Costs Application on behalf of the Appellant APP/C1435/W/22/3310445-Land north of Jubilee Drive and Highgrove Crescent, Polegate

April 2023

Costs Application for a Full Award Made on behalf of the Appellant against the Local Planning Authority

1. This application for a full award of costs is made on behalf of the Appellant (Taylor Wimpey UK Ltd) against the Local Planning Authority (LPA), Wealden District Council.

2. Costs play an important part in the appeal process. The National Planning Practice Guidance (NPPG) states that the aim of the costs regime is to (amongst others) 1 :

“Encourage local planning authorities to properly exercise their development management responsibilities, to rely only on reasons for refusal which stand up to scrutiny on the planning merits of the case, not to add to development costs through avoidable delay.”

3. An application for outline planning permission was submitted in June 2021. The application proposed:

“Outline planning application for residential development (Use Class C3) comprising up to 180 dwellings; informal and formal open space, footpaths, cycleways and internal roads; associated parking, landscaping, planting, noise attenuation measures, utilities, drainage infrastructure and groundworks. All matters are reserved with the exception of vehicular access into the site, to be taken from Highgrove Crescent.”

4. The LPA’s Officers recommended that the application be granted. At the meeting of the Council’s ‘Planning Committee South’ held on 11th May 2022, it was decided that the application would be refused for the following reason:

“The proposed development is outside of any defined development boundary and sits within a countryside location for the purposes of considering the planning application. The proposal will result in an unsustainable form of development as the number of houses proposed, together with the indicative drawings, show an overly dense layout, where the close proximity to the A27 will likely lead to undesirable living conditions for new residents and contrived mitigation, likely in the form of unsightly bunds or solid fencing, to reduce the noise impacts of the close proximity to the trunk road. Furthermore, the proposal has not satisfactorily demonstrated sustainable methods of non-car modes of transport are realistically available due to poor accessibility to public transport, namely bus services. It is considered that the proposed development would be contrary to Saved Policies GD2, EN1, EN8, EN27, TR3 and DC17 of the Wealden Local Plan (1998); Spatial Objective SPO1, SPO7 and Policy WCS14 of the adopted Wealden Core Strategy Local Plan 2013; and paragraphs 8, 11, 104, 110, 112 and 130 of the National Planning Policy Framework (July 2021).

1 NPPG, Paragraph: 028

Reference ID: 16-028-20140306

Revision date: 06 03 2014

In coming to this decision to refuse permission, the local planning authority have had regard to the requirement to negotiate both positively and pro-actively with the applicant, in line with the guidance at paragraph 187 of the National Planning Policy Framework. However, the planning committee considered planning constraints leading to this refusal of permission do not appear capable of resolution without major revision to the scheme.”

5. On 23rd March 2023 the LPA confirmed to the Planning Inspectorate that, having sought professional representation to defend the reasons for refusal, the process had completed without any positive result. The LPA confirmed that there is no independent support for the reasons for refusal and that it was withdrawing from the appeal and had resolved not to defend it.

6. The National Planning Practice Guidance NPPG sets out the types of behaviour that might give rise to procedural2 or substantive3 awards of costs against a local planning authority, although these reasons are not exhaustive.

7. The examples where a substantive award of costs may be made include the following circumstances:

• failure to produce evidence to substantiate each reason for refusal on appeal

• vague, generalised or inaccurate assertions about a proposal’s impact, which are unsupported by any objective analysis.

• not determining similar cases in a consistent manner

• refusing planning permission on a planning ground capable of being dealt with by conditions risks an award of costs, where it is concluded that suitable conditions would enable the proposed development to go ahead

8. In this case, the Appellant considers that these circumstances apply to the first reason for refusal for the reasons set out below. The Appellant therefore respectfully requests that the Inspector makes a full award of costs against the LPA.

9. Fundamentally, the Appellant considers that this is an appeal which could have been avoided had the LPA accepted the reasonable conclusions of its Officers. Having refused the application, the LPA has failed to set out any explanation as to why it should not have been granted in the first instance and to support the reasons for refusal.

Failure to produce evidence to substantiate each reason for refusal on appeal

10. It is a matter of fact that the LPA has failed to provide evidence to substantiate the reason for refusal. The LPA sought, and was granted by PINS, an extension of time for the submission of its Statement of Case to allow for the tender process to be completed. That process was completed and no independent support for the reasons for refusal was forthcoming. The LPA never provided its Statement of Case.

2 NPPG, Paragraph: 047 Reference ID: 16-047-20140306

3 NPPG, Paragraph: 049 Reference ID: 16-049-20140306

Revision date: 06 03 2014

Revision date: 06 03 2014

11. In the Appellant’s submission, the fact that the LPA was unable to secure independent support for the defence of the appeal demonstrates that it should have been granted in the first instance and the need for the appeal would have been avoided.

Vague, generalised or inaccurate assertions about a proposal’s impact, which are unsupported by any objective analysis

12. The Appellant considers that the first reason for refusal is itself vague and generalised and that the reason for refusal is not supported by any objective analysis. Notwithstanding the fact that the LPA did not provide its Statement of Case or any evidence to substantiate its decision, the reason for refusal fails to set out any explanation as to the reasons why the proposal was unacceptable for the reasons given.

Quantum of Development

13. The LPA alleged that the proposal will result in an unsustainable form of development as the number of houses proposed, together with the indicative drawings, show an overly dense layout.

14. Furthermore, given that this application is in outline, the precise layout of the development, its relationship with the acoustic mitigation measures and details such as the housing mix, would be controlled through the reserved matters process. The LPA therefore appears to have made design-related judgements, based on illustrative material and proposal for up to 180 dwellings, without the full details (through the conditions/reserved matters process) which would be necessary to reach that conclusion.

15. The Appellant submits that this claim is vague and generalised and not supported by any objective analysis.

Acoustic Mitigation Measures

16. The LPA alleged that the proposal will include contrived (acoustic) mitigation, likely in the form of unsightly bunds or solid fencing. The precise details of any such mitigation measures are the subject of the conditions/reserved matters process and not this application. The LPA therefore reached a vague and generalised conclusion which is not supported by any objective analysis.

Accessibility

17. The LPA alleged that the “proposal has not satisfactorily demonstrated sustainable methods of non-car modes of transport are realistically available due to poor accessibility to public transport, namely bus services.” The Appellant’s Updated Statement of Case4, and the i-Transport Statement of Case on Highways matters, demonstrate that the Appeal Site is within a comfortable walking distance of existing bus stops in the area.

18. The Appellant submits that this claim is vague and generalised and not supported by any objective analysis.

Not determining similar cases in a consistent manner

Acoustic Mitigation Measures

19. Thirdly, the Appellant notes that the reason for refusal alleges that the close proximity to the A27 will likely lead to undesirable living conditions for new residents and contrived mitigation, likely in the form of unsightly bunds or solid fencing, to reduce the noise impacts of the close proximity to the trunk road. The Appellant’s Updated Statement of Case 5 refers to an application granted by the LPA (in March 2020) in relation to land west of Shepham Lane to the west of the Appeal Site. The application reference for this development is: WD/2016/3047/MAO and the description of development confirms permission was granted for:

“Outline planning application with all matters reserved (except for means of access) for the development of up to 108 dwellings, new internal roads and allotments.”

20. The Appellant considers that the LPA’s decision to grant permission in relation to the land west of Shepham Lane is relevant for a number of reasons. The first two of those relates to matters of principle and accessibility (to which we return to later), but we also note that in that case the illustrative material6 showed an acoustic barrier along the northern boundary of that site, adjacent to the A27.

21. The LPA has therefore seemingly accepted the impact of an acoustic barrier along the A27 on the land immediately to the west of this Site, but resisted it in relation to these proposals.

22. Notwithstanding the LPA’s failure to substantiate its reason for refusal, and their vague nature, the Appellant submits that it has failed to determine similar cases in a consistent manner in relation to acoustic mitigation measures.

Density

23. As paragraph 5.40 of the Appellant’s Updated Statement of Case explains, the proposal for the land west of Shepham Lane (which the LPA itself granted) results in a density of 34.62 dwellings per hectare. Paragraph 5.39 of the Appellant’s Updated Statement of Case explains that the proposal which is subject of this appeal results in an average density of 36.89 dwellings per hectare. The density of the proposals for these adjacent sites are broadly comparable and the LPA failed to explain why it would be acceptable on the land to the west, but not at this Appeal Site.

In-Principle Policy Conflict

24. The Appellant’s Statement of Case refers to two very local examples which relate to the matter of in-principle policy conflicts and the weight to be afforded to policies (namely GD2 and DC17 of the Local Plan).

25. Firstly, the development to the south of the Appeal Site was originally granted subject to application WD/2007/1054/MEA and the Committee Report explained that:

“The application site is located outside the development boundary for Polegate as shown in the adopted Wealden Local Plan, and accordingly, this FULL application has been advertised as a ‘departure’ application. However, the land subject of the application is located within one of the sites allocated for housing purposes in the non-statutory Wealden Local Plan, approved by the Council for use as an Interim Guide for Development Control on 14th December 2005.”

26. The Appellant’s position is that even by 2005, it seemed to be clear that the LPA was in the process of replacing the 1998 Local Plan, although the review was never formally adopted. At

5 Paragraph 2.12

6 See Appendix 5 of the Appellant’s Updated Statement of Case