At what point do benefits overcome harm in the AONB? A recent sad tale.

When will the cumulative benefits ever be enough to overcome the harm to the AONB – a journey of discovery – APP/M2270/W/21/3273022

Introduction

?I wish to reflect on a recent loss. Three caveats before I do.

1)????Three weeks on, I am still quite sore about it.

?2)????The analysis below is not meant to be a personal criticism of the Inspector.

?3)????Please read the appeal decision in full to understand the context better.

Case in Brief

We are in Hawkhurst, Kent. A ‘small town’ if you ask the Core Strategy. A ‘village’ if you ask the local people. The proposal is an ambitious one. It is for the redevelopment of a golf course to residential development of up to 374 homes (outline), including a C2/C3 care home, self build units, class D1 facilities public car park, public park, formal and informal open space, and much more by way of infrastructure works.

Also included is a detailed application for a new major relief road supported by the County Council. This is to deal with some major congestion problems and air quality concerns.

Site originally promoted through the Local Plan, and supported by the Council. There was even a detailed policy drafted and included at the Regulation 18 stage. All good until inexplicably it was taken out. Familiar tale? No local Plan in sight, we are now outside the emerging plan. Application submitted, we end up at appeal.

Analysis from the Decision Letter

• Character and Appearance – harm to the character and appearance of the area generally, but also that the development would fail to preserve or enhance the landscape and scenic beauty of the AONB. Unacceptable in principle, to be expected, and great weight rightly attached.
• Highways and Transport – points only taken by the Parish Council. Inspector finds proposal acceptable. (25-36). Tick.
• Biodiversity – reason for refusal weak and vague. Inspector rejects Council’s position. Tick, acceptable. (37-42)
• Location – reason for refusal on principle, sustainability and accessibility, more points raised by the Parish and local people. Inspector finds conflict with policies given site is partially outside defined settlement limits (expected). On accessibility, he finds it is an appropriate location.
• Air Quality – Appellant offering to stop up a road; where there is a great deal of pollution flowing through. He finds there will be significant improvements to air quality, contrary to what the Council was claiming. Tick.
• Heritage Matters – Appeal site lies within the setting of nine listed buildings. Inspector finds benefits ‘clearly outweigh the less than substantial harm'. Tick, great.
• Housing Land Supply – Council claiming 4.89, Appellant says more like 3.08 in one of the more worse scenarios. Inspector finds that it is 4.38. Great, tick again, at least not as optimistic as the Council believed.?(58-65). But of course not consequential, unfortunately, for the titled balance (ft 7 disapplication). More later.

Remember, at the time of the Inquiry (September 2021), there is no Local Plan. It has not even been submitted to an examining Inspector. This happens a couple of months later, sometime before examined. Meaning these developments are needed, now.

Weighting through 177 of the National Planning Policy Framework

Paragraph 177(a) of the NPPF

• 374 homes contributing to a shortfall of 439 - ‘Substantial positive weight’
• Policy compliant affordable housing at 35% - ‘Substantial positive weight’
• Up to eight self-build plots proposed, secured under S106 - ‘Substantial positive weight’
• C2/C3 care home accommodation - ‘Significant positive weight’
• New Relief Road, supported by the County Council, no alternatives offered by any other party to a highly specific congestion and air quality issue - ‘Significant positive weight’
• The boost to the local economy which would arise from permitting development – ‘moderate positive weight’

Paragraph 177(b) of the NPPF

• This is a heavily constrained borough (70% of it in the AONB), 5% in the Green Belt. If the development cannot go here, where is it to go?
• Inspector, though, says the remaining 25% can accommodate ‘substantial’ development.?
• Inspector comments that the correct forum for establishing how the need should be met is via a comprehensive review of the entire Borough, in particular in relation to the AONB. Fine, well, we did try that. We made it to Regulation 18 stage and then, again, inexplicably removed. Mainly because of politics, as ever, getting in the way. This is why we came to the Inspectorate and to appeal. For a cold, impartial and evidence based decision-making. Instead, we have been sent back to the forum that has failed us and the Borough. Is this right?
• The people of Turnbridge Wells, and Hawkhurst, are not having their needs met. Their Local Plan is not available when they need it – which is now. A development that brings multiple ‘substantial positive’ benefits is being denied, even where it is providing a unique and bespoke piece of infrastructure - at no public expense.

Paragraph 177(c) of the NPPF

• We then have to explore the issue of whether detrimental impacts could be moderated. This question is a matter of real personal judgement for each Inspector.
• The Inspector acknowledged that at the detailed design stage, there will be an opportunity to find multiple ways to mitigate the harm, but that it would be insufficient. We are not told, for example, what more could have been done. Planning appeal decisions for this reason are of course quite binary, yes or no. Not ‘no, but think about this for the future…’ But some Inspectors do comment on this.
• This Inspector attempts another tack; namely whether a ‘split decision’ was possible; in other words whether development could go ahead in the ‘southern parcel’ where the harm is less. This could be a helpful indication of what could be done to make it acceptable; but it does not help us with the scheme before the Inspector, now. He decides against this based on whether this would make the development as a whole unviable.

?The ‘titled balance’ is disapplied (Footnote 7) which means that all the aforementioned benefits are given with one hand, only to then be taken away with the other.

Lessons

• Perhaps the most puzzling part of the decision is at paragraph 90. We have a housing crisis. We know that, and the government says it wants to do something done about this. Here is a proposal with all the aforementioned benefits. But the Inspector then says this,

“However, the reality is that the circumstances of the housing shortfall, including the challenges around providing for affordable housing, self-build, custom-build, and care home housing, are not unusual. The other benefits identified are commonplace and do not add significantly to the balancing. (emphasis added)

• ?What this essentially reads as is, yes, there are challenges in meeting housing need. But those challenges are so widespread that they do not provide for a set of circumstances befitting of allowing this particular scheme to come forward. How can this possibly be logical?
• We are told that we have plenty of good things to offer to a bad situation, but given that is the norm nowadays its not that special. How is this not a lopsided way of looking at the current predicament we face? Not that the problem is really bad, or that we should consider these types of ambitious developments to be at a premium - no. Instead that the problem is so widespread that it could not justify the harms to be caused. This is most intriguing, and another Inspector could have (and have done!) gone the other way.
• Another Inspector could have easily come to a different conclusion using the same sentence. Scroll back up to see how many other issues were resolved...

This conclusion, to my mind, just adds to the many obstacles that remain in the way of grappling with what is a crisis of a generation.

• This is perhaps why challenging such a decision within the narrow confines of legal error, or irrationality makes it practically impossible. Most judges will simply dismiss it and conclude it is a matter for the judgement of the Inspector. And they would be right to do so, but how are we going to make progress when so many areas which could be developed to tackling the housing crisis are effectively out of bounds (see also Green Belt).
• That another Inspector, on another day, could have come to a different view makes it really arbitrary and random, the opposite of what we would all like to see in our appeal processes.

Conclusions

• I am often discouraging my clients from wasting substantial resources, time and money by going to appeal. Whilst an appeal may often be the only option, it is not – in my experience – an option taken lightly by an Appellant keen to secure consent locally. And rightly so.
• But the appeal process is also there as a safety valve. When local consent has failed. When at an appeal, in theory, the politics has been taken out of the process. When decision-making focuses exclusively on the application of law and policy of a specific context.
• For me, though, this decision demonstrates that no matter how much you try to make a scheme acceptable, palatable and workable; however much you try and resolve the vast majority of issues, no matter the efforts of narrowing differences, you will still be at the mercy of an appeal process that could go either way based on the same material. Maybe I was na?ve to think that it would be possible to get a different outcome.
• Consistency in decision-making is critical to the process of course, and there is something to be said for that here too. But more fundamentally it is also now, for me, about how we see the so called housing crisis as being so bad that it is being treated as routine. We seem to have crossed over the Rubicon in these cases. ?
• When will there ever be enough benefits not subject to the randomness of ‘judgement’?

Finally, I sincerely hope that you will not read this as an attack on the specific Inspector in question who had to deal with so much complexity and detail, and he has done so with great distinction and diligence.

I just think he has come to the wrong conclusion, and you would expect me to say that wouldn’t you?

But I hope that in reading the above, I have given you some food for thought about whether we will meet this major challenge sooner rather than later.