QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
| PNH (Properties) Limited
|- and -
|Secretary of State for Communities and Local Government
Christopher Buttler (instructed by Treasury Solicitor) for the Defendant
Hearing date: 6 July 2012
Crown Copyright ©
Clive Lewis QC :
5. From my consideration of all the representations and from my inspection of the site and surroundings, I find that the main issue in this appeal is the effect of the proposed development on the character and appearance of the surrounding area."
"no guarantee that the mitigation measures laid down in the obligation to counter views of the development from Old Blandford Road and Folly Close will be accomplished."
"As well as the aspect from Old Blandford Road, importantly, there is also the effect of the development when viewed from Bishop's Drive, an important matter raised by the local planning authority. The area of woodland that would be cleared to accommodate the two houses and their garages is prominent when viewed from points along Bishop's Drive. From the western end the woodland is viewed as rising up beyond the end of the cul-de-sac, thus establishing a green backdrop to the residential area. It softens and enhances the appearance and character of the built form. The inter-relationship between the woodland and the buildings is a feature that Policy H19 seeks to protect. The removal of the trees as proposed and the construction of the new dwellings would divorce the woodland from the street scheme to such a degree that this inter-relationship and hence the character and appearance of Bishop's Drive would be unacceptably diminished, contrary to the aforementioned policy."
16. I conclude, therefore, that the proposed development would run counter to Policy H19 of the Local Plan in that it would not minimise the loss of features, such as trees, that contribute to the character of the area.
17. In reaching this conclusion I have had regard to the argument promoted by the appellant that the development would be beneficial in that it would secure the future, positive management of the woodland. However the management of the woodland could be equally undertaken without the need for development. I have had regard also to all other matters raised in the representations but not ins sufficient to outweigh the considerations that I deem to be paramount."
The Inspector therefore dismissed the appeal.
1) the Inspector erred in his understanding of the planning obligation and consequently failed properly to take into account a material consideration namely the benefits of a woodland management agreement or failed to give reasons for his failure to take into account the benefits of such an agreement;
2) the conduct of the hearing was procedurally unfair;
3) the Inspector failed to have proper regard to the 2009 appeal decision and the importance of consistency in decision-making or failed to give his reasons for departing from the 2009 appeal decision when he did so.
GROUND 1: THE PLANNING OBLIGATION
"(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as "a planning obligation"), enforceable to the extent mentioned in subsection (3)
(a) restricting the development or use of the land in any specified way;
(b) requiring specified operations or activities to be carried out in, on, under or over the land;
(c) requiring the land to be used in any specified way; or
(3) Subject to subsection (4) a planning obligation is enforceable by the authority identified in accordance with subsection (9)(d)
(a) against the person entering into the obligation;
(b) against any person deriving title from that person."
"all that land known as Land at Bishops Drive, East Harnham Salisbury, SP2 8NZ and edged red on the attached plan provided at Schedule 1."
"The Owner covenants with the Council that prior to Commencement of Development it will deliver to the Council a Woodland Management Agreement satisfactory to the Council relating to the woodland edged in blue on the plan and that it will following the commencement of the development implement the said management plan to the satisfaction of the Council. An outline 10 year Management Plan is included at Schedule 2 and shall form the basis of the Woodland Management Agreement."
THE SECOND GROUND: FAIRNESS
"If an Inspector is to take a line which has not been explored fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have be been aware on the material and arguments presented at the Inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed."
THE THIRD GROUND: THE 2009 APPEAL DECISION