QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY JUDGE OF THE HIGH COURT)
| THE QUEEN
-on the application of-
HAWKHURST PARISH COUNCIL
- and –
|TUNBRIDGE WELLS BOROUGH COUNCIL
|(1) PROGRESSIVE DEVELOPERS LAND LIMITED
(2) McCARTHY AND STONE RETIREMENT LIFESTYLES LIMITED
Ms Megan Thomas (instructed by Sharpe Pritchard) for the Defendant
Mr Giles Cannock QC (instructed by Shoosmiths) for the Second Interested Party
Hearing dates: 28-29 July 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30am on 11 November 2020
MR JAMES STRACHAN QC (Sitting as a Deputy Judge of the High Court):
"Demolition of existing dwelling and erection of 43 retirement living apartments with associated communal facilities, access, parking and landscaping…"
i) it failed to deal with the issue of the highways impact of the proposed scheme cumulatively with other committed development (Ground 1);
ii) it failed to address a particular heritage development plan policy, Policy EN4, concerning demolition and conservation areas (Ground 2); and
iii) it misinterpreted national policy on the protection to be given to the Area of Outstanding Natural Beauty ("AONB"), and the finding that there were exceptional circumstances for development in the AONB was not reasonably open to the Council (Ground 3).
"Hawkhurst village has grown around a junction where two major A roads cross. This junction is recognised by KCC as being at capacity with significant delays experienced, particularly during peak hours. Following KCC's investigation into several possible improvement schemes during the last few years, no solution has been found that can both be delivered and achieve the required additional capacity."
The conclusion section stated:
"… It is therefore KCC's position that, in line with NPPF paragraph 32, no development will be recommended for approval within the village boundary that generates any additional trips through the junction, unless the developer can demonstrate a scheme that mitigates their specific impact."
"1. Does KCC have a set a criteria for "development that generates any additional trips through the junction?
-eg for residential development, is this as low as a single additional dwelling? If so, is it the case that the cumulative impact will be judged served as outlined in the NPPF?
This has been a testing part of the statement to commit to, but in essence we are saying the cumulative impact of several/many individual units will add to the severity of congestion experienced at the junction. As we have judged that the existing situation is 'severe', it should apply that any additional units/trips would compound the effect.
4. Have KCC had any discussions with applicants/highway consultants about how impacts can be mitigated? If so, can a summary of these please be relayed to us?
The only realistic proposal that mitigates this problem is the Golf Club owner's proposal to construct a relief road to the north-west of the junction. I have also spoken to PBA …[for another site] about mitigation, stating we will be open to any suggestions that have a realistic positive impact. PBA tentatively suggested public transport improvements but I am dubious about the benefits tinkering with timetables would have. They will be considering the options and coming back to me. I'll keep you updated."
5. How do the objections fit with existing allocations, both the longstanding ones.. and the newer ones in the allocations document?
Owing to windfall sites and sites not in the Core Strategy that have been allowed at appeal, the number of dwellings KCC stated we would not object to within the parish has been exceeded. Even with some allocated sites not yet applied for planning application, the line has to be drawn. With our evidence showing the junction is now suffering from severe congestion at peak times, and the original allocation number of 240 dwellings having been exceeded, we propose to object to any applications from this point forwards – whether they are allocated or not."
"… To clarify, this statement will not become policy until all these issues are satisfactorily addressed.
In the meantime, please be assured we will continue to assess each application on its own merit."
"With no mitigation scheme identified to improve the flow of traffic through the junction, KCC Highways will be looking for well-considered sustainable development which facilitates and encourages walking, cycling and travelling by public transport in order to reduce car-borne trips. The village has good facilities within its boundary, including education, retail and healthcare. Access to these key destinations by sustainable modes should be a primary consideration."
"Whilst KCC will not be automatically objecting to developments in Hawkhurst, little can currently be done to mitigate the situation. The advice we have taken from colleagues in the Legal department and other councils is that we do not have a strong enough case to justify automatically objecting, and therefore development proposals with a robust Transport Assessment that minimises car-borne traffic through the junction will be scrutinised by KCC highways.
One way in which developers can improve sustainable transport options in the village is to support and enhance the bus service. To this extent, KCC officers have drawn up a business case to share with developers, showing how this can be achieved. I have attached this document for information."
"With this in mind, KCC proposes that as a starting point any future developer in the town (subject to the proposal/site and compliance with relevant regulations and the NPPF/G) contributes £1,000 per dwelling (contribution for other land uses to be calculated separately) towards public transport services, and improves (including providing new) bus infrastructure (i.e. bus boarders and shelters) adjacent to their site to an appropriate level, determined at the time for each development …"
The Original Planning Application from the Second Interested Party
"1) The proposal does not demonstrate that safe and suitable access to the site can be achieved for all users. It has also failed to demonstrate that significant impacts from the development on the transport network (in terms of capacity and congestion) can be mitigated to an acceptable degree through public transport enhancements. It is thereby in conflict with Part 9 of the National Planning Policy Framework 2018, and saved policy TP 4 of the Tunbridge Wells Local Plan.
The Resubmitted Planning Application from the Second Interested Party
"1.8 With respect to the second part of RfR1, this was not considered a concern to KCC Highways, as the local highway authority. It is, however, understood that this was a concern of the Parish Council and, therefore, further justification in this regard is contained in this report."
"5.10 Further to this analysis, discussion with KCC Highways regarding development growth and the A229/A268 traffic signalised junction in the centre of Hawkhurst was had in advance of the planning application. KCC Highways stance in this regard is set out in Appendix K.
5.11 Based on the information in Appendix K, KCC Highways raised no objection with respect to traffic impact with the previous planning application submission.
5.12 Based on the information set out in this section, it is considered that the proposed development will have no material, and certainly no severe, impact on the local highway network; therefore no further traffic impact justification is required."
Legal Advice obtained by KCC
"Further to your recent Advice, my colleagues in Highways & Transportation have cited a situation in Hawkhurst, Tunbridge Wells. The local planning authority is receiving numerous planning applications for residential development (schemes generally less than 50 dwellings) and each scheme adds a relatively small amount of traffic to an existing crossroads experiencing severe levels of congestion where there are no options for mitigation. To date, the County Council, as Local Highway Authority, has not objected to these schemes. There is also a view held that given the absence of a five year housing land supply, the grant of planning permission by the local planning authority (or a Planning Inspector) is inevitable.
In my view, the test required under the National Planning Policy Framework at paragraph 109 is clear; it is the cumulative impact that is critical, and this should be assessed when a proposal is considered together with other committed developments. Therefore, in this Tunbridge Wells scenario, there are very valid reasons for the County Council, as Local Highway Authority, to object to these proposals. The absence of a five year housing land supply is a matter for the local planning authority to address in its decision-taking exercise but even where the presumption at paragraph 11 of the NPPF is engaged, part d) ii. does offer latitude to the local planning authority (or a Planning Inspector) to not grant planning permission."
"The local planning authority is receiving numerous applications (generally for less than 50 dwellings) and each scheme adds a relatively small amount of traffic to an existing crossroads experiencing severe levels of congestion, where there are no options for mitigation. To date, KCC has not objected to these schemes. Given the absence of a 5 year housing supply, the "tilted balance" in paragraph 11d of the NPPF applies, so there is considerable pressure for these applications to be granted."
"4. The view of the Head of Strategic Planning and Policy is that "…it is the cumulative impact that is critical and this should be assessed when a proposal is considered together with other committed developments. Therefore, in this Tunbridge Wells scenario, there are very valid reasons for the County Council, as local highway authority, to object to these proposals…"
5. That advice is entirely correct…"
"… although the applicant only needs to achieve nil detriment at the junction to satisfy us, any subsequent additional trips through a junction that is over capacity from day one are likely to result in an objection from KCC Highways."
The Officer Report for the White House application
"The previous application 18/02767/FULL was not refused on principle or landscape/AONB grounds, but due to details relating to the access arrangements and lack of a satisfactory affordable housing provision."
"Highgate C[onservation] A[rea] boundary is 100m to the north; the Moor CA is 600m to the south (statutory duty to preserve or enhance the significance of heritage assets under the Planning (Listed Buildings and Conservation Areas) Act 1990)"
- The Transport Statement still refers to the village centre being in comfortable walking distance but this is actually up a very steep hill, with pavements that are not easily negotiable, especially if one were reliant on an electric buggy.
- There is no disputing the Hawkhurst crossroads junction is already over capacity. Any additional traffic will impact negatively on this junction – the proposed development will have a material impact on the junction.
"There is no disputing the Hawkhurst crossroads junction is already overcapacity. The fact that KCC Highways are not prepared to use this as grounds for refusal does not actually change the reality of the situation faced by Hawkhurst residents every day. Any additional traffic will impact negatively on this junction, so it is quite simply incorrect to state that the proposed development will not have a material impact on the junction."
"7.29 (16/08/19) - Further to my earlier comments it has now been confirmed that the access for mobile scooters will not be taken along the vehicular access and removal of the tree has been agreed with KCC Arboricultural Team. Throughout this and the previous application, the highway authority has recommended improved parking levels but no extension to the car parking area has been forthcoming.
7.30 Despite further discussions regarding possible allocation of spaces between residents and visitors, the proposals now allocate 27 spaces for residents with six for visitors. The highway authority continues to recommend that a minimum of nine spaces be made available to visitors which would be in keeping with the requirement for general purpose housing.
7.31 Furthermore, if this balance is not adjusted, the highway authority would recommend that funds are secured through the S106 to cover the costs for extension to a TRO which would allow the highway and parking authorities to manage any overspill parking on the highway. I have discussed this option with your parking team who have recommended that £2500 should be secured towards these costs, to be used should overspill parking occur. This would be in addition to the previously agreed contribution to sustainable transport measures of £1000 per unit. Conditions and informatives also recommended.
7.32 (18/06/19) - Further to initial consultation response, regarding the highway tree, have now consulted with KCC Arboricultural Manager who has advised that mitigation costs to the full value of the assets will be required. However whilst in this instance the full value would be £40,000, this has been capped at a value of £25,000. Anticipate that this would be secured through the S.106 agreement.
7.30 (28/06/19) - This revised application follows discussions with the highway authority and now includes revised access arrangements.
7.31 Additional details include levels and long section, which are in keeping with those discussed with the highway authority and are considered adequate for vehicular access but are too steep to provide disabled access.
7.32 The revised access arrangements will require removal of a highway tree and the applicant was requested to discuss alternative provision with the KCC Arboricultural Team.
7.33 With regard to parking provision, 33 spaces are now proposed. As previously set out, IGN3 would expect of the order of 1 space per unit plus 0.2 visitor spaces per unit (9 visitor spaces) giving a minimum of 52 spaces for general purpose housing.
7.34 The TS presents a variety of statistics regarding typical car ownership levels amongst residents with an estimate of 30 resident's cars. If these figures are employed, the highway authority would still conclude that there is currently under provision, particularly for staff and visitors, as these spaces will also accommodate any visiting carers etc.
7.35 Therefore once again the highway authority would recommend that overall levels be improved, possibly with further extension to the car park to the west.
7.36 Furthermore, reference has been made within the TS to limit the number of spaces available to residents to 27, but this would leave only 6 for staff and visitors. Further consideration should also be given to the balance of spaces and the highway authority would recommend that resident spaces are further limited, as car ownership levels can be controlled at the point of sale, to ensure that the requirement for minimum visitor spaces (9) can be provided.
7.37 As you are aware, with no mitigation scheme identified to improve the flow of traffic through the A229/A268 junction, the highway and planning authorities are seeking investment from developers into well-considered sustainable measures which facilitate and encourage walking, cycling and travelling by public transport in order to reduce car-borne trips. With this in mind, future residential development is requested to contribute £1,000 per dwelling towards public transport services, and improved bus infrastructure adjacent to the site. The applicant has previously agreed to this contribution."
"10.01 The site is partly outside the L[imits to] B[uilt]D[evelompent] and within the AONB countryside. The main issues are therefore considered to be the principle of the development at this site, including the sustainability of the proposal and the impact on the AONB/landscape, design issues, residential amenity, highways/parking, the impact on protected trees, ecology, impact on heritage assets, drainage and other relevant matters."
"Para 172 of the NPPF advises that 'great weight' should be given to conserving landscape and scenic beauty in AONBs, as they have the highest status of protection in relation to landscape and scenic beauty. This does not create a blanket presumption against new housing in the AONB, but does require detailed consideration of the impacts of new development in such locations. Para 172 also restricts major development within AONBs - this is relevant to this proposal and is addressed in detail later on in this report."
"It is therefore considered that, although partly reliance on private vehicle use … the fact that some journeys need to be made by private car is an adverse impact, but this is more balanced by the relative position of the application site to the tier two settlement of Hawkhurst and in particular the shops, school and other services within Hawkhurst. The location and accessibility of the site is considered to be moderately sustainable in relation to its proximity to services and the nature of the route to them."
"10.29 Impact on the CA also falls to be considered under LP policy EN5; then more broadly under EN1 and CS Policy 4, which seeks to conserve and enhance the Borough's urban environments (including CAs) at criteria (1) and (5)."
"10.63 This (especially AONB impact) is assessed in more detail below, but in summary it is considered that overall there is likely to be moderate localised harm to the AONB but this can be diminished through a sensitive approach, detailed design and securing long term management. The AONB and landscape harm will most clearly arise from the introduction of an intensive residential use into an otherwise open site. The proposal offers opportunities to improve some aspects of the site condition and management. Many of the harmful impacts would be moderate within the site itself but the impact localised. This is explored in greater detail within the specific AONB section below."
"Development Plan and NPPF AONB and landscape policy
10.64 … The NPPF within paragraph 172 states that great weight should be given to conserving and enhancing landscape and scenic beauty in AONBs which have the highest status of protection in relation to these issues. Paragraph 172 also relates to major development in the AONB and states that "Planning permission should be refused for major development other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest." Footnote 55 states that 'whether a proposal is 'major development' is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined.'. In this case, given that the proposal a significant amount of new built development within the AONB, it is considered that this should be considered as a major development. This is consistent with the approach to the previous application.
10.65 The NPPF then states that such applications should assess considerations contained in three bullet points and these are set out in the headings below. Many of the matters to be taken into account as set out in Para 172 form material considerations in their own right. The assessment against these matters will take place on the basis of the impact being, slight, moderate, large or neutral."
"Para 172: Cost of and scope for developing elsewhere outside the designated area, or meeting need in some other way
10.72 The whole of Hawkhurst and the surrounding area lies within the AONB. Hawkhurst is identified as a Tier 2 settlement in the 2010 Core Strategy settlement hierarchy. The level of housing need for the Borough is high and it is highly likely that additional housing sites within the AONB will be required. Hawkhurst PC object on the basis of conflict with HD1(b) of the NDP, which relates to this point.
10.73 The site has been chosen by the developer due to its position close to the LBD and the nature of the existing character and built development on the site. Other sites beyond Hawkhurst and outside of the AONB designation are possible for such residential development. However, the settlement of Hawkhurst is wholly within and surrounded by the AONB, and therefore any housing proposed in or on the edge of the settlement would be within that designated area. The proposal would provide a significant addition to the settlement's housing provision.
10.74 Other sites in Hawkhurst have been submitted through the 'Call for sites' process a part of the new Local Plan. Without prejudice to any future decisions made with regards allocating those sites which have come forward through the Local Plan, some of those which are outside are well outside the Hawkhurst LBD and further from the services of the village. It would be premature and outside the scope of this report to try to actively evaluate the merits or otherwise of sites submitted through Call for Sites. That is subject to an entirely different future procedure and it may be that some of those submitted sites are not allocated for residential use.
10.75 Having regard to the above, it is concluded that there is no scope for developing sustainably located housing for Hawkhurst outside the AONB."
"Conclusion in respect of the impact relating to the AONB
10.106 The proposal is considered (subject to the conditions recommended below) to accord with other relevant adopted Development Plan and national policy in respect of landscape impact, ecology and design.
10.107 The following table weighs the different elements against one another when assessing the overall impact on the environment in terms of para 172 of the NPPF:
Component of overall
Considered impact (neutral, slight, moderate, major)
Landscape Character/Appearance (and AONB)
10.108 It is therefore considered that the proposed development would have a slight negative impact on the environment as a matter to be considered under para 172 of the NPPF.
10.109 Of the three elements within para 172 of the NPPF considered above it has been concluded that there would be a moderately positive economic impact balanced against a slightly negative impact on the environment with no realistic scope for developing housing for Hawkhurst outside the AONB, given the position of the current Local Plan preparation work and the fact that sites submitted through the Call for Sites exercise are still being evaluated.
10.110 The overall conclusion when assessed against the requirements of para 172 of the NPPF, and having particular regard to the emphasis in the NPPF and NPPG on supporting sustainable development and contributing to the 5 year housing land supply, is that the proposal will have a moderate positive impact overall.
10.111 As such, it is considered that principally due to the housing delivery benefits outweighing the identified harm to the landscape and environment, there are exceptional circumstances where the development is in the public interest in this instance to depart from the NPPF presumption against major development in the AONB. In addition, the Council's Landscape and Biodiversity Officer has no objections to the application."
"Development should only be prevented or refused on highways grounds if there would be an unacceptable impact on highway safety, or the residual cumulative impacts on the road network would be severe."
"10.118A full Transport Assessment has been submitted as part of this application. KCC Highways raised significant concerns to the previous proposal based on;
· Insufficient parking, partly due to the parking assessment being based on C2 housing, not C3 (the basis on which the application was made);
· Unacceptable access arrangements (as the proposed access road did not meet back of highway at 90 degrees and the combined effect of this alignment and gradient at the back of highway and the implications for highway safety);
· The design included connections through the site to the car park which require use of a staircase to give access to the main entrance. This was considered likely to result in vehicles standing on Highgate Hill which is not acceptable. The design was recommended to include a drop off facility providing convenient and level access to the main entrance. In the absence of such provision the highway authority needed to be satisfied that the arrangements within the car park provide adequate access for all and are largely self-enforcing so it is the most convenient place for drop off etc. This was not the case in the previous layout.
10.119 A proposal for seven dwellings was also refused here in September 2017 however that application featured an access point further down the hill. In addition, at the time that application was refused KCC Highways had not developed a scheme relating to alleviating pressure on the crossroads towards which financial contributions would be sought.
10.120 Even if one occupant per dwelling either did not use a car or depended on a scooter or mobility, this does not necessarily mean that there would be less demand for the level of car-spaces required by KCC guidance. This is on the basis that there would be a reasonable likelihood that some of the occupants would still be dependent on cars for their day to day needs, particularly couples where one person does not have mobility difficulties necessitating the use of an electric scooter. Whilst sustainably located, the application site is not in such close and easy proximity to retail facilities and other services to justify insufficient parking for able-bodied elderly people.
10.121 Furthermore, even if all future occupants were reliant on mobility scooters and did not own a car, their higher dependency would result in a much greater frequency of visitors travelling to the site via cars, such as family members, friends, retail deliveries and professionals providing healthcare and assisted living support. There would be insufficient off-road parking space to accommodate these vehicles, which would as a consequence increase the demand on the already limited stretch of on-road parking available outside the site, which is on a busy A-class road. The development would not provide sufficient, safe and convenient parking for future occupiers, which would as a consequence give rise to highway safety issues as described by KCC Highways. Ultimately, the proposals now allocate 27 spaces for residents with six for visitors. The highway authority continues to recommend that a minimum of nine spaces be made available to visitors which would be in keeping with the requirement for general purpose housing.
10.122 If the absence of securing these three additional spaces, KCC Highways recommends that funds are secured through the S106 to cover the costs for extension to a Traffic Regulation Order (TRO) which would allow the highway and parking authorities to manage any overspill parking on the highway. The TWBC parking team, following consultation with KCC Highways, have recommended that £2500 should be secured towards these costs, to be used should overspill parking occur.
10.123 At this point it is considered necessary to highlight the difference between the inconvenience of parking pressure to local residents and parking-related highway safety matters. Inspectors have, at appeal, traditionally only given weight to highway safety issues arising from parking. It would be difficult to attribute a significant parking-related safety issue directly to this development, given the number of other dwellings that already use the road, the slow speed that vehicles are likely to travel at in the area around the access point and the fact that there is parking availability in nearby streets. Therefore, in this instance, it is not considered that the proposal would cause harm to highway safety if the recommended conditions and financial contributions are secured.
10.124 As above, Inspectors have traditionally only given weight to concerns regarding highway safety and any impact on convenience of residents is not considered to be a matter that would warrant refusal of this application. In general terms (and unless there is a concern regarding highway safety), the provision, amendment or exclusion of certain properties from residents' parking schemes fall outside of the planning system. Whilst it is not the role of the LPA to manage on-street parking, the recommended £2500 contribution towards the extension of a TRO is considered reasonable, necessary and related to the development.
10.125 KCC Highways have sought a minimum of nine spaces to be identified within the car park for visitors and to be kept available for visitor parking at all times in connection with the development; and that parking by residents to be controlled through a permit system. However management of the parking area is for the landowner and the way in which the facility is used is likely to be self-policing."
The Planning Committee
The Committee Meeting
"Officers have received a further representation from a member of the public alleging that the cumulative impact of the proposal along with other permitted developments and allocated sites on congestion at village crossroads has not been considered.
Officers would draw Members' attention to Committee Report Para 7.37 (KCC Highways comments of 28/06/19) which advises that with no mitigation scheme identified to improve the flow of traffic through the A229/A268 junction, the highway and planning authorities are seeking investment from developers into sustainable measures which facilitate and encourage walking, cycling and travelling by public transport in order to reduce car-borne trips. Thus a contribution of £1,000 per dwelling towards public transport services, and improved bus infrastructure adjacent to the site is sought. This figure has previously been sought by KCC for these reasons and was accepted by Members at the 10 April Planning Committee meeting for application 18/02165/FULL (28 dwellings at Land East Heartenoak Road Hawkhurst Cranbrook Kent)
Para 117 of the report quotes NPPF Para 109 ("Development should only be prevented or refused on highways grounds if there would be an unacceptable impact on highway safety, or the residual cumulative impacts on the road network would be severe.") The report further notes at Para 119 that a proposal for seven dwellings was refused here in September 2017 partly because KCC Highways had not developed a scheme relating to alleviating pressure on the crossroads towards which financial contributions would be sought. This is not now the case, as evidenced by the requested contribution and its inclusion within the recommendation at 11.0 (A).
KCC Highways have confirmed that in their view the development would not cause severe congestion to the crossroads either in isolation or in combination with other development, so long as the mitigation payments towards public transport services, and improved bus infrastructure adjacent to the site are sought."
"Members of the Committee took account of the presentations made and raised a number of questions and issues within their discussions. These included the level of priority given to local residents in respect of affordable housing, potential upgrading of local public transport, time limits on S106 funding, and the particular need for action relating to flooding and foul drainage. Notwithstanding the proposed demographic of the new development, members of the Committee also considered there would be an adverse impact on traffic on Highgate Hill and in particular at the crossroads in the centre of Hawkhurst, which KCC had previously confirmed was already at capacity. Mr Hockney reminded members, however, that without objections from KCC there was insufficient reason to justify a refusal in planning terms. Regret was also expressed over the loss of the White House within the street scene and the failure of the replacement development to respect the local context of the area."
"… I can confirm that residual cumulative impact on the junction was considered by the Planning Committee through Mr Warman' address to the Committee, the updates provided and through discussion at the Committee meeting."
The Golf Club Application
"It is noted that the junction is currently operating above its design capacity during both the AM and PM peak hours. Its operation is shown to deteriorate further following the addition of committed development trips and wider background traffic growth, with delays of approximately 9 minutes per vehicle forecast in the 2033 future year scenario."
The Emerging Local Plan
"nil detriment or decrease the level of traffic/congestion/journey time through the junction – thereby not causing a severe impact for the number of dwellings proposed on the Golf Club site."
"Until the Golf Club application [which proposes a new road] is assessed, the cumulative impact of all allocations at Hawkhurst would be likely to cause a severe impact on the junction with no mitigation proposed. KCC as Local Highway Authority therefore objects to the allocation of these sites and any subsequent planning applications."
"The Highway Authority would like to submit a holding objection to this application owing to the cumulative impact of this and other developments on the junction. Since the application was first considered in early 2019 the HA has advised that we would be in a better position to consider the cumulative impact as the Local Plan progresses. In November 2019 the HA objected to the allocation of 7 residential developments in the draft Local Plan totalling 731 dwellings because of the likely impact on the junction. TWBC have been planning to commission a model to test the cumulative impact on the junction, but as this is not yet available KCC, will undertake to build and operate a model of the junction to contribute to the evidence for the Local Plan. In addition, the last year has seen an influx of data relating to the junction as part of pre-applications and planning applications, and this has resulted in disparate conclusions which has underlined the need for a centralised data set. This would allow consistent assessment. The TA submitted with this application may have overestimated the available capacity at the junction, and this centralised approach will allow the HA, TWBC and the PC to agree on one base model as a starting point for capacity assessments."
"41. The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but – at local level – to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors. …
42. The principles on which the court will act when criticism is made of a planning officer's report to committee are well settled. To summarise the law as it stands:
(1) The essential principles are as stated by the Court of Appeal in R. v Selby District Council, ex parte Oxton Farms  E.G.C.S. 60 (see, in particular, the judgment of Judge L.J., as he then was). They have since been confirmed several times by this court, notably by Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Borough Council  EWCA Civ 1286, at paragraph 19, and applied in many cases at first instance (see, for example, the judgment of Hickinbottom J., as he then was, in R. (on the application of Zurich Assurance Ltd., t/a Threadneedle Property Investments) v North Lincolnshire Council  EWHC 3708 (Admin), at paragraph 15).
(2) The principles are not complicated. Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge (see the judgment of Baroness Hale of Richmond in R. (on the application of Morge) v Hampshire County Council  UKSC 2, at paragraph 36, and the judgment of Sullivan J., as he then was, in R. v Mendip District Council, ex parte Fabre (2000) 80 P. & C.R. 500, at p.509). Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council [2016 EWCA Civ 1061, at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee's decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice.
(3) Where the line is drawn between an officer's advice that is significantly or seriously misleading – misleading in a material way – and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R. (on the application of Loader) v Rother District Council  EWCA Civ 795), or has plainly misdirected the members as to the meaning of a relevant policy (see, for example, Watermead Parish Council v Aylesbury Vale District Council  EWCA Civ 152). There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law (see, for example, R. (on the application of Williams) v Powys County Council  EWCA Civ 427). But unless there is some distinct and material defect in the officer's advice, the court will not interfere."
a. The correct interpretation of planning policy is a matter of law for the court; the application of policy to the facts is a matter of judgment for the decision-maker: see Tesco Stores Ltd v Dundee City Council  PTSR 983; Leading Planning Cases p.303.
b. A question will be one of interpretation, rather than application, when it can be answered objectively without reference to the facts of any particular case: R (Wiltshire Council) v SSHCLG  EWHC 954 (Admin), per Lieven J at para. 26.
c. When considering whether development is in accordance with the development plan, the correct focus is on the plan's policies. Supporting text is relevant to the interpretation of a policy to which it relates, but it is not itself a policy, and it does not have the force of policy and cannot trump policy: R (Cherkley Campaign Ltd) v Mole Valley DC  EWCA Civ 567, para. 16.
d. It is not appropriate to consider the specific reasons why individual committee members may have voted in a particular way, since a Planning Committee reaches a collective decision by means of resolution. Where a resolution is taken to endorse an officer's recommendation, members of a Planning Committee can be taken to adopt the reasoning of the Officer Report see R (Historic England) v Milton Keynes Council  JPL 28, paras 50-52.
e. In CPRE Kent v Dover DC  1 WLR 108, the Supreme Court considered what inquiries needed to be undertaken before a lawful decision as to whether to grant planning permission was made. Lord Carnwath JSC said at para. 62:
"The Model Council Planning Code and Protocol…contains…the following advice:
"Do come to your decision only after due consideration of all of the information reasonably required upon which to base a decision. If you feel there is insufficient time to digest new information or that there is simply insufficient information before you, request that further information. If necessary, defer or refuse."
This passage not only offers sound practical advice. It also reflects the important legal principle that a decision-maker must not only ask himself the right question, but "take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly": Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014, 1065B. That obligation, which applies to a planning committee as much as to the Secretary of State, includes the need to allow the time reasonably necessary, not only to obtain the relevant information, but also to understand and take it properly into account."
"52. … [T]his is not a case about excessive legalism, or whether members were materially misled, it is a case about whether members had sufficient information to make a lawful decision. It is important to bear closely in mind that under the statutory scheme (and here the relevant standing orders) it is members who make the decision not officers. Those members have to have sufficient information to be able to make a lawful decision, see R(Morge) v Hampshire CC  UKSC 2 and CPRE v Dover  1 WLR 108 at  …
53. Equally, there will be some issues in a planning context where members may be in a good position to make their own judgement even if the OR has little or no analysis of the relevant issue. An obvious example is visual impact where the members when shown plans and photographs may well be able to reach their own judgements. However, there will be other issues, and in my view this is one, where without fuller (or any) information members cannot "understand the issues and make up their minds" (Morge ) without further information. As Lord Steyn so famously said, context is all.
54. In my view the vice (and legal error) in this case is twofold. Firstly, the OR told members nothing about why, or on what basis, WM1 was met. It simply said that the Council's advisor (Ms Atkinson) had confirmed that the applicant had supplied sufficient information to demonstrate compliance. The members were therefore not in a position to make up their own minds, but equally were not in a position to reach a view as to the conclusion reached by Ms Atkinson. Secondly, when the background material is examined it is clear that Ms Atkinson had simply accepted Veolia's [the holder of the planning permission's] assertion that the site was chosen because of proximity to Veolia's depot, and "therefore allocated sites were not considered suitable". There was no investigation or even consideration of the suitability or availability of alternative sites. The officers accepted Ms Atkinson's advice and themselves asked no further questions.
55. Ms Atkinson's approach could either be characterised as a failure to apply WM1 lawfully, or a failure to carry out proper inquiries pursuant to the principle in Tameside BC, and set out so clearly by Lord Carnwath at  of CPRE v Dover. The core point is that the sequential test in WM1 cannot be satisfied by a simple acceptance of a developer's assertion that no other site is suitable, without some material to support that assertion, and a proper consideration of whether the assertion was justified. If the developer's assertion alone was sufficient then WM1 and the sequential test would be a wholly meaningless exercise devoid of purpose, because any developer could, and probably would, just say that they wanted their site because it met their requirements and therefore allocated sites were not suitable. In these circumstances the site selection hierarchy so carefully set out in the Waste Management policies in the WLP would have no effect. This error was then compounded by the fact that members were only told that the advisor had accepted the Development Plan had been complied with, without any of the requisite information. They were therefore not in a position to reach any view as to whether sufficient investigation had been undertaken."
"Even if there were an exceptional need for affordable housing in an area, that would not necessarily equate to exceptional circumstances for a particular development, because there may be alternative sites that are more suitable because development there would result in less harm to the AONB landscape."
Ground 1 – Cumulative Highways Assessment
(a) A failure to take into account a material consideration, i.e. the evidence in the Golf Club Transport Assessment;
(b) A failure to take into account material evidence;
(c) Making a decision without sufficient information, contrary to the principles in Secretary of State for Education and Science v Tameside MBC  AC 1014;
(d) An error as to whether there was relevant evidence on a particular point (E v Secretary of State for the Home Department  QB 1044; Leading Planning Cases p.220);
(e) An unreasonable decision, in the sense of a decision made without reasonable foundation.
"All development that will generate significant amounts of movement should be required to provide a travel plan, and the application should be supported by a transport statement or transport assessment so that the likely impacts of the proposal can be assessed."
"… Transport Assessments are thorough assessments of the transport implications of development, and Transport Statements are a 'lighter-touch' evaluation to be used where this would be more proportionate to the potential impact of the development (ie in the case of developments with anticipated limited transport impacts).
Where the transport impacts of development are not significant, it may be that no Transport Assessment or Statement or Travel Plan is required. Local planning authorities, developers, relevant transport authorities, and neighbourhood planning organisations should agree what evaluation is needed in each instance."
"Although any administrative decision-maker is under a duty to take all reasonable steps to acquaint himself with information relevant to the decision he is making in order to be able to make a properly informed decision (Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014), the scope and content of that duty is context specific; and it is for the decision-maker (and not the court) to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor (R (Khatun) v London Borough of Newham  EWCA Civ55;  QB at ). That applies to planning decision-making as much as any other (see, e.g., R (Hayes) v Wychavon District Council)  EWHC 1987 (Admin) at  per Lang J, and R (Plant) v Lambeth London Borough Council  EWHC 3324 (Admin);  PTSR 453 at - per Holgate J). Therefore, a decision by a local planning authority as to the extent to which it considers it necessary to investigate relevant matters is challengeable only on conventional public law grounds."
Ground 2: Heritage
Development involving proposals for the total or substantial demolition of unlisted buildings which contribute positively to the character or appearance of a conservation area will not be permitted unless an overriding case can be made against the following criteria:
1. The condition of the building, and the cost of repairing and maintaining it in relation to its importance and to the value derived from its continued use;
2. The adequacy of efforts made to retain the building in use, including efforts to find compatible alternative uses;
3. The merits of alternative proposals for the site, and whether there are acceptable and detailed plans for any redevelopment; and
4. Whether redevelopment will produce substantial planning benefits for the community, including economic regeneration or environmental enhancement."
"Demolition in Conservation Areas
4.39 Conservation areas often contain buildings of architectural or historic importance which, when grouped with other buildings, walls, trees and other features create areas of distinct character worthy of conservation. Many such important features are identified within approved Conservation Area Appraisals. PPG15 establishes a general presumption in favour of retaining buildings which make a positive contribution to the character or appearance of a conservation area. The Local Planning Authority will therefore seek the retention of all such buildings, walls and other features within the designated conservation areas. Apart from certain exceptions laid down in directions made by the Secretary of State for the Environment, Transport and the Regions, Conservation Area Consent is required for the total or substantial demolition of buildings and of many walls in conservation areas.
4.40 When demolition of a building that makes a positive contribution to the character or appearance of the conservation area is proposed, the Local Planning Authority will require clear and convincing evidence of the condition of the building, the repair costs, and all efforts that have been made to sustain existing uses or find viable new uses, and will require evidence that these efforts have failed. Consent for demolition will not be given unless there are acceptable and detailed plans for any redevelopment.
4.41 Where the building makes little or no contribution to the area, the Local Planning Authority will need to have full information about what is proposed for the site after demolition with detailed and acceptable plans for any redevelopment."
Proposals for development within, or affecting the character of, a conservation area will only be permitted if all of the following criteria are satisfied:
i) First, there is sub-heading in the supporting text to Policy EN4. It is a clear indicator that Policy EN4 is directed at demolition in a conservation area, rather than demolition outside it, as that is what it states. I accept one must be cautious about attributing too much weight to this in the interpretative exercise for two main reasons: (1) the sub-heading is within the supporting text, not the policy itself; and (2) there is a similar sub-heading for Policy EN5, yet it is accepted that it does not prevent Policy EN5 applying to development outside a conservation area which affects it. Nonetheless, when one considers the overall context, neither of these points prevents the sub-heading from having important significance. One cannot ignore the sub-heading's straightforward meaning. The similarity of the sub-heading used in Policy EN5 undoubtedly creates some doubt over that straightforward meaning. Had the sub-heading in Policy EN5 read "Development in, or affecting the character of, a Conservation Area", the position would have been much clearer. Yet the important point to note is that when one reads that other sub-heading with Policy EN5 itself, it becomes clear that the sub-heading is expressly to be understood in that way, whereas the same is not true of the sub-heading in respect of Policy EN4. That is because Policy EN5 itself makes it clear that it is a policy which applies to proposals "within, or affecting the character of, a conservation area". By contrast there is no such equivalent express identification in Policy EN4.
ii) Second, and linked to the preceding point, the direct contrast between the wording used in Policy EN4 and that used in Policy EN5 is also important. Policy EN5 is unambiguous. It applies to development proposals "within, or affecting the character of, a conservation area". Policy EN4 contains no such specific locational clarity. Where the Local Plan intends a policy to be applicable to development proposals outside the conservation area, as well as those within, it makes this explicit in the way it has in Policy EN5. The absence of such explicit wording in Policy EN4, when read with the presence of such explicit wording in Policy EN5, is another strong contextual factor for rejecting Mr Mills' interpretation.
iii) Third, it is not simply the sub-heading to the supporting text for Policy EN4 which provides relevant interpretative context, but also the content of the paragraphs of the supporting text itself. Paragraphs 4.39-4.42 read as a whole are focused upon the issue of demolition of buildings in conservation areas. Paragraph 4.39 identifies the role of buildings within conservation areas in creating distinct character with the use of the words "often contain". It is concerned within buildings within the conservation areas, not outside them. It then goes on to note that many such important features are identified "within" approved Conservation Area Appraisals. This is identifying the practice prevalent in such appraisals of identifying buildings within the area which are considered to be positive, neutral or harmful to the character of the conservation area. Again, the focus is on buildings within conservation areas, rather than any buildings outside those areas.
iv) Fourth, paragraph 4.39 also refers to former national policy when the Local Plan was adopted in PPPG15. As Ms Thomas identified, PPG15 identified a general presumption in favour of retaining buildings within a conservation area that made a positive contribution to that character or appearance. PPG15 identified the need for conservation area consent (applicable at the time) for the total or substantial demolition of buildings "in" conservation areas. All of this is consistent with a focus on demolition of buildings in conservation areas. That part of PPG15 which is being referenced in the Local Plan came under a heading "Conservation area control over demolition" in PPG15. Paragraph 4.25 of PPG15 began by noting that conservation area designation introduced control over the demolition of most buildings within conservation areas, with reference to the terms of section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990 in the form that then existed). Paragraph 4.26 of PPG15 referred to the duty on local planning authorities under section 72 of that Act to pay special attention to the desirability of preserving or enhancing the character or appearance of the area in question, and noted that in the case of conservation area controls, account should clearly be taken of the part played in the architectural or historic interest of the area of the building for which demolition is proposed, and in particular of the wider effects of demolition on the building's surroundings and on the conservation as a whole. It is in this context that paragraph 4.27 of PPG15 stated:
"4.27 The general presumption should be in favour of retaining buildings which make a positive contribution to the character or appearance of a conservation area. The Secretary of State expects that proposals to demolish such buildings should be assessed against the same broad criteria as proposals to demolish listed buildings (paragraphs 3.16-3.19 above). In less clear-cut cases - for instance, where a building makes little or no such contribution - the local planning authority will need to have full information about what is proposed for the site after demolition. Consent for demolition should not be given unless there are acceptable and detailed plans for any redevelopment. It has been held that the decision-maker is entitled to consider the merits of any proposed development in determining whether consent should be given for the demolition of an unlisted building in a conservation area."
v) All of this is focused upon demolition of unlisted buildings in a conservation area. Whilst none of this text can be treated as forming part of the policy, it is relevant to its interpretation and provides a strong indicator that Policy EN4, properly interpreted in context, is concerned with demolition of buildings in a conservation area. Paragraphs 4.40 and 4.41 of the supporting text are also consistent with this interpretation, picking upon on the need for acceptable and detailed plans for redevelopment where demolition is to be permitted which was a feature of PPG15 for demolition of buildings in conservation areas.
vi) Sixth, there is also the wider legal context that was applicable when Policy EN4 was formulated and adopted by the Defendant in 2006. At my request, the parties provided. written submissions as to control over demolition of buildings as at 1 March 2006. The parties were not able to reach full agreement on a note for the court, but there is no significant dispute as to the reality. Section 55(1A) of the 1990 Act at the time included "demolition of buildings" within the definition of "building operations" that would, in turn, fall within the definition of "development" requiring planning permission. Section 55(2)(g) excluded "demolition of any description of building specified in a direction given by the Secretary of State to planning authorities generally or to a particular local planning authority". Pursuant to the Town and Country Planning (Demolition – Description of Buildings) Direction 1995, certain buildings were so excluded, including listed buildings, buildings within a conservation area and (subject to some exceptions) any building other than a dwellinghouse, or a building adjoining a dwelling-house. That Direction was later found to be unlawful in certain respects in light of the obligations under the Environmental Impact Assessment Directive, but it is not necessary for me to consider that here. For present purposes, it is common ground that as at 1 March 2006, subject to some exceptions demolition of any building (save for a dwelling house or a building adjoining a dwelling house) did not require planning permission. All of this makes it less likely that Policy EN4 applies to demolition of a building outside a conservation area, given that there were only limited cases where planning control applied to such demolition at the time. It is fair to say that none of this would necessarily preclude a local planning authority having a restrictive policy with the sort of criteria in Policy EN4 for buildings outside a conservation area which might still affect the character of that conservation area. It is just that some uneven and strange consequences would flow. For the demolition of most buildings in that category, Policy EN4 and its restrictive criteria would not apply at all, simply because planning permission would not have been required for such demolition (and no conservation area consent would have been necessary). Policy EN4 would therefore only have applied to buildings not specified in the direction, such as dwellings. Even in those circumstances, the Town and Country Planning (General Permitted Development) Order 1995, Schedule 2, Part 31 granted planning permission for such demolition, subject to a prior approval procedure. It is difficult to see the overall strategic purpose of having a restrictive policy like EN4 to demolition of buildings outside a conservation area in these circumstances. By contrast, interpreting Policy EN4 as applicable to demolition in conservation areas, which did remain subject to control by a local planning authority through the conservation area consent under section 74 of the P(LBCA)Act 1990, is far more consistent with that legislative context and an overall strategic purpose as at 1 March 2006, when that policy was adopted.
Ground 3 - AONB
i) The Borough lacks a 5-year housing land supply;
ii) Hawkhurst is a Tier 2 settlement in the Core Strategy;
iii) Therefore there are exceptional circumstances for housing.