Appeal 6003349

The appeal is dismissed.

[site address] Council are preparing a new development plan (the Emerging Plan). However, the Emerging Plan is at an early stage in its preparation and is not yet advanced enough to be attributed any meaningful weight.

Listed buildings are located near to the site. As a result, in making my decision, I have had special regard to section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. As necessary, I refer to the listed buildings later in my decision.

The main issue is whether the development is acceptable in flood risk terms, with particular regard to the application of the sequential test.

Together, the National Planning Policy Framework (the Framework) and the Planning Practice Guidance (the PPG) set out that inappropriate development in areas at risk of flooding should be avoided. By advocating the application of the sequential test, they seek to steer new development to areas with the lowest risk of flooding from any source – development should not be permitted if there are reasonably available sites appropriate for it in areas with a lower risk of flooding. Reflective of this, Policy RM2 of the Hambleton Local Plan (2022) (the LP) requires the application of the sequential test in accordance with this national planning policy, supporting proposals, amongst other matters, only when it is demonstrated that the sequential test has been applied and passed.

Parts of the site are located within [name] 2 and 3, and it is also the subject of some surface water flood risk. Consequently, the development is proposed at a site which is not the subject of the lowest risk of flooding. Therefore, it is necessary to apply the sequential test.

The PPG provides guidance on the application of the sequential test. This includes guidance on defining the area to which the test needs to be applied and what should be considered a reasonably available alternative site. In summary, the PPG sets out that the sequential test should define a catchment area which should be informed by local circumstances, be suitable for the type of development proposed, the needs it is proposing to address and be appropriate to the development’s scale and the settlement it is proposed for. The PPG also sets out that the sequential test should evaluate alternative sites within that catchment area which are reasonably available: those suitable for the type of development proposed, able to meet the same development needs and with a reasonable prospect of being developed at the same time.

That previously developed land would be utilised, and a contribution to the vitality of a rural community made, are beneficial facets of the development. However, these factors do not define the type of development proposed nor are they the principal purposes the development would serve to address. Instead, the type of development proposed is a major housing development, and its purpose is essentially to provide further housing choice.

In settlement hierarchy terms [site address] is a Secondary Village, as referenced within Policy S3 of the LP. Policy S3 establishes a tiered spatial development strategy. Within it, the towns of Northallerton and Thirsk are at the top of the hierarchy. [name] are identified alongside [name] and the market towns of Bedale, Easingwold and Stokesley, as a third tier. The submitted sequential test1 only considers alternative sites within Secondary Village and Service Village locations. Market towns are discounted.

Market towns constitute a settlement type with an array of services and facilities suitable for a housing development of the nature and scale proposed. The development would well-address the needs of home seekers if it were in a market town. In failing to consider sites in market towns, the submitted sequential test’s catchment area is unduly narrow.

In terms of the evaluation of sites within its identified catchment area, the submitted sequential test discounts all greenfield sites. This includes sites the Council submit are allocated sites: those at Huby and [name]. The redevelopment of previously developed land brings with it benefits which greenfield sites cannot. Nevertheless, there may be well-located greenfield sites within the built form of settlements with good accessibility credentials and other meritorious facets. These could be suitable for housing, meet the needs of home-seekers and be capable of being developed at the same time. However, because of the submitted sequential test’s restricted scope, no greenfield land subject to a lower flood risk has been evaluated.

Furthermore, the submitted sequential test only considers alternative sites which already have planning permission. There is no planning policy or guidance before me which stipulates that for a site to be considered a reasonably available alternative it must have planning permission. Indeed, the appeal site itself does not have planning permission for a housing redevelopment. Therefore, it is unclear to 1 [site address] Council (Hambleton Area) [name] by [name] me why the development could not be advanced on another site, also without planning permission in place, and yet still have a reasonable prospect of being developed within a timeframe akin to the appeal site.

Consequently, I find that the submitted sequential test adopts an unacceptably restrictive approach to defining a catchment area and to identifying alternative sites within it which are reasonably available. In reaching this view, I accept that there will very likely be sites put forward as part of the call for sites process which would not constitute appropriate alternatives. However, neither has the call for sites process been scrutinised in detail through the submitted sequential test and thus, equally, it could well identify some reasonably available sites within appropriate locations. For these reasons the proposal fails to pass the sequential test.

The exception test is a further, established flood risk-related test. However, the PPG makes it specifically clear2 that it should only be applied when, following application of the sequential test, it has been demonstrated that it is not possible for development to be located in areas with a lower risk of flooding. Since this has not been demonstrated, that the Council did not assess the planning application in detail against the exception test, or refuse it on any exception test-related grounds, was appropriate.

The development proposes flood mitigation measures, including raised finished floor levels and flood-resilient building techniques. Through the implementation of such measures, I have no reason to conclude that the development would not be safe for its lifetime nor that flood risk would be increased elsewhere.

However, despite my conclusions on the effects of the development’s flood mitigation measures, avoiding flood risk is an all-important first step to be addressed before matters such as flood risk control and management. Application of the sequential test is a fundamental element of this first step, and the proposal fails this test. As a result, the development is unacceptable in flood risk terms, with particular regard to the application of the sequential test. Consequently, the development conflicts with LP Policy RM2 and flood risk policy within the Framework and the PPG.

A completed unilateral undertaking is before me (the UU). The purposes of the UU relate to affordable housing provision, public open space and biodiversity net gain. A bilateral agreement is also before me, and its principal purposes relate to the same planning considerations. However, the bilateral agreement is undated and incomplete and, consequently, it carries no weight.

LP Policy HG3 requires the development to deliver affordable housing, seeking 30% provision. However, the necessary contribution in this case is reduced because vacant buildings would be redeveloped, and this results in a provision requirement of 1.43 dwellings. The UU therefore secures the delivery of a single affordable dwelling on site or, subject to cascade clauses, a contribution in lieu as well as a contribution of £45,723.62 in lieu of the 0.43 dwelling proportion which 2 Planning Practice Guidance Paragraph: 035 [name]: 7-[phone] could not be practically delivered on-site. I have no reason to dispute the sums devised.

LP Policy IC3 and an accompanying appendix require major housing developments to incorporate particular open space provision. The Council are satisfied that the quantum and type of provision proposed would be acceptable, and I have no reason to disagree. The UU secures its provision and its future management and maintenance in accordance with Policy IC3.

Because of the planning application’s age, the statutory biodiversity net gain framework, introduced by Schedule 7A of the Town and Country Planning Act 1990 (inserted by the Environment Act 2021) does not apply to the development. However, separately, LP Policy E3 requires the development to deliver a biodiversity net gain, and measures are proposed to achieve this. The UU secures a biodiversity net gain monitoring contribution of £2,522 towards the costs of the Council’s monitoring of these habitat enhancement works. Monitoring the habitat enhancement would assist in ensuring the habitat works endure. The PPG establishes that charging for the necessary monitoring of a particular planning obligation is appropriate, and I have no good reason to conclude the contribution is not a proportionate one.

Consequently, I am satisfied that each of the planning obligations secured by the UU are necessary to make the development acceptable, are directly related to the development and are fairly and reasonably related in scale and kind to it. Therefore, the UU meets the three tests for planning obligations set out at paragraph 58 of the Framework and Regulation 122 of the Community Infrastructure Levy Regulations 2010.

Given my above planning obligation findings, with the added security provided by the UU, this means that the development’s contribution towards affordable housing and the delivery of open space are each benefits of the proposal, as would be the achievement of a biodiversity net gain. I further note that open space within the development is proposed to contain a children’s play area and that, aside from the biodiversity net gain, some other modest ecological enhancements such as the provision of bat and bird boxes are proposed as well.

The development would add to local housing supply, increasing housing choice, and could be built out relatively quickly. This would be a benefit of the development, albeit the weight I attribute to it is tempered since it would come at a time when the substantive evidence before me indicates that the Council can demonstrate well in excess of 5 years’ worth of housing supply.

The redevelopment of brownfield land and the remediation of contaminated land would each be realised through the development. Paragraph 125 of the Framework sets out that substantial weight should be given to the value of using suitable brownfield land within settlements for homes and that support should be given to appropriate opportunities to remediate contaminated land.

The existing workshop buildings proposed for replacement vary in appearance. A red-tile roofed building forms a quite sympathetic address to the main road, and the site benefits from some softening and screening effects of planting. For these reasons, whilst the workshops do adopt a utilitarian appearance, I do not find the site’s present condition detracts from the character or appearance of the village to a significant extent. Nevertheless, I am also mindful that the vacant buildings could degrade further, and the delivery of the new, landscaped housing development would bring about some improvement to the character and appearance of the area.

Further economic and social benefits would be derived from the demolition and construction phase of the development and from the support the occupation of the development would provide to local services and businesses within the community the site forms a part of.

Within the site’s surrounds are the [name] listed Church of [name] and the adjacent and separately [name] listed The Old Rectory. Each of the listed buildings exhibit some traditional and ornate architectural detailing, and each benefit from a verdant setting which positively contributes to their significance. Furthermore, each listed building provides evidence of the history of religion and worship within [site address] . As a result, the significance of each of the listed buildings is principally derived from their architectural and historic interest.

A primary school is positioned on the land between the listed buildings and the appeal site, and this provides the site with a clear separation and sense of detachment from the listed buildings. Furthermore, mature landscaping is located on intervening land between the site and the listed buildings, reducing the intervisibility between them. Given these factors, the development would preserve the setting and the significance of the listed buildings, and they would remain unharmed by it. This is a neutral factor in my decision.

Future occupiers of the development would be provided with acceptable living conditions, and there would be no prejudicial effects on highway safety. However, the absence of harm in these and other regards is of neutral consequence.

The appellant has drawn my attention to a number of appeal decisions3 which, it is submitted, support their case that the appeal should be allowed. It is firstly important to note that whilst I have had regard to the appeal decisions themselves, the raft of other evidence that will have been before the inspectors in those cases is not before me, and appeal decisions are heavily dependent on the case-specific evidence and circumstances. I have come to my own views on this appeal having regard to the evidence before me now, my own experience and the particular circumstances of the case.

Moreover, while matters concerning flood risk and the sequential test were similarly main issues in the cited appeals, factors serve to distinguish them from the case before me. An important example being that in each of the cited appeals the Councils involved were unable to demonstrate 5 years’ worth of housing supply. That is not the case here, and the context within which I must undertake my planning balance is different. For these reasons, the cited appeals are not directly comparable and, as a result, they are a matter of limited weight in my

Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires planning applications to be determined in accordance with the development plan unless material considerations indicate otherwise. Paragraph 12 of the Framework sets out that if conflict arises with an up-to-date development plan permission should not usually be granted. The evidence before me provides me with no reason to conclude that paragraph 11d) of the Framework is engaged in this case.

In my main issue, I have concluded that the proposal has failed to pass the sequential test which means that conflict with LP Policy RM2 arises. A failure to pass the sequential test is not automatically fatal to a proposal. However, it forms a fundamental part of flood risk planning policy. The proposal’s failure in its regard is a very significant matter, and sufficient to lead me to the conclusion that the proposal conflicts with the development plan as a whole.

The proposal would result in benefits. Of these, I attribute the most weight to the redevelopment of brownfield land. However, the collective weight of these benefits is insufficient to outweigh the harm brought about by the failure to pass the sequential test and the ensuing conflict with the development plan.

The development conflicts with the development plan as a whole, and the material considerations do not indicate that the appeal should be decided other than in accordance with it. I therefore conclude that the appeal should be dismissed.