Appeal 6003242

The appeal is dismissed.

The appeal scheme relates to an outline proposal, with all matters reserved for future consideration. I have considered the appeal accordingly.

The main issue is whether the appeal site is open space and, if so, whether an assessment has been undertaken which has clearly shown it to be surplus to requirements, or its loss would be replaced by equivalent or better provision in terms of quantity and quality in a suitable location.

The appeal site is a portion of land between residential dwellings in the settlement of Porthleven. As part of the legal agreement (the S106) to a previous housing development1 the site was to be dedicated to the Council for use as a public open space. The Council were to assume maintenance liability thereafter, but the land transfer did not transpire.

Policy 13 of the Cornwall Local Plan (2016) (the Local Plan) requires development to provide proportionate public open space on-site but, where there is access to alternative facilities that would meet need, allows for contributions to the maintenance and management of them in lieu of a reduced on-site provision. Policies 16 and 25 of the Local Plan, and Policies C1 and G1 of the Climate Emergency Development Plan Document (2023) (the DPD) seek to maximise access to good quality open space in support of health and wellbeing.

Pertinently to the appeal, the National Planning Policy Framework (the Framework) states that existing open space should not be built on unless (a) an assessment 1 Application Ref W2/PA92/00570/S01. has been undertaken which has clearly shown the open space or land to be surplus to requirements; or (b) the loss resulting from the proposed development would be replaced by equivalent or better provision in terms of quantity and quality in a suitable location. I see no conflict between the development plan and the Framework on this topic.

The decision notice describes the appeal site as a designated open space, but I have no evidence of a designation in either the Local Plan or the Porthleven Neighbourhood Plan (2021) (the Neighbourhood Plan). The Council does not contest that the S106 is ineffective, that the land is private, or that it is within the owner’s gift to prohibit access to it. Given all of this I see little to suggest the site is a designated public open space, or that it serves as part of the local green infrastructure network in any formal way.

Even so, the definition of an open space in the Framework is a simple one: It is all open space of public value. I found the site not only open to [address], but also lacking any evident mechanism by which to close it off. Indeed, there is no suggestion of attempts, or a desire, to prevent or restrict access. I see little reason to doubt that the site is used by the public, at least to some degree; Interested parties have supplied details, including photographic evidence. Even if the extent of public use and the degree of value are both modest, that is nevertheless sufficient to meet the definition. I find that the appeal site is an open space and therefore go on to consider whether either of the two pertinent exception criteria in paragraph 104 apply.

Regarding the first exception; The Council’s Public Space Officer states that Porthleven has a slightly larger than average quantity of the type of open space provided by the appeal site. Even if that is not reduced following a review as the Officer anticipates, it is not clear to me that a larger than average quantity is the same as a surplus; it may simply mean that other, comparable settlements have too little open space. Nor do I see that the site being too small to meet the criteria for a strategic open space renders it surplus. Indeed, the Officer is clear that the ‘surplus’ exception in the Framework does not apply. I cannot, therefore, take his words to have that meaning.

Other evidence is before me: The process leading to the Green Space Designation Document (2019) did not result in the designation of the appeal site. I see little to suggest, however, that the purpose of the document was to identify the required amount of open space, or that any open space left undesignated could reasonably be labelled as surplus.

The document foreword says a methodology was used to identify appropriate sites. [name] do not have the specific details of that method, the spaces that were designated are assessed in terms of demonstrable specialness to the community in respect of beauty, historic significance, recreational value, tranquillity, wildlife, or other. The foreword also tells me that a Local Landscape Character Assessment was relevant. I can well imagine the appeal site falling short of designation if these factors informed the criteria, but that does not make it surplus to requirements.

The Council does not dispute that it did not meet its obligations under the S106 and is therefore responsible for the appeal site not being adopted. However, the reasons it did not meet the requirements are unclear, and I see no reason to presume that they are related to, much less demonstrative of, a surplus of open space.

Notwithstanding concerns that local topography may make alternative open spaces less accessible for some, I recognise the Officer’s advice that residents likely to make use of the appeal site are within the maximum range of the nearby recreation ground. Again, however, I do not see that this demonstrates the appeal site to be surplus. To my mind, that would require some quantifying of the amount of open space an area requires, set against the amount that it has. Establishing the proximity of alternatives does not serve the same purpose.

Whether individually or in combination, the submissions do not evidently serve as an assessment of whether the appeal site is surplus to requirements as open land. To the degree that the submissions address the point, I am not satisfied that they clearly show a surplus. The requirement at paragraph 104 (a) has therefore not been met.

Regarding the second exception; I do not find the [name] to have confirmed a financial contribution to be an appropriate, proportionate policy-compliant form of mitigation. To me, it seems at least as likely that he simply outlined the appropriate approach should a financial contribution, as proposed by the appellant, be considered.

I recognise that the appeal scheme would involve a financial contribution to off-site public open space, defined in a submitted legal agreement as “replacement open space or enhanced existing open space within the local area, to compensate for the loss of the existing open space [at the appeal site]”, and that the Officer referred to using such funds in line with the Council's adopted S106 [name].

However, I have little information as to what the protocol includes, or how the money would be spent. I note the appellants assertion that it would go towards enhancing existing green spaces or recreational facilities within Porthleven, most notably the local recreation ground, but see little evidence I could be certain of either.

Even if the protocol would direct the money to the local recreation ground, it would not evidently go towards a specific project resulting in new or better facilities, nor is it evident that the existing facilities are at risk of becoming unavailable if not for the appeal scheme contribution. Furthermore, whilst the sum identified by the Officer is £16,855 and the appellant gives the same sum in their statement of case, the signed legal agreement only commits £12,081.56.

Overall, it is not evident that the appeal proposal would result in the equivalent or better provision of open space in terms of quantity and quality in a suitable location. The requirement at paragraph 104 (b) has therefore not been met.

My attention is drawn to a previous appeal at a different site2. [name] recognise the similarity in the issues, the financial contribution secured as part of that scheme went towards what the Parish Council had confirmed to be proposed projects to improve their local recreation ground. That is a significant difference compared to the scheme before me, and I do not feel bound to come to the same conclusion. 2

The appeal site is open space, an assessment clearly showing it to be surplus to requirements has not been undertaken, and the loss resulting from the proposed development would not evidently be replaced by equivalent or better provision in terms of quantity and quality in a suitable location. The appeal scheme does not satisfy the requirements of the Framework, and conflicts with Local Plan Policies 13, 16, and 25, and with [name] C1 and G1 in that it would result in the loss of open space without adequate justification or mitigation.

The provisions of paragraph 11d of the Framework are engaged as the Council cannot demonstrate a five-year supply of housing land. In the course of determining other appeals in the same local authority area recently, I have established the supply to be at around 3.9 years, which I consider a notable shortfall.

The site is a sustainable location for residential development, and would make effective use of land in that respect. Matters of detailed design are not before me at this stage, but I see no reason to doubt that a well-designed dwelling could be delivered. It could be delivered quickly. Economic benefits would accrue, both from the construction phase and thereafter as a consequence of residential occupation. The appeal scheme adheres directly to the aims of the Framework in these respects.

At the same time, the Framework is also clear that planning decisions should aim to achieve healthy and inclusive places which promote social interaction, which enable and support healthy lives through the provision of safe and accessible green infrastructure, and which meet social, recreational and cultural community needs through the provision and use of open space to enhance the sustainability of communities and residential environments.

In weighing these considerations, I am mindful of two things in particular; Firstly, whilst the contribution the appeal scheme would make towards the shortfall in housing would be of value, it would nevertheless be a very modest one. Secondly, the Framework sets out clearly the circumstances in which the loss of open space may be supported. I have found that the submissions fall short of demonstrating those circumstances, largely through the absence of the required evidence and information. To allow the appeal would be to support a circumvention of the approach laid out in the Framework.

Overall, the adverse impacts of allowing the appeal scheme would significantly and demonstrably outweigh the benefits.

The proposal conflicts with the development plan and the material considerations do not indicate that the appeal should be decided other than in accordance with it.

The appeal is dismissed.