• Feniton inquiry: Charlie Hopkins closing statements

    5th February 2014 | News | Claire
  • Below is Feniton Parish Council’s legal representative, Charlie Hopkins, closing statement.

    I thought readers may be interested in reading it all, as it is a speech full of logic, common sense and incisiveness.

    Now we must wait for the inspector to make her decision, which is expected to take approximately two months…………………………………………………………………………………………….

    1. These closing submissions will address the issues identified by the Inspector in opening this inquiry. In summary, Feniton Parish Council (FPC) will say that these proposals are contrary to the Development Plan (DP) and this conflict is not outweighed by any other material considerations. Furthermore, the proposals are contrary to both core principles and policy objectives of the NPPF and consequently these appeals should be dismissed.

    2. The Inspector identified 3 main areas of concern in opening: 1) housing land supply and policy implications arising from such, 2) whether Feniton is an appropriate location for these proposed developments, and 3) impacts on landscape character and appearance. Other issues include highway matters and matters such as archaeology and loss of agricultural land.

    3. As regards main issue 1), housing land supply, FPC fully supports the position adopted by EDDC and its witnesses, only wishing to add that, bearing in mind the advice set out in the NPPF, the evidence has shown that, notwithstanding the great weight given to this issue by the Appellants, the cumulative effect of the adverse impacts of these proposals significantly and demonstrably outweigh any purported benefits arising from these proposals when assessed against the policies set out in the NPPF as a whole such as to warrant dismissal of all these appeals.

    4. Having agreed that EDDC has no 5 year housing land supply, and that the shortfall is significant, what is the policy framework within which these appeals should be determined? The NPPF makes clear at para 49 that relevant policies for the supply of housing cannot be regarded as up-to-date, and that consequently the advice in the second section of para 14 is operative.

    5. Where housing policies in the adopted Local Plan are to be regarded as out-of-date it is firstly necessary to identify accurately what should be seen as being “relevant” policies for the supply of housing. It follows that any saved policies in the adopted Local Plan that are not relevant to the supply of housing are not caught by the second bullet point of the advice in the second section of para 14 of the NPPF. It also follows that significant weight should be given to those saved policies as they constitute the development plan.

    6. Where relevant policies in the adopted Local Plan for the supply of housing are out-of-date, and to be effectively disregarded, significant weight should be accorded to relevant housing policies in the NPPF, as set out in Section 6, paras 47-55, as well as adhering to the advice in the second bullet of the second section of para 14.

    7. As the planning system, like nature, abhors a vacuum, in the absence of relevant housing policies in the Local Plan and policies to which any significant weight can be accorded in an emerging Local Plan, the only possible remaining source of relevant policy can be the NPPF itself. 

    8. It seems to be generally accepted by the parties that Feniton is a rural community situated within a rural area. The NPPF provides specific and explicit policy guidance in respect of housing in rural areas at paras 54-55.

    9. Para 54 advises that LPAs should be responsive to local circumstances and plan housing development to reflect local needs, particularly for affordable housing.

    10. However critical one may be of EDDC in its persistent failure to deliver a 5 year housing land supply, the same criticism cannot be levelled at its plan making process for reflecting local needs in rural areas. The emerging Local Plan has fully engaged with rural communities and assessed their needs for the plan period. Feniton Parish Council has been fully consulted on its requirements for the plan period, and no criticism has been made either of that process or of the number of houses required for the plan period. The Local Plan Inspector has registered no criticism of this aspect of the emerging Local Plan, and all major stakeholders would seem to be in agreement with the proposed allocation for Feniton of 35 dwellings.

    11. Given that this proposed allocation for Feniton for the plan period has now been satisfied (and exceeded) by the grant of planning permission to Wain Homes for the construction of 50 dwellings at the Station Road site, the grant of planning permission for any of these proposed developments subject to these appeals would be wholly contrary to the advice set out in para 54 of the NPPF and this policy conflict should be regarded as an adverse impact in itself, with long-term repercussions for spatial strategy across the District.

    12. Additionally, para 55 provides further policy guidance relevant to housing in rural areas. Referring specifically to the promotion of sustainable development in rural areas, it states that “…housing should be located where it will enhance or maintain the vitality of rural settlements.”

    13. As set out in further detail below, there is no evidence before this inquiry that any of these proposed developments will enhance the vitality of Feniton, or evidence that any of these proposed developments are needed in order to maintain its vitality.

    14. When placed in the overall context of the advice given in para 6 of the NPPF, that the policies in the NPPF as a whole constitute the Government’s view of what sustainable development is, conflict with paras 54 and 55 cannot represent sustainable development to which the presumption in favour can apply.

    15. The question as to whether Feniton is an appropriate location for these proposals (main issue 2) should be considered within the overall context of sustainable development as set out in the NPPF.

    16. National planning policy advises us that there are three dimensions to sustainable development, and that these dimensions give rise to the need for the planning system to perform a number of roles. These roles are; an economic role – by ensuring that sufficient land of the right type is available in the right places at the right time; a social role – to support strong, vibrant and healthy communities; and an environmental role – by which the planning system contributes to protecting and enhancing the environment. (NPPF para.7)

    17. Turning firstly to whether Feniton has the right type of land for residential development of the scale proposed, whether it is the right location for such residential development and whether now is the right time for such development to be approved.

    18. It is agreed between the parties that all of the land in question falls within the category of best and most versatile (BMV) agricultural land. The Acland Park site, although previously used for agricultural purposes is not be regarded as a brownfield site nor as previously developed land (NPPF Annex 2 Glossary p.55).

    19. One of the NPPF core planning principles, set out in para.17, bullet point 8 encourages the effective use of land by reusing land that has been previously developed. This is reiterated in para. 111 of the NPPF. There can be no question that all of these proposed developments offend this core principle. Far from “encouraging” the desired objective and “conserving and enhancing the natural environment”, the approval of any of these proposed schemes will only serve to encourage the inappropriate development of greenfield sites, and the irreversible loss of the natural environment.

    20. Turning to the second limb of the economic role of the planning system, is Feniton the right location for these developments, much has been made of a previous Inspector’s finding that, as regards the Station Road appeal development, Feniton is a sustainable location for development.

    21. Whilst it is trite to state that each development application must be determined on its merits, and that discrete planning decisions do not serve as any precedent for other determinations, the Station Road decision must be placed in its proper context.

    22. The planning application for the Station Road site was submitted in November 2011, and the appeal decision issued in September 2012. Referring to the 5 year housing land supply situation at the time, Inspector Barton noted (paras 22 and 43) that despite the supply situation in the Rest of East Devon (RoED), and the commencement of construction at Cranbrook, any undersupply would not be made up in the near future.

    23. The Inspector also made specific reference to the fact that 70% of what was proposed at the site was identified in the draft LP (para 44), and that, in that context, the proposal would be sustainable. Reference was also made to the fact that there had been no appraisal of the sustainability characteristics of individual settlements other than in 2001, which was consequently given little weight (para 26).

    24. The current situation is now very different. The draft LP allocation has been met by the Station Road development. The 5 year housing land supply situation has improved markedly. This inquiry has the benefit (for all its shortcomings as identified by Dr Horrocks) of a relatively recent sustainability appraisal of individual settlements, to which more weight may be given (CD 7.9).

    25. In addition, FPC has also produced for the benefit of this inquiry an independent, objective, up-to-date ward profile of Feniton and Buckerell (App 9), which provides highly relevant data on sustainability indicators. In terms of use of public transport, the ward is in the bottom 40% of wards within a district which itself is within the bottom 40% of districts nationally (App 9 p.28). In terms of access to services, access to GPs is “well below the national median”, as is access to secondary education, further education, hospital and food stores (App 9 p. 29-30). All of these conclusions have been confirmed by the evidence of Mr Smith, Dr Horrocks and Mr Giles.

    26. In summary, the Station Road appeal decision provides no precedent for these appeals. 

    27. The third limb of the economic role to be considered is whether now is the right time for these proposed developments to proceed. Whilst not pursuing a prematurity argument, it is the case that the new Local Plan (NLP) has progressed significantly since planning applications for any of these proposed developments were first registered. The EiP is due to commence next week and the NLP may well be adopted later this year.

    28. The NLP identifies Feniton as a suitable location for 35 new dwellings over the plan period to 2026. As we know, the grant of the Station Rd appeal has already approved 50 new dwellings in Feniton, significantly exceeding the NLP requirement. The approval of any of the proposed developments subject to this appeal process will exceed the plan requirement even further. The likely consequences of this will be to cause readjustment to the overall spatial strategy for the District, both in terms of the spatial allocation of housing land, and knock-on effects on employment land provision. (The NLP envisages 1 new home equating to the need for the provision of 1 new job and vice versa).

    29. In the overall planning balance, the harm to the NLP, which has gone through lengthy District-wide public consultation and public engagement, needs to be weighed against the short-term benefits (which are far from clear, and in any event, not accepted) of permitting these developments. In our submission, the public interest inherent in the plan making process clearly outweighs the limited benefits of permitting these developments.

    30. Turning to the second role of the planning system, the social role, and the desire of Government to support strong, vibrant and healthy communities through the provision of housing to meet the needs of present and future generations, which reflect the needs of local communities and support their well-being, (NPPF para.7), the question to be addressed is does the community of Feniton need these proposed developments?

    31.   Mr Smith’s evidence, both in his Proof and in chief, is that the community of Feniton is strong, vibrant and healthy at the present time. Far from needing any further input in terms of additional population in order to support local services and businesses, local housing needs over the NLP period will have been more than met by the Station Rd development. His evidence, and that of Dr Horrocks, is that far from supporting a healthy, vibrant community, the proposed developments will increase pressure on existing services, such as educational and health provision, pressure on local infrastructure and result in unplanned, inappropriate and unsustainable growth, the very opposite of that envisaged in the NPPF.

    32. As regards rural areas, the NPPF explicitly advises that LPAs (and by extension discrete planning decisions) should be responsive to reflect local needs (para.54), and additionally that in order to promote sustainable development housing should be located where it will maintain or enhance the vitality of rural communities (para.55).

    33. None of these proposed developments are, by any stretch of the imagination, “responsive to local needs”, nor, as stated above, will they either serve to enhance or maintain the vitality of Feniton as a rural community.

    34. As such, the proposed developments do not and cannot fulfil the social role identified in the NPPF and consequently cannot represent sustainable development to which the presumption in favour as set out in the NPPF applies.

    35. The third role identified in para. 7 of the NPPF, the environmental role requires that the planning system contributes to the protection and enhancement of the natural environment, by helping to improve biodiversity, using natural resources prudently and moving towards a low carbon economy.

    36. Taking each of those constituent elements in turn, there is no evidence that any of these proposed developments will either protect or enhance the natural environment or help to improve biodiversity. The urbanisation of what can only be regarded as green-field sites and the loss of BMV agricultural land, as Dr Horrocks has stated, conflicts with a significant number of DEFRA’s sustainable development indicators, and cannot be regarded as a prudent use of natural resources.

    37. The NPPF policies on conserving and enhancing the natural environment as set out in Section 11 require the planning system to contribute to and enhance the natural and local environment by minimising impacts on biodiversity, going as far as to provide net gains where possible, given the Government’s commitment to halt the overall decline in biodiversity (para 109).

    38. Additionally, para 111 of the NPPF seeks to encourage the effective use of land by re-using brownfield land, and this is linked at para 112 with the requirement to take into account the economic and other benefits of BMV agricultural land. The relevant question to pose in this context is “will the grant of planning permissions for any of these appeals “encourage” the effective use of land by re-using previously developed land?” The simple answer is that it won’t, but will encourage developers seeking to capitalise on the temporary lack of a 5 year housing land supply to submit applications wherever they may chose within the District, irrespective of the quality of the land in question, irrespective of the sustainability of the location.

    39. In summary, these applications conflict with the policy role of environmental conservation and enhancement set out in para 7 of the Framework, as articulated in paras 109 and 111.


    40. FPC fully supports the case and submissions put forward by EDDC on these matters, and concurs with Mr Blackmore’s conclusions that both the Wainhomes and SPL schemes conflict with saved Policies S5 (Countryside Protection) and D1 (Design and Local Distinctiveness) of the adopted Local Plan, and the NPPF paras 56,109 and 131.

    41. Section 4 of the NPPF is entitled “Promoting sustainable transport”, and is an articulation of the core principle of planning relating to transport set out in para. 17, which states that planning should “…actively manage patterns of growth to make the fullest possible use of public transport, walking and cycling, and focus significant development in locations which are or can be made sustainable.”

    42. Within Section 4, para.32 requires that all developments that generate significant amounts of movement should be supported by a Transport Statement (TS) or Transport Assessment (TA). Annex 2 of the NPPF defines a Transport Assessment as a comprehensive and systematic process that sets out transport issues, identifying measures required to improve accessibility and safety for all modes of travel, particularly for alternatives to the car. A Transport Statement is defined as a simplified version of a TA where it is agreed that the issues arising from development proposals are limited, and a full TA is not required.

    43. A TA has been produced in respect of both the SPL and Wainhomes schemes, whereas a TS has been produced in respect of the Acland Park proposal. This should represent a clear acceptance on behalf of the Appellants that each of their proposals will generate significant amounts of movement, although the transport issues arising from the Acland Park development are more limited, but Mr Awcock demurred from simply accepting the proposition (xx).

    44. Para 32 further advises that development should only be refused on transport grounds where the residual impacts are severe. Helpfully, the NPPF contains no definition of the term severe, and more helpfully, none of the Appellants have assessed the severity of cumulative impacts, being content to rely on the view of the highway authority, DCC, which, on the basis of a modelled assessment of highway capacity undertaken by Mr Awcock for Wainhomes, has concluded that residual cumulative impacts from the proposed developments will not be severe.

    45. It is not FPC’s case that these proposals should be refused solely on transport grounds. It is FPC’s case that there will be adverse impacts arising from the cumulative impacts of these developments, and that these developments conflict with the core principles and specific transport policies set out in the NPPF, and LP Policy TA1, and that, pursuant to para 14, these adverse impacts need to be weighed in the balance against any purported benefits of these proposals.

    46. For example, para 34 advises that planning decisions should ensure developments that generate significant movement (such as these) are located where the need to travel is minimised, and the use of sustainable modes of travel can be maximised. Para 34 makes particular reference to rural areas stating that account needs to be taken of policies elsewhere in the Framework.

    47. In what way do any of these proposals minimise the need to travel? As far as employment is concerned, the Acland Park and Wainhomes proposals involve no employment provision whatsoever, whereas the SLP proposal offers a tokenistic quantity, bearing no relationship to the scale of residential development proposed. There is no evidence of any employment provision within easy walking or cycling distance.

    48. Mr Giles’ evidence has demonstrated that public transport provision from Feniton for employment purposes leaves a great deal to be desired, to say the least. The latest census data bear striking testimony to that fact. 1% travel to work by bus, less than 4% by train. Over a 10 years period, bus travel to work has increased by 0.41%, and train travel by 0.43%. By way of contrast, car travel to work over the same period has actually increased by 0.71% to 69% (the figures rise respectively if car sharing is added, namely 1.71% and 75%). 

    49. Mr Awcock accepted that a 0.43% shift over a ten year period equated to a 0.04% modal shift per year (xx), and that even in such a case as Axminster where the train service has doubled in frequency since 2009, the resultant modal shift to train and bus has been a mere 0.31%.

    50. Notwithstanding these data, Mr Awcock’s evidence is that there is the potential for up to 30% of journeys to work to be made using rail from Feniton for the main part of their journey (Awcock App IDA-A 3.7). Mr Awcock was, however, unable to be of assistance in terms of how long such potential might take to be realised, and accepted that the latest census data available didn’t show any location in the South West achieving such potential (xx). 

    51. Apart from being silent as to the remaining 70% of journeys to work, and producing no evidence as to how major employment sites may be accessed by sustainable modes of travel Mr Awcock’s evidence simply does not stand up to close scrutiny.

    52. When it was suggested to him that even a 1% modal shift per year wasn’t borne out by the evidence, Mr Awcock stated that Feniton clearly wasn’t a very sustainable location at the moment (xx), which is both a significant departure from the evidence of others supporting these proposals, relying on the Station Road appeal for support, and also a refreshingly candid description of Fenton’s sustainability credentials at the present time.

    53. Turning to prospects for sustainability in the future in terms of modal shifts, great emphasis has been placed on the improved evening rail service from Exeter. The Axminster experience as detailed above has illustrated that no great reliance should be placed on this factor. Significant reliance is also placed on the Travel Plan for the Wainhomes proposal (and the same may be said for the Ottery Road proposal).

    54. Para 36 of the NPPF advises that a “key tool” to facilitate the protection and exploitation of opportunities for the use of sustainable transport modes will be a Travel Plan. The Framework Travel Plan appended to the Wainhomes TA clearly predates the NPPF, referring as it does to PPG 13, and contains no modal shift targets to be achieved, nor are there any means of enforcing the achievement of such targets (Awcock xx). As such, it is very difficult to see how any confidence can be placed in an out-of-date document which contains no specific detail, and yet which is supposed to facilitate the use of sustainable transport modes as set out in Para. 35 of the NPPF. 

    55. As regards minimising the need to travel to access services, such as secondary education, health facilities, retail and leisure facilities, the evidence has clearly shown that Feniton is remote from all of these. When combined with what can only be described as being poorly served by public transport, notwithstanding the presence of a railway station, all of these proposed developments are car based and car dependent.

    56. This is illustrated clearly in SLP’s TA (CD 4.1.15), which acknowledges peak hour impacts on Ottery Road as being “proportionately high at 40% and 34% in the AM and PM peak hours respectively” (para 6.4.1 p 24). When impacts from the Acland Park and Wainhomes proposals are incorporated, increases to traffic on Ottery Road are likely to be in the region of 80%. Although Mr Awcock again demurred from agreeing with that figure, the evidence speaks for itself, and is relatively simple mathematics.

    57. The issue here is not whether Ottery Road has the physical capacity to cope with such an increase (setting aside for the moment the question of whether the assessment of capacity test is either appropriate or relevant), but whether such an increase is acceptable in the context of the core principles and policies set out in the NPPF.

    58. The evidence has shown that Feniton is not a sustainable location for development of the scale proposed. There is no evidence that Feniton can be made sustainable to accommodate such a level of development, as referred to in para 17 of the NPPF. There is nothing in these proposals that can remotely be described as “facilitating sustainable development” in transport terms as set out in para 29 of the NPPF, and no consideration whatsoever appears to have been given to para 30 which encourages solutions to support reductions in greenhouse gas emissions.

    59. Para.35 states that developments should be located and designed to give priority to pedestrian and cycle movements and have access to high quality public transport facilities.

    60. The question of the quality of public transport facilities in the village has been addressed above. The rail service has an hourly frequency at best. Bus services are even worse than that. The level of provision of services and the levels of use of those services by residents is not reflective of “high quality” facilities.

    61. As regards giving priority to walking and cycle movements, can an 80% increase in peak hour traffic on Ottery Road be reasonably described as giving priority to such movements? No assessments have been made of the likely impact of such an increase on pedestrians, cyclists or other road users, whether such a level of increase will encourage residents to walk and cycle, whether their experience of Ottery Road will be “positively improved” or not.

    62. The only assessment of cumulative impacts undertaken by any of the Appellants is the analysis of capacity produced by Mr Awcock. Various versions have been produced, the latest during the course of the inquiry itself, largely as a response to criticism by FPC that the measurements inputted into the analysis were inaccurate. The Highway authority, DCC, have been “satisfied” with all the versions produced, irrespective of inaccuracies.

    63. The Technical Note (TN) uses the methodology set out in TA 46/97, titled “Traffic flow ranges for use in the assessment of new rural roads”, and the summary states that is “…sets out standards for use as starting points in the assessment of new rural trunk roads.” The Introduction to the note at para 1.5 states that the Advice Note sets out carriageway standard options for use as starting points in the design and economic assessment of new rural trunk road links. (emphasis in original)

    64. Annex D provides guidance on the calculation of Congestion Reference Flow (CRF). A single carriageway is defined as having 2 lanes, and significantly advises that the width factor relationship used in the calculation of CRF “…is not valid for road widths of less than 5.5 metres.”

    65. As matters of fact, Ottery Road is not a new road. It is not a rural trunk road. It does not have 2 lanes, but is a single track with passing places. Significant sections of the road as have now been measured are recorded as well below the minimum 5.5 metres. Although not having been subject to assessment, no other roads leading into or out of Feniton could conceivably be described as new rural trunk roads of 2 lanes.

    66. Consequently it is clear that TA46/97 was neither designed nor intended for use on narrow country lanes such as Ottery Road. It is a misuse of the guidance to have even considered it as a valid methodology for the assessment of impact on Ottery Road. The cumulative impacts of these development proposals cannot simply be reduced to a modelled assessment of theoretical levels of congestion. As such, no weight whatsoever may be given to either the conclusions of the analysis nor the agreement of DCC that there will be no adverse cumulative impacts arising from these proposed developments.

    67. Given that EDDC relied upon the Highway authority’s conclusions, there is no good reason for the refusal based on cumulative impacts to have been withdrawn from this inquiry, and that reason for refusal should still stand.

    68. That reason for refusal made specific reference to Para.32 of the NPPF and Saved Policy TA7 (Adequacy of Road Network and Site Access) of the EDLP. In addition, the evidence before this inquiry has demonstrated that these proposed developments also conflict with Paras. 34 and 35 of the NPPF, together with Saved Policy TA1 (Accessibility of New Development) of the EDLP. 


    69. As stated in opening, “Pursuing sustainable development involves seeking positive improvements in the quality of the built, natural and historic environment, as well as in people’s quality of life, including (but not limited to):
    …improving the conditions in which people live, work, travel and take leisure” (para. 9 NPPF)

    70. The underlying question, irrespective of whether we are considering the so called need (begging the question of whose need?) for the proposed developments at Feniton, impacts arising from traffic, increased risks of flooding, damage to the landscape, the loss of some of the best and most versatile agricultural land in the area, impacts on the community, is “will these developments make peoples’ lives better?”

    71. Sustainable development should now be seen as a “golden thread” running through both plan-making and decision-taking (NPPF para.14), the Minister for planning at the time advising us that “sustainable” means ensuring that better lives for ourselves should not mean worse lives for future generations, and that “development” means growth, the accommodation of new ways of living and working, responding to changes. Put together, sustainable development is about change, but for the better. (NPPF Ministerial Foreword)

    72. The NPPF sets out 12 core planning principles, which state that planning should be not just about the scrutiny of planning applications, but to be “a creative exercise in finding ways to enhance and improve the places in which people live their lives”, encouraging the use of brownfield land, and making the fullest possible use of public transport, walking and cycling, focusing significant development in places that are sustainable or can be made so. (NPPF para.17)

    73. It was also stated in opening that if planning is about any one thing it is about ensuring that appropriate, sustainable developments take place at appropriate, sustainable locations at the appropriate time. Para 122 of the NPPF reminds us that the focus should be on whether development is an acceptable use of land and what the impact of that use will be. Underpinning this focus is the definition of sustainable development as set out above.

    74. The evidence has demonstrated that these proposed developments are not acceptable uses of land at this location and that the impacts of these developments will be equally unacceptable. These proposed developments are not sustainable, they will not positively improve the quality of peoples’ lives or that of the natural environment, and will not perform a positive economic, social or environmental role.         

    75. For all these reasons and those set out above, these Appeals should be dismissed.

    Charlie Hopkins MA (Oxon) PG Dip Law
    Solicitor (non-practicing), Planning & Environmental Consultant
    5 February 2014