Why a planning inspector approved housing at Foldgate Lane – and why he was wrong to do so

This is a detailed examination of the inspector’s decision. I can’t pretend that it is exhaustive but I hope it shows why this decision is one of the worst I have seen for a long while.

Last Thursday, an inspector from the Bristol-based planning inspectorate, approved plans for 137 homes on Foldgate Lane. This article examines in detail Cullum Parker’s appeal decision.

I have read a lot of planning appeal decisions over the years and this one perplexes me more than many others. I don’t think it makes sense, even under the planning regime we have been working under since 2012.[1] Planning rules say decisions must be made in accordance with the local development plan, in our case the core strategy and SAMDev. Only if there are strong reasons, material considerations in planning jargon, can the plan be overruled. But Mr Parker barely acknowledged our local plan. He didn’t even mention the policy for Ludlow.

That’s why his decision is flawed.

For brevity, I refer to the Inspector, Cullum Parker, as CP throughout. I follow the order of the inspector’s report, which means that my most significant points are at the end of this post.

The main issues for the appeal

At the beginning of his report, CP sets out the main issues for the appeal:

  1. The effect of the proposed development on the character and appearance of the area.
  2. Whether the proposed development would preserve the setting of nearby designated heritage assets.
  3. Whether Shropshire Council can demonstrate a five-year supply of housing land across Shropshire.
  4. Whether the proposed development would provide sufficient affordable housing and public open space as required by local planning policies.
  5. CP also considered other matters, including transport and economic issues.

Issue 1: Character and appearance

Shropshire Council acknowledged that the site had no special designation as a “valued” landscape. The council’s main concern was that the development encroached on open countryside.

CP noted that roughly 64% of the appeal site (more than 11 hectares) will become public open space, including an orchard and a play area. He compared the proposed layout to the nearby housing at Green Acres, “where open space is principally restrained to the private gardens to the front and rear of dwellings.”

He said that although the proposal “would result in some limited and localised landscape harm,” the development would be “a spacious, verdant and fairly low density development.” He dismissed arguments that the site would impact on distant views from the Mortimer Forest and said “there are no clear vistas of the whole site from close up.”

Concluding on landscape matters, CP said the development complies with several policies in Shropshire’s core strategy and SAMDev,[2] including CS5, a policy that strongly restricts housing development outside settlements. I think CP is wrong on this.[3] CS5 limits development in the countryside to a very specific list of categories. Market-led housing development is not among those categories.

Issue 2: Heritage assets

Shropshire Council did not cite heritage concerns when it refused the planning application. This issue was raised at the appeal by residents. CP could not ignore these arguments because of a duty imposed by legislation on decision-makers to consider any impact on heritage.[4] He said the development with its planned open spaces would not result in any harm to the Grade II listed Foldgate Farmhouse and Barn. This is a surprising conclusion as both Richborough Estates and Shropshire Council agreed at the inquiry that harm would be caused and, in planning terms, it would be less than substantial.[5] If CP had agreed with this position, he would have had to assess how significant that harm was.

I think CP got this wrong. There is harm to the setting of the listed buildings. But even if CP had accepted this point, I don’t think it would have made any difference to the outcome of the inquiry. The harm is to the setting of the buildings, not the buildings themselves. The arrangement of open spaces in the proposed development minimises that harm. Under current planning rules and legislation, I don’t think heritage is a reason for refusing this application.

CP also concluded that the housing would not have an adverse impact on the Steventon Conservation Area.

Issue 3: Five-year land supply

Since the publication of the NPPF in March 2012, planning in England has been dominated by arguments over housing land supply. Before the NPPF, national planning policy imposed a duty to plan for enough housing land for development during the next five years.[6] The NPPF made this more specific. On top of having to plan for enough housing land, councils must identify specific sites to build on during the next five years. That’s a tough challenge. Many councils have failed to step up to the mark and have had speculative developments imposed on them by the planning inspectorate.

There are two parts to the five-year land supply equation. The first is how much housing is needed to meet the demands of a growing population and shrinking household sizes. This is called the Objectively Assessed Need (OAN).[7] The second is the identification of specific sites that will be developed during the next five years.

Most of the Foldgate Lane planning inquiry was taken up with five-year land supply arguments with lawyers and witnesses making claim and counterclaim in public session. They also spent a lot of time outside the inquiry trying to agree on which sites would be developed in the next five years.

Richborough Estates argued that Shropshire Council wasn’t planning to build enough housing to meet the requirements of the OAN. CP dismissed this, saying it wasn’t the job of the inquiry to look at that. He said that the need for 27,500 new homes in Shropshire over the period 2006 to 2026 had already been agreed by the planning inspectors who examined the core strategy and SAMDev. If 27,500 was good enough for them, it was good enough for him. Or as he wrote in his report: “It is not my role to set a specific housing requirement figure.” In making this decision, he threw out one of Richborough’s main arguments in favour of the development.

Richborough fared no better on five-year land supply because the company’s expert witness made a significant error in his evidence. Around of a third of new housing in Shropshire is delivered through “windfall sites”, sites not in the local plan. The inspector said although this looks high compared to other areas, it reflects local circumstances.

Richborough told the inquiry only 100 homes would be delivered on windfall sites in the next five years. Under cross-examination by Shropshire Council’s barrister, Richborough’s expert witness “conceded that he had essentially miscalculated the windfall allowance element.” He agreed the figure should be 538 windfall homes not 100. With this correction, Richborough conceded that the council did indeed have a five-year land supply, losing another of its main arguments.

The result of this appeal to one side, this is a significant win for Shropshire Council. If its position on housing need and five-year land supply had been rejected by CP, there would have once again been a planning free-for-all in the county.

Richborough argued that many of the developers for sites included in the five-year land supply did not have a track record of building housing. CP was not impressed: “There was no cogent evidence before me that Richborough Estates Ltd themselves have a track record of delivery, and themselves are not a developer or house building company.” Quite right. Richborough has never developed a housing site. It is a “no win, no fee” consultancy that gains planning permission before selling sites to developers.

Usually identification of a five-year land supply would have been enough for the appeal to be dismissed. Alas, CP had other ideas. Even though the county has identified enough housing land, he said that this development still accords with local plan policies including CS3, which says that Ludlow will grow by 500 to 1,000 homes between 2006 and 2026.

It is striking that CP does not mention SAMDev policy S10, the policy for Ludlow, at any point in his report. S10 says that the guideline growth for Ludlow is 875 dwellings by 2026. This is a guideline figure, not a ceiling, but CP should have taken this into account. We have already approved around 885 homes in Ludlow. We also have 200 homes in the pipeline south of Rocks Green.[8]

CP did not even mention this in his report. This is a serious flaw. With his approval of 137 dwellings at Foldgate Lane, we are aiming for a minimum of 1,222 new homes from 2006 to 2026. That’s around 350 dwellings above the SAMDev guideline (40%). But this matter is not addressed in the appeal decision.[9]

What’s the point of a policy guideline if planning inspectors only pay lip service to it?

Issue 4: Local infrastructure

CP gave a lot of weight to affordable housing. He was right to do so. Richborough has agreed that 25% of the housing will be affordable – 34 affordable dwellings. That is well above the 15% required by Shropshire Council’s planning policies. This is a significant factor in favour of the appeal succeeding.[10]

He also lauded the provision of public open space, including a play area.[11] Again, this weighs in favour of the appeal.

Issue 5: Other matters: transport

It is notoriously difficult to sustain objections on highways grounds under current planning rules and highways guidance. CP said concerns over the proposed T-junction with the A49 do not justify refusal of permission because neither Highways England or Shropshire Council’s highway team had objected. CP said: “It is not clear how many accidents there have or have not been on the specific stretch of road relevant to the appeal site.” This entirely misses the point. The concern objectors raised was that accidents will happen if the T-junction is built, not that they have happened already. CP said a roundabout on the A49 “would be an unnecessary overdesigned solution.” Let us hope that he is right.

CP had no sympathy for arguments that the scheme would have a detrimental impact on Foldgate Lane. He said that traffic crossing the lane at the proposed “bollards junction” would be infrequent.

He dismissed concerns about emergency vehicle access noting “it is likely that such use would be very limited in duration and usage.” That’s a bit of a bizarre statement. We would all hope that emergency vehicles would be infrequent callers at Palmers Patch and Foldgate Green, the housing clusters nearest Green Acres. The question is whether emergency services will be able to get access. They will do so via the T-junction on the A49, so I don’t think objections on 999 access can be sustained.

CP did not address the point made at the inquiry that smaller vehicles and motorbikes are likely to take shortcuts along Foldgate Lane, instead of using the A49. He paid no attention at all to pedestrian safety on the lane or the fact that there are no proposed footpaths linking the development to the Co-op and The Squirrel.[12] He also said the site will not be isolated from public transport networks “given the edge of settlement location of the site and the various ways in which it can be integrated in terms of pedestrian and cycle links.” In this statement, he totally ignores the distance to bus stops, the narrowness of the roads and the lack of pavements.[13] This is a significant oversight by CP.

Issue 5: Other matters: business and tourism

This scheme will cause significant damage to the retreat business at Foldgate Farm operated by Richard and Clare Maddicott. How do you operate a retreat in the middle of a housing estate? CP simply notes “the potential impact on livelihood of the occupiers of the retreat activities taking place at Foldgate Farm.” He doesn’t address the damage to the business at all. This is another example of how this inspector fails to understand the local context and economy.

He also said he has no “cogent evidence” that the development would “lead to a materially harmful impact on the economic vitality of the local tourist industry.”

Issue 5: Further other matters

Concerns over flooding and sewerage disposal were dismissed. CP said Severn Trent had not objected and he had no evidence any problems could not be resolved.

He agreed that the development would lead to loss of high quality agricultural land but said “this would be a very small amount in the wider context of such land within Shropshire.” This is a worrying conclusion and I think a wrong one. National planning rules urge local authorities to protect the best and most versatile agricultural land from development.[14] These rules do not say that the best agricultural land can be eroded just because a county has a lot of it. CP’s flawed argument suggests that it can be picked apart bit by bit.

The planning balance

Finally, we come to the planning balance. This is the judgement planners, planning committees, planning inspectors and secretaries of state make having considered all the evidence. On the one hand, decision makers consider the positive benefits of a development.[15] On the other, they look at any harm it will cause or disbenefits. They must do this within the framework of legislation, along with national and local planning rules.

CP said the development “would result in a small conflict with elements of policies MD7a and MD12 of the SAMDev, in terms of the minimal harm arising from the impact on the local landscape.” Here CP is half wrong.

MD7a deals with managing housing development in the countryside. CP, in paragraph 70 of his report, seems to think that MD7a relates to local landscape. It doesn’t. It deals with exception site affordable dwellings[16] and residential conversions. The proposed development at Foldgate Lane is not a small conflict with MD7a. The policy gives no support for a development like this. This is a total conflict.

MD12 protects the natural environment. CP said the Foldgate Lane development does not conflict with this policy, except for a small, localised conflict. I think he is right on this. The landscape is good looking but is not protected by any designations that show it to be of special value.

CP goes on to list the benefits of the scheme, which include public open space and 25% affordable housing. He said construction of the houses will create roughly 106 FTE direct and indirect jobs and contribute around £5.5 million towards the economy of Shropshire. The developers will also have to pay a community infrastructure levy (development tax) of about £580,000.

Then he concludes the development will lead to:

An increase in Ludlow’s population by around 315 people which could help sustain services within the wider locality, local labour force expansion including higher skilled occupations, and the accessible location of the development on the edge of an existing settlement which is identified as a focus for development within the core strategy.

When the small degree of harm to a local landscape is set against the overall thrust of the policies of the adopted development plan and the Framework [NPPF], it is clear that the proposal would represent a sustainable development for which a presumption applies. Accordingly, I find that the proposal would accord with the development plan and there are no material considerations that indicate that the proposal should not be approved.

Why the inspector got it wrong

The NPPF, national planning policy guidance, and legislation state that planning decisions must be in accordance with the local development plan, unless material considerations outweigh the plan.[17] That means SAMDev and the core strategy rule unless there is an overriding reason why a development should be built in conflict with the plan.

CP didn’t try to weigh material considerations against the local plan. Instead, he said the development complies with the local plan. That argument is flawed. The development site is not allocated in SAMDev. It is outside Ludlow’s development boundary. SAMDev MD3 says: “The settlement housing guideline is a significant policy consideration.” The inspector completely ignores the guideline housing numbers for Ludlow set out in policy S10. He fails to mention S10 at any point in his report.

This flaw in the reasoning undermines the entire report and Cullum Parker’s decision to approve the development. He failed to give primacy to the development plan. That’s why he failed to make the right decision on this appeal.

Notes

[1]. The National Planning Policy Framework (NPPF) was introduced in March 2012. Its ostensible aim was to simplify the planning system by reducing national policy to 50 pages. The NPPF is backed up by National Planning Policy Guidance.

[2]. Shropshire’s local plan has two parts. The core strategy, adopted in 2011, sets out the broad strategy for development in the county. Policies are prefixed with CS. SAMDev, adopted in 2015, sets out detailed policies to manage development. In SAMDev, management policies that apply to the entire county are prefixed MD. Place based policies, such as S10 for Ludlow, are prefixed with an S. SAMDev management policies. SAMDev place policies. SAMDev S10 Ludlow.

[3]. I do wonder if in mentioning CS5, CP is confused between countryside and landscape. Countryside is the land outside built up areas. Landscape is the form that countryside takes, whether it is hilly, flat, interesting, dull, biodiverse, etc.

[4]. The Planning (Listed Buildings and Conservation Areas) Act 1990.

[5]. One witness argued that the harm to the setting of Foldgate Farm and Foldgate Barn would be substantial. If Foldgate Farm was linked to significant historic features and buildings in the adjacent countryside, then the harm might indeed be substantial. But Foldgate Farm is surrounded by fields with historic character but of no great historic significance. The harm to the setting is therefore less than substantial.

[6]. Planning Policy Statement 3: Housing.

[7]. Sometimes called Fully Objectively Assessed Need (FOAN).

[8]. Plans are expected to be submitted for 200 homes south of Rocks Green shortly. Council planners have said the scheme does not need a formal environmental impact assessment under EU rules (16/04408/SCR). This development is on an allocated site in SAMDev and is expected to be approved.

[9]. SAMDev MD3 says: “The settlement housing guideline is a significant policy consideration.”

[10]. The upping of the affordable housing component from 15% to 25% was one of the big surprises of the appeal. This is secured through a S106 agreement between Shropshire Council and Richborough Estates. This agreement is binding but can be changed with the agreement of both parties.

[11]. Local Equipped Area of Play (LEAP).

[12]. Network Rail wants to close the footpath (0539/1/3) at the south end of the site. The inspector agreed and said this could be dealt with under planning conditions.

[13]. See Section 5 of my evidence to the inquiry

[14]. NPPF 112.

[15]. Planners have a duty under planning guidance to “approach decision-taking in a positive way to foster the delivery of sustainable development” and “look for solutions rather than problems”.

[16]. It has long been the case that local planning rules can be waivered to allow affordable housing to be built in the countryside. A case in point is the Rocks Green estate, which is a rural exception site.

[17]. See National Planning Policy Guidance, Determining a planning application. Section 38(6) of the Planning and Compulsory Purchase Act 2004 states: “If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”