Agenda item

RM

DECISION: REFUSE (OUTLINE PLANNING)

Members had visited the site which was an area of land situated to the south of Barnhorn Road (A259T) and to the south west of Spindlewood Drive.  The site currently comprised of five agricultural fields divided by mature hedgegrows and tree belts, as well as an area of ancient woodland immediately adjacent to the south west which extended into the Pevensey Levels (PL).  The PL was designated as a European Ramsar Site and Special Area of Conservation (SAC) and a Special Site of Scientific Interest (SSSI).  The land sloped generally from north to south and east to west towards an existing water course, the Cole Stream along the south eastern boundary.  The land was allocated within the Council’s Development and Site Allocations Plan adopted in December 2019 – Policy BEX9: Land off Spindlewood Drive, Bexhill.

The proposal was for outline planning of a residential development of circa 160 dwellings (including 30% affordable housing) with all matters reserved for future approval except access.  Consideration was given to all statutory, non-statutory and third-party representations, including documentation received from Natural England (NE) and comments from a local Development Action Group known as SPINDAG.  Members also had regard to an Appropriate Assessment (AA) under the Habitat Regulations.

Members heard from spokespersons from SPINDAG, representing many of those people objecting to the scheme and from a spokesperson for the applicant, in addition to both local Ward Members and Planning Officers.  They also heard from the Council’s Barrister and a spokesperson from NE.  Members asked a series of questions in relation to several issues.  These included: matters relating to the Habitats Regulations and the AA procedure; potential foul and surface water drainage solutions and the possible adverse impact on the PL; the deliverability and effectiveness of the long-term maintenance and management of the drainage system; potential overtopping of the Cole Stream; climate change and the likelihood of increased risk of flooding due to increased levels of rainfall (including the view that current modelling assumptions were out of date and did not take into account current and increasing extreme weather events); impact on the landscape character as a result of possible land raising to accommodate the development an any new drainage system.  Members stated that the 2017 Act took priority over other planning considerations and that required the Committee to be confident ‘beyond scientific doubt’ that the proposed mitigation would ensure that there was no adverse effects on the PL in perpetuity.  Members were not convinced that mitigation could be absolutely relied upon and were not satisfied that even with the most robust system with double lining of ponds and pipes, even the best design could not remove all risk from accidental or malicious damage, or a failure due to poor workmanship undetected at the time, or the failure of the management company charged with ensuring the proposed system did not fail.  As the development could have a life of one hundred years or more and during that time the system could deteriorate; for example, liners only had a guaranteed life of thirty years.  Members felt that pollution initially from the construction itself including construction machinery and then chemicals from the proposed housing estate could find their way into the Cole Stream and onward from there into the PL.  Therefore, they felt that they could not reach the level of certainty that there would be no harm in perpetuity to the PL.  Given that if any one or more mitigation measures failed or there was a cumulative failure then the damage would have been done most likely without detection and it might be some long time before the breach was discovered.  Unlike mitigation measures that could be adjusted or where a failure in a mitigation measure did not have an irreversible effect (e.g. widening of an entrance or moving of speed limits) any failure of mitigation in this case would lead to environmental impacts from this site onto the PL that would be irreversible.  The Environment Agency (EA) stated initially that they “object to the proposed development submitted because the assessment of the risks to nature conservation were inadequate” but then removed the objection subject to mitigation.  Effectively if mitigation failed for whatever reason beyond the computer modelling’s ability (like human error in construction or accidental or malicious damage) then the EA’s original objection would be relevant as the assessment of the risks could not take into account non computer modelling issues of failure of the mitigation.

The Planning Committee also raised concerns about the following: accessibility issues particularly from A259 and Meads Road (narrow); increased traffic along the A259; accuracy and validity of transport information supporting the application; unsustainability of the development’s location as there was insufficient access to local amenities (including day-to-day shops and services); inadequate access to secondary education; the possible compromised financial viability of developing the site given the likely costs of dealing with appropriate drainage mitigation; similarly whether the provision of 30% affordable housing was achievable; impact on heritage assets and, in particular, archeology, where it was considered that further investigative works should be undertaken; impact on wildlife; the quantum of development which was considered high and not comparable with the density of existing neighbouring development; and sustainability of the site with particular regard to the Council’s declared climate change emergency and whether the development sufficiently demonstrated a positive step towards lower carbon emissions; and impact on the neighbouring properties and local community.

The Planning Committee also considered, in some detail, the comments submitted by Highways England and the County Highway Authority who had no objection subject to conditions and completion of a Section 106 legal agreement.  Although neither highway consultee had objected to the proposal, Members expressed concern regarding the increased traffic that would be generated, the impact this would have on traffic safety along the A259, and the potential that the development would create a “rat-run” to avoid traffic build-up along the A259, particularly at Little Common Roundabout.  In addition, questions were raised about whether the Highways data was up to date as the surveys had been completed in 2017 some three years earlier and noting that  the Highways data had been collected during a period when significant road works were being undertaken.

Councillor Errington withdrew her motion to refuse and Councillor Thomas moved the motion to refuse (outline planning permission) and this was seconded by Councillor Mrs Earl-Williams.  The motion was declared CARRIED (8 for / 5 against).

In weighing up all the issues identified above, the Planning Committee felt that its obligation to be certain that there would be no risk of damage to the PL Ramsar, SAC and SSSI site gave it no option but to refuse the application, as it believed that the proposal rested on assumptions which were not assured.  It was not convinced that the 'worst case scenario' covered all eventualities, as climate change could cause rainfall to exceed present predictions to an unknown extent, especially as the area had recently experienced a 250 year rainfall event.  In addition to all the issues identified above, the Planning Committee was not satisfied that the proposed development was sufficiently detailed, particularly in respect of drainage because even with the mitigation of the worst-case scenario presented by the Applicant, it had not been demonstrated that the adverse impacts of the development on the PL Ramsar, SAC and SSI would be avoided in perpetuity.  Therefore, the Planning Committee was not convinced that the benefits of the development clearly outweighed the adverse impacts on the PL Ramsar, SAC and SSSI.  Furthermore, the rainfall assumptions underpinning the worst-case scenario were not accepted.  Additionally, as NE had noted, it had not been demonstrated that the worst-case scenario mitigation could be engineered.  Even if an engineering solution was possible, the uncertainty regarding the design of the entire drainage system, would mean that substantial land raising across the site might be required and the Council could not be certain that this would result in an acceptable landscape impact.  Therefore the proposal was contrary to Policies EN1 (iii), (v), (vii) and (viii), EN5 (ii), (vii) and (ix) and EN6 (iii) and (ix) of the Rother Local Plan Core Strategy and paragraphs 8(c) and 175(b) of the National Planning Policy Framework.  It was also considered that the proposed development was poorly located with insufficient access to shops and services to meet day-to-day needs and that there was inadequate access to secondary education.

Members agreed that this was a unique site in an exceptional location within the district and the detail to support approval was found lacking.  The Planning Committee considered that the application should be refused.Members felt their primary objective was to absolutely guarantee the integrity of the PL in perpetuity and felt that the only certain way to achieve this was to turn down development which bordered on the site.

REASONS FOR REFUSAL:

1.     The proposed development is not sufficiently detailed, particularly in respect of drainage, because the Planning Committee is not satisfied, even with the mitigation of the worst-case scenario presented by the applicant, that it has been demonstrated that the adverse impacts of the development on the PL Ramsar, SAC and SSSI would be avoided in perpetuity. Therefore, the Planning Committee is not convinced that the benefits of the development clearly outweigh the adverse impacts on the PL Ramsar, SAC and SSSI. Furthermore, the rainfall assumptions underpinning the worst-case scenario are not accepted. Additionally, as Natural England note, it has not been demonstrated that the worst-case scenario mitigation could be engineered. Even if an engineering solution is possible, the uncertainty regarding the design of the entire drainage system, means that substantial land raising across the site may be required and the Council cannot be certain that this will result in an acceptable landscape impact. Therefore the proposal is contrary to policies EN1 (iii), (v), (vii) and (viii), EN5 (ii), (viii) and (ix) and EN6 (iii) and (ix) of the Rother Local Plan Core Strategy and paragraphs 8(c) and 175(b) of the National Planning Policy Framework.

2.     The proposed development is poorly located with insufficient access to shops and services to meet day-to-day needs and inadequate access to secondary education.

NATIONAL PLANNING POLICY FRAMEWORK: In accordance with the requirements of the Framework (paragraphs 186 and 187) and with the Town and Country Planning (Development Management Procedure) (England) Order 2015, the Local Planning Authority has acted positively and proactively with the Planning Committee identifying matters of concern with the proposal. However, the issues are considered fundamental to the proposal and it is the Planning Committee’s considered view that it is not possible to negotiate a satisfactory way forward and due to the harm which has been clearly identified within the reasons for the refusal, approval has not been possible.

In accordance with the Council’s Planning Procedures, it was noted that Councillor Mier spoke on the application, but did not vote as he had not attended the Site Visit.

(When it first became apparent Councillors J. Barnes and Mrs Earl-Williams both declared a personal interest in this matter in so far as they were elected Members of East Sussex County Council and in accordance with the Members’ Code of Conduct remained in the room during the consideration thereof).

(Councillor Errington declared a personal interest in this matter in so far as she had signed a letter of objection against the application in August 2017 prior to becoming a Councillor in May 2019 and remained open-minded and in accordance with the Members’ Code of Conduct remained in the room during the consideration thereof).

(Councillor Harmer declared a personal interest in this matter in so far as was a former Member of SPINDAG prior to becoming a Councillor in May 2019 and in accordance with the Members’ Code of Conduct remained in the room during the consideration thereof).

(Councillor Langlands declared a personal interest in this matter in so far as she had signed a petition against the application prior to becoming a Councillor in May 2019 and in accordance with the Members’ Code of Conduct remained in the room during the consideration thereof).

(Councillor Prochak declared a personal interest in this matter in so far as her husband is Chairman of the local Campaign to Protect Rural England who made comments on the application and in accordance with the Members’ Code of Conduct remained in the room during the consideration thereof).

(Councillor Thomas declared a personal interest in this matter in so far as he was a member of Bexhill Environment Group and Sussex Wildlife Trust and in accordance with the Members’ Code of Conduct remained in the room during the consideration thereof).

(Councillor Timpe declared a personal interest in this matter in so far as she was a member of Bexhill Heritage and in accordance with the Members’ Code of Conduct remained in the room during the consideration thereof).