Appeal Decisions Inquiry held on 8 10 January 2013 Site visit made on 9 January 2013 by Paul Dignan MSc PhD an Inspector appointed by the Secretary of State for Communities and Local Government Decision date: 26 March 2013 Appeal A: APP/H2265/A/12/2182789 Land at Orchard Farm, Well Street, East Malling, West Malling, Kent, ME19 6JW. 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 John Fuller against the decision of Tonbridge & Malling Borough Council. The application Ref. TM/11/02655/FL, dated 19 September 2011, was refused by notice dated 6 October 2011. The development proposed is Change of use of land for the stationing of 2 caravans for residential occupation with associated development (utility shed, hardstanding, amended access, access track and septic tank). Appeal B: APP/H2265/C/12/2182787 Land at Orchard Farm, Well Street, East Malling, West Malling, Kent, ME19 6JW. The appeal is made under section 174 of the Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991. The appeal is made by Mr John Fuller against an enforcement notice issued by Tonbridge & Malling Borough Council. The Council's reference is 10/00129/UNAUTU. The notice was issued on 24 July 2012. The breach of planning control as alleged in the notice is the use of the land as a residential caravan site. The requirements of the notice are to cease the use of the site as a residential caravan site by removing the mobile home, utility building, dog pens and hard standing. The period for compliance with the requirements is 5 months. The appeal is proceeding on the grounds set out in section 174(2)(a) and (g) of the Town and Country Planning Act 1990 as amended. The application for planning permission deemed to have been made under section 177(5) of the Act as amended also falls to be considered. Decision 1. Appeal A: The appeal is allowed and planning permission is granted for Change of use of land for the stationing of 2 caravans for residential occupation with associated development (utility shed, hardstanding, amended access, access track and septic tank) at Land at Orchard Farm, Well Street, East Malling, West Malling, Kent, ME19 6JW in accordance with the terms of the application, Ref. TM/11/02655/FL, dated 19 September 2011, and the plans submitted with it, subject to the conditions in the schedule attached to this decision. www.planningportal.gov.uk/planninginspectorate
2. Appeal B: I direct that the enforcement notice be corrected by the substitution of the plan annexed to this decision for the plan attached to the enforcement notice. Subject to these corrections the appeal is allowed and it is directed that the enforcement notice be quashed. Planning permission is granted on the application deemed to have been made under section 177(5) of the 1990 Act as amended, for the development already carried out, namely the use of the land as a residential caravan site on the land shown edged and hatched black on the plan annexed to this decision, subject to the conditions in the schedule attached to this decision. Appeal A The appeal site and preliminary matters 3. The appeal site is located in an area of open countryside about 330m south west of the settlement boundary of East Malling. The land owned by Mr Fuller comprises some 4.8ha (12 ac.) bordering Stickens Lane to the east and Well Street to the south. Broadwater Road is a short distance to the west. Most of the land is used for grazing horses, but part of the land, roughly centrally located, is being used for residential purposes, with vehicular access from Well Street. The Appeal A site is confined to the land used for residential purposes and the vehicular access. This land is fenced off from the grazing land. 4. Mr Fuller and his wife are Romany gypsies. The Council accept that they should be regarded as gypsies for the purposes of planning policy, and I agree. Main Issues 5. The main issues are the effect of the development on the character and appearance of the area, having regard to its location in the open countryside, and, if harm is identified, whether there are other material considerations to outweigh the harm and justify the grant of planning permission. Reasons 6. Well Street runs along a low ridge in an undulating landscape. The land used for residential purposes is on gently sloping land just to the north of Well Street. Levelled ground for stationing the mobile home is raised above ground level at its northern end and cut into the slope towards Well Street. The slightly lower slope position, the offset of the access road and the presence of a dense intervening copse of trees all serve to limit views of the site from Well Street to the extent that it has little visual impact in near views. The mobile home can be seen in medium distance views through some gaps in the roadside hedgerow along Stickens Lane, but it does not appear unduly discordant, due partly to the presence of other residential development which can be seen in the background on slightly higher ground further west. The presence of stables and sheds nearby on the neighbouring land to the east of the site also reduces the visual impact of the mobile home itself. Enrichment and new planting along the Stickens Lane hedgerow on the appellant s land is proposed, which would significantly reduce the site s visual impact in views from Stickens Lane. 7. The site can also be seen from Broadwater Road, which has a cluster of houses at the junction with Well Street. However, due to the slightly higher ground and intervening vegetation, little more than the mobile home roof can be seen, which in any case is not, in my view, intrusive in the landscape. From most www.planningportal.gov.uk/planninginspectorate 2
other vantage points in the surrounding area the site either cannot be seen or is barely noticeable. 8. There is significant scope for new planting around the residential site itself, which would help the mobile home to better integrate with its surroundings, and a landscape enhancement/mitigation strategy is also proposed, which could be secured by way of condition. 9. Overall, I consider that the visual impact of the development in the rural landscape would be acceptable once appropriate planting and management measures have had time to take effect. I conclude accordingly that the development accords with Policy CP24 of the Tonbridge and Malling Core Strategy (CS), which expects development to respect the site and its surroundings, and with criterion (b) of Part 2 of CS Policy CP20, which seeks to ensure that gypsy or traveller sites do not prejudice rural amenity as a result of, amongst other things, visual intrusion. 10. Nonetheless, the site is situated in open countryside where new residential development would normally be strictly controlled. CS Policy CP14 sets out limited categories of development to which development in the countryside will be restricted. Gypsy sites are not specifically included, but it is argued that such sites fall within Policy C14 category (i), that is any other development for which a rural location is essential. However, whilst I accept that all gypsy and traveller sites in the borough are in rural locations, and the Council has not been able to identify any suitable locations for sites that are not in the countryside, the argument that a rural location is essential for gypsy and traveller sites is unsustainable, not least because Planning Policy for Traveller Sites (PPTS) stipulates that local planning authorities should strictly limit new traveller site development in open countryside. 11. Having said that, PPTS does not seek to exclude sites in open countryside, and CS Policy CP20 clearly envisages that sites in rural areas may be acceptable. Part 2 of the policy allows sites to be permitted subject to the proposal meeting six criteria. The first of these is that there is an identified need that cannot reasonably be met on existing or planned sites. The Council does not dispute that there is at present an identified need, but it considers that any identified need can be met on a planned site. This is the site at Coldharbour Lane between Aylesford and Maidstone, one of two public sites in the borough. The site, operated by Kent County Council, is currently being redeveloped to increase its capacity by 18 pitches. The works are well under way and the site is expected to be ready for occupation later this year. 12. The Coldharbour Lane site will be open to all applicants in Kent, and there is currently a waiting list of about 110. There is an expectation that applicants from Tonbridge and Malling Borough (TMB) will be given preference, but the allocation criteria for the sites include factors other than local need. The most recent assessment of need is the Gypsy and Traveller Accommodation Assessment 2006. On a sub-regional basis, the GTAA estimated a need for 64 additional pitches in the period 2006-2011. The distribution of these for TMB based on existing or ideal location was 13 and 10 respectively. 13. It may also be that the actual need in TMB is underestimated by the 2006 GTAA, which is now dated. The DCLG caravan count has recorded consistently high numbers of gypsy or traveller caravans in TMB on sites with temporary planning permission or without planning permission. In July 2012 there were www.planningportal.gov.uk/planninginspectorate 3
33 such caravans. Of these 11 are recorded as being on land not owned by gypsies but tolerated. This refers to a long-standing encampment at Hoath Wood and a more recent site nearby. Kent County Council is contemplating the use of powers to assist the landowners to secure the removal of some of the facilities on these sites, so that whilst tolerated, they may add to the local need. The caravan count data is only a snapshot, but it indicates, at the very least, that the local need is likely to be no less than that identified in 2006. 14. There are no sites other than Coldharbour Lane that are capable of meeting need for the purposes of Policy CP14. Numerous issues have been raised about the suitability of Coldharbour Lane. It has been described as equivalent to a sink estate, and there was some evidence of anti-social behaviour and compatibility issues between existing families on the site and prospective occupiers. I have noted these, but the redevelopment is likely to provide a significantly better living environment on the enlarged site. Its location is, however, far from ideal from a residential amenity point of view. It is just by the A20 and close to a roundabout and junction, so, notwithstanding a proposed 3m acoustic fence, noise, visual amenity and air quality issues arise. 15. For various reasons, some personal and others work related, the appellant and his wife are unwilling to move to Coldharbour Lane and have not applied for a site there. Much of their reasoning, whilst strongly held, is more pertinent to the old Coldharbour Lane site. The redeveloped site will be a new one and is likely to provide a much improved residential environment, notwithstanding its location. I accept, however, that it would be very difficult for Mr Fuller to carry out his business as a mobile farrier from the Coldharbour Lane site, due to storage and equine biohazard problems and the need to provide emergency support. His business insurers have also indicated that they would decline to provide his current insurance cover if he was based in the Coldharbour Lane site. His business is well established and it is evidently highly regarded. I have no doubt that it would suffer if operated from Coldharbour Lane, not because of any reputational issues but because it is simply not a suitable base for this type of business. In view of this I accept the appellant s assertion that the Coldharbour Lane site would not be suitable. 16. The Council s interpretation of CS Policy CP20(2)(a) is that the local identified need of 10-13 sites (from the 2006 GTAA) can reasonably be met on a planned site, Coldharbour Lane, and hence the proposal is contrary to Policy CP20. I disagree. First of all, the Coldharbour Lane site is not within the control of the Council and hence there is no guarantee that the requisite number of sites would be made available to TMB applicants. I note that there is an informative attached to the planning permission seeking to ensure that TMB need is met through a lettings and allocation plan, but an informative places no obligation on Kent County Council, who have a very considerable waiting list and who have other important factors to consider in their allocation strategy. I consider that Coldharbour Lane cannot be relied upon to meet all of the TMB identified need, expressed in quantitative terms. 17. Second, I consider that interpreting identified need in purely quantitative terms is too narrow an interpretation of the policy wording. Amongst the Government s aims in PPTS is to promote more private traveller site provision while recognising that there will always be those travellers who cannot provide their own sites. A corollary of the Council s interpretation is that no private gypsy or traveller site would be permitted in the borough, outside of land www.planningportal.gov.uk/planninginspectorate 4
specifically allocated, so long as sites were available at Coldharbour Lane or any other site, regardless of suitability. This would not promote more private traveller site provision and hence would not accord with PPTS. Furthermore, the National Planning Policy Framework (NPPF) provides that widening the choice of homes is amongst the positive improvements that are expected to contribute to sustainable development, and, in my view, this applies equally to gypsy and traveller sites as it does to conventional housing. In view of this, I consider that the correct interpretation of identified need should include qualitative aspects. It should recognise, for example, the needs of those who do not wish to live on public gypsy and traveller sites. I conclude accordingly that the identified need of the appellant cannot reasonably be met on the new Coldharbour Lane site. 18. The remaining Policy CP20 criteria relate to the impact on amenity, respect for the scale of the nearest settled community, highway access and the accessibility of services or facilities. I have concluded that, subject to conditions, there would be no harm to rural amenity, and it is not disputed that the proposal meets the remaining criteria. In view of this I conclude that the proposal accords with CS Policy CP20. The proposal does not comply with CS Policy CP14, but that is a general as opposed to specific policy. There is a principle that a general provision does not derogate from a special one, and it is well established that the Development Plan must be read as a whole. 19. Taking this approach I conclude that the development would not harm the character and appearance of the surrounding countryside, and that the proposal is acceptable on its merits, by reference to the relevant Development Plan policies and national planning policy. It follows that it is not necessary to establish whether there are other material considerations to justify the proposal. Conditions 20. Since the application is for a gypsy site, and I have had regard to the relevant specific national and local policies in coming to my conclusions, I consider that an occupancy condition, whereby the site could only be occupied by a gypsy and traveller meeting the planning definition, is necessary. My findings did not rely on the appellant s personal circumstances and hence it is not necessary to attach a condition restricting the use to any particular person/s. A condition to require restoration of the site when the present occupation ceases is similarly not necessary. In order to protect the character and appearance of the site and surrounding area, and in the interests of residential and visual amenity I shall limit the number of caravans using the site, preclude non-equestrian commercial activity and the parking of larger commercial vehicles. The submission of a site development scheme will enable outstanding details to be confirmed and ensure that the site layout and associated works, including sewerage treatment, respect the environment. The Council have suggested the removal of certain permitted development rights, but some of those mentioned do not apply in any case, and I have not been provided with good reasons to remove the limited permitted development rights which do apply. Conclusion 21. Having considered all other matters raised, I conclude that Appeal A should be allowed. www.planningportal.gov.uk/planninginspectorate 5
Appeal B Ground (a) and the deemed planning application 22. The Appeal A site is confined to the land used for residential purposes and the vehicular access. This land is fenced off from the grazing land. On the plan attached to the Appeal B enforcement notice, all 4.8ha of the appellant s land is shown. Most of this land is not in residential use, so I shall correct the plan to show only that used for residential purposes, that is the area the subject of Appeal A. 23. Subject to this correction, both appeals concern the same development, and it follows from the success of Appeal A that the Appeal B ground (a) appeal must succeed and that planning permission should be granted, subject to the same conditions. I do not therefore need to consider the appeal under ground (g). Paul Dignan INSPECTOR www.planningportal.gov.uk/planninginspectorate 6
APPEARANCES FOR THE LOCAL PLANNING AUTHORITY: Ian Albutt He called Stephen Hinsley BA(Hons) MRTPI of Counsel, instructed by the Chief Solicitor, Tonbridge and Malling Borough Council. Tetlow King Planning FOR THE APPELLANT: Tim Jones He called Rhodri Crandon BA(Hons) Dip LA John Fuller Reagan Fuller Angus Murdoch BA(Hons) MSc PhD MA MRTPI of Counsel, instructed by Murdoch Planning Landscape architect, Tirlun Design Assoc. Ltd. The appellant The appellant s wife Murdoch Planning INTERESTED PERSONS: Cllr G Woodger Mandy Cheeseman Ward Councillor, Tonbridge and Malling Borough Council, Parish Councillor, local resident. Neighbouring landowner DOCUMENTS 2 Percolation test report, Orchard Farm, prod. By AJC Campbell & Assoc. 3 Notice of Decision, planning application TM.75/315 (1975) 4 Refused application plans, Ref. TM/11/02655/FL (3 plans) 5 Copy of email correspondence between Dr Murdoch and Kent CC Gypsy and Traveller Unit, 8/1/2013. 6 Table 1: Count of Gypsy and Traveller Caravans 19 July 2012: Last five counts. 7 Kent CC Gypsy and traveller caravan sites plot waiting list application form. 8 Copy of email correspondence between TMBC and Kent CC Gypsy and Traveller Unit, 9/1/2013. 9 Speaking notes of Reagan Fuller 10 Criminal Justice and Public Order Act 1994 Part V s77. 11 Statement of Common Ground www.planningportal.gov.uk/planninginspectorate 7
SCHEDULE OF CONDITIONS 1) The site shall not be occupied by any persons other than gypsies and travellers as defined in Annex 1 of Planning Policy for Traveller Sites. 2) No more than 2 caravans, as defined in the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968 (of which no more than 1 shall be a static caravan) shall be stationed on the site at any time. 3) No commercial activities shall take place on the land, including the storage of materials, other than the keeping of horses in association with the stables and storage of horseshoes and related plant and equipment. 4) No more than one commercial vehicle shall be kept on the land for use by the occupiers of the caravans hereby permitted, and it shall not exceed 3.5 tonnes in weight. 5) The use hereby permitted shall cease and all caravans, structures, equipment and materials brought onto the land for the purposes of such use shall be removed within 28 days of the date of failure to meet any one the requirements set out in (i) to (iv) below: i) within 3 months of the date of this decision a scheme for the development of the site (hereafter referred to as the site development scheme) shall have been submitted for the written approval of the local planning authority and the said scheme shall include a timetable for its implementation. The scheme shall include: details of the means of foul and surface water disposal; details of the internal layout of the site, including the siting of caravans, hardstanding, access roads, parking and amenity areas; details of the proposed and existing external lighting on the boundary of and within the site; details of landscaping and boundary treatment of the site, and new tree, hedge and shrub planting of the site and the surrounding agricultural land in accordance with the Landscape Enhancement/Mitigation Strategy submitted with the appeal, including details of species, plant sizes and proposed numbers and densities. ii) iii) iv) within 11 months of the date of this decision the site development scheme shall have been approved by the local planning authority or, if the local planning authority refuse to approve the scheme, or fail to give a decision within the prescribed period, an appeal shall have been made to, and accepted as validly made by, the Secretary of State. if an appeal is made in pursuance of (ii) above, that appeal shall have been finally determined and the submitted site development scheme shall have been approved by the Secretary of State. the approved scheme shall have been carried out and completed in accordance with the approved timetable. 6) Any trees or plants planted in accordance with the site development scheme approved under condition 5 above which within a period of 10 years from the completion of the scheme die, are removed or become seriously damaged or diseased shall be replaced in the next planting season with others of similar size and species, unless the local planning authority gives written approval to any variation. www.planningportal.gov.uk/planninginspectorate 8