by Ed Dade
Posted on Jan. 8, 2019
An appeal decision initially caught my eye due to its surprising interpretation of 'infill development' - but also raises some concerning issues around how Neighbourhood Plan policies are applied during the decision-making process.
The appeal relates to an application for the construction of up to 140 dwellings, new public open space, associated landscaping and site infrastructure on a 3.9ha site at Chinnor, Oxfordshire. The application was made by Persimmon Homes and initially refused by South Oxfordshire District Council. The appeal was allowed, meaning the Planning Inspector went against the district council's decision grant planning permission for the scheme. Details of the appeal can be found using the following reference APP/Q3115/W/17/3187058.
Chinnor is a large village in Oxfordshire. The Chinnor Neighbourhood Plan (CNP) was 'made' in October 2017. When the appeal commenced, the Neighbourhood Plan was less than one year old.
In addition to the CNP, South Oxfordshire's Development Plan includes an aged Core Strategy and saved policies from a Local Plan adopted in 2006. There is therefore no up to date Local Plan in place.
The district council is preparing a new Local Plan. The emerging Local Plan identifies proportionate growth of 15% in the plan period for Chinnor. Existing planning permissions in Chinnor already account for double this rate of growth. This suggests that additional residential development is not required in Chinnor, and is perhaps why the CNP does not make site allocations for development.
The housing land supply situation in South Oxfordshire is somewhat complex, due to changes to national policy, emerging Local Plan and unmet need in nearby Oxford.
However, during the appeal, the district council was able to demonstrate a sufficient supply of housing land when measured against the latest assessments of housing need (in excess of 3 years). Therefore the 'tilted balance', where the NPPF's presumption in favour of sustainable development 'trumps' the development plan, did not apply in this case. Nonetheless, the Inspector identifies the provision of housing to be a major benefit of the scheme.
A key reason for the district council refusing the scheme relates to landscape impacts. Firstly, because the site provides separation between housing developments, mitigating their impacts, and secondly, the built up area would be consolidated, eroding the rural, green, open character, which can be seen from the Chilterns AONB.
The site is not subject to any statutory or landscape policy related designations. The Inspector notes that the CNP does not identify the site as a significant open space that contributes to the openness and attractiveness of the village, and that the site is within the built up envelope of Chinnor but offering no public access and performing no recreational function. The Inspector concluded that the visual impact of the scheme would be minimal.
Policies for infill development are relatively common in Neighbourhood Plans and Local Plans, to enable development to take place within the built area of a settlement. The Planning Portal defines infill development as:
The development of a relatively small gap between existing buildings.
The CNP recognises the need for growth and identifies, but does not allocate, a number of sites which currently have planning permission. The CNP raises concerns about the level of growth the village is anticipated to receive, namely in respect of the impact growth may have on infrastructure and services. The CNP particularly highlights constraints around water supply and waste water treatment.
The CNP provides the following policy to enable infill development:
Policy CH H1 - Infill Residential Development
Infill development within the existing built-up form of Chinnor Village will be supported subject to the following:
The policy does not define precise thresholds for the scale of development it seems fairly clear, including to the Inspector, that policy CH H1 is describing pretty small-scale development, akin to the Planning Portal definition.
In addition to CNP policy CH H1, the Inspector makes reference to a policy contained in the Core Strategy which also makes provision for infill development but does not set a limit on the scale of such development in large villages. The Inspector goes on to discuss the characteristics of the site, for example that it is surrounded by built development and approved development (being built out) along all four of the site's boundaries.This leads the Inspector to conclude that the scheme should be perceived as 'infill development' in the context of the policy framework.
The Inspector references other case law in reaching his decision, and therefore I don't consider the Inspector has necessarily acted inconsistently with other decisions. However, I feel the case highlights some issues with the decision-making process.
It is clear that it was not the intention of the CNP to deliver further major developments in the village, where permission had already been granted for twice the amount of development identified by the emerging plan. One might reasonably expect that any further major developments would be seen as being in conflict with the Neighbourhood Plan. Due to a recent High Court decision, determining what constitutes conflict with a Neighbourhood Plan is more complicated than it sounds (see Chichester District Council v Secretary of State for Housing, Communities and Local Government & Beechcroft Ltd - no doubt a topic for a future post!).
The Inspector appears to place great weight on the fact that the proposal will deliver new housing despite there being an adequate supply of housing land, whilst applying little weight to NPPF paragraph 14 which offers greater protection to areas with a Neighbourhood Plan in place.
Section 38 of the Town & Country Planning Act 1990 (as amended) states that where there is conflict between the policies in the Development Plan, the conflict should be resolved in favour of the policy in the last document to become part of the Development Plan - in this case the CNP. The Inspector discussed the merits of the site as infill development in the context of the CNP policy and an aged Core Strategy policy, despite the issue of infill development being directly addressed by the CNP. Irrespective of what thresholds the policies do or do not set, calling a 140-dwelling scheme 'infill' just doesn't feel right to me!
Regardless of legal precedents, any lay-person writing a Neighbourhood Plan would likely view such decisions as undermining the plan-led system. Such decisions risk making the neighbourhood planning process greatly more complex, as parish councils and neighbourhood fora will work harder to ensure their plans are resilient.