DAW MILL COLLIERY SITE, TAMWORTH ROAD, ARLEY CLOSING SUBMISSIONS OF HARWORTH ESTATES INTRODUCTION 1. This inquiry has convincingly demonstrated that Harworth Estates (“the appellant”) promotes a scheme which is fully in accordance with both the development plan and national policy. By contrast, the Closing Submissions of both the Local Planning Authority and the Rule 6 party are striking in the way in which they contain primarily bluster or unsubstantiated complaints as to points of detail, which are inappropriate for the consideration of an outline application. 2. The fundamental back drop to the appeal are the familiar words of the Ministerial Foreword to the National Planning Policy Framework, namely that: “The purpose of planning is to help achieve sustainable development. Sustainable means ensuring that better lives for ourselves don’t mean worse lives for future generations. Development means growth. We must accommodate the new ways by which we will earn our living in a competitive world… We must respond to the changes that new technologies offer us.” 1 3. These words set out very clearly the context within which this appeal needs to be considered. The Daw Mill colliery site offers both significant challenges and significant opportunities. It represents a legacy of an industry – the coal industry - which is in decline, and now presents the challenge of a large area of disused and increasingly derelict industrial land in the heart of the green belt. There is no reasonable prospect of its restoration by any means. It is poorly connected by road transport. 4. However, it also offers significant opportunities. It is ripe for redevelopment and it has the crucial advantage of a functioning signalised connection to the main railway network, together with sidings. The proposals before this inquiry have shown how the site can be redeveloped, without any adverse environmental consequences, to bring back into active use a site for which there would otherwise be no beneficial future. In so doing, these proposals respond to the fundamental demands of planning policy. They are sustainable and help “accommodate the new ways by which we will earn our living in a competitive world”. 5. The appellant proposes by this outline application to redevelop the Daw mill colliery site for development described in the application as: “for a maximum of 24,652 m² (265,345 ft.²) of built floor space for employment uses comprising wholly B2 (general industry) Development: ancillary storage areas, associated car parking, servicing yards, gantry crane, infrastructure and utilities retention and use of existing infrastructure including railhead and sidings, site vehicular access, grid connection, electricity substation and reconfigured surface water drainage infrastructure”. 2 6. That description of development, however, is not the end of the matter. The appellant proposes to be bound by conditions which would confine the use of the site to a primarily railway based usage in order to bring forward one of three forms of railway related development. These are either a rail manufacturing and construction site, a train maintenance facility or a train manufacturing facility. 7. The Local Planning Authority (“the Council”), however, maintains three reasons for refusal, as follows: “1. The site is in the Green Belt. The proposals represent inappropriate development which causes substantial harm to the openness of the Green belt and the purposes of including land within it. There is additional harm caused by adverse impact on the landscape character, visual amenity, the natural environment and residential amenity of neighbouring occupiers through noise and lighting impacts. There is also considered to be moderate highway impact as a consequence of whether the mitigation proposed as a reasonable prospect of being implemented. The material considerations put forward by the applicant are not of sufficient weight to amount to the very special circumstances necessary to outweigh the harms caused by the inappropriateness and the other harm caused. This is due to the generic nature of the proposal; that it contains alternatives that mitigation measures are not fully advanced. The proposal does not therefore record with Policies NW1, NW2, NW3, NW10, NW12, NW13 and NW15 of the North Warwickshire Core Strategy 2014 and the National Planning Policy Framework 2012. 2. The development is likely to cause disturbance due to noise. Central to this adverse impact is the continuous operation required for the proposed wholly B2 use. Physical measures could provide some mitigation, however a restriction on continuous operation is likely to be necessary to fully resolve this impact. The applicant has reiterated that continuous operation is essential to the proposal. The use of conditions to restrict operations is therefore not considered to be appropriate. The proposal is not considered to be in accord with policies and W 10 and NW 12 of the North Warwickshire Core Strategy 2014. 3 3. There is concern over the impact of the proposals on bio-diversity. The National Planning Policy Framework is clear that if significant harm to bio-diversity cannot be avoided, adequately mitigated or compensated, then planning permission should be refused. The net impact of the development is currently proposed is not clear. A precautionary approach is thus appropriate in determining this application. The proposal is not considered to be in accord with policy and W 15 of the North Warwickshire Core Strategy 2014 and the National Planning Policy Framework 2012. 8. The proposals are also opposed by a local objectors group who term themselves LAWRAG and who raise a variety of environmental issues. THE APPEAL PROPOSALS – CONDITIONS 9. It perhaps hardly needs to be stated that the correct starting point for the consideration of this appeal are the appeal proposals themselves. However, some introductory submissions are necessary in this case because, first, there has been some evolution of the appeal proposals in response to changing planning and commercial circumstances and second, more importantly, because the approach of the Council during the inquiry appeared to be based upon a wilful misunderstanding of the appeal proposals themselves and upon attempts to obfuscate that which was clear and in fact already accepted. 10. Firstly, and briefly, the evolution of the proposals can be considered. The planning application lodged in June 2014 was for: “Employment development 11,072 m² of B1 (business) use, 11,072 m² of B2 (general industry) use, 49,723 m² of B8 (storage and distribution) use (including retained building 4) and 2.19 ha of open storage, associated car parking, servicing yards, infrastructure and utilities; and retention of existing colliery buildings and 4 infrastructure including existing railhead on site vehicular access, grid connection, electricity substation, Gatehouse, Weybridge and reconfigured/existing surface water drainage infrastructure system.” 11. In response to objections, made primarily on highways grounds, the scope of the proposals was revised. At the same time, particular interest was received from Network Rail who invited the appellants to include a particular wording, tailored to Network Rail’s needs, into the description of development. Those words were always, however, merely a subset of the development already described and, in truth, were not strictly necessary in describing a consent which would have met Network Rail’s needs. Nevertheless, for commercial convenience they were included. They did not change the legal nature of the development for which permission had been applied. 12. When the application was refused permission, Network Rail, who had a particular pressing commercial need, decided they must look elsewhere to meet that need. Accordingly, the words tailored to their particular requirements were removed. However, that had no impact on the overall scope of the development which was being applied for. As had always been the intention, the appellant fully intended to utilise the particular feature of this site represented by the existence of a live rail connection. There was never any suggestion simply to abandon that particularly attractive feature just because Network Rail’s commercial imperatives had required it to seek other sites. They were not, and are not, the only potential occupier. 13. The importance of the rail connection gives rise to the second important aspect of the appeal proposals, which is the conditions which would be attached to the permission and the effect they would have in controlling the nature and effects of the development. 5 14. As a preliminary matter, it is trite law that a planning permission is issued with conditions and that the conditions, as well as the basic description of development, define what can and cannot take place on the land as a result of the permission. It was a frankly baffling aspect of the Council’s approach to this inquiry that the Council seemed simply to want to ignore this basic reality. Contrary to the approach adopted by the Council, the planning permission sought through this appeal could never give rise to an unrestricted B2 permission. Instead, the operation of the permission will be fundamentally constrained to a rail-served development by the following conditions: x) Within use class B2 the development hereby approved shall only be implemented for any of the following purposes: a) The manufacturing of rails, sleepers, track, signalling, gantries and associated railway construction, operation and maintenance equipment; b) Train and rail rolling stock maintenance and repair including ancillary stabling of such trains and stock; c) Train and rail rolling stock manufacturing facility. Reason: In order to define the scope of the permission i) The rail sidings shown on Rail Zone Plan RZP1 shall be retained and maintained in an operational condition for the lifetime of the development. Reason: In order to define the scope of the permission and in recognition of the particular circumstances of this case. ii) The rail sidings so retained shall not be used at any time for an inter- modal freight interchange. Reason: In order to define the scope of the permission.