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Appeal Decision for Tir Founder Fields, Cwmbach, Aberdare CF44 0AH

 

Yr Arolygiaeth Gynllunio, Adeilad y Goron, 

The Planning Inspectorate, Crown Buildings,

Parc Cathays, Caerdydd  CF10 3NQ  

Cathays Park, Cardiff  CF10 3NQ

029 20823889   Ffacs 029 2082 5150

029 20823889   Fax 029 2082 5150

e-bost [email address]

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Penderfyniad ar Apêl

Appeal Decision

Ymchwiliad a gynhaliwyd ar 09&10/09/08

Inquiry held on 09&10/09/08

Ymweliad safle a wnaed ar 11/09/08

Site visit made on 11/09/08

gan/by Emyr Jones  BSc(Hons) CEng MICE MCMI

Arolygydd a benodwyd gan y Gweinidog

an Inspector appointed by the Minister for

dros yr Amgylchedd, Cynaliadwyedd a 

Environment, Sustainability and Housing,  

Thai, un o Weinidogion Cymru

one of the Welsh Ministers

 

Dyddiad/Date  30/09/08

 

Appeal Ref: APP/L6940/A/08/2069580

Site address: Tir Founder Fields, Cwmbach, Aberdare CF44 0AH

The Minister for Environment, Sustainability and Housing has transferred the  authority to decide this appeal to me as the appointed Inspector.    The appeal is made under section 78 of the Town and Country Planning Act 1990 against a  refusal to grant consent, agreement or approval to details required by a condition of an  outline planning permission.    The appeal is made by Persimmon Homes (Wales) Ltd. against the decision of Rhondda

Cynon Taf County Borough Council.    The application Ref 07/0258/16, dated 9 February 2007, sought approval of details  pursuant to condition No 1 of outline planning permission Ref 01/4020/13, granted on 21

December 2005.

  The application was refused by notice dated 06 February 2008.

  The development proposed is residential development: erection of 214 dwellings including  roads, means of enclosure, garages, parking, conservatories and all associated engineering

works.

  The details for which approval is sought are: the reserved matters comprising the siting,

design and external appearance of the buildings, the means of access thereto and the  landscaping of the site.

 

 

Decision

1.  At the Inquiry an application for costs was made by Persimmon Homes (Wales)  Ltd. against Rhondda Cynon Taf County Borough Council.  This application is the  subject of a separate Decision.

2.  I allow the appeal, and approve the reserved matters, namely the siting, design  and external appearance of the buildings, the means of access thereto and the  landscaping of the site, submitted in pursuance of condition No 1 attached to  planning permission Ref 01/4020/13 dated 21 December 2005 for residential  development at Tirfounder Fields, Cwmbach, Aberdare subject to the following  conditions:

1)

This approval relates only to the details shown on the following plans:

Site layout

Drawing No TP-01 Rev F (Site Layout).

 

 

 

Appeal Decision APP/L6940/A/08/2069580

 

 

Landscaping and finishes

Drawing Nos. TP-01 Rev E (Site Layout, proposed finishes schedule), L.01

(Landscape Layout), L.02 (Planting Details (sheet 1 of 4)), L.03 (Planting

Details (sheet 2 of 4)), L.04 (Planting Details (sheet 3 of 4)), & L.05

(Planting Details (sheet 4 of 4)).

House types

Drawing Nos. Aber/5718/P (Aberavon Flats, plans), Aber/5718/P (Aberavon

Flats, elevations), L248/A/P01 (Boston/Manhattan/Vermont Flats, plans),

L248/A/P03 (Boston/Manhattan/Vermont Flats, elevations), LEI/5718/1.0

Rev B (Leicester, plans/elevations), KG/5718/1.0 Rev H (Kingston,  plans/elevations), BRD/5718/1.0 (Bridle, plans/elevations), BLA/5718/1.0

(Blacksmith, plans/elevations), ANV/5718/1.0 Rev B (Anvil,  plans/elevations), PH/5718/1.0 Rev A (Penhurst 2003, plans/elevations),

CTN/1.0 Rev I (Castleton 2003, plans/elevations), EAR/5718/1.0

(Earleswood, plans/elevations), & HOR/5718/1.0 (Horseshoe,

plans/elevations).

Cycle store, garages and conservatories

Drawing Nos. CY-01 (Cycle store, plans/elevations), G/1 (Detached double  garage dual pitch), G/3 Rev A (Detached single garage), G/5 (Detached pair  of garages) & E7BW (Conservatory, model Elizabeth).

Walls

Drawing Nos. FE/7 (General details, wall detail) & ENCL-09 Rev X (General  details, 1.8m high close boarded fence).

2)

Notwithstanding condition 1 above, this approval does not extend to the  finished floor levels shown on Site layout drawing No TP-01 Revision F.

3)

The proposed walling shall be constructed in accordance with details of  coursing, jointing, texture relief and colour, to be submitted to and  approved in writing by the local planning authority with such details being  demonstrated by the prior construction of a sample panel.  The panel shall  be retained on site until the completion of the walling.

4)

The proposed render shall be constructed in accordance with details of  texture, colour and finish to be submitted to and approved in writing by the  local planning authority with such details being demonstrated by the prior  construction of a sample panel.  The panel shall be retained on site until the  completion of the rendering.

5)

A 23m forward visibility envelope shall be provided on the main site access

to the rear of plot 8 prior to the occupation of any dwelling and thereafter  retained as such free from obstruction.

6)

A visibility splay of 4.5m by 23m shall be provided fronting plot 137 for  vehicles emerging from the site at the secondary means of access prior to  that access being brought into beneficial use and thereafter retained as  such free from obstruction.

 

 

 

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Background

3.  The outline planning application was accompanied by an illustrative master plan  which has been stamped ‘Permission Granted’ by the Council.  The reserved  matters application covers a somewhat smaller area and excludes the ‘Landscape

Ecology Buffer’ on the appeal site’s south western and most of its north western  boundaries as well as the ‘Landscaped Flood Corridor’ on the appeal site’s north  eastern and part of its north western boundaries. 

4.  The appeal only relates to reserved matters, as defined by the Town and Country

Planning (General Development Procedure) Order 1995, but other conditions on  the outline permission are of relevance to the arguments raised.  Condition 5  requires prior approval of details of ground floor, access road and driveway levels  to ensure that the approved scheme would accord with surrounding development. 

Conditions 6 and 24 between them relate to details of drainage works and a  scheme for the disposal of foul and surface waters.  Conditions 8, 31 and 32

require prior approval of a landscaping scheme, a habitat and wildlife protection  plan, and a landscape and habitat restoration and creation scheme, respectively.

5.  Condition 23 requires finished floor levels to be constructed a minimum of 600mm

above the theoretical 1 in 100 year flood level and all infrastructure, roads and

car parking areas to be a minimum of 300mm above the theoretical 1 in 100 year

flood level to provide adequate protection from flooding.  A note to this condition  states that the theoretical 1 in 100 year flood level for the River Cynon is  currently estimated at 116.19 metres above Ordnance Datum.  However, it

should be noted that although this information is considered the best available at

the current time, levels may be subject to change in the future. 

6.  A Section 106 Agreement, amongst other matters, makes further provision in

relation to the ‘Flood Corridor Works’ and ‘Landscape Buffer Works’. 

Procedural matters

7.  The reserved matters application was refused for three reasons but the first

reason was abandoned by the Council on 26 August 2008.  At the Inquiry, the

Council indicated that the evidence of its highways witness in relation to the third

reason for refusal was withdrawn and that its position on this reason was now one of scepticism rather than a positive assertion.  As a result, the appellants did not call their highways witness but his evidence stands as a written statement to the Inquiry.   

8.  At the Inquiry, the appellants suggested that condition 2 above would fully

overcome the Council’s outstanding objections and that the time and expense of

hearing evidence could not be justified in the public interest.  Notwithstanding, its agreement that the condition should be imposed if the appeal was to be allowed, and in full knowledge of the appellants intentions to make an application for costs, the Council considered that I should hear its case because it was of the view that there is an inextricable association between drainage details, finished levels and the reserved matters. 

9.  Had there been agreement between the principle parties on this point, it could

well have been in the public interest to proceed as suggested by the appellants. 

However, to deny the Council the opportunity to present evidence to the Inquiry

when it desired to do so would be a fundamental breach of the principles of  natural justice and I ruled that I would not do so.

 

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Main issue

10. I consider the main issue in this case to be whether, given that the principle of

development was settled by the grant of outline planning permission, the

submitted details are acceptable having particular regard to the extent of the

proposed land raising and the implications thereof in visual and construction

traffic generation terms.

Reasons

11. The second reason for refusal states that ‘The development of the site for

residential purposes would necessitate the raising of ground levels to an

unacceptable degree as it would lead to the creation of an elevated plateau on the valley floor which in itself would prove visually incongruous and which would be emphasised by the creation of housing on top of it’.  In referring to ‘the

development of the site for residential purposes’, rather than the particular form

of residential development shown on the submitted details, this clearly goes to

the principle of development which is something that cannot be considered at the reserved matters stage.

12. Insofar as finished levels are concerned, condition 23 of the outline planning

permission imposes minima to provide adequate protection from flood protection. 

Condition 5 of the same permission retains control over how much levels are

raised above these minima to ensure that the approved scheme accords with

surrounding development.  Although finished floor levels are shown on Site layout drawing No TP-01 Revision F, there is no suggestion that this is intended to satisfy the requirements of condition 5.  For the avoidance of any doubt in this

respect the appellants suggested the imposition of what is now condition 2 of this decision.

13. The Council considers that the visual impact of the siting, design and external

appearance of the buildings and the landscaping of the site is not a matter that

can be properly considered without reference to the proposed ground levels since these will dictate the eventual height of the buildings and the landscaping above existing ground levels.  As a result, it is of the view that it would not be safe to impose a condition on a reserved matters approval which allows a factor which could have a significant bearing on the proper consideration of these matters to be determined separately at a later date.

14. The outline permission requires reserved matters details to be submitted within 3 years of the date of the permission.  However, the only constraint on the

submission of proposed levels is that this is done in sufficient time to allow

approval thereof and commencement of development within 5 years of the date

of the permission or 2 years from the approval of the last of the reserved matters

to be approved whichever is the later.  

15. Notwithstanding any relationship between the visual impact of the reserved

matters and the proposed ground levels, the outline planning permission,

therefore, allows the details required by condition 5 to be submitted after

approval of reserved matters.  The Council could have required the finished levels to be submitted for approval at the same time as, or even before, the reserved matters but it did not do so.  

 

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16. The drainage design to be submitted for approval pursuant to conditions 6 and 24 of the outline permission will have a strong influence on the levels to be

submitted for approval pursuant to condition 5, as will the latest 1 in 100 year

flood level (Q 100).  Insofar as the Q100 level is concerned the most up to date

value (2007) for the relevant section of the Afon Cynon is 116.29m AOD, which is

slightly higher than that referred to in the note to Condition 23 of the outline

planning permission.  

17. Technical Advice Note 15: Development and Flood Risk (TAN 15) cites a need to include allowances for increased flows resulting from climate change when

assessing flooding consequences.  However, there is no reference to a climate

change allowance in Condition 23 or the note thereto.  The Council’s planning

witness accepted that it could be unreasonable to retrospectively impose such a

requirement.  This is a matter to be resolved when the proposed levels are

submitted for approval.  If a 20% allowance for climate change is taken into

account the Q100 level increases further to 116.45m AOD.  

18. Amongst the factors to be considered in designing the drainage scheme is the 1 in 2 year flood level (Q2) which determines the outfall level.  The Statement of

Common Ground (SOCG) states that the outfall level to the Afon Cynon can be

set at the Q2 level of 115.062m AOD.  This is based on 2001 figures, but the

Council’s drainage witness did not anticipate that it would change materially to

take account of more recent data.  The appellants’ drainage witness indicated that a minimal increase would be likely.  The finished floor levels shown on Site layout drawing No TP-01 Revision F appear to be based on an initial drainage design with an outfall level of 112.375m AOD, which is considerably lower than the above.

19. The SOCG notes that preliminary design work indicates that it is possible to

design a gravity surface water drainage scheme for the site with a maximum

road/ground level of 117.85m AOD, subject to satisfactory discharge

arrangements to the flood relief channel.  The Council’s drainage witness was of

the view that this could stand as a maximum although the appellants’ witness

was of the opinion that it would need to increase by the minimal amount that Q2

was increased by.  

20. The above compares with a maximum finished floor level of 118.75m AOD on Site layout drawing No TP-01 Revision F.  Allowing for the 300mm difference between minimum finished floor levels and minimum infrastructure, road and car parking area levels in Condition 23, it would appear that a lower maximum level than  shown on drawing No TP-01 Revision F can be achieved, despite the need to  considerably increase outfall levels.

21. Preliminary design work also indicates that the finished floor levels on the site perimeter would need to be raised by up to 400mm from the 116.80m AOD

shown on drawing No TP-01 Revision F.  Although neither witness specifically

addressed the mater, it would be reasonable to assume that this would also be subject to slight revision to take account of more recent data.

22. The SOCG indicates that alternative drainage arrangements are available that

would meet the relevant standards and codes of practice and have the potential

to reduce maximum levels further.  However, the Council’s drainage witness

 

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accepted that the introduction of additional outfalls would not result in a net

reduction in overall levels, that connection to the retail park drainage system

would not make a large difference in that respect, that pumping was not realistic,

and that it was questionable as to whether reduced cover would make a material

difference to overall levels.

23. TAN 15 notes that Sustainable Drainage Systems (SUDS) offer a variety of

engineering solutions, both soft and hard, that mimic natural drainage processes

and can be employed to manage surface water run-off.  Local planning authorities and developers are advised to seek advice from the Environment Agency,

highways authorities and sewerage undertakers on the techniques available for

sustainable drainage and their suitability for proposed development in specific

locations.  

24. In this case the Environment Agency acknowledges that its previous

recommendations have not required attenuated surface water runoff but does not object to a system that would regulate to a greenfield rate and/or the

implementation of SUDS.  No specific approaches have been made to either the

highway authority or Dŵr Cymru/Welsh Water.  However, insofar as the former is concerned its Residential Road & Footpath Standards focuses on conventional

drainage systems.  The Council’s drainage witness recognised the existence of

legislative hurdles relating to SUDS and had no knowledge of instances where

Dŵr Cymru/Welsh Water had adopted SUDS on comparable sites.    

25. Of the different types of SUDS listed in Appendix 4 to TAN 15 filter drains and

permeable and porous pavements or infiltration devices do not appear to be

appropriate for this site because of the potential for the generation of leachate

and contamination of watercourses.  Filter strips and swales would still require

culverts to cross access drives and junctions with an associated need for minimum cover such that they would not assist greatly in reducing overall levels. 

Preventative measures or basins and ponds would not be of much assistance in

reducing overall levels either.  Whilst SUDS might bring other benefits, insofar as

this site is concerned it would appear that any reduction in finished levels would

not be significant.  

26. There remains a degree of uncertainty in respect of finished levels, but maximum road/ground level are not anticipated to be significantly greater than 117.85m

AOD and finished floor levels on the site perimeter are not likely to be much

higher than 117.20m AOD (116.80+0.40).  As a result, I am satisfied that this

uncertainty is not sufficient to prevent the visual impact of the reserved matters

details from being properly assessed.  

27. Notwithstanding the generality of the second reason for refusal, the evidence of the Council’s landscape witness focused on the absence of a landscape buffer on the part of the site’s north western boundary which lies adjacent to the flood

relief channel.  It was suggested that the outline application was approved on the

basis of a plan which showed or implied a comprehensive landscape treatment of

that edge.  

28. Although the Illustrative Master Plan shows a ‘landscape ecology buffer’ along

most of the north western boundary it shows a ‘landscaped flood corridor’ on the

part which encompasses the flood relief channel.  These are collectively described as ‘Green Corridors’ although it is clear that they are intended to perform

 

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different functions.  The flood corridor being intended primarily to provide a flood relief channel, and to function as a wildlife corridor to facilitate the movement of species, but not to provide screening.  

29. The Council’s planning witness accepted that the masterplan effectively fixed

these areas, which are referred to in the Section 106 Obligation.  This does not

prevent landscaping within the appeal site but he accepted that extending the

‘Green Corridors’ into the appeal site would entail renegotiation of the Section

106 Obligation.  What is meant by the term ‘landscaped’ in relation to the ‘flood

corridor’ may be open to interpretation. Nonetheless, examination of the

masterplan shows the channel taking up most of the corridor, leaving little or no

room for any screen planting such that none can be implied in this area.  

30. The Design Statement submitted with the reserved matters application states that a planted buffer is proposed along the northern boundary of the site between it and the existing footpath.  However, this appears to be a general statement that does not distinguish between the ‘landscape ecology buffer’ and the ‘landscaped flood corridor’.  

31. The Council’s Urban Design Officer expressed disappointment that details of what is proposed in the planted buffer had not been submitted.  However, the Design

Statement indicates that it is intended that the required details would be provided

as part of the application to discharge condition 32 of the outline permission.  The

Urban Design Officer welcomed the units looking outwards onto the planted

buffers, footpaths and landscape beyond as this would supervise the new areas of public realm, create a quality backdrop onto these areas and give these edge

units excellent views out of the site.  In my opinion, continuous screen planting

would obviate these benefits.

32. The Environment Agency indicate that, other than grass and low level vegetation, no planting must occur within the flood relief channel and that a 7m buffer zone free of large trees/shrubs is required adjacent to the channel.  This is likely to restrict the ability to plant the willow species and hawthorn referred to in the details submitted to discharge conditions 31 and 32 of the outline planning permission.    

33. The Council’s landscape witness is of the opinion that the absence of robust and considered structure planting along this edge would result in pedestrians on the public footpath having a largely uninterrupted view of the housing development which would be compounded by the presence of cars, lighting and other paraphernalia typically found in gardens and driveways.  He suggests that this would provide an abrupt and unsympathetic urban to rural edge that would be harmful to the character and appearance of the surrounding area. 

34. However, the flood corridor occupies a substantial width that would provide a degree of visual separation to the dwellings and the views would be of their fronts rather than their rears.  As a result, I do not consider that the housing would appear incongruous.  In addition, the housing would represent a very short visual experience in relation to the range of views available from the footpath.

35. I acknowledge that the channel currently has a somewhat ‘engineered’

appearance, but its planting is still subject to the Council’s approval through

conditions 8 and 32 of the outline permission.  Once grass and low level

vegetation, including the reeds and rushes which have already started to grow in

 

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the channel, have become fully established this would provide a softer edge to

the development.   This edge would provide a transition between the housing and the wetland area to the north.  

36. The site is located within an area assessed on the Countryside Council for Wales’ LANDMAP information system as having a low overall evaluation insofar as the Visual and Sensory Aspect is concerned.  Existing levels in the vicinity of the site vary by up to 3m and are barely perceptible.  Based on accepted methodology, the appellants’ landscape witness has assessed the potential impact of the proposals on the landscape character of the site and its context as being negligible.  On the basis of the evidence submitted and what I saw at the site visit, I am satisfied that the raising of the site necessary to satisfy condition 23 of the outline planning permission and to allow it to be drained effectively would be on a minor scale when set within the scale of the relatively broad valley floor.

37. Subject to the approval of levels required by condition 5, I conclude that the

necessary land raising to facilitate the construction of the submitted reserved

matters details would not be harmful to the character and appearance of the

surrounding area.

38. The third reason for refusal states that ‘The means of access to the proposed

development is, in the light of increases in the volume of traffic from the haulage

resulting from the land raising on the adjacent A4059, incapable of accommodating the additional traffic that would be generated by the proposed

development’.  This is poorly worded, implying that the land raising would take

place on the A4059.   Furthermore, the reference to the A4059 being incapable of

accommodating additional traffic strongly suggests that the concern relates to a

capacity issue, which was fully addressed at the outline stage.  This view is

supported by paragraphs 4.4 and 5.5 of the Council’s Statement of Case.

39. The written statement of the appellants’ highways witness, which was

unchallenged, demonstrates that the existing road network is capable of

accommodating the additional traffic that would be likely to be generated by

importing fill material without creating problems for other road users.  The

Council’s planning witness was of the view that the third reason for refusal and

the references in the Statement of Case referred to environmental effects, rather

than capacity issues.  I do not interpret them in that way, particularly as the

resolution of the Cynon Area Development Control Committee dated 17 January

2008 refers to ‘the negative impact on traffic movements’.  

40. Be that as it may, he produced no substantive evidence to support the third

reason for refusal.  Under cross-examination he accepted that no attempt had

been made to quantify environmental impacts through, for example, an

assessment of noise impact following the advice of Technical Advice Note 11:

Noise.  On the basis of the evidence before me and subject to the approval of

levels required by condition 5, I conclude that the traffic likely to arise from the

importation of fill material to facilitate necessary land raising would have no

unacceptable impacts on other road users or in environmental terms.  

41. An interested person is concerned that the additional traffic likely to be generated by the proposed dwellings would exacerbate problems currently encountered in crossing the A4059 opposite Lower Station Street.  However, as noted in the report presented to the Cynon Area Development Control Committee on 17

January 2008, matters pursuant to road capacity are issues of principle which

 

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Appeal Decision APP/L6940/A/08/2069580 cannot be revisited at the reserved matters stage.  The report goes on to state that this particular issue was dealt with at length at the outline stage and was

found to be acceptable subject to relatively minor off site works being

undertaken.

42. The same person is also worried about flooding of the footpath between

Aberaman and Cwmbach, on the north western boundary of the site which

benefits from outline planning permission.  At the site visit, I noted that the

flooding at the south western end appears to result from the River Cynon

breaching its banks, immediately upstream of the bridge that carries the footpath. 

This is clearly nothing to do with the proposals before me.  

43. The flooding at the north eastern end appears to relate to the low level of the

path and the ability of the ‘as constructed’ flood relief channel to convey input

flows.  However, I note that the Environment Agency considers that the ‘as

constructed’ channel does not comply with the consent granted.  in any event,

these matters are outside my jurisdiction and I have no reason to believe that the

reserved matters details before me would exacerbate this problem.  

44. Another interested person submitted photographs showing gas being released from the site.  That is not surprising in view of its previous use as a landfill site. 

The matter of landfill gas was addressed in the report presented to the Planning &

Highways Committee on the outline application and condition 26 of the outline

planning permission requires further gas monitoring to enable the design of gas

control measures to be finalised as well as the Council’s prior approval of

monitoring results, final design, maintenance requirements and timescales.

45. The case of R. v. Newbury District Council, Ex p. Stevens and Partridge

establishes that it is possible to impose conditions on reserved matters approvals provided that such conditions do not derogate from or seek to go beyond the outline planning permission.  A list of suggested conditions was agreed between the principle parties.  Subject to minor modifications in the interests of clarity and precision, and to be in line with the guidance of Circular 35/95, particularly the incorporation of implementation clauses in respect of those relating to visibility envelopes/splays, I agree that these should be imposed in the event of the appeal being allowed.  

46. Condition 1 is required to clarify exactly what plans have been approved and for the avoidance of any doubt.  Condition 2 is necessary so as not to fetter the

Council’s consideration of details to be submitted pursuant to condition 5 of the

outline permission.  Conditions 3 and 4 are required to ensure an acceptable

visual impact to the development.  Conditions 5 and 6 are necessary in the

interests of highway safety.

47. For the above reasons, the submitted details are acceptable and do not conflict with Mid Glamorgan (Rhondda Cynon Taff County Borough) Replacement

Structure Plan policy T11 or Rhondda Cynon Taff (Cynon Valley) Local Plan policy

ENV1.  I conclude that the appeal should succeed.

 

E Jones

Inspector

 

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Appeal Decision APP/L6940/A/08/2069580

 

 

APPEARANCES

 

FOR THE LOCAL PLANNING AUTHORITY:

Mr A Crean QC

instructed by the Solicitor to the Council

He called

 

Mr T J Roberts MRTPI

DLP Planning Ltd., 2A High Street, Thornbury,

Bristol BS35 2AQ

Mr J Jones BEng(Hons)

JRJ Consulting, 10 Radyr Court Rise, Llandaff,

CEng CEnv MICE

Cardiff CF5 2QH

MCIWEM

Mr P J Richards

The Richards Partnership, 1 Agincourt Square,

BA(Hons) DipLA MLI

Monmouth NP25 3BT

 

FOR THE APPELLANTS:

Miss M Ellis QC

instructed by Mr Vining

She called

 

Miss M O’Connor DipLA

White Young Green, 21 Park Place, Cardiff CF10

MSc MLI

3DQ

Mr K Ayoubkhani BSc

Arup, 4 Pierhead Street, Capital Waterside,

MSc CEng MICE

Cardiff CF10 4QP

MCIWEM

Mr P Vining BSc(Hons)

White Young Green, 21 Park Place, Cardiff CF10

DipTP(Dist) MRTPI

3DQ

 

INTERESTED PERSONS:

Mr A Evans 

7 Glancynon Terrace, Aberaman, Aberdare CF44

6RL

 

 

 

 

 

 

 

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DOCUMENTS SUBMITTED AT THE INQUIRY

1

Council’s notification of Inquiry and list of persons notified

2

R. v. Newbury District Council, Ex p. Stevens and Partridge

3

Council’s response to the appellants’ suggested condition in

respect of levels

4

Agreed Conditions

5

Resolution dated 28 July 2008

6

Errata Sheet to Mr Richards’ Statement of Evidence

7

E-mails dated 19 August 2008 between Mr Richards and

Environment Agency Wales

8

E-mail dated 6 September 2008 from Mr Vining to Mr Roberts

9

Extract from Ateb Consultants 2007 Report

10  4 photographs showing gas being released from the site

11  Exchanges of correspondence between principal parties

12  Extract from Ateb Consultants 2001 Report

13  Extract from Council’s Residential Road & Footpath Standards

14  Consultation response from Council’s Urban Designer

15  E-mails dated 1 September between Mr Roberts and Mr Vining

 

Document 10 was submitted by Mrs M Williams, 90 Pine Croft Avenue, Cwmbach,

Aberdare CF44 0NB

Yr Arolygiaeth Gynllunio, Adeilad y Goron, The Planning Inspectorate, Crown Buildings, Parc Cathays, Caerdydd CF10 3NQ Cathays Park, Cardiff CF10 3NQ 029 20823889 Ffacs 029 2082 5150 029 20823889 Fax 029 2082 5150 e-bost wales@planning-inspectorate.gsi.gov.uk email wales@planning-inspectorate.gsi.gov.uk Penderfyniad Costau Costs Decision Ymchwiliad a gynhaliwyd ar 09&10/09/08 Ymweliad safle a wnaed ar 11/09/08 Inquiry held on 09&10/09/08 Site visit made on 11/09/08 gan/by Emyr Jones BSc(Hons) CEng MICE MCMI Arolygydd a benodwyd gan y Gweinidog dros yr Amgylchedd, Cynaliadwyedd a Thai, un o Weinidogion Cymru an Inspector appointed by the Minister for Environment, Sustainability and Housing, one of the Welsh Ministers Dyddiad/Date 30/09/08 Costs application in relation to Appeal Ref: APP/L6940/A/08/2069580 Site address: Tirfounder Fields, Cwmbach, Aberdare CF44 0AH The Minister for Environment, Sustainability and Housing has transferred the authority to decide this application for costs to me as the appointed Inspector.  The application is made under the Town and Country Planning Act 1990, sections 78, 320 and Schedule 6, and the Local Government Act 1972, section 250(5).  The application is made by Persimmon Homes (Wales) Ltd. for a full award of costs against Rhondda Cynon Taf County Borough Council.  The inquiry was in connection with an appeal against the refusal to grant consent, agreement or approval to details required by condition 1 of an outline planning permission Ref 01/4020/13, granted on 21 December 2005 for residential development. Summary of Decision: The application is allowed in the terms set out below in the Formal Decision and Costs Order. The Submissions for Persimmon Homes (Wales) Ltd. 1. The Appendix to Circular 23/93 gives a summary of the Criteria for unreasonable behaviour. Examples are given of circumstances where planning authorities are at risk of an award against them on appeal with paragraphs 2, 3, 7, 9 and 11 being of particular relevance along with paragraphs 7 and 8 of Annex 3 to the Circular. Insofar as paragraph 7 of the Appendix is concerned the Council has abandoned a reason for refusal at a late stage and, through its landscape witness, introduced an additional reason which differs from the second reason. 2. The site is a long-standing Local Plan commitment which benefits from outline planning permission and it was open to the Council to address its concerns through condition 2. 3. The first reason for refusal, which was always invalid, was withdrawn, but this was only done after the appellants had prepared evidence to refute it. Furthermore, the Council allowed its planning witness to innocently paint a wholly misleading picture of its actual position in the letter dated 29 July 2008 in that it was minded to offer a conditional withdrawal in return for a Section 106 Undertaking for over £100,000. This wrong factual impression was not corrected until 26 August 2008. This represents wholly unreasonable conduct although no personal slur against any individual is made. To say that not setting out the full terms was lost in the detail is an attempt to cast a veil over something which is now out in the open. Costs Decision APP/L6940/A/08/2069580 2 4. It is not right to say that the bridge requires repair only as a result of the development. It is publicly maintainable and in its current condition is simply too dangerous for vehicular traffic. If this is not a cause of concern to the highway authority it should be. Furthermore, the suggestion originally came from the Council via its Statement of Case and if it chose to do the running around that is a matter for it. 5. The first reason for refusal should not have been imposed – it represented part of the members approach to the highways issue and betrayed a fundamentally flawed approach to reserved matters. They also disregarded the Fforestfach Costs Decision (Ref: APP/B6855/A/04/1138313) and the repeated advice of officers. These are not matters of planning judgement and the minute betrays errors of principle. 6. It is plain on its face that the second reason for refusal goes to the principle of residential development although the Council argued that it means something different from what it says. At best it is unclear and in fact it has not been addressed by the Council’s witnesses. The landscape witness invented another and his evidence showed no regard to LANDMAP and the ‘miniscule’ landscape character impact was not addressed by him. Neither did he carry out a proper visual appraisal. He did not know if his evidence had been approved and did not know who the Director was. 7. Environment Agency e-mails were produced late for no good reason and the case was so unclear until the first day of the Inquiry. The landscape witness’s argument was undermined by the planning witness’s correct recognition that widening the buffer/increasing the structural planting would necessitate revisiting the Section 106, which is beyond the remit of the reserved matters stage. This represents another error of principle rather than a matter of planning judgement. 8. The Council’s highways evidence was withdrawn on the first day of the Inquiry. The third reason for refusal and the Council’s Statement of Case are at best unclear as to whether the concern relates to technical capacity or environmental impact. There has been no analysis of environmental impact by reference, for instance, to national policy in TAN 11 and this was accepted by the Council’s planning witness under cross-examination. 9. Apart from three paragraphs from the planning witness, this reason is, therefore, unsupported and it was always contrary to expert highways and planning officer advice. The minute reveals that members had impermissible considerations of principle in mind. This was wrong in law and, in the end, no expert evidence was forthcoming. There was no need for the appellants to call their highways witness and he was not present on the second day of the Inquiry in order to minimise costs, but the appellants were not informed until after they had incurred substantial costs. 10. The possibility that condition 2 would resolve members concerns was further rejected by the deputy leader/portfolio holder although the reasons for doing so were not disclosed. However, the Director’s views have been known all along as being supportive of the proposal. The suggestion of a breach of TAN 15 is a mischaracterisation that was roundly rejected by the appellants’ witnesses. 11. The points made above also fall foul of paragraphs 9, 11, 12, 16 and 17 of Annex 3 to Circular 23/93. Costs Decision APP/L6940/A/08/2069580 3 The Response by Rhondda Cynon Taf County Borough Council 12. The application is reducible to five propositions which are repeated and repeated. The first being that the first reason for refusal goes to the principle of development. This is wrong and insofar as the application is based on this proposition it fails. The second is that the landscape witness went off on his own and that the matters advanced are divorced from the Council’s case. This is also wrong, a Council planning officer has been present at the Inquiry at all material times and it can be sensibly inferred that the matters set out by the witness are appropriately endorsed through the Scheme of Delegation. 13. The third preposition is that the matter of drainage in unrelated to the reasons for refusal. This is incorrect for the reasons set out in the Council’s closing submissions. The fourth preposition, being that proposed condition 2 resolves all substantive queries, is wrong for the reasons given in Document 3 and confirmed in cross examination of the appellant’s planning witness. The final preposition of improper behaviour in relation to a Section 106 Undertaking and discussion on the first reason for refusal is wrong and disgraceful. 14. What has not been drawn to attention in the application is that there are three essential criteria for an award of costs as set out in paragraph 6 of Annex 1 to the Costs Circular. The third being that any unreasonable conduct has caused the party seeking costs to incur or waste expense unnecessarily either because it should not have been necessary for the matter to be determined on appeal or because of the manner in which another party has behaved in the proceedings. Whilst the appellants make repeated complaints of improper conduct there is no causal relationship even if such conduct was unreasonable. 15. In May 2008 the Council received the appellants’ comments on the Council’s Statement of Case which included a suggestion as to how to resolve the concern on emergency access. This set a hare running which was chased by the Council at considerable expense acting in good faith on the understanding that it was not being frivolously messed around. Subject to bridge strengthening, required on the basis of structural engineering advice, the suggestion was acceptable. There may have been a misunderstanding in not setting out the full terms but that was lost in the detail. The Council pursued the appellants’ suggestion in good faith but that was withdrawn at the eleventh hour. As there is no causal relationship on this point, the application fails. 16. There is a need to step back and to look at the case in the round. The appellants planning and landscape witnesses reasonably conceded that the issues separating the parties are matters of judgement about which reasonable people can differ. There is, therefore, no basis for an award. 17. The Inquiry has served an important purpose in that it has revealed very important conflict between the proposals and TAN 15. The Costs Circular imposes a greater sense of discipline on the parties, whilst the Inquiry has been characterised by the appellants as futile and pointless representing an absence of such discipline. This is not so as it has been a careful and rational investigation into the proposals that has revealed serious shortcomings. Even if the appeal is to be allowed, the Inquiry cannot be said to be a pointless waste of time. Costs Decision APP/L6940/A/08/2069580 4 Conclusions 18. I have considered this application for costs in the light of Circular 23/93 on Awards of Costs Incurred in Planning and Other (Including Compulsory Purchase Order) Proceedings and all the relevant circumstances. This advises that, irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably and thereby caused another party to incur or waste expense unnecessarily. 19. The first reason for refusal was abandoned on 26 August 2008, a fortnight before the opening of the Inquiry and after Statements of Evidence had been submitted. This abandonment at a late stage in the proceedings amounts to unreasonable behaviour as described in paragraph 4 to Annex 2 of the Costs Circular. Irrespective of whether or not the reason related to the principle of development, this unreasonable behaviour has resulted in the appellants incurring or wasting expense unnecessarily in preparing evidence to refute the first reason for refusal. 20. It is clear that the possibility of linking to the road running between the rear of the Asda Store and the Lewis Street area of Aberaman initially came from the Council’s Statement of Case. The appellants responded positively, but only insofar as on-site implications, including a demountable bollard, were concerned. To wrongly convey that the first reason for refusal would be withdrawn if bridge strengthening were to be financed through a Section 106 Undertaking, when the Council had resolved unreservedly that it no longer contended the first reason for refusal, amounts to further unreasonable behaviour, as described in paragraph 9 of the Appendix to Circular 23/93, in relation to this reason for refusal. 21. Turning to the second reason for refusal, paragraph 8 of Annex 3 to the Circular requires reasons for refusal to be complete, precise, specific and relevant to the application. If the second reason for refusal is accepted as satisfying this requirement, it clearly goes to the principle of development which is something that cannot be considered at the reserved matters stage. Paragraph 17 of Annex 3 notes that a planning authority is likely to be regarded as having acted unreasonably if it refuses permission on reserved matters, raising objections more appropriate to outline stage, and is unable to show good reason, on appeal, for the stance taken. No good reason has been given for raising an objection more appropriate to the outline stage. 22. In the alternative, I will consider the possibility that the second reason for refusal is badly worded and that the concern actually relates to the development platform being higher than envisaged when outline planning permission was granted, as per the Council’s Statement of Case. I have some sympathy with the argument that finished levels, which are themselves dependant on the drainage design, could affect the visual impact of the reserved matters. Nonetheless, if this interrelationship was of concern, it should have been addressed at the outline stage by requiring finished levels (and possibly drainage details) to be approved in advance of, or at the same time, as the reserved matters. The fact of the matter is that this was not done. 23. As a result, the outline planning permission legitimately allows the level details required by condition 5 to be submitted after approval of reserved matters. Although the reserved matters details submitted did include finished floor levels, Costs Decision APP/L6940/A/08/2069580 5 there is no indication that this was intended to satisfy condition 5 of the outline planning permission. In any event, a condition along the lines of condition 2 of my Appeal Decision would have ensured that there was no doubt in that regard. In these circumstances, the interpretation of the second reason for refusal advanced in the Council’s Statement of Case effectively prejudges the details to be submitted to it at some future date to satisfy condition 5 and amounts to unreasonable behaviour. 24. I conclude that, irrespective of whether the second reason for refusal is taken as expressed or as interpreted in the Council’s Statement of Case, its inclusion amounts to unreasonable behaviour. This has resulted in the appellants incurring or wasting expense unnecessarily in preparing evidence to refute this reason for refusal. 25. Insofar as the evidence of the Council’s landscape witness is concerned, given the presence of a Council officer at the Inquiry, it would be reasonable to assume that it was part of the case which the Council wished to put under the authority delegated to the Director. However, in cross-examination, the witness confirmed that his appraisal had only considered the scheme submitted. The finished floor levels shown on drawing No TP-01 Revision F in this area are at or very close to the minimum required by condition 23. 26. As a result, I do not accept that there is a link between either interpretation of the second reason for refusal and the absence of a landscape buffer at the northern corner. Referring to the absence of such a buffer, therefore, effectively amounts to introducing a new reason for refusal, without sufficient reason, at a late stage in the proceedings. This amounts to unreasonable behaviour as described in paragraph 4 to Annex 2 of the Costs Circular. However, any expenditure incurred by the appellants in refuting this new reason for refusal is included in that of refuting the second reason for refusal which I have already addressed in paragraph 24 above. 27. Paragraph 8 of Annex 3 to the Circular also states that in any appeal proceedings, planning authorities will be expected to produce evidence to substantiate each reason for refusal, by reference to the development plan and all other material considerations. In considering whether the Council was able to produce relevant evidence to support its case the evidence does not have to be persuasive. The test to apply is whether it had substance in the sense of providing a respectable or sufficient evidential basis for the stance taken. 28. The Council produced no substantive evidence in support of the third reason for refusal. This constitutes unreasonable behaviour which has resulted in the appellants incurring or wasting expense unnecessarily in preparing evidence to refute this reason for refusal. 29. Because of the Council’s unreasonable behaviour in relation to all 3 reasons for refusal, it should not have been necessary for the reserved matters to be determined on appeal. I find that unreasonable behaviour resulting in unnecessary expense, as described in Circular 23/93, has been demonstrated. I therefore conclude that a full award of costs is justified. Costs Decision APP/L6940/A/08/2069580 6 Formal Decision and Costs Order 30. In exercise of my powers under section 250(5) of the Local Government Act 1972 and Schedule 6 of the Town and Country Planning Act 1990 as amended, and all other powers enabling me in that behalf, I HEREBY ORDER that Rhondda Cynon Taf County Borough Council shall pay to Persimmon Homes (Wales) Ltd., the costs of the appeal proceedings, such costs to be assessed in the Supreme Court Costs Office if not agreed. The proceedings concerned an appeal under section 78 of the Town and Country Planning Act 1990 as amended against the refusal to grant consent, agreement or approval to details required by a condition of an outline planning permission for residential development on land at Tirfounder Fields, Cwmbach, Aberdare. 31. The applicant is now invited to submit to Rhondda Cynon Taf County Borough Council, to whom a copy of this decision has been sent, details of those costs with a view to reaching agreement as to the amount. In the event that the parties cannot agree on the amount, a copy of the guidance note on how to apply for a detailed assessment by the Supreme Court Costs Office is enclosed. E Jones Inspector