An appeal by Gallaghers against the decision of the old West Wilts council to refuse permission for 180 houses on the site east of Moyle Park and Parsonage Way was allowed by planning inspector Raymond Michael in October 2010.
He dismissed our concerns that the infrastructure to service the development was inadequate. The roads which were supposed to carry the extra traffic have not been built, and the schools for the extra children do not exist as The Mead School is already full and over-subscribed.
He also took little account of the misery to be inflicted on existing residents by more construction traffic, refusing to consider an alternative option put forward by the council for an access from Ashton Road.
In awarding costs against the council the inspector stated that councillors had acted unreasonably in standing up for local residents against the interests of the developers.
Here's the inspector's decision in full:
Land north of Green Lane, Trowbridge, BA14 6DJ
• The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.
• The appeal is made by Gallagher Estates and Heron Land Developments Ltd against the decision of West Wiltshire District Council now replaced by Wiltshire County.
• The application Ref 07/03864/OUTES, dated 10 December 2007, was refused by notice dated 29 May 2008.
• The development proposed is residential development, children's play area, roads and associated infrastructure, landscaping and creation of extension to the country park.
Application for costs
1. At the Inquiry an application for costs was made by Gallagher Estates and Heron Land Developments Ltd against West Wiltshire District Council (now replaced by Wiltshire County). This application is the subject of a separate Decision.
2. I allow the appeal, and grant planning permission for residential development, children's play area, roads and associated infrastructure, landscaping and creation of extension to the country park on land north of Green Lane, Trowbridge, BA14 6DJ in accordance with the terms of the application, Ref 07/03864/OUTES, dated 10 December 2007, and the plan no. 8502-002 submitted with it, subject to the following conditions:
1) Details of the appearance, landscaping, layout, and scale, (hereinafter called "the reserved matters") shall be submitted to and approved in writing by the local planning authority before any development begins and the development shall be carried out as approved.
2) Application for approval of the reserved matters shall be made to the local planning authority not later than three years from the date of this permission.
3) No development shall take place until samples of the materials to be used in the construction of the external surfaces of the buildings hereby permitted have been submitted to and approved in writing by the local planning authority. Development shall be carried out in accordance with the approved details.
4) Prior to the commencement of development or prior to the commencement of any relevant phase of the development taking place, full details of both hard and soft landscape works shall have been submitted to and approved in writing by the local planning authority in accordance with Condition 1, and these works shall be carried out as approved. These details shall include a plan showing the positions, design, materials and type of boundary treatment to be erected; car parking layouts; other vehicle and pedestrian access and circulation areas, including connections to existing routes within existing adjacent sites; the materials to be used for the surface of all roads, footways and pedestrian areas, cycle-ways and all other hard surfaced areas; and proposals for landscaping to the country park and riverside walk, together with indications of all existing trees and hedgerows on the land and details of any to be retained.
5) No development shall take place until measures for the protection of retained trees have been submitted to and approved in writing by the local planning authority. The details submitted shall indicate the form and location of proposed fencing around protected trees. Any fencing shall be retained until the whole development is complete unless previously agreed in writing by the local planning authority. Within areas fenced off the existing ground level shall neither be raised nor lowered, and no materials, temporary buildings or surplus soil of any kind shall be placed or stored thereon. Any trenches required for services within the fenced-off area shall be excavated and back-filled by hand avoiding any damage to the bark and any principal roots encountered shall be left unsevered. Where excavations expose roots they should be surrounded by sharp/grit sand before replacing soil or other material in the vicinity. All works shall be undertaken in accordance with BS5837:2005 - Trees in Relation to Construction.
6) No dwelling shall be occupied until it is served by a properly consolidated and surfaced footway and carriageway to at least basecourse (bindercourse) level between the dwelling and the existing highway.
7) The existing hedgerows on the boundary shall be retained at a height of not less than 1.5 metres. No hedge shall be felled, uprooted or otherwise removed before, during or after the construction period, except where removal is indicated on the approved plans or on an approved landscaping scheme, or where removal is required to construct a road, footpath or cycleway in accordance with the approved plans.
8) All planting, seeding or turfing comprised in the approved details of landscaping shall be carried out in the first planting and seeding seasons following the occupation of the buildings or the completion of the development, whichever is the sooner; and any trees or plants which within a period of 5 years from the completion of the development die, are removed or become seriously damaged or diseased shall be replaced in the next planting season with others of similar size and species, unless the local planning authority gives written approval to any variation.
9) No development shall commence until a Construction Management Plan has been submitted to and approved in writing by the local planning authority. That Plan shall include details of:
(i) the management of construction traffic carrying excavated material or delivering material to the site, including their routes approaching and leaving the site;
(ii) any pollution prevention measures proposed.
(iii) provision for the parking of vehicles of site operatives and visitors;
(iv) provision for loading and unloading of plant and materials used in constructing the development;
(v) wheel-washing facilities to be provided;
(vi) measures to control the emission of dust and dirt during construction.
The development shall be carried out in accordance with the approved Construction Management Plan.
10) No materials shall be burnt on site whilst construction is in progress.
11) Demolition or construction works shall not take place outside 0730hours to 1800hours Mondays to Fridays and 0800hours to 1300hours on Saturdays and at no time on Sundays or Bank Holidays.
12) Any facilities for the storage of oils, fuels or chemicals shall be sited on impervious bases and surrounded by impervious bund walls, details of which shall be submitted to and approved in writing by the local planning authority. The volume of the bund compound shall be at least equivalent to the capacity of the tank plus 10%. If there is multiple tankage the compound shall be at least equivalent to the capacity of the largest tank or the combined capacity of inter-connected tanks plus 10%, or 25% of the total volume which could be stored at any one time, whichever is the greater. All filling points, vents, gauges and sight glasses must be located within the bund. The drainage system of the bund shall be sealed with no discharge to any watercourse, land or underground strata.
Associated pipework should be located above ground level where possible and protected from accidental damage. All filling points and tank overflow pipe outlets should be detailed to discharge downwards into the bund.
13) If, during development, contamination not previously identified is found to be present at the site, no further development (unless otherwise agreed in writing by the local planning authority) shall be carried out until proposals for dealing with that contamination have been submitted to and approved in writing by the local planning authority.
14) No development shall take place until a scheme for the provision of onsite and off-site surface water drainage works has been submitted to and approved in writing by the local planning authority. The drainage works shall be completed in accordance with the details and timetable agreed. The off-site drainage works shall be generally as identified in the 'Green Lane, Trowbridge Flood Risk Assessment - November 2007', and shall be completed prior to the commencement of any built development approved by this permission. The development shall not be occupied until the surface water drainage works have been carried out and completed in accordance with the approved details.
Any sustainable drainage solutions to be applied to the site highway network resulting from planning restrictions to surface-water run-off to the Paxcroft Brook shall be accommodated without the limits of the adoptable highway unless otherwise agreed in writing by the local planning authority.
15) Finished floor levels shall be set a minimum of 600mm above the 100 year flood level or 300mm above the 100 year flood level plus provision for climate change. Minimum finished ground levels, excluding the Country Park extension, shall be set 300mm above the 100 year flood level plus provision for climate change.
16) No development shall take place until details of a scheme of works for the disposal of sewage has been submitted to and approved in writing by the local planning authority. The development shall not be occupied until works for the disposal of sewage have been provided on-site to serve the development in accordance with the submitted details.
17) Inspection manholes shall be provided and clearly identified on foul and surface water drainage systems in accordance with a scheme to be submitted to and approved in writing by the local planning authority.
18) No development shall take place until a scheme covering protection, mitigation and enhancement measures for reptiles, bats, birds, water voles, hedgerows, trees and the Paxcroft Brook corridor has been submitted to and approved in writing by the local planning authority. The scheme should include arrangements for long-term habitat management and a programme for implementation. The scheme shall be carried out strictly in accordance with an approved programme of work and completed prior to the first occupation of the dwellings hereby approved.
3. Subsequent to the public consultation on the originating application the appellant notified the Council of a small change to the boundary of the application site. The change did not have a material effect on the proposals, and the Council did not consider it necessary to re-consult on the revisions. I concur with the Council's view that the changes were not material and did not prejudice the position of any consultees.
4. The appellants have submitted a Unilateral Undertaking under Section 106 of the Town and Country Planning Act 1990 dealing with a range of matters relating to the appeal. The Council accepted, without prejudice to its position at the Inquiry, that the terms of the obligation meet its requirements and, in particular, the highway and education contributions are agreed between the parties. I am satisfied that the terms of the Undertaking comply with the tests set out in Circular 05/2005.
5. There are 3 main issues in this case. Firstly, whether the development would result in unacceptable traffic or environmental conditions on the access through Paxcroft Mead or on the wider road network. Secondly, whether the development would lead to demand for educational facilities which could not be satisfactorily met. Thirdly, whether the proposed routes for construction traffic by way of Parsonage Road and Moyle Park would cause unacceptable harm to the living conditions of residents in those roads.
Impact on traffic and environmental conditions
6. Access and egress to the proposed development would be by way of Leap Gate
and then along Parsonage Road or Moyle Park, which form part of the Paxcroft Mead development to the east of Leap Gate. At present Leap Gate is a cul de sac, but it is proposed to extend the southern end to link with West Ashton Road as part of the development on site H11. At that stage it would form part of a through route serving the East Trowbridge area generally. The appellant submitted a Transport Assessment demonstrating that the predicted traffic flows through the Leap Gate junction would be within the design capacity of the junction and of the wider road network when the Leap Gate Extension (LGE) is completed. There would also be sufficient road capacity for the additional traffic in the event that the LGE were not completed before the occupation of the proposed development.
7. There would be additional traffic from the proposed development using Parsonage Road and Moyle Park. However, that situation was envisaged in the West Wiltshire District Plan (WWDC), in which the Proposals Map indicated that the access and egress to the development would be by way of those roads, and the road network was designed to provide capacity for the additional traffic.
The design of the existing roads provides a significant amount of traffic calming, and a 20 mph speed limit is in place through the development. Those factors would satisfactorily mitigate the traffic and environmental impact of the additional vehicles.
8. The construction of the Hilperton Gap Relief Road (HGRR) and the LGE are planned as part of the wider road network improvements to facilitate all of the development proposed in East Trowbridge. Those improvements are necessary to accommodate the predicted overall increases in traffic on the network as a whole and to mitigate the environmental impact of increased traffic flows through Hilperton. The WWDC makes provision for them in the site specific policies and, in relation to the appeal site, Policy H8c requires the 'completion of link road T5A (the HGRR) or its secured provision to the satisfaction of the County Highway Authority'.
9. The construction of the HGRR is dependent on pooled financial contributions from a number of sites in the area, including the appeal site. The main contribution would come from Site H11, which is the largest of the proposed developments. The Unilateral Undertaking submitted proposes a financial contribution to the construction of the HGRR. Although the construction of the road is unlikely to commence until similar contribution has been received from the developers of Site H11, the Highway Authority is satisfied that the Undertaking secures the provision of the road, and therefore complies the terms of Policy H8c. I attach considerable weight to the provisions of the Undertaking in this respect.
10. The Council expressed concerns about the incremental impact of the appeal proposals and other developments in East Trowbridge on the environment of residents in Hilperton. The village is a linear settlement built along a narrow road with several sharp bends. The road is unsuited to carrying the increased volumes of traffic which would be generated by the East Trowbridge developments as a whole, and the environmental harm when all proposals are complete would be significant. However, the predicted traffic flows indicate that, in the absence of the HGRR and the LGE, there would be only a small increase of traffic through Hilperton arising from the completion of the appeal scheme. The predicted two-way increase would be below 20 vehicles per hour in the morning peak, and such a level would be indiscernible in terms of road capacity and environmental impact. I am therefore satisfied that the appeal scheme could proceed ahead of the construction of the HGRR.
11. Overall, there is sufficient capacity within both the local and wider road networks to cope with the level of additional traffic which would be generated by the proposed development. In addition, the Local Plan recognises that access to the development would be by way of the existing development, and the design of the access roads through Paxcroft Mead provide for appropriate traffic calming measures. Whilst there will be an increase in traffic in Hilperton prior to the construction of the HGRR, that increase will not be at a level which would cause a material change in the environmental quality of residents there.
I therefore conclude that the development would comply with the requirements of Policy H8c, and would not result in unacceptable traffic or environmental conditions on the access through Paxcroft Mead or on the wider road network.
12. The development of the East Trowbridge area will require increases in the provision of schools in the area or in Trowbridge generally. The WWDC recognises that need and makes provision for 'a contribution towards the provision of a new primary school to the south of Paxcroft Mead or to an extension to Longmeadow or Paxcroft Primary Schools, in accordance with the requirements of the Local Education Authority (LEA)'.
13. The LEA anticipates the peak number of primary school-children generated in the new scheme will be 53, and that will be reached on or around the physical completion of the development. Similarly, the peak number of secondary school-children is anticipated to be 28, and that will be reached some time after completion of the development. The Council is concerned that the additional places envisaged through the development of the new primary school proposed on H11 will not be available by the time the appeal scheme is occupied, and will result in some of the children travelling significant distances to school, thereby undermining the sustainability of the proposed development.
14. Existing primary schools in the immediate area are The Mead and Paxcroft, and both are currently fully-subscribed. Further afield there is Hilperton Primary School, which is currently attended by some children from Paxcroft Mead, and which had 30 spare places in October 2008, and Longmeadow. The LEA advises that there is no scope for expansion of The Mead, although 2 additional classrooms could be built at Paxcroft, and that it is the intention to meet the additional pupil demand primarily through the construction of the proposed new school which forms part of the H11 proposal. However, that proposal is subject to the statutory procedures related to the establishment of new schools and alteration to existing schools, and to the LEA's statutory duties to secure diversity in provision and increase opportunities for parental choice.
15. The appellants have offered a financial contribution in accordance with the requirement in Policy H8c, which could be used by the LEA to address any shortfall which exists when the dwellings on the proposed development are occupied. The LEA is satisfied that will be sufficient to enable it to meet its statutory duty to provide school places, and that the decision about how and where the places are provided will be taken at a later date and be subject to further consultation. The LEA therefore raises no objection to the proposed development. I give significant weight to the terms of the agreement in relation to education provision.
16. There is uncertainty about the development and timing of Site H11 due to lengthy delays since 2005 in concluding a Planning Agreement for the site. However, discussions have recently been held which resulted in Executive Summaries being agreed between the developers and the Council, and between the developers and Wiltshire County Council, which should form the basis of planning obligations between those parties. Those agreements have reduced the level of uncertainty about the development proceeding, although the concern over the timing is still unresolved.
17. The LEA has undertaken to make provision for the required number of primary school places, and has accepted that the financial contribution offered will facilitate that. Whilst that solution may involve some pupils travelling beyond the local schools for primary education, the scale of that and its impact on travel patterns is uncertain. Given the availability of places at Hilperton school and the capacity for expansion at Paxcroft school I am satisfied that there are opportunities to accommodate much of the additional demand in the short-term, and that the agreement of the LEA to the financial contribution is sufficient to comply with the requirements of Policy H8c. I therefore conclude that the development would not lead to demand for educational facilities which could not be satisfactorily met.
Routeing of construction traffic
18. The proposals envisage construction access being routed through the existing development to the west of the site, by way of Parsonage Road and Moyle Park. The streets in the existing development incorporate design features which aim to slow traffic down, and they are subject to a 20mph speed limit.
The consideration of the development during the local plan inquiry indicated that general access would be through the adjoining development, although there is no specific consideration of construction access in the Inspector's report.
19. The use of Parsonage Road and Moyle Park for construction traffic will have an impact on the environment of residents in those roads over the construction period. However, until recently, that has been the accepted route for construction traffic, and no technical objections have been raised either in the officers' report on the application or in the observations of the Highway Authority. There are other sites in the area where the same situation exists, notably Site H8 to the west of Leap Gate, where construction traffic will be routed through residential streets which are similar in design to those which would be affected by this development, and such situations are commonly found in residential areas where significant development is taking place. The proposed routeing has been agreed by the Highway Authority, and a Construction Management Plan is proposed to give control over the details of the construction process.
20. The Environmental Statement accompanying the application indicated that there could be another option for construction access by way of Green Lane to the south of the site. However, there is no further information before me about that option.
21. Similarly, during the lead-up to the inquiry the Council suggested an alternative access by way of Ashton Road. That access would involve the construction of a temporary road across part of the proposed extension to the country park, gaining access to the site in the north-east corner. However, there are few details before me of the achievability of that proposed alternative routeing, and I am not aware of any consultations with the Highway Authority, any other land owners involved, or adjoining residents.
22. I recognise that the alternative options considered could bring environmental benefits to the residents of Parsonage Road and Moyle Park but, given the limited period of time over which the construction activity will occur, the controls which can be introduced through planning conditions and the proposed Construction Management Plan, and the level of uncertainty around the other options, I do not consider it appropriate to impose a condition preventing construction access through the existing residential area. I therefore conclude that the proposed routeing of construction traffic through the existing residential area is acceptable, and that the proposed routes for construction traffic by way of Parsonage Road and Moyle Park would not cause unacceptable harm to the living conditions of residents in those roads.
23. Residents have provided evidence which shows surface water lying on part of the proposed development site towards the south-west corner, and flooding to the gardens of some plots on the existing estate, particularly in Castell Way.
However, the appellants have submitted a Flood Risk Assessment (FRA) which indicates that the proposed development site lies within Flood Zone 1 as defined in Planning Policy Statement 25 (PPS25): Development and Flood Risk, and is therefore suitable for all land uses, including residential. That situation is confirmed by the results of a hydraulic model run by the appellants, which includes an adjustment for the effects of climate change. The proposals contained in the FRA include setting the floor levels of the development a minimum of 600mm above the 100 year water levels plus climate change in Paxcroft Brook.
24. In order to meet Environment Agency requirements for surface water drainage, the appellants propose to re-route existing surface water from the Clarence Road estate to discharge into the River Biss, thus freeing-up capacity to discharge the surface water from the proposed development into the Paxcroft Brook. That solution would reduce flood risk to the Clarence Road estate and other properties to the north of Green Lane, and has been accepted by the Environment Agency. I am satisfied that the proposals for surface water drainage will comply with the requirements of PPS25.
25. The application is in outline, with means of access submitted for approval. Therefore details of the appearance, landscaping, layout and scale will be required as reserved matters under any approval. However, in order to ensure that the further requirements are clear and to ensure that the appearance of the development is satisfactory, I shall include conditions requiring the submission of material samples, including details of materials for all hardsurfaced areas, and details of boundary treatment and the retention of existing hedgerows. To ensure the implementation of approved proposals I shall include conditions relating to the timing and maintenance of approved landscaping. I shall also require details of tree protection measures.
26. To protect existing and proposed occupiers in the area I shall impose conditions relating to the provision of surface water drainage and sewerage infrastructure, and to establish minimum finished floor levels. To safeguard the existing environment I shall require that any contamination found on the site be dealt with in accordance with a Method Statement to be approved by the local planning authority, and that adequate measures are taken to avoid contamination through materials used in the construction.
27. During the construction of the development I shall require that measures be taken to mitigate the impact of the development on the environment of adjoining residents, including limitations on the hours of working, control on the burning of materials on-site, and the prior approval of a Construction Management Plan. In the interests of nature conservation I shall also require that the development be carried out in accordance with a scheme to protect the ecology of the area to be approved by the local planning authority.
28. I have considered the need for a Grampian condition relating to the provision of the provision of the HGRR. However, such a condition would be dependent on the timing of Site H11, which is not within the control of the appellants, and I consider that to be unreasonable. In addition, I am satisfied that the evidence given at the inquiry demonstrates that the impact of the traffic generated by the proposed development would not have a material impact on the environment in Hilperton, and such a restriction is therefore unnecessary.
29. I am satisfied that the necessary improvements to highways and education infrastructure would be adequately secured through the proposed Section 106 Undertaking. I also conclude that the proposed access for construction traffic by way of Parsonage Road and Moyle Park would be acceptable. Whilst the use of possible alternative accesses would reduce the environmental impact on the residents of those roads, those proposals contain a significant degree of uncertainty, and a condition preventing access through the adjoining development would not be appropriate.
Raymond Michael, Inspector
FOR THE LOCAL PLANNING AUTHORITY:
Richard Banwell of Counsel Instructed by Nicola Mathiason, Head of Legal Services, West Wiltshire District Council
Michael Muston BA(Hons) Geog MPhil Env Planning MRTPI Director, Muston Planning, 75 Dovers Park, Bathford, Bath, BA1 7UD
FOR THE APPELLANT:
Ian Dove QC
Michael Bessie Dip TP MRTPI Planning Director, GL Hearn, The Malt House, Sydney Buildings, Bath, BA2 6BZ
Ken Gosling IEng FCILT FIHT FRSA
Denis Wilson Business Group, Windsor House, 37 Windsor Street, Chertsey, Surrey, KT16 8AT
Cllr Trevor Carbin (WWDC) 228 Church Street, Hilperton, Wilts, BA14 7RU
Jon Webster MCILT 26 Parsonage Road, Hilperton, BA14 7TL
M J Stephens 30 Parsonage Road, Hilperton, BA14 7TL
1 Rebuttal statement on education submitted by appellants
2 Email dated 16 March 2009 from Bryan Cash (Education Officer) submitted by appellants
3 Agreed statement with Highways Authority on transport matters submitted by appellants
4 Appendix 17.1 of Transport Assessment for land at East Trowbridge submitted by appellants
5 Copy of Section 106 Unilateral Undertaking for land north of Green Lane, Trowbridge submitted by appellants
6 Report of WWDC Planning Committee 26 February 2009 on Open Book Appraisal of housing site H11 submitted by LPA
7 Executive Summary for Section 106 Agreement between landowners and WWDC on land south of Paxcroft Mead, Trowbridge submitted by LPA
8 Executive Summary for Section 106 Agreement between landowners and Wiltshire County Council on land south of Paxcroft Mead, Trowbridge submitted by LPA
9 Extract from Written Statement for West Wiltshire District Plan 2004 submitted by LPA
10 Copies of Policies I2 (The Arts) and R4 (Open Space in New Housing Developments) from WW District Plan 2004 submitted by LPA
11. DVD showing surface water on the appeal site and in Castell Close.