Draft Over Village Design Guide SPD

Representation ID: 167828

Received: 10/07/2019

Respondent: Abbey Properties Cambridgeshire Limited

Representation Summary:

The SPD is seeking to unlawfully allocate land identified in Figure 27 as being land for potential public open space and is furthermore inconsistent with itself in that regard. The adopted Local Plan is clearly at odds with the draft SPD with regard to the Main Modification SC235 which removed a proposed allocation of the land identified as D1 on Figure 27 as undeliverable. The representation indicates that judicial proceedings would be issued should the SPD be adopted in its current form.

Full text:

Further to the consultation undertaken in respect of this Supplementary Planning Document (SPD) please find below our objections and comments . The comments are made on behalf of Abbey Properties Cambridgeshire Limited and Dennis and Rita Rolfe.

Legal Basis of the SPD

The Town and Country Planning (Local Planning) (England) Regulations 2012 are very clear in relation to what an SPD can (and cannot) be used for in planning law. Further the case of R (William Davis Ltd) v Charnwood BC {2017] EWHC 3006 Admin ( "Davis") has provided the Court's interpretation of the position.

It is clear that Regulation 5 of the 2012 Regulations establishes that only a Local Development Document can contain statements in respect of 'the development and use of land which the local planning authority wish to encourage' or 'the allocation of sites for a particular type of development or use'.

Having regard to Regulation 2 an SPD is not a Local Development Document and so its use in seeking to allocate land is clearly unlawful .

The Davis case established that a new (housing mix) policy should have been adopted as part of a Development Plan Document (DPD) (which would comprise of a Local Development Document), requiring independent examination by the Secretary of State, instead of a SPD, which only requires consultation. The judge further found that the policy constituted a statement regarding "the development and use of land which the local planning authority wish to encourage during any specified period", and was also a "development management policy ... intended to guide the determination of applications for planning permission ." Accordingly , by virtue of Regulations 2, 5 and 6 of the Town and Country Planning (Local Planning) (England) Regulations 2012 the policy needed to be adopted in a DPD rather than an SPD.

The Consultation SPD states on the 'Note to reader' section on page 2 that the :

SPD cannot make new planning policy, or allocate sites for development and must be in conformity with the policies of the South Cambridgeshire Local Plan.

The Introduction of the SPD on page 3 also states that the SPD is intended to 'amplify and build' on the requirements set out in Policy HG/1 of the adopted Local Plan as well as supporting the other policies within the Local Plan.
Page 5 of the SPD includes a section described as 'other priorities' which are, it is alleged, outside of the scope of the SPD. The 'other priorities' include: bringing the land adjacent to the community centre playing fields into public amenity use as a sports fields and/or community meadow.

Ahead of Section 6 therefore the SPD follows the requirements of adopting a lawful SPD.

Section 6 of the SPD then goes on to effectively disregard the preceding sections of the SPD (as summarised above) as the land is unequivocally identified in Figure 27 as being land for potential public open space. Figures 29 and 32 also take the allocation forward onto further plans.

The SPD is evidently seeking to unlawfully allocate land and is furthermore inconsistent with itself in that regard.

We acknowledge the use of the word 'potential' but have substantial reservations that this will be interpreted in any other way than as an allocation of the land for such uses.

The allocation ('potential' or not) does not in any event have any policy anchor under which it can be considered within the SPD. As noted below the site was previously the subject of a proposed allocation which was withdrawn at the instruction of the Local Plan Inspector. That allocation was proposed as part of Policy SC1 which is clearly not a design policy for the purposes of embellishment through the SPD.

We note that the Habitats Regulations Assessment and the Strategic Environmental Assessment (which both form part of the consultation of the SPD) do not refer to Policy SC1 and furthermore they confirm that the SPDs do not identify any land for development purposes.

Whether the allocation is 'potential' or not, the approach is unlawful.

Potential Sports/Recreation Use of Land -land off New Road, Over

The Council will be aware of Planning Application S/1279/18/FL which was refused Planning Permission in July 2018. An Appeal has been lodged and a date is awaited from the Planning Inspectorate for the Appeal. The proposal seeks to erect 44 new dwellings together with the delivery of public open space across approximately half of the site.

The Application Site is (save for the two dwellings (numbers 30 and 32) which currently front on to New Road) that which is labelled D1 on Figure 27 of the Consultation SPD.

It is appropriate to note here again that the proposed allocation of the land identified as D1 on Figure 27 was proposed as an extension to the recreation ground by the District Council within the draft versions of the no adopted South Cambridgeshire Local Plan. However Main Modification SC235 removed the allocation with the Inspector's Report (paragraph 173 of PINS/W0530/429/13 dated 291 August 2018)
commenting that:

SC235 deletes three of the sites reflecting the most up-to-date information on the deliverability of these

The SPD appears to ignore the conclusions of the Local Plan Examining Inspector's report by seeking to identify the land as being suitable for use as public open space with no legal justification put forward. The Local Plan Examination had heard that the allocation was not deliverable as the landowners had no wish to deliver public open space in the manner which the deleted allocation sought. The landowner's position remains the same and they are the co-Appellants to the Appeal. The Council also accepted the Main Modification which the Inspector requested in order to delete the allocation of the land as public open space. The Council's position within its own adopted Local Plan (2018) is therefore clearly at odds within the Consultation SPD.

As an aside we also question the comment in Section 6 of the SPD which suggests that residents see the current provision of amenity space as adequate in relation to the existing village population. This implies, as new housing developments are likely to provide public open space for their own occupants, that additional public open space is not required in the village. Such a position would be inconsistent with the Council's own evidence (South Cambridgeshire District Council Recreation and Open Space Study:July 2013) which confirms that there is an existing need. This study was used as part of the evidence base for the Local Plan which was adopted in 2018.

We note though that the provision of new amenity space is 'the most important issue for many residents' and that the expansion of sports pitches would be 'particularly desirable to residents'.

Implications of the Draft SPD for the Current Planning Appeal {S/1279/18/FL)

Should the Council proceed to adopt the SPD in its current form then we will have no option but to issue judicial proceedings given that, for the reasons set out above,the SPD is seeking to allocate land and would be used to determine appropriate land uses in a manner which can only be allowed for by Local Development Documents. The fact that the Local Plan Inspector removed the allocation (and the Council accepted this Main Modification) so recently will add substantially in our favour in this regard as will the inconsistent approach which the SPD adopts.

We would be willing to discuss further our Appeal proposal with the Council and have sought to recently through our Planning Consultants (Mark Buxton (RPS) telecom with Rebecca Ward) .We have also met with the Parish Council to discuss the land and produced the plan attached as a potential alternative layout to reflect the apparent desire to extend the recreation ground pitches. We understand that the Parish Council retains the view that the land can be assembled under public ownership through the use of compulsory purchase but we continue to refute such a suggestion.

Whilst we appreciate that the Appeal is for a full planning application we are minded to offer this potential alternative layout plan to the Inspector ahead of or at the Appeal once the procedure is determined. We do not see the variation engaging the Wednesbury test of unreasonableness (but clearly this will be for the Inspector to judge) given that the scale of the development remains that for which full planning permission has been sought.

The delivery of this plan or a variation of it to exclude the footpaths in order to maximise space for pitch provision/expansion (or indeed the one for which Planning Permission has been refused) would deliver public open space which is over and above that required to serve the proposed development and so would make a significant contribution to the delivery of the amenity space which is (unlawfully) sought through the SPD.

I have copied this response to the case officer (Rebecca Ward) and the clerk to the Over Parish Council. At the appropriate time RPS will send a copy of this letter,the plan and the draft SPD to the Planning Inspectorate as part of the current Appeal.

We continue to be willing to discuss this matter further with the District and Parish Council but clearly such a discussion needs to acknowledge that the SPD is unlawful in its current intentions with regard to our site. Iwould suggest that a meeting involving all parties would be appropriate: please suggest some dates for our consideration.