an Inspector appointed by the Secretary of State for Communities and Local Government

Transcription

1 Appeal Decision Hearing held on 25 & 26 May 2011 Site visits made on 24 & 26 May 2011 by Katie Peerless Dip Arch RIBA an Inspector appointed by the Secretary of State for Communities and Local Government Decision date: 21 June 2011 Appeal Ref: APP/Z1585/A/10/ Land adjacent to Blakes Golf Club, Epping Road, North Weald Bassett, Epping Road, North Weald Bassett, Essex CM16 6RZ The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission. The appeal is made by Mr Ian Bailey against the decision of Essex County Council. The application Ref: ESS/48/09/EPF, dated 27 October 2009, was refused by notice dated 17 June The development proposed is a change of use of agricultural land and the importation of 65,095 cubic metres of inert waste to facilitate the construction of Phase One of a second 18 hole golf course incorporating an academy 9 hole training course and range, new water supply and storage reservoirs, associated landscaping and land re-contouring plus ancillary engineering works including revised access from A414, temporary construction compound and haulage routes. Decision 1. The appeal is dismissed. Preliminary matter 2. At the Hearing, I was given a letter from the Environment Agency 1 that confirmed that, subject to the imposition of a condition on any planning permission, additional information submitted after the appeal was lodged had satisfied its concerns over matters relating to drainage and flood risk previously raised because of the proposed phasing of the development. In the light of this evidence the County Council withdrew its reason for refusal no. 6. Main Issues 3. I therefore consider that the main issues in this case are now: (i) (ii) (iii) the impact of a phased development of the golf course whether the proposed development represents inappropriate development within the Green Belt and, if so, whether there are any material considerations that clearly outweigh the harm caused by such development, and any other harm, and are sufficient to justify the development on the grounds of very special circumstances. whether there is a need for a golf course that justifies: a. the importation of waste onto the site and consequent land raising, b. the subsequent changes to the landscape 1 Hearing Document 3

2 (iv) (v) c. any impact on protected species and d. any impact on local public rights of way whether the waste arisings would be sourced locally the effect of the proposed development on: a. the living conditions of occupiers of neighbouring properties b. nearby historical remains c. the setting of neighbouring listed buildings and d. land classified as being the best and most versatile agricultural land Site and surroundings 4. The appeal site is an area of agricultural land in Green Belt countryside outside the village of North Weald Bassett. It is presently arable land laid to grass which, I was told, would shortly be cut for hay. It is close, but not adjacent, to the existing golf course at Blakes Golf Club and the farmyard complex at Ongar Park Hall Farm, which contains a number of listed buildings. The application area also includes the existing access road to the golf club and an extension to it that would lead to a proposed construction site complex and beyond that to the appeal site. 5. The appeal site has an area of about 12.6 Ha and is part of a total of 78 Ha which the appellant hopes to develop as a new 18 hole golf course and 9 hole training area. It comprises Phase 1 of proposals for which the appellant has produced a master plan divided into a total of 6 phases. 6. The master plan area surrounds a scheduled ancient monument known as the Redoubt which is a eighteenth century defensive structure to the west of the appeal site and there are a number of footpaths and bridleways running across the wider site. The proposals 7. Phase 1 would include hole 5 of the new course, most, but not all, of holes 4, 6 and 16 and the tee for hole 17. In the southern part of the site there would be new lakes and wetland areas; new woodland would be planted on the western boundary reinforcing an existing hedge and trees and the remainder of the land outside the tees, greens and fairways would be left as grassland including wildflower areas. 8. As part of the proposals, the topsoil and some of the sub-soil on the site would be removed and it is proposed to import some 65,000 cubic metres of inert waste onto the site and this, mixed with the removed subsoil, would be used to re-contour the land to create the profiles proposed for the new holes. The topsoil would then be replaced and re-planting carried out. 9. I have been given details of the master plan scheme, including the proposed plans and an environmental statement (ES) relating to them as a whole and they were referred to at some length during the Hearing proceedings. However the master plan is not, as yet, the subject of any planning application and is not before me for consideration in this appeal. This was made clear to the parties at the Hearing. Therefore, whilst I have had regard to the submissions that apply to the master plan proposals as they relate to Phase 1, I have to determine this appeal on the basis of an application for part of the overall scheme only. 2

3 Reasons Phased development 10. As noted above, the application is for Phase 1 which represents about one sixth of the area of the overall scheme. Phase 1 does not adjoin the existing course, being separated from it by Phase 2, although it would be connected to it by the proposed extension to the access road. Even if planning permission was granted on appeal, the appellant accepts that it would not be feasible to implement this isolated phase on its own and suggests that conditions could be imposed to ensure that it would not be commenced until planning permission had been granted for the whole scheme. He also accepts that there would need to be a mechanism in place to ensure that the whole development, once begun, was subsequently completed as approved. 11. The County Council is concerned about this approach and submits that a condition prohibiting the implementation of a planning permission until another was granted would not comply with Circular 11/95 The Use of Conditions in Planning Permissions. It also believes that it would be unreasonable to use a condition attached to a planning permission for Phase 1 to attempt to ensure that a phased development, for which planning permission had not yet been granted, was completed in its entirety. 12. I agree that such conditions would not be directly related to the development to which the permission referred and would therefore fail one of the tests set out in the Circular. They could not, therefore, be validly imposed. It would, however, be possible to secure the safeguards outlined above through a Unilateral Undertaking under section 106 of the Town and Country Planning Act 1990 (as amended) and it would be for the appellant to submit such a document for consideration. 13. In order to ensure that the whole scheme would be completed once the planning permission had been implemented, the appellant would also need to ensure that there was a bond in place to cover any financial problems arising during the construction process. However, no such undertaking or bond document were submitted before, or at, the Hearing and consequently there is presently no means by which these matters can be secured. 14. The County Council also considers that one phase of the development cannot be considered in isolation and, without an application for the whole scheme, many of the important considerations that need to be addressed cannot be properly evaluated. This approach is supported by policy RST19 of the Combined Policies of Epping Forest District Local Plan (1998) and Alterations (2006) dated February 2008 (EFLP) which, amongst other things, requires the design of golf courses to be demonstrably based on a thorough appraisal of all existing site features and the site s context in the surrounding landscape. In the following sections, I shall therefore consider each of the objections raised in the reasons for refusal in the light of this submission and the appellant s response to it. Green Belt 15. Planning Policy Guidance Note 2 Green Belts (PPG2) notes that one of the land use objectives of areas included within the Green Belt designation is to provide opportunities for outdoor sport and recreation. PPG2 also makes clear however that such land use objectives do not take precedence over the purposes of including land within the Green Belt. 3

4 16. There is no dispute that the proposal would involve a change of use of the land and engineering operations to re-contour the land to construct the golf course. Such development is not inappropriate provided that it maintains openness and does not conflict with the purposes of including land in the Green Belt. At the Hearing it was agreed that the appeal proposals would meet 4 of the 5 purposes identified in PPG2 but there was disagreement over whether the proposals would assist in safeguarding the countryside from encroachment. 17. The appellant maintains that the importation of the inert material is essential to the proper formation of a high quality golf course on this particular land and should be considered as a waste recovery operation as described in the letter of January 2009 from DCLG to chief planning officers 2 rather than being classified as waste disposal. Nevertheless, whichever category the development falls within, the end result would be the deposit of over 65,000 cubic metres of inert material onto the appeal site. The master plan would result in the importation of over 468,000 cubic metres of waste. 18. The appeal proposals do not include any new buildings but the importation of a significant amount of inert material would result not only in a change to the natural lie of the land but would also raise its level by about 3m in the most extreme case. Many golf courses have been allowed in the Green Belt and such a use accords with the land use objective identified above. However, golf courses also involve the formation of tees and greens, which need to be level and connected by fairways, and this can result in a change to the contour patterns that may be very different to those of the surrounding land. 19. The works compound included in the Phase 1 application proposals would have an impact on openness, although this would be a temporary feature and, once the course was complete and the compound removed, the open nature of the surroundings would not be compromised by built development. This temporary impact on openness would not, in my view, be sufficient to cause the development to be classified as inappropriate in Green Belt terms. 20. However, it is matter of fact and degree as to whether the extent of the engineering operation involved in Phase 1 would, when considered in isolation, reduce the openness of the Green Belt. It will depend on the amount of material imported and the final profile of the course in relation to the contours of the land before the development took place. 21. It seems to me that the works in Phase 1 alone would result in the formation of an area of man-made landscape with an unnatural appearance which, because of its engineered appearance, would impact on the previous open nature of the surroundings. It would also stand in otherwise undeveloped countryside into which it would be encroaching. Therefore, Phase 1 would not only have an impact on openness but would also conflict with one of the purposes of including land within the Green Belt. It therefore represents inappropriate development. 22. As noted above, the appellant submits that it would be possible to ensure that Phase 1 could not be implemented without the remainder of the scheme and I accept that it would be possible to put measures into place to ensure this. However, that does not change the fact that, if this were to appeal succeed, planning permission would be granted for Phase 1 only, and I have concluded that this development would be inappropriate in Green Belt terms. 2 Hearing Document

5 23. It would therefore be harmful by definition and fail to comply with EFLP policies GB2A and GB7A which seek to prevent inappropriate development in the Green Belt or development that would have an excessive adverse impact on, amongst other things, the rural character or visual amenity of the Green Belt. Need for the course 24. Both sides have put forward differing views on whether there is a need for a new golf course on the master plan site. The appellant says that a pay and pay facility is needed as many of the nearby clubs are for members only and do not cater for casual golfers who do not have the time or finances to belong to a club. The Council submits that there is no shortage of courses, only of availability for start times for pay and play golfers and that many members clubs are underused. 25. The appellant s witness on the question of need is an expert in such matters and the Council did not put forward any comparable witness to challenge his evidence that there was a shortfall of facilities for pay and play golf within the catchment area that he had defined as appropriate for the site, even on the lower predicted increase in population figures put forward by the Council. However, he also admits that the conclusions to be drawn from his analysis are tentative without an in-depth survey of each club in the catchment area. 26. Nevertheless, from the detailed information submitted in his report, I am satisfied that there appears to be a shortage of pay and play golf facilities in the locality that is not catered for at present. From the evidence given to the Hearing, it also seems to me that it would be unrealistic to assume that this need could be met in the near future by a significant change away from members only clubs. Waste importation 27. However, as previously explained, whether or not the identified need, and the time it would take to implement the whole of the master plan, would support the creation of a new course that required the importation of 468,000 tons of waste material is not a proper consideration for this appeal. All that can be drawn from the matters before me are the facts that the Phase 1 development would provide only part of the total 18 holes proposed in the master plan and would not, alone, satisfy any current demand. 28. I find, therefore, that without the total master plan development, Phase 1 would not be justified on grounds of need. Without evidence that the imported material can be classified as being for waste recovery, it would consequently conflict with policies W3C and W9B of the Essex and Southend Waste Local Plan 2001 (WLP). These policies require a need to be established for waste developments with a capacity of over 25,000 tonnes per annum and restrict landraising unless necessary for essential restoration of the site. Landscape impact 29. In terms of the impact on the landscape, the changes would be significant. The countryside is, at present, gently rolling agricultural land and the adjacent golf course has, by comparison, a distinctly man-made character with hard surfaced pathways crossing it and a considerable number of artificially flat areas, some on raised mounds uncomfortably close to existing hedgerows. 5

6 30. It is also the case that there are examples of courses that have been formed without the need to import this amount of additional material and in those cases, the technique of cut and fill was used to re-distribute material already on the site. It is not, therefore, always necessary to use the large amounts of material proposed here and to change the form of the landscape to such a significant degree. Phase 1 must be considered in the context of the master plan in this respect and the need for the amount of material proposed for importation can only be judged against the scheme as a whole. 31. It seems to me that, in the absence of an approved master plan, it would be premature to grant planning permission for Phase 1 and the consequent importation of the waste material, the subsequent land raising and the changes to the landscape that this would involve. Even if, as claimed by the appellant, the master plan proposal would be beneficial to the existing landscape, the changes to the landform relating to Phase 1 alone would clearly be unsympathetic to its surroundings. In this respect the proposal would conflict with the aims and objectives of EFLP policy CP2 (i) which aims to sustain and enhance the rural environment by amongst other things, conserving the character of the countryside. Protected species 32. Turning to a consideration of any impact on protected species, the ES confirms that there would be the potential for an adverse impact on the habitat for Great Crested Newts during the construction process. The newts are known to breed in a pond known as the Mire, in Phase 3 of the master plan, but they are also likely to be found in areas of Phase 1 that are in proximity to the pond. 33. Planning Policy Statement 9 Biodiversity and Geological Conservation (PPS9) notes that planning permission should be refused where harm to a protected species or its habitat would occur unless the need for, and benefits of, the development clearly outweigh the harm. In addition, if significant harm would occur, the local planning authority should be satisfied that the development could not be reasonably located on an alternative site. This is in accordance with Article 16 of the EC Habitats Directive which the County Council would be required to take into account if there was a likelihood of harm to protected species and their habitats. 34. The ES concludes that the overall impact on biodiversity would not be harmful and the appellant maintains that there would be positive benefits. However these would not be delivered by Phase 1 alone as they relate to the whole master plan site. Natural England (NE) states that in broad terms NE agrees with the assessment of the low significance of any residual impacts on protected species but this relates to the situation after the mitigation measures set out in the ES have been carried out. NE also recommends that the appellant should be required through a planning condition, to confirm to the County Council that a European Protected Species license for Great Crested Newts has been granted before development begins. 35. The County Council considers that this does not remove the obligation on it to apply the requirements of Regulation 9 of the Conservation (Natural Habitats &c.) Regulations 2010 (as amended) and have regard to the EC Habitat Regulations which set out the circumstances in which disturbance of protected species and the deterioration of their breeding sites can be permitted to take place. These include similar requirements to those in PPS

7 36. However, although NE may not recommend refusal of the Phase 1 scheme on biodiversity grounds, I am nevertheless of the opinion that the conclusions on the impact of this phase and the benefits or otherwise of the proposals cannot be properly judged in isolation without an overview of the master plan. Whilst I have the evidence put forward in the ES on this matter, the wider master plan scheme is not under consideration in this appeal. 37. Therefore although, at the Hearing, various alterations to the layout of the course were suggested to counteract some of the County Council s concerns on biodiversity matters, I am not able to take them into account as they would take place on land outside Phase 1 and would need to be included in the master plan scheme. 38. Any conditions to modify the master plan proposals could not be attached to the appeal scheme as they would not relate directly to it and would therefore fail the tests in Circular 11/95. In these circumstances, I consider that the County Council is correct in that it cannot conclude that the Phase 1 proposal would not conflict with the requirements of PPS9 and EFLP policy CP2(v), which seeks to preserve the natural habitats of the area. Rights of way 39. Turning to impacts on public rights of way, there are none within the playing area of Phase 1 but the haul road would cross footpath 17 and bridleway 18. Again, I consider that, as no specific need has been demonstrated for the Phase 1 proposal and in the absence of an agreed scheme for the master plan, the detrimental impact that traffic using the haul road during the construction period would have for footpath and bridleway users cannot be justified. Although this would be a temporary situation and diversions could address the safety aspects of members of the public being close to construction traffic, the peaceful enjoyment of the bridleway and footpath would be compromised during this period. This concern consequently adds weight to the objections to the proposal through a conflict with EFLP policy RST3 which resists the unreasonable diversion of public rights of way. Sourcing of waste 40. I was told at the Hearing that, contrary to the original proposal in the Design and Access Statement accompanying the application, it is intended that all the waste would be sourced from an area within 20 miles of the appeal site and it was suggested that this could be secured by a planning condition. The County Council is nevertheless concerned that the inert waste used in the golf course construction would result in a shortage of available material for the restoration of expired mineral workings elsewhere in the county. 41. There appear to be several sites where such material is needed, albeit at some distance from the appeal site, and the downturn in the economy has resulted in fewer projects coming forward from which such waste can be obtained. However, as the amount of material for Phase 1 would not be particularly significant in meeting the overall restoration requirements, it could be more sustainable and economic for contractors to use the site for depositing material sourced locally, provided it was demonstrated that this was a waste recovery project for which an established need had been demonstrated. 42. In these circumstances, the merits of the master plan proposal would need to be the subject of at least an outline application in order for proper consideration to be given to the consequences of the total scheme. 7

8 43. Therefore, although there are some factors that, in my view, weigh in favour of the Phase I proposal in terms of re-using waste locally, this may not be the case in respect of the more significant amount of waste material proposed for the master plan proposals. Living conditions 44. The Phase 1 proposals, once completed, would not have any adverse impact on the living conditions of local residents. However, there would be a degree of disturbance during the construction period through the use of the haul road and the works compound which would be close to the residential property at Kerr s Cottages. The additional lorry movements along the road would also be visible from the hamlet of Tyler s Green and to a lesser degree from the village of North Weald Bassett. 45. The levels of dust, noise and general disturbance could be controlled to a certain extent by condition but, once again, the scale of the problem could only be assessed through a consideration of the master plan as a whole, taking into account the probable length of the construction period and the total amount of material to be brought onto the site. 46. It may well be that the more intensive use of those parts of the land closest to residential properties on which the course would be built would also be a factor in deciding whether the master plan was acceptable. Therefore, whilst Phase 1 may be acceptable in terms of the living conditions of neighbouring occupiers, it still needs to be considered as part of the overall scheme. Historic remains 47. The area may have important archaeological remains that could be disturbed by the proposed works, in particular the stripping of the topsoil, and the Council considers that an evaluation through trial trenching is needed before planning permission is granted. 48. Planning Policy Statement 5 - Planning for the Historic Environment (PPS5) states, in policy HE6, that local planning authorities should require an appropriate desk-based assessment of the site as a minimum level of information to accompany the application. If justified, a field assessment will also be required. 49. The appellant has, as part of the ES, already carried out a desk based assessment and a field reconnaissance survey of the site but the Council wants trial trenching in addition to this. In respect of Phase 1 only, I consider that the information already submitted does not indicate that there would be sufficient archaeological interest to warrant refusal of planning permission in the absence of trial trenching at this stage. 50. Planning conditions could ensure that further evaluation of the site is undertaken before development begins and a subsequent watching brief is maintained, so that if anything of importance is discovered during the construction process appropriate measures would be in place to record, evaluate and protect it. 8

9 Listed buildings 51. The site lies within the ancient landscape of Ongar Park which the Council considers forms part of the setting for the listed buildings at Ongar Park Hall Farm, Ongar Park Lodge, Dial House and the surrounding farm buildings. However, there have been significant changes to the landscape over the years and there are now no obvious visual reminders that the fields now in agricultural use were once part of a deer park that had a functional connection with the listed buildings. 52. Phase 1 is physically separated from the listed buildings by a field in agricultural use and although there is some inter-visibility between the areas, I consider that the appeal site does not form part of the setting of the listed buildings. The impact of the proposed development on the original form of the landscape is nevertheless a different matter that would need to be assessed in the context of the master plan. 53. Objectors to the scheme have also noted that the site includes many concrete bases that originally supported radio masts on the Ongar Radio Station, originally one of Marconi s transmitting stations and therefore of some considerable historic interest. I consider that, because the appeal proposals would cover these bases, the public perception of their historic interest would therefore be reduced. Although not necessarily a reason to refuse the proposals, this consideration does weigh against them. 54. The Scheduled Ancient Monument of the Redoubt lies to the west of the appeal site but is not included within it. This feature will have a bearing on the master plan proposal but is not relevant to Phase 1. Loss of agricultural land 55. The appellant has carried out an assessment of the quality of the agricultural land that would be lost to the proposed development and this concludes that the land should be classified as grade 3b. The appellant confirmed at the Hearing that this assessment was carried out by a qualified soils engineer according to the guidelines published by DEFRA. 56. The Council s reason for refusal was based on advice from NE who stated that the survey had not been carried out in accordance with the approved methodology in the document Agricultural Land Classification of England and Wales: revised guidelines and criteria for grading the quality of agricultural land published by DEFRA in 1988 and insufficient information had therefore been provided to support the conclusions in the assessment. 57. However, NE has given no indication of why it has come to this conclusion or in what way the assessment is claimed to be deficient. NE was not represented at the Hearing and the only specialist evidence I have on this matter is that from the appellant s consultant. There is no reason to for me to doubt the findings of the assessment and I therefore conclude that the Council s reason for refusal on this ground has not been shown to be sound. 9

10 Conclusions 58. I have found that Phase 1 would be inappropriate development in the Green Belt and that there is no established need for this part of the golf course master plan when taken in isolation. Any need for a new golf course does not, therefore weigh in favour of the proposal when set against the harm caused by inappropriate development in the Green Belt or provide any justification for the deposit of waste material on the land and the subsequent land raising this would cause. 59. Neither would the changes to the landscape, the disturbance, albeit temporary, to Great Crested Newts, public rights of way and the living conditions of nearby residents be justified by an over-riding need for the development. 60. Any benefits of the proposal would only be achieved through the master plan scheme as a whole and I have concluded that, as this does not form part of the application before me, it would be premature to take it into account as a justification for granting planning permission for Phase Although I have concluded that the reasons for refusal relating to flood risk, the setting of listed buildings and the quality of the agricultural land do not weigh against the proposals, neither do they provide any justification for them. 62. I have taken into account the representations of those members of the public who have expressed support for the new golf facility but, as previously noted, the appeal proposals would not, in themselves, provide these. Therefore, there are no material considerations that outweigh the harm caused by inappropriate development and the other identified harm and consequently there are no very special circumstances that indicate that the appeal should succeed. Consequently, for the reasons given above, I conclude that the appeal should be dismissed. Katie Peerless Inspector 10

11 APPEARANCES FOR THE APPELLANT: Steve Heading Ian Bailey James Edwards BA Arch John Ashworth LLB Chris Whitbread Richards Sands Jon Etchells Howard Brooks Martin Jones George Dilloway Planning Consultant Roebix Ltd, Appellant Golf Course designer Leisure Industry Consultant RB Whitbread Ltd, Local haulier Ecologist Landscape assessor Colchester Archaeological Trust Ltd Acoustic and Vibration Consultant Blakes Golf Club Ltd FOR THE LOCAL PLANNING AUTHORITY: Shelley Bristow Jill Shingler MRTPI Richard Greaves Christopher Neilan Luke Bristow Alex Baldwin Adam Garwood Laurence Page Senior Planning Officer Essex County Council Epping Forest District Council Planning Officer Essex County Council Landscape Officer, Epping Forest District Council Ecology Officer, Essex County Council Historic heritage Officer, Essex County council Archaeologist, Essex County Council ROW Officer, Essex County Council INTERESTED PERSONS: Peter Wilkinson Cllr Ann Grigg Ian Grigg Doreen Lodge North Weald Action Group Member for North Weald Bassett, Epping Forest District Council Local resident North Weald Preservation Society DOCUMENTS 1 Letter of notification and circulation list 2 Statistics on Golf Course facilities in Essex and neighbouring counties, submitted by the District Council 3 Letter from Environment Agency dated 21 April dated 30 January 2009 from Ms Bristow relating to phased development 5 Ecological Mitigation update submitted by appellant 6 CVs of appellant s witnesses 7 Notes of Mr Etchells statement 8 CV and notes of Mr Ashworth s statement 9 Notes on archaeological approach submitted by appellant 10 Blakes 2 information pamphlet 11 List of golf courses with planning permission for inert waste importation submitted by appellant 12 Ongar Park Radio Station Geophysical Survey Report 13 DCLG Chief Planning Officer letter dated 20 January

12 14 from NE dated 25 May Notes of Mrs Bristow s closing statement PLANS A Waste disposal sites in Essex B D Location of footpaths/bridleways around appeal site E-F Extracts from Archaeological desk based assessment G-H Extent of Ongar Park Set I Proposed site profiles PHOTOGRAPHS 1 Concrete base with Great Crested Newt potential 12