamental to addressing inequalities of opportunity and health identified by the Government (Ministerial Progress report by the ministerial working group on tackling inequalities experienced by Gypsies and Traveller April 2012) and the Equalities and Human Rights Commission (Inequalities Experienced by Gypsy and Traveller Communities: A Review 2009). In the case of the applicant, his family and extended family, the site would provide a culturally appropriate form of accommodation and would serve to reduce social inequalities. The site would give stability and access to health and education to meet the needs of the applicant’s family and extended family. The families need is especially acute in that one of Mr Cash’s children is at pre-school age and his other child of school age and attending a local school. It is considered that the health and education needs of Mr Cash’s children carry significant weight in favour of the development
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Accessibility
7.139 The site has a level access as do the day rooms and it is considered that aside from the caravans that are not operational development, the site has a reasonable level of accessibility and would not conflict with Core Strategy policy CS18 or the NPPF.
8.0 REPRESENTATIONS
8.1 The LPA has carried out the statutory requirement for publicity and the following has been received:
A series of ‘standard’ letters of objection, totalling 85 in number and incorporating a selection of standard paragraphs as follows:
It is now clear that the travellers’ agent, DGLG, has held a strategic interest in this land for over 20 years, throwing doubt on the circumstances in which the travellers were ‘’forced’’ to move into the adjacent site being apparently homeless, yet despite this and the inaccurate and incomplete nature of all planning applications submitted to CBC by the travellers to date in respect of the two sites to the West of Hady Lane, the Council’s supportive and conciliatory approach to the applicant can only serve to encourage repetition of such tactics, which are disrespectful of the planning system, within the Borough, the county and nationally.
In respect of the details submitted, it was determined that the application was and is valid. In respect of the other matters raised these are not relevant material considerations and to give weight to these when considering the planning merits of the proposal would be ultra vires (illegal).
The application does not include all of the current unlawful uses by the applicant of the adjacent site, all of the unlawful structures on the adjacent site or all of the people regularly seen on the adjacent site.
The proposal must be considered as submitted. To invalidate or refuse the application on the basis of what third parties think ought to be proposed would be unreasonable behaviour.
I understand that part of the site or land immediately adjacent to the site is owned by Derbyshire County Council and leased to Chesterfield
93 Borough Council and that the terms of the lease agreement may effectively prohibit this proposed development. If this is the case, then considering this application represents a waste of time and money.
The application has been made and so must be considered, the Local Planning Authority has no choice.
Adjoining the proposed site is a former landfill site which is contaminated and still produces methane. Both the proposed site and that adjoining have abandoned mine workings. Permitting this development endangers the health and safety of regular inhabitants and adjacent local residents.
The suitability of the site for the development in terms of the risk to future occupiers and existing residents from land contamination (including ground gas) has been considered in the main issues section of this report. The relevant objections received do not contain evidence from a competent person and which is sufficient to warrant a refusal of planning permission.
The sites highway access suffers from poor visibility, particularly on the more important side as noted previously by the Council Highways Dept. This is made worse by the disproportionate volume of traffic the applicant’s use of the adjacent site is already generating. It is not unusual to see 3 vehicle movements in 10 minutes.
The Highway Authority have been made aware of objectors concerns including those relating to local traffic and parking conditions and have raised no objection subject to conditions.
As part of an earlier planning approval for equestrian associated activities on the adjacent site, the Planning Committee set its standards for this area. The Conditions placed on that earlier approval in order to ‘avoid unnecessary and intensified activity to the detriment of the countryside and landscape character, prevent urbanising sprawl and minimise visual impact’, also to comply with many local and national policies (CBC’s own words), clearly prohibit the proposals put forward in this application.
The objection fails to have regard to any other material considerations and to the different siting. The matters of impact on visual amenity and landscape character have been considered in the main issues section of this report.
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Villages remain a key characteristic of the Coalfield Village Farmlands but with the demise of the mining industry there are intense pressures for further development and historic settlement patterns are rapidly being overlain by modern development. The proposed development threatens to destroy our local settlement.
The objection fails to have regard to any other material considerations and to the different siting. The claim that the development has the potential to ‘destroy’ Hady is not substantiated or explained. The matters of impact on visual amenity and landscape character have been considered in the main issues section of this report.
The site in question was always available for use to benefit the local community. As you are aware, Members of the local community expressed an interest in developing it in October 2012. There are many uses to which the site could be put which would not only benefit the local community but would also satisfy the Planning Committee’s required standards referred to above. In order to satisfy its own standards therefore, Chesterfield Borough Council must investigate this opportunity before even considering this application.
No robust evidence has been submitted, provided by consultees or is available which demonstrates that the site is important to serve an unmet local need for uses such as parking, green infrastructure or play space.
Knowing the application was to vacate the adjoining site, Chesterfield Borough Council had an obligation to find alternatives sites for the family to consider. This, according to what you have told some residents of Hady Lane, was not done. Chesterfield Borough Council has not adhered to guidelines or the resolution of its Planning Committee, has neither found nor provided any suitable sites for Travellers and, evidently, has no intention of doing so. Chesterfield Borough Council therefore has a responsibility to offer suitable alternative sites before considering this application.
The National Planning Policy for Traveller Sites places a responsibility on the LPA to assess need and following this, through the Local Plan process identify and update annually a supply of deliverable sites sufficient to provide five years worth of site against locally set targets to meet need. The Local Planning
95 Authority is awaiting the publication of an up to date Travellers Accommodation Assessment commissioned by Derbyshire Local Authorities and carried out recently, and has committed in the Core Strategy to allocate a site or sites, should the assessment identify a need. In the absence of an up to date Traveller Accommodation Assessment and a Local Plan process of site identification, an exercise was carried out by Development Management to find an appropriate alternative site and none was found.
In respect of the current planning application, once submitted the Local Planning Authority must consider it and make a determination regardless. The objection is incorrect in that there is no responsibility on the LPA to not consider the application and in fact there is the reverse, a legal requirement to consider and determine the application, despite there being no up to date Accommodation Assessment and Local Plan process of site identification.
Knowing the application was to vacate the adjoining site, Chesterfield Borough Council had an obligation to find alternatives sites for the family to consider. This, according to what you have told some residents of Hady Lane, was not done. Chesterfield Borough Council has not adhered to guidelines or the resolution of its Planning Committee, has neither found nor provided any suitable sites for Travellers and, evidently, has no intention of doing so. Chesterfield Borough Council therefore, in order to strengthen its own position and protect the interests of Council Tax payers, has a responsibility to offer suitable alternatives sites before considering this application.
See previous comment.
8.2 The Council has been in receipt of a further 18 emails and letters, the issues raised (where not duplication of the issues raised by the ‘standard letters’) are summarised below:
Should be refused on same grounds as previously i.e. highway safety. In particular given proximity of school and school traffic.
Highway safety has been considered in the main issues section of this report.
96 Devaluation of property of those who have built land in good faith on basis of land being non building land.
Devaulation of property is not a material consideration nor is the level of understanding of the planning system by the purchasers of land at the time of them purchasing land. To take devaluation of property into account would be ultra vires (illegal).
Barking dogs are unpleasant when passing the site.
Noise and anti-social behaviour has been considered in the main issues section of this report.
Absurd that devaluation of property and blighting of a view are irrelevancies. This is stupidity and tantamount to metaphorically placing objectors hands behind their backs, these issues being of paramount importance to those living ‘on top of them’.
Devaluation of property is not a material consideration nor is loss of a view. To take devaluation of property into account would be ultra vires (illegal). These are not constraints derived by the Local Council but national wide limitations on decision making.
Will create a shanty town in local residents midst’s.
The Visual Impact of the development has been considered in the main issues section of this report.
Already chains and padlocks have disappeared from the gates going into the woods opposite to and below Barnes Road, thereby affording a vehicular access for every ‘Tom, Dick or Harry’ to gain access, which by a coincidence happens to be a rear entrance to their eyesore of a site.
The inference is that the Applicants either are criminals or associate with criminals who steal locks. The objectors appears to be expressing a prejudiced view of Travellers and the Applicant. There is no evidence to support the view given and so no weight should be given to it.
Applicant has closed a footpath to the public which has been walked for over 30years. The new site has the only footpath left for the public to use without going onto the road. If permission is granted then it would close this public right of way.
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Neither paths referred have been designated as public rights of way. The path across Mr Cash’s land can be obstructed by boundary fencing up to a height of 2.0m without the LPA’s control. The proposal would not obstruct the ability of pedestrians to travel from south to north past the western boundary of the site as this area would remain outside the developments boundaries.
The Applicant has tried to deceive the local population and Council by applying for an equestrian use previously and is now applying delaying tactics following refusal of permission to use existing unauthorised site.
The Applicant applied for an equestrian use and was granted this. Subsequently the Applicant occupied the site as a Traveller site and applied retrospectively for permission. Even if the Applicant has no intention of an equestrian use (which is not proven) this is completely irrelevant to the consideration of the planning application. To make a decision based on assumptions about an Applicants motives and not on the planning merits of the proposal would be ultra vires (illegal).
The Applicant’s dogs are allowed to roam the playing field next to the proposed development and have attacked a local resident’s dog. The field in question is also used by ‘kids’ as a short cut to school.
Anti-social behaviour has been considered in the main issues section of this report.
A fear that the Council will allow the development as it is on the ‘wrong side of town’.
This objection is of an irrational basis and so weight need not be given to it.
There are trees on the site.
The loss of trees on the site is considered in the main issues section of this report.
The LPA has not enforced against the Applicants unauthorised site so how can residents trust either the Applicant or CBC to be open and honest about their intentions regarding this land.
98 The Borough Council will need to make a decision on the use of the land as land owner separate to the planning decision. This decision will be made by the Council as owner of the land and the democratically elected decision making body and will be minuted. The Council has not enforced against the unauthorised site for legitimate reasons.
Object on basis of lack a confidence in Applicant to adhere to mitigation for ground gas and mine workings and a lack of confidence in the LPA to enforce mitigation, as demonstrated over the last 2 years, the risk being transferred back to the Council and tax payers through failure to follow correct procedures.
The LPA if granting permission and applying conditions, must only do so if conditions are amongst other things, enforceable. The lack of confidence in the ability of the LPA to enforce by an objector is not direct evidence of the unenforceability of any conditions should permission be granted.
Eyesore in a nice place to see nature, walk, unspoilt countryside views, chat and meet people – replaced with caravans, barking roaming dogs, portable toilets, building materials/waste, lorries and trade vehicles. Making people stop using the area and isolating people and isolating the community.
The visual impact of the development and the impact on amenity in general has been considered in the main issues section of this report.
Parking is diabolical locally with congestion at school drop off and pick up times, and also during sports matches, blocking ambulances heading to the Chesterfield Royal Infirmary.
Highway Safety has been considered in the main issues section of this report.
Very real chance of more caravans appearing given that the Council has done nothing to move the Applicant and has appeared to encourage them.
99 There is a low risk, given the presence of a gassing and settling landfill site and the constraints of the existing vehicular access, of a traveller site of any greater scale being acceptable in planning terms. The objector provides no evidence or reasoning in support of their assertion.
Hady has lost community facilities (club, post office, newsagents etc…) do you think that by having travellers that this is going to improve the area and bring in new amenities and encourage investment? I don’t think so, it’s going to get run down even more with no one wanting to invest in Hady, where is the ‘’SPIRE PRIDE’’?...there is none.
The reasons why the objector believes the view given is not provided is not of any direct evidence.
The travellers should be moved to a suitable location (as you should have done already by now) and gain some respect from the Hady residents and bring Hady out from turning into a forgotten unloved area of Chesterfield that is only good for allowing the set up of illegal traveller sites.
The objectors view infers that a Traveller sites are an undesirable land use and Travellers undesirable, but does not give an explanation nor reason. It appears to be based on prejudice towards the Travelling community and Applicant. No explanation of what would be deemed a suitable site is provided.
Leave a mess in the past.
The reference appears to be to a former occupation of the garage site at least a decade ago by members of the Travelling community. The proposal is for a family Traveller site and there is no evidence of there being more likelihood of the proposal resulting in waste being tipped in the locality than would be the case if a bricks and mortar dwelling were being proposed by non- Traveller Applicant.
You should set trees on that land not vans.
No justification is provided for the comment. However the issue of retention of the site or indeed its alternative use is considered in the main issues section of this report.
100 Residents of Hady have been badly let down by the Council. Concern that there should be restriction preventing more than two vans on the site.
The matter of process and corporate decision making is not relevant to the planning merits of the development. A condition can be applied limiting the number of residences on the site.
Don’t wish to have any more travellers and wish to have more important things like a shop, better bus shelters and a community centre. No buses into Hasland, no nearby GPs.
The location of the development and availability/accessibility of community facilities has been considered in the main issues section of this report.
Support for the sites designation as a village green on the basis that it has been used to teach children to cycle, for sledging and for parking in connection with football matches and for dog walking.
The value of the site as open space to the local community has been considered in the main issues section of this report.
Object on grounds previously given against previously withdrawn application.
Weight cannot be given to representations to a separate planning application. To do so would be ultra vires (illegal).
8.3 The 1 letter of comment received states that:
It has been a pleasure to note, as one passes, the well-kept pitch of its current occupants. Such observations do not of course displace standard examination of hygiene, especially where there are children, and water usage. If however the wording ‘family traveller site’ could be interpreted to mean ‘for the short-term occupancy of successive visiting caravans’, my concern would be greater.
The proposal is for a land use. However the LPA can impose conditions which control the nature and scale of the land use, in order to make the development acceptable in planning terms. The LPA can impose a condition to prevent the site being used as a
101 short term transit site and to prevent the use by more than one family.
8.4 The following issues raised by objectors have been considered in the main issues section of this report:
Traveller accommodation need, provision and alternative sites. Land Contamination and Historic Coal Mining Legacy. Foul Water infrastructure and provision. Whether or not the proposal would lead to a deficiency in the quantity and quality of open space in the locality. Highway Safety and the proposed use. Impact on proposed footpath no.129. Biodiversity (‘wildlife’)
8.5 In respect of heritage, there is no information on the Derbyshire Historic Environment Register and it does not identify any significance to the location and there is no evidence to suggest that further investigation is necessary (Core Strategy policy CS19 and the NPPF).
8.6 There is reference in some representations received to a former unauthorised encampment on the site over ten years ago, which is likely to have been resolved without formal action by the Council, given the absence of any records of formal action having been taken. Nevertheless weight cannot be given to this incident as it did not involve the Applicant.
8.7 The number of people opposing the development is a material consideration. However it is not the sole determining factor.
9.0 CONCLUSIONS
9.1 All development in the Borough needs to be assessed against the extent to which it meets the following criterion in Core Strategy policy CS2:
a) deliver the Council’s Spatial Strategy (Policy CS1);
The proposal would meet a local housing need, would not compromise regeneration of the Borough (through economic and housing development) and would not impact on areas where strategic gaps and
102 green wedges are identified in the Core Strategy Key Diagram. It would be within reasonable cycling distance of the Town Centre.
b) are on previously developed land that is not of high environmental value;
The site is not subject to any statutory local, regional, national or international designation for high environmental value, and is not identified in the Development Plan. It is on a former garage court however the majority of the sites remaining boundary enclosures and hard surfacing has ‘blended’ into the landscape ‘in the process of time’.
c) are not on the best and most versatile agricultural land;
The site is not on the best and most versatile agricultural land and so meets this criterion.
d) deliver wider regeneration and sustainability benefits to the area:
The proposal will meet a housing need. f) maximises opportunities for walking and cycling and the use of public transport (policy CS20)
The proposal is in a reasonably accessible location to employment, services and community facilities both on foot and by public transport.
g) meet the sequential test requirements set out by other national or local policies.
The proposal would not conflict with sequential tests in the Core Strategy, NPPF and Planning Policy for Traveller Sites.
9.2 The applicant has a specific housing need which has not been met and which is part of a wider county and national level of need and which is appropriate in open countryside Core Strategy policy CS2 (i). The introduction of the national Planning Policy for Traveller Sites has strengthened the case with regard to the requirement for a 5 year supply of sites for travellers and the emphasis on the private provision of sites, with public provision of sites for those who cannot provide for themselves. Granting permanent permission would assist in meeting an as yet unmet need for authorised sites.
103 9.3 The development would have a minor adverse impact on the intrinsic character and amenity of the wider area of open countryside within which it sits contrary to Local Plan policy EVR2, Core Strategy policy CS9(e) and the NPPF.
9.4 Little weight should be given to fears expressed in the local community that the development will lead to an increase in crime and antisocial behaviour. No substantive evidence has been provided of the applicants existing site resulting in a significant increase in crime and anti-social behaviour. There is no evidence provided by objectors that the development would prejudice the settled communities equality in respect of their access to employment opportunities, education and healthcare nor housing, nor that it would adversely affect life outcomes. Objectors claim a loss of property value, which could affect life outcome, however the rationale for the claims would appear to be based on an assumption of all prospective purchasers being prejudiced against the Travelling community and no evidence of such a situation has been provided.
9.5 The development would not utilise previously developed land but conversely would not be on land of high environmental or agricultural value. The scale of the development would not dominate the nearest settled community, would not lead to undue pressure on local infrastructure and it is not demonstrated that it would result in a quantitative or qualitative deficiency of open space. It would be in a location reasonably accessible to services and facilities essential for day to day living. It is considered that there is insufficient reason to refuse the development on grounds of it being a threat to highway safety.
9.6 The development would meet a culturally specific local accommodation need. Furthermore the development as a settled base for a Traveller Family would provide access to educational and health care opportunities and services necessary for the welfare of the family, specifically Mr Cash’s children. Significant weight is given to these material considerations.
9.7 Given that the severity of impact on the intrinsic character and amenity of the open countryside is relatively minor it is considered that it is outweighed by the need for a Traveller Site and the personal circumstances of the applicant’s family. The accommodation need, personal circumstances of the applicant and lack of alternative sites are
104 considered to be the special circumstances which warrant the proposed development of this site in an open countryside area.
9.8 There appears to be a prospect that the Applicant can secure an appropriate connection to services including sewerage without their being an unacceptable risk to human health from land contamination.
9.9 In respect of the risk from land contamination and the historic coal mining legacy the advice available from the Applicant’s consultant and the Council’s consultees is in effect that the proposal including remediation subject to conditions, would render the risk to the future occupier’s and the public as acceptable in accordance with policies CS2, CS8 and CS12 of the Local Plan: Core Strategy (2011-2031) and paragraphs 120,121 and 122 of the National Planning Policy Framework.
9.10 There appears to be significant numbers of objectors to the proposal in the existing settled community with an apparently orchestrated process of production and submission of representations. Based on the 2011 census data there is a resident population of 3686 (in respect of the two most relevant lower super output areas 012G and 012E), in the locality, objectors representing 3% of the population (albeit not discounting children). The issues raised by objectors have been considered and none amount to robust grounds to refuse the application, with insufficient evidence submitted to successfully defend an appeal.
9.11 The Government has recently published a consultation paper on changes to Planning Policy for Traveller Sites, which sets out significant alterations to the planning approach currently in place. However, this is a consultation document only and so carries no weight.
10.0 HUMAN RIGHTS ACT 1998
10.1 Under the Human Rights Act 1998, which came into force on 2nd October 2000, an authority must be in a position to show: Its action is in accordance with clearly established law The objective is sufficiently important to justify the action taken The decisions taken are objective and not irrational or arbitrary The methods used are no more than are necessary to accomplish the legitimate objective
105 The interference impairs as little as possible the right or freedom 10.2 The action in considering the application is in accordance with clearly established Planning law and the Council’s Delegation scheme. The objective of arriving at a decision is sufficiently important to justify the action taken over the period of the life of the application. The decision taken is objective, based on all planning considerations and is, therefore, not irrational or arbitrary. The methods used are no more than are necessary and required to accomplish the legitimate objective of determining an application. 10.3 The interference caused by a refusal, approval or approval with conditions, based solely on planning merits, impairs as little as possible with the qualified rights or freedoms of the applicant, an objector or consideration of the wider Public Interest. 10.4 The recommended conditions are considered to be no more than necessary to control details of the development in the interests of amenity and public safety and which interfere as little as possible with the rights of the applicant. 10.4 The applicant has a right of appeal against a refusal, non determination of the application and imposition of conditions. 10.5 Given that the development applied for would not have an unacceptable impact on residential amenity or community safety, it is considered that the Human Rights of the settled community in respect of Articles 8 (Right to respect for private and family life, home and correspondence) and Article 1 of Protocol 1 (Right to peaceful enjoyment of possessions and protection of property) would not be breached.
11.0 Statement of Positive and Proactive Working with Applicants
11.1 The Government (since the 1st December 2012) requires LPA’s to include a statement on every decision letter stating how they have worked with the applicant in a positive and proactive way, in line with the requirements in paragraphs 186 and 187 of the NPPF.
11.2 Given that subject to conditions the proposed development would not conflict with the NPPF and with ‘up-to-date’ Development Plan policies, it is considered to be ‘sustainable development’ and there is a presumption on the LPA to seek to approve the application. The LPA has worked with the applicants agent to address outstanding matters and has considered if conditions can address outstanding issues. The
106 LPA has been sufficiently proactive and positive in proportion to the nature and scale of the development applied for.
12.0 RECOMMENDATION
12.1 It is recommended that the planning application be GRANTED permission subject to the following conditions:
1. The site shall not be occupied by any persons other than Gypsies and Travellers as defined in paragraph 1 of Annex 1 of Planning Policy for Traveller Sites (hereafter referred to as ‘members of the Travelling community’) and shall only be used as a residential site and not a transit site. 2. There shall be no more than 5 caravans as defined in the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968, as amended, stationed on the land, of which no more than 3 shall be touring caravans and no more than 2 ‘static’ caravans used as a residential mobile home. 3. No commercial activities shall take place on the land, including but not limited to the storage of plant, machinery and materials and the transfer or burning of materials. 4. No vehicle over 3.5 tonnes shall be stationed, parked or stored on the site and no more than 2 Light Goods Vehicles shall be parked on the site at any one time.
5. Prior to occupation of the site commencing a scheme for boundary treatments, means of enclosure and soft landscaping shall be submitted to the Local Planning Authority in writing, and shall include the following:
(i) Retention of existing perimeter vegetation. (ii) Further planting to perimeters and a hedgerow to the northern boundary. (iii) Internal mesh fencing to prevent the passage of pet dogs from within the site and also the passage of members of the public’s pet dogs into the site. (iv) Means of temporary enclosure to the northern boundary to remain in place until an effective hedgerow screen has been established. (v) Timescales for planting. (vi) Proposals for replacement of dead/dying planting and maintenance of boundary screening.
107 (vii) Protection of existing hedgerows and boundary vegetation during construction.
The occupation of the site shall not commence until a scheme has been approved in writing by the Local Planning Authority. The planting approved under the scheme shall be implemented in accordance with the approved timescales and retained and maintained thereafter.
6. Space shall be maintained within the site for the parking and manoeuvring of vehicles and caravans to allow entry and exit in a forward gear.
7. Prior to the first occupation of the site commencing an external lighting scheme shall be submitted to and approved in writing by the Local Planning Authority, and shall contain the following information:
(i) A site plan showing the proposed locations and heights of the luminaires; (ii) Full details, including pictures, of the luminaires to be installed; (iii) A site plan plotting the existing and predicted illuminance levels (Lux) across the site and both horizontal and vertical overspill outside the site boundary over neighbours rear amenity spaces and on selected facades of neighbouring dwellings and properties; (iv) Details of the measures to be taken for the avoidance of glare; (v) Details of the power source, i.e. mains or generator; (vi) Operating times. (vii) Intensity of illumination and power of light sources (viii) angle and direction of beam of light from luminaires
External lighting shall not be used on the site unless it accords with the scheme so approved in writing by the Local Planning Authority.
8. Petrol and/or diesel generators shall not be operated on the site.
9. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (As Amended) or any subsequent equivalent legislation no development falling within Classes A, B of Part 2 of Schedule 2 of the said Order shall be carried out without the permission of the Local Planning Authority.
108 10. The use hereby permitted shall not commence until a scheme for the storage and collection of residential waste has been submitted to and approved in, writing by the Local Planning Authority. The scheme so approved shall be implemented concurrently with the use of the site commencing and shall be retained thereafter.
11. Should the site cease to be occupied for a period in excess of 6 months by members of the Travelling community it shall be restored to a condition that is to have been previously submitted to and approved in writing by the Local Planning Authority.
12. Prior to the development hereby permitted commencing a scheme of site investigation, risk assessment, remediation and mitigation in respect of the mine shafts and shallow mine workings under the site shall be submitted to and approved in writing by the Local Planning Authority. The development shall be carried out in accordance with the remediation and mitigation so approved and shall not be occupied until evidence of the remediation and mitigation having been implemented has been submitted (in the form of a verification/validation report) to and approved in writing by, the Local Planning Authority.
13. Prior to development commencing a scheme of service provision (power supply, water supply and sewerage) including necessary land contamination mitigation shall be submitted to and approved in writing by the Local Planning Authority. The site shall not be occupied until the scheme so approved has been implemented and evidence of this has been submitted to and approved in writing by the Local Planning Authority.
14 The development shall be carried out in accordance with the remediation and mitigation scheme set out in the Phase II land contamination assessment report by T J Booths Associates dated 26th March 2014. The site shall not be occupied until evidence of the remediation and mitigation having been implemented has been submitted (in the form of a verification/validation report) to and approved in writing by, the Local Planning Authority.
15 No removal of hedgerows, trees, shrubs or brambles shall take place between 1st March and 31st August inclusive, unless a recent survey has been undertaken by a competent ecologist to assess the nesting bird activity on site during this period, and details of measures to protect the nesting bird interest on the site, have first been submitted to
109 and approved in writing by the Local Planning Authority and then implemented as approved.
Reasons:
1. In order to meet a housing need in the Borough and in the interests of community cohesion and to accord with policy CS12 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
2. In the interests of highway safety and traffic flow and to accord with policies CS2, CS12, CS18 and CS20 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
3. In the interests of highway safety, traffic flow and amenity and to accord with policies CS2, CS12 and CS20 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
4. In the interests of highway safety and traffic flow and to accord with policies CS2, CS12, CS18 and CS20 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
5. In the interests of community safety, cohesion, visual amenity and biodiversity and to accord with policies CS2, CS12, CS9 and CS18 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
6. In the interests of highway safety, traffic flow and amenity and to accord with policies CS2, CS12 and CS20 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
7. In the interests of community safety, visual amenity, landscape character and biodiversity and to accord with policies CS2, CS12, CS9 and CS18 of the Chesterfield Borough Local Plan: Core Strategy (2011- 2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
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8. In the interests of pollution control and to accord with policy CS2 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
9. In the interests of community safety, cohesion and visual amenity and to accord with policies CS2, CS12, CS9 and CS18 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
10. In the interests of residential amenity and highway safety and to accord with policies CS2 and CS18 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
11. In the interests of visual amenity, landscape character and green infrastructure provision and to accord with policy CS9 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
12. To ensure that the site is suitable in respect of land stability and to accord with policies CS2 and CS8 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
13. To ensure that suitable services are provided to the site in an appropriate manner in accordance with policies CS2, CS8 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
14. In the interests of pollution control and to accord with policy CS2, CS8 and CS12 of the Chesterfield Borough Local Plan: Core Strategy (2011- 2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
15. In the interests of biodiversity and to accord with policy CS2, CS9, CS12 and CS18 of the Chesterfield Borough Local Plan: Core Strategy (2011-2031), the National Planning Policy Framework and the Planning Policy for Traveller Sites.
111 Notes
1 If work is carried out other than in complete accordance with the approved plans, the whole development may be rendered unauthorised, as it will not have the benefit of the original planning permission. Any proposed amendments to that which is approved will require the submission of a further application.
112