In March, we threatened Newcastle City Council with legal action in light of the unlawfulness of allowing such development. Consequently, they backed down and agreed to take the plans back to committee.
In the meantime, the Consortium claims to have explored alternative proposals, but has overlooked the legal issues we raised. It has made no effort to reduce the harmfulness of the proposals or to adhere to local and national planning policy.
If the Consortium is allowed to get away with this, Newcastle’s dwindling Green Belt will be further eroded, an important wildlife corridor will be severed and a much-used public right of way could disappear forever. It will make a mockery of local democracy.
Cell B1, which the Consortium wants for school playing fields, provides valuable wildlife habitat and public access to the countryside and should be preserved as such, for wildlife and people.
There is nothing in the local development plan to permit development of Cell B1 and the playing fields and associated school facilities should all be contained in Cell A, as agreed in the local plan.
We are encouraging people to object to the plans. Our latest detailed objection can be read below.
Dear Ms Lawless,
Re: 2017/0666/01/OUT | Outline Planning Application (Amended Proposal): (all matters reserved): Development of 66.55ha of land comprising up to 1,200 residential dwellings (Class C3), education provision for both primary and secondary aged children (Class D1), playing fields with fencing, changing pavilion, car parking and associated access, strategic routes, public open space and associated infrastructure (amended plans received on 1 August 2018) (as amended and or supplemented by details received on 20 September 2017, 21 September 2017, 3 November 2017, 22 November 2017), ecological enhancements and habitat creation (as per Updated Biodiversity Mitigation and Management Plan received on 1 August 2018), including Addendum to EIA – Alternatives, Ecology and Landscape and Visual Impact Chapters (received on 1 August 2018) Addendum to Environmental Statement (received 9 May 2017) for Newcastle Great Park, Cell A and Cell B1, by Newcastle Great Park Consortium EIA – Chapter 7 (Noise) (Addendum received on 22 November 2017), Chapter 4 (Alternatives), Chapter 6 (Ecology) and Chapter 8 (Landscape and Visual Impact) (Addendum received on 1 August 2018) | Cell A And B1 Newcastle Great Park Brunton Lane Newcastle upon Tyne
This document sets out our representations in respect of the above application. We have reviewed the additional submissions and remain of the view it is not possible for Newcastle City Council to make a lawful decision to grant planning permission, unless the application is amended to remove Green Belt encroachment. National and local planning policy relating to Green Belt, Open Space and Biodiversity must be interpreted and applied correctly and, in so doing, the council has no alternative but to refuse planning permission for this proposal.
Proposals for Cell B1 would categorically fail to preserve the openness of the Green Belt and conflict with the purposes of including land within it. The correct interpretation of National Planning Policy Framework (NPPF) for development that is not inappropriate in the Green Belt (as revised by Paragraph 146 e), would apply only to an open playing field. The exception in the NPPF does not apply to enclosing a significant area of Green Belt with security fencing, of whatever height.
All points raised in our Pre-Action Protocol remain valid and must be taken fully into account. For reference, this document is copied below. We would request the full contents is uploaded to the public access system at your earliest convenience. Our representations dated 4th June, 4th July, 4th December, 14th December 2017 and 11th January 2018 remain relevant and must also be taken into account. There are several additional points we wish to raise, as set out below.
Harm to Wildlife Corridor and Biodiversity
The applicant states some terrestrial wildlife, such as common toad, would be able to negotiate a route through security fencing and implies the wildlife corridor would not be harmed. The wildlife corridor would effectively be severed, as there would be no habitat associated with playing fields. Short mown amenity grass, especially when intensively drained, would not provide breeding, foraging or sheltering resource for wildlife, whether terrestrial mammals, insects, amphibians, birds or bats. The applicant’s assertion that the wildlife corridor would not be harmed is therefore irrational and flawed.
The proposed felling of a three-metre strip of trees for construction of fencing cannot be justified and replanting schemes would not provide sufficient compensation for the loss of established tree belt. More than six hectares of countryside would be lost to wildlife and the resulting barren character would severely inhibit wildlife movement along the east-west wildlife corridor. Any mitigation proposed inside the fence line would be unlikely accepted by the school, as this would inhibit visibility.
Any assessment of loss, gains and retention of habitat must be assessed against what should have been implemented in relation to the extant consent for landscaping (1999/1300/49/DCC). The harm caused by the delay of 15 years in implementing the approved scheme, which remains outstanding for a significant portion of the site, must also be addressed. Newcastle City Council is legally bound to enforce the requirements of that earlier consent, unless varied by changes to the relevant clause of the S106 legal agreement. The harm caused by this proposal – the permanent loss of ecological enhancements that would otherwise be implemented if this application was dealt with in accordance with CSUCP Policy NN4 – must be taken into account.
The applicant states alternative locations for sports pitches have been considered within Cell A. The submitted document is fundamentally flawed and cannot be given any weight when determining the application. The submission asserts it is not possible to implement the requirements of CSUCP Policy NN4.The allocation of 880 houses and all school facilities can, and should be, located on Cell A only, in accordance with CSUCP Policy NN4. The principle of uses, including delivery of 880 houses on site has been subject to robust assessment by Newcastle City Council. This was subject to an Examination in Public, analysed by an inspector and subsequently adopted. No policy allocates Cell B1 for any form of development: the land is defined as Green Belt and Open Space.
Previously, we suggested land south of Havannah and Three Hills Nature Reserve and west of the proposed school in Cell A would be the most appropriate location for the sports pitches, and that these can be easily incorporated if housing numbers are reduced in line with CSUCP Policy NN4. This land is currently identified, under current proposals, as housing with a ‘rural character’ and larger than average gardens. It is with some incredulity we note the applicant’s assertion that this area would not be suitable for school playing fields, due to aircraft noise. Residential uses with gardens have the highest degree of sensitivity to aircraft noise and the most stringent controls regarding proximity to flight paths in planning policy and decision-making. In assessing this issue, Newcastle City Council intends to apply a condition restricting the location of properties with gardens with noise levels over 55 dB, which relates to an area in the north-west section of the site. We have seen documentation showing noise contours that sweep across the extreme northern boundary of the site and this certainly does not preclude the location of playing fields in the area denoted as ‘Alternative 3’ by the applicant. The applicant refers to an attached plan that does not appear to have been uploaded to the public access system. We would be grateful if you could ensure this is made publicly available at your earliest convenience.
It is irrational and flawed to suggest playing fields in this location would damage the ‘cognitive development’ of school children on one hand, but would be perfectly suitable for housing with gardens on the other. This implies the ‘cognitive development’ of children residing in the proposed housing would be similarly impaired, when playing in gardens. The applicant refers to BB93 ‘Acoustic Design of Schools Performance Standards’ and quotes Section 2.2, which refers to noise levels in unoccupied playgrounds, playing fields and other outdoor areas. There are a number of points to be made in relation to the contents of BB93, as follows:
– It provides a regulatory framework for the acoustic design of school buildings, NOT external spaces such as playing fields
– Requirement E4 does not apply to noise levels in outdoor spaces and these are NOT enforceable under Building Regulations
– It has only an advisory role in relation to noise affecting external spaces and cannot be prescriptive
– Playing fields generally have a low sensitivity to background noise
– Acoustic screening from walls, fencing and buildings can be used to protect external teaching spaces from noise
The applicant provides further guidance to officers on noise in the document prepared by Temple, entitled ‘Response to proposed planning conditions – Noise’. A significant part of this document was copied verbatim in the supplemental officer report for the planning committee of 12th January 2018. At paragraph 32 the Temple report refers to a recent High Court judgment which it says states, with regard to WHO guidelines and BS223:2014, that:
‘The Court should be particularly wary about approaching such documents legalistically and should treat them broadly as documents produced by organisations seeking to offer technical advice and guidance’.
It is, therefore, irrational and flawed to assert that BS93 should be given substantial weight, but then seek to downplay relevant noise guidance in respect of the housing development, asserting that it should not be ‘slavishly followed‘. BS93 is not a material consideration as it does not apply to outdoor spaces. If the council considers BS93 a barrier to the implementation of CSUCP Policy NN4, as adopted, this approach would be completely unfounded and open to legal challenge. Neither the council nor the applicant have referred to the need to assess noise affecting internal spaces relating the school, which is indeed a material consideration.
Relationship of School Site in Cell A with Cell B1
The applicant refers to a ‘synergy‘ between Cell A and B1, which we strongly refute. Land to the west of the proposed school in Cell A is more appropriate for sports pitches, as school facilities would form a singular, contained site. This points to the area denoted as ‘Alternative 3’ by the applicant as the most suitable location.
We would also raise concerns about the Strategic Route (paved pedestrian and cycleway), which is proposed to dissect the narrow shared boundary between Cell A and B1. Reference to the MDAS submitted with the application shows a series of hard-surfaced PE areas (MUGAs) to the east of the school buildings, which this access road would also need to traverse. There is no documentation to evidence how such a road could be provided through the school site to Cell B1 for access to the proposed playing fields. This raises a number of important safeguarding issues, none of which appear to have been taken into account by council officers. Children would have to cross public land in the form of a Public Right of Way (PROW) to get to and from school playing fields. It would, therefore, not be possible to ensure school security and safeguarding, as users – including pupils, teachers, visiting teams and their teachers, members of the public using the facilities outside of school hours – would need to open and then secure two sets of gates when leaving the school site and accessing playing fields. Users would not be arriving and leaving as a group at the same time, thus causing problems with securing the gates at multiple times during the school day. This would also conflict with users of the PROW (including cyclists travelling at speed), as large groups of children would be crossing the PROW on a regular basis. Additional concerns would be issues of security, as community use of playing fields out of school hours would require members of the public to enter the school site to access the sports pitches. Vehicular access would be a wasteful use of school land, being a lengthy single-use road that would continue for a considerable length along the southern boundary of Cell B1. Surveillance from the school to the playing fields would not be possible.
In contrast, ‘Alternative 3′ would be in close proximity to the school buildings. We estimate it is some 250 metres from the proposed school buildings to the proposed playing fields in Cell B1, which would not only inconvenience users, but would waste teachers’ and pupils’ school time in travelling between the sites. This issue is also pertinent in relation to any problems or injuries sustained during sports activities, where valuable time in administering pain relief and treatment would be lost due to the distance away from specialist staff in the school building, such as the school nurse.
Such issues would not be tolerated by the schools or the Education Authority and they reflect a wholly impractical arrangement and an unworkable school site. The vehicular and pedestrian route between Cell A and B1 cannot ensure safeguarding responsibilities where the route crosses a PROW and the layout would fail to ensure child safety and the pastoral needs of pupils. We are concerned it is the intention of the council to delete this PROW by way of a ‘minor amendment’ once the major application is approved, which would cause significant harm to accessibility and recreational routes across the NGP area. This would conflict with local and national policies.
There is, therefore, no ‘synergy’ between Cells A and B1. The educational needs of the site development can only be met by the development of a single site on Cell A. Furthermore, the officer report for the planning committee dated 12th January 2018 correctly stated that the irregular shape of Cell B1 has implications for the layout of the pitches. In contrast, development of ‘Alternative 3’ would be straightforward with no constraints on layout.
Location of Bus Route and Accessibility to Newcastle Great Park Residents
The location of school playing fields in Cell A would be more accessible to residents than the proposed location in Cell B1, contrary to the applicant’s assertion. It would entail a shorter and easier route and to suggest otherwise is irrational and flawed. The applicant dismisses ‘Alternative 1’ on the basis the bus route is a fixed constraint. This is an outline application and the bus route could easily be redirected by the varied S106 legal agreement. Existing and proposed PROWs at NGP have been diverted or lost completely in the same way, therefore, there is no valid reason why a similar variation cannot be made in respect of the bus route. ‘Alternative 3’ provides the most appropriate location for playing fields, in meeting educational requirements, providing accessibility for all users and in order to address all material planning policy requirements.
Location of Pavilion Building, Access and Car Parking
All proposals for Cell B1 represent inappropriate development in the Green Belt, which cannot be justified by very special circumstances, but there are several other points to note.
If vehicular access is to be provided as shown, an excessively long access road would cut through a tree belt/grassland for some considerable distance along the southern boundary of Cell B1. The environmental cost of this amendment has not been included in the revised information submitted by the applicant. Furthermore, the proposed pavilion building location would be located a considerable distance from pedestrian access to the site and would be unworkable. This, in no way, serves to minimise harm to openness of the Green Belt and character of the countryside.
It would appear the only reason for the proposed location of the pavilion so far away from the school is because it is intended to locate a separate vehicular access to the site via the Letch to the east of Sage. It is highly improper to put forward an unworkable layout on the basis that further piecemeal incursion of the Green Belt would be approved at a later date. Officers must ensure all information, as submitted with this application, demonstrates a sound basis for the operation of the school facilities. This is no evidence of this at present.
The applicant states the access road would be used only for emergency, maintenance and disabled access. If this is indeed the case, there would be no requirement for six parking spaces. Such spaces would likely be used on a regular basis by, for example, visiting school teams and the community, as it would be unreasonable to expect users, including visiting teams and community users, to walk the entire length of this route to access the changing rooms. It would therefore not be possible to enforce use only for emergency, maintenance and disabled access. Officers must be open and transparent regarding the needs of the Education Authority in conjunction with the community use and resolve all issues at this stage.
Harm to the openness of the Green Belt and the purposes of including land within it, is further demonstrated by the proposed location of the pavilion building. Locating the building so far from the school site and the pedestrian access from the school would be irrational and flawed. The proposed building would be an isolated structure in the Green Belt and this cannot be justified against national and local Green Belt policy.
Playing fields would be intensively managed and require on-site provision of a building to house a grass-cutting tractor, mowing machinery and rollers, however, there is no proposed location for such a building. We would request details of the location and size of the building required to house grass cutting tractor and related equipment, as well as clarification as to whether the running track is proposed to be hard-surfaced or grassed. We would also request clarification of the term ‘Sporting Hub’, as to whether this additional use other than specifically for the schools and a community use agreement.
We trust the above issues will be taken into account when determining this application and look forward to receiving further details, as requested.
Save Newcastle Wildlife
Pre Action Protocol Letter for Judicial Review: 2017/0666/01/OUT 22 March 2018
Assistant Director of Planning Place Directorate
Newcastle upon Tyne
Dear Ms Lawless,
PRE ACTION PROTOCOL LETTER FOR JUDICIAL REVIEW IN RESPECT OF APPLICATION REFERENCE 2017/0666/01/OUT – Outline Planning Application (amended proposal): Development of 66.55 ha of land comprising up to 1200 dwellings, education provision for primary and secondary aged children, playing fields and changing pavilion, ecological enhancements and habitat creation, public open space and associated Infrastructure.
Site – Cell A and B1, Newcastle Great Park, Brunton Lane, Newcastle
PART 54 – CIVIL PROCEDURES RULES
This is Save Newcastle Wildlife’s letter before claim pursuant to the CPR Judicial Review Pre-Action Protocol. This letter uses the standard format found in Annex A to the Pre-action Protocol. It is appropriate to challenge the lawfulness of this decision because Newcastle City Council has made some basic, yet fundamental, material errors in the decision making process. The Council has misinterpreted and misapplied the National Planning Policy Framework (NPPF) and its own development plan policies. It has also failed to take into account other material considerations, which should have been given significant weight.
We ask you consider the contents of this letter and comply with the requested steps forthwith. We would be grateful if you could acknowledge receipt of this letter in writing.
DECISION TO BE CHALLENGED
The proposed Judicial Review claim is to challenge the Council’s decision to be ‘minded to grant’ outline planning permission for the proposed development of 1,200 dwellings, primary and secondary schools provision (at Cell A) playing fields and associated infrastructure (at Cell B1) at Newcastle Great Park (NGP). The Committee resolution was made on 12th January 2018.The decision notice is pending the completion of a S106 legal agreement.
The claim would be appropriate for allocation in the Planning Court, where we would seek a Quashing Order, subsequent to the formal decision of the Council.
Save Newcastle Wildlife
Newcastle City Council
PROPOSED INTERESTED PARTIES
Mr David Abercrombie, Newcastle Great Park Consortium
CLAIMANT’S LEGAL ADVISORS
To be appointed to submit the claim form (N461) and to provide our representation for the court case, following the defendant’s response to this letter.
DETAILS OF THE MATTER BEING CHALLENGED
The Council failed to take into account, misinterpreted and/or misapplied material considerations which should have been afforded significant weight. As a result the officer report (OR), and verbal presentation to Committee misled the Committee as to the correct interpretation of planning policies; the subsequent decision of the Council was fundamentally flawed and unlawful. If the Council had acted lawfully and made a proper assessment of the application, it is highly likely the Committee would have resolved to refuse the application, or defer it to seek major amendments.
PROPOSED GROUNDS OF CHALLENGE
On the information currently available, the following are likely to be our grounds for challenging the decision. We reserve the right to add to or amend these grounds in the event that you do not consent to judgement and a claim is subsequently brought.
GROUND 1 – MISINTERPRETATION AND/OR MISAPPLICATION OF NPPF GREEN BELT POLICY
i) Misapplied ‘Very Special Circumstances’ for Green Belt development
The Council sets out a ‘very special circumstances’ (VSC) case in the OR for inappropriate development in the Green Belt, which is both fundamentally flawed and wholly irrational. There can be no arguable VSC case in respect of this application.
The Council has failed to identify any material considerations to outweigh the harm caused by inappropriate development in the Green Belt, and in so doing has misapplied national Green Belt policy in Section 9 of the NPPF. The OR is silent on the need to provide a robust planning justification for the additional 320 dwellings, in excess of the development plan allocation at Core Strategy and Urban Core Plan (CSUCP) Policy NN4. If acting lawfully, this would be essential to demonstrate that the ‘benefits’ of the uplift outweigh the harm it would cause. The Council cannot justify the uplift in housing numbers, because the additional dwellings are not required during the Plan period up to 2030, and the Council has successfully identified a five year supply of housing land. In the absence of any material considerations to outweigh Green Belt harm, the decision of the Council is unreasonable and unlawful.
If the Council had required an amendment to the application to reduce housing numbers to the development plan allocation, the harm to the Green Belt from the current proposal could have been avoided. The playing fields and associated infrastructure could then be easily incorporated into a lower density Cell A. If acting lawfully, the Council would have required this amendment, in the light of a proper and rigorous VSC test. For this reason the perceived benefits of the school development are irrelevant and the Council erred in attaching significant weight to the school’s playing fields proposed location in the Green Belt. The Council should have assessed the proposal as failing the VSC test.
The Council has also failed to address the need to take into account ‘any other harm’ in its VSC case, as required by Paragraph 88 of the NPPF. Decided case law confirms that ‘any other harm’ encompasses a requirement to address other material planning issues in the VSC case (SSCLG, Reigate and Banstead BC, and Tandridge DC  EWCA Civ 1386, Sullivan, LJ). Material planning considerations relevant to the Green Belt development include landscape character, openness, biodiversity, parkland and visual amenity issues. These material considerations should have been weighed in to the test. If the Council had done so, it is highly likely that it would have reached a different conclusion as to the merits of the VSC case.
The OR acknowledges the playing fields, pavilion, fencing and indicative access are inappropriate development in the Green Belt, which is by definition always harmful, as stated in Paragraph 87 of the NPPF. The Council must therefore give substantial weight to any harm to the Green Belt which would be caused by the proposal, as required by Paragraph 88 of the NPPF. The OR fails to demonstrate substantial weight has indeed been applied. If officers had done so, the only logical conclusion would again be to reduce the housing numbers to the development plan allocation, to avoid Green Belt incursion. The Council’s assertion (at Paragraph 119 of the OR) that the housing numbers, some 36% above the approximate number required at CSUCP Policy NN4, are unrelated to the proposed inappropriate development in the Green Belt, is perverse. The housing development is part of the same application and all associated land is within the control of the applicant.
The consultation draft of the revised NPPF has very limited weight as a draft, but proposes revisions to Paragraphs 89 and 90 to refer to certain material changes of use. Importantly, such changes of use would require that openness must be preserved, except in very special circumstances. The OR acknowledges the development associated with the playing fields would not preserve the openness of the Green Belt (at Paragraph 117) and it is therefore inappropriate development, regardless of the extent of the harm. Decided case law (R (Boot) v Elmbridge BC  EWHC 12 Admin, Paragraphs 34-40) confirms that a development cannot ‘preserve’ the openness of the Green Belt where it causes any harm to openness, even where that harm is assessed as being minor.
ii) Failure to assess impact on openness of the Green Belt
The concept of openness is known as the absence of buildings or any other form of development. Openness is ‘open textured’ and a number of factors are capable of being relevant when it comes to applying it to the particular facts of a particular case (Turner v SSCLG  EWCA Civ 466). The Council has failed to take into account that openness has a spatial aspect as well as a visual aspect, and several planning considerations should have been taken into account in applying it to the proposal.
Instead, the Council referred only to the meaning of openness as narrowly defined as ‘visual openness’ without even properly assessing this element. The OR should have included an assessment of the impact on the following: Viewpoints from public vantage points adjacent to the site; the siting of the proposal in the topography of the landscape; the relationship with the adjacent office building to the south and how this affects the need for an identifiable Green Belt boundary; the extent to which the site has any development on site at present and how the development would impinge on that existing lack of development; how built up the surrounding locality is; and, the relationship to the village developments of Hazlerigg and Brunswick to the North and how this impacts on the need for an identifiable Green Belt boundary.
If the Council had understood the meaning of openness, it is highly likely it would have concluded the development would have a substantial adverse impact on openness. The Council’s conclusion is that the impact on openness of the proposed security fencing, enclosing some 6.55 hectares of land, would be ‘minor and not adverse’ (Paragraph 117) is irrational, illogical and fundamentally flawed. The Council failed to assess the impact of the physical imposition of thousands of metres of security fencing which would result in an emphatic delineation of the site. If the Council had made a proper assessment, not only in terms of the assessing openness in its visual and spatial sense, but also in terms of landscape character, it would have concluded that the harm to these material considerations is adverse to a substantial degree.
In addition the Council wrongly assumes the principle of the fencing can be dealt with by condition or by a reserved matters application (Paragraph 116 of the OR). This approach is unlawful, and the principle must be addressed at the outline stage. The issue is integral to an assessment on harm to intrinsic openness and is not a matter that can be addressed later, as the principle has to be accepted or refuted at the outline stage. It is unlawful to state (Paragraph 106 of the OR) that the fencing may be acceptable in principle. As the fencing is for school safeguarding purposes it would, at best, represent 2 metre high, wire mesh security fencing and the proposal should have been assessed on that basis.
The application includes plans for approval that include a car park and turning area, which are not assessed in the OR in terms of their impact on openness, nor elsewhere in the report in relation to landscape character. This is despite the relevant ‘parameters plans’ showing the car park and other hard standing areas to the southeast of the indicative pavilion building. The OR states (at Paragraph 24): ‘Should planning permission be granted for the development, these plans would form part of the approved plans and the site would be developed in accordance with them and the reserved matters would be based on them’.
If the Council had acted lawfully and assessed the car park and associated hard standing, it is highly likely it would have concluded that these developments would fail to preserve openness. Extensive areas of hard standing and the regular coming/going and parking of vehicles would introduce a further urbanising element into the Green Belt, but this has not been taken into account by the Council.
If it is the Council’s intention to submit a separate application for these developments once the principle has been established by the current proposal, this is a clear example of the Green Belt ‘suffering death by a thousand cuts‘, thus inflicting numerous inappropriate developments, which cumulatively would destroy the characteristics of permanent openness that the NPPF seeks to preserve (Timmins v Gedling BC  EWHC 654 (Admin). The pavilion could not function without a vehicular access or the car park; it is unlawful to approve the pavilion on its own at the outline stage, without a proper assessment of the impact of its associated infrastructure.
iii) Illogical and irrational assessment of benefit of school playing fields.
The Council justifies Green Belt development for school playing fields at Cell B1 on the basis of providing exercise opportunities, above and beyond its value as parkland (Paragraphs 105,108 and 109). This is untenable and unreasonable.
The Council’s Play Pitch Strategy states that the creation of community access to school pitches equates to just one additional match session per pitch available, per week. The Council also recognises that grass sport pitches should ideally be located in parks as a multi-functional and fully publicly accessible resource (City of Newcastle Public Green Space, Sports and Recreation Needs and Opportunities 2009). The Council failed to take into account that managed access to school sites would be of very limited value to NGP residents and would benefit only a handful of users who partake in team sports. The value of the area as parkland has much wider benefits, for a much greater proportion of the population, for all age groups, who would regularly use the site for a variety of outdoor recreational pursuits.
The OR’s assessment that school playing field use, with prohibited public access, would bring greater health benefits to residents is unfounded, illogical and irrational. Extensive research shows access to natural green space for fresh air, exercise and tranquillity has the most benefit for physical and mental health; reducing heart disease, obesity and depression, especially where it is closely accessible to people’s homes. The OR fails to provide any evidence to show that the infrequent (once weekly) use of the playing fields by a small section of the community would outweigh the site’s value as parkland for the whole community.
iv) Misapplication and/or misinterpretation of Paragraph 81 of the NPPF
The OR refers to Paragraph 81 of the NPPF, to justify the harm caused to the Green Belt by inappropriate development of school playing fields:
‘Once Green Belts have been defined, local planning authorities should plan positively to enhance the beneficial use of the Green Belt, such as looking for opportunities to provide access; to provide opportunities to provide outdoor sport and recreation; to retain and enhance landscapes, visual amenity and Biodiversity; or to improve damaged and derelict land’.
The Council has misunderstood and misapplied Paragraph 81 and must consider the paragraph as a whole, and indeed Section 9 as a whole, in assessing the weight to be given to any perceived benefits and any harm caused by the proposal. If the Council had properly understood the meaning of this paragraph, it is highly likely it would have concluded that the development would have a substantially harmful and negative impact on all the beneficial uses referred to at Paragraph 81. Cell B1 already provides all of the benefits listed, and would be enhanced further by the completion of the extant landscaping scheme, which should have been implemented fully 15 years ago, as ecological compensation for the nearby Cell B NGP developments.
GROUND 2 – MISINTERPRETATION AND/OR MISAPPLICATION OF NPPF OPEN SPACE POLICY
The OR refers to the third indent of Paragraph 74 of the NPPF and concludes the proposal would comply with this requirement for the development of open space (at Paragraph 338), however, the Council has misunderstood Paragraph 74 in assessing the application. The Council has wrongly assumed the extant use of Cell B1 as parkland is a similar function as the proposed use as school playing fields.
The Courts have held that the indents of Paragraph 74 deal with publicly accessible open space separately to opportunities for sports and recreation (Loader v Rother DC  EWHC 1877 (Admin) paras 68 – 71). At Paragraph 69 the Judgment reads:
‘In my Judgment the paragraphs are dealing with public access to high quality open spaces, and separately, opportunities for sport and recreation. Open space is clearly intended to mean something different from Sports and Recreation facilities in the local area as it is itemised separately. Assessments to be carried out are both quantitative and qualitative and in relation to open space and sport and recreation.’
The Council erred in failing to assess the loss of open space at Cell B1 against either the first or second indents of Paragraph 74. The third indent is not relevant, because of the functional differences in the proposed change of use to school playing fields.
The first indent of Paragraph 74 refers to the need for an open space assessment to demonstrate that the land in question is surplus to requirements. In this case the Council failed to take into account its own up-to-date open space assessment (Newcastle Open Space Assessment 2016 – 2030), which forms part of the evidence base of the draft Development Allocations Plan (DAP). This document shows there is a severe deficiency in Parks provision in the Castle Ward, in which the application site lies, equating to 8.06 hectares (Appendix 5, Priority sites by Ward).
The deficiency in parks provision would be exacerbated by the loss of 6 hectares associated which the change of use to school playing fields, and an increasing population in the surrounding area. In contrast, the open space assessment shows there is a surplus of outdoor sports pitches equating to 3.49 hectares in Castle Ward. If the Council had made a proper assessment against the first indent of Paragraph 74 of the NPPF, it would have concluded the proposal is in conflict with national advice therein and that this issue should be given significant weight. The Council would also have concluded there is no demonstrable need for playing fields to serve the wider community, which clearly does not outweigh the need for parkland.
There is no analysis in the OR as to the value and quality of the open space proposed to be developed at Cell B1, not only in terms of the existing provision, but also its potential value with a completed landscape scheme. The Council should have taken into account the existing benefits of the area in providing a tranquil space with countryside character and opportunities for passive recreation. Nor has the Council made any assessment as to the impact on the local community that would be caused by the loss of Cell B1 parkland, as required by indent 1 of Paragraph 74 of the NPPF.
The NPPF, at Paragraphs 76 and 77, refers to the special attributes of open space provision in its own right. The proper interpretation of Healthy Communities, in Section 8 of the NPPF, makes clear that any organised sports recreation is a separate category, which cannot directly offset the loss of open space.
The second indent of Paragraph 74 refers to the need to demonstrate that the loss resulting from the proposed development would be replaced by equivalent or better provision in terms of quantity and quality in a suitable location. In this case, there is no alternative parkland provision proposed, and the application would clearly fail this test, if the Council had sought to apply it.
The Council justifies loss of ‘access’ to the site on the grounds that it is for alternative sports and recreation provision, the need for which outweighs the loss (Paragraph 338 of the OR). This is an unlawful interpretation of the third indent of Paragraph 74 of the NPPF, on which the Council’s justification for approval is predicated. It is, therefore, clear that the Council’s conclusions on this significant issue are seriously flawed. A proper assessment would have reached a conclusion of substantial harm to open space provision for the local community, which the Council failed to take into account in its decision.
As part of the proposed ecological mitigation for the development of the Cell A and B1 sites, the OR states nearby Strategic Open Space associated with the wider consent for the NGP (Cell C3) would be used as enhanced habitat for farmland birds. This land is subject to a trigger for its completion as parkland associated with the development of the adjacent Cell C housing site. This trigger has already passed, but the landscaping scheme has not yet been implemented or indeed approved. The farmland bird mitigation for Cell A and B1 includes the enclosure and restricted public access of 8.5 hectares of parkland at Cell C3. The Council also failed to address the impact on accessibility to parks provision that would be caused by the loss of this significant tract of land to the community. The Council made another material error in this regard, and should have assessed the loss of open space by applying the first or second indent of Paragraph 74, in the same way as the area proposed for school playing fields at Cell B1.
GROUND 3 – FAILURE TO TAKE INTO ACCOUNT NPPF BIODIVERSITY POLICY
In accordance with Paragraph 118 (first bullet point) of the NPPF, planning permission should be refused if significant harm cannot be avoided (through locating on an alternative site with less significant impacts), adequately mitigated or as a last resort, compensated for. The Council has misinterpreted this NPPF advice at Paragraph 233 of the OR, and omitted any reference to the need to look at an alternative site, less environmentally damaging site, for the playing fields. This should have been the first step in assessing the proposed development of Cell B1, in accordance with Paragraph 118 of the NPPF.
It was open to the Council to seek an amendment to the application to reduce housing numbers so playing fields could be accommodated on Cell A, as required by CSUCP Policy NN4 (and as per Green Belt and Open Space issues set out above). In so doing, the playing fields would have had a less significant impact on the environment. In the absence of this amendment, then, in accordance with Paragraph 118 of the NPPF, planning permission should have been refused, due to the significant harm caused to wildlife by incursion into Cell B1. The Council failed to take into account the meaning of Paragraph 118 of the NPPF which is a material error, and one that should have been given significant weight.
GROUND 4 – MISAPPLICATION AND/OR MISINTERPRETATION OF NPPF SUSTAINABLE DEVELOPMENT
The Council has failed to adhere to the Sustainability principles set out at Paragraphs 6 – 17 of the NPPF, which underpin the entirety of the NPPF. As there are no material considerations to outweigh the development plan, the proposal should have been refused, in accordance with Paragraph 12.
The OR fails to demonstrate that the Council has applied the core planning principles set out at Paragraph 17 in determining this application. The first bullet point refers to the need for planning to be genuinely Plan-led, and that local plans should provide a degree of predictability and efficiency in decision making. This decision is not plan-led. The fifth point relates to the need to take account of the roles and character of different areas, protecting the Green Belt and recognising the intrinsic character and beauty of the countryside; the seventh point goes on to say that planning decisions should contribute to conserving the natural environment; the ninth point refers to the requirement to recognise that open land can provide for many functions, such as for wildlife, recreation and flood risk mitigation. The OR was defective in failing to reconcile these requirements with the need for a sustainable development.
If the Council had taken account of these considerations, it is highly likely it would have reached a different judgement and concluded the environmental dimension of sustainable development could not be met by the proposal.
GROUND 5 – FAILURE TO TAKE INTO ACCOUNT/MISAPPLICATION OF RELEVANT POLICIES OF THE LOCAL DEVELOPMENT PLAN
Section 38 (6) of the Planning and Compulsory Purchase Act 2004 requires Local Authorities to determine applications in accordance with their development plan unless material considerations indicate otherwise. Accordingly they must consider whether proposals are in accordance with all relevant policies in those plans. The decision maker must properly interpret the plan and decide whether the proposed development accords with the plan.
In this case, the Council misinterpreted and/or misapplied the following development plan policies:
i) CSUCP Policy NN4 (1.i, 7iii, 7ix and 7xii)
Paragraph 89 the OR accepts the significant rise in housing numbers is a departure from Policy NN4, but states the principle of the additional dwellings is not necessarily unacceptable, so long as a sustainable form of development ensues, which is in accordance with relevant development plan policies. At Paragraph 93 the OR states the principle of the housing use is in accordance with Policy NN4. If acting lawfully, the Council would have acknowledged the true position: that the proposal conflicts with Policy NN4 and that the application must therefore be refused, unless material considerations outweigh the development plan. There are no such material considerations. The OR is therefore seriously misleading, from the outset of the assessment.
The OR fails to explain the proposed location of the school playing fields in Cell B1 is entirely discordant with Policy NN4, which allocated Cell A for both the housing allocation and all school facilities. The OR is misleading in stating that Cell B1 is not covered by Policy NN4. The supporting text of Policy NN4 (Paragraph 16.106) sets out that developments must respond to existing consents in the wider NGP, of which Cell B1 does form part, as approved and designated parkland. The same paragraph refers to the need to take into account the relevant parts of the NGP Master Plan Supplementary Planning Guidance (SPD), 2006, which also identifies Cell B1 as parkland. The Council failed to take into account policy NGP27 in the SPD, which states, inter alia, that landscape principles shall include the creation of attractive but functional interconnected and fully publicly accessible areas for varying types of recreation.
The Council asserts (at Paragraph 330 of the OR) the use of land for playing pitches with restricted access may in principle be compatible with the land use allocation as open space. This is ill-founded and wholly discordant with the extant consent, its S106 legal agreement and Policy NN4. In failing to reach an informed and proper judgement, officers have misled the Committee and downgraded the importance of this crucial issue.
The OR does not return to Policy NN4 until the conclusion. At Paragraph 546 it states ‘where the application site bounds the Green Belt, existing planting is proposed to be maintained or new planting is proposed to provide a buffer with the Green Belt’. This is incorrect and constitutes a material error. The plans that would be approved as part of the application show significant losses of trees and hedgerow planting along the southern boundary of Cell B1. This would be exacerbated by further incursions caused by new pedestrian and vehicular accesses, cutting through existing planted areas; the Council has failed to assess the impact of these proposals on the existing planted area.
A significant swathe of existing landscaping would need to be removed to facilitate a pedestrian access from the school site in Cell A to the proposed playing fields in Cell BI, but this is not assessed in the OR in relation to Policy NN4(viii), which requires a strong and identifiable Green Belt boundary. This is a serious and material error in judging conformity with this element of the policy. We have already set out the reasons why the Council has acted unlawfully in failing to assess the impact on the Green Belt of the proposed vehicular access serving the pavilion. This conclusion is repeated in relation to consideration of the proposed vehicular access/car park against Policy NN4 (viii), in relation to the loss of a strong and identifiable Green Belt boundary that would be caused by urbanising development. The Council does not consider the impact of the physical imposition of the new development at Paragraph 546 of the OR.
Similarly, a proper assessment of Policy NN4(ix) has not been undertaken. This requires that important trees and hedgerows, and areas of ecological and landscape importance, are retained and enhanced. It is irrational and illogical to assert that this policy has been complied with, given significant losses of landscaping at Cell B1. It must be reiterated that the incursion into Green Belt at Cell B1 would not have been necessary if the proposal adhered to the policy requirements and housing numbers allocated at Policy NN4.
It is also incorrect to state that ecological enhancement at Cell C3 provides mitigation for any losses across Cell A and Cell B1. This area of land is already identified as Strategic Open Space and is designated as protected open space in the extant and emerging development plan. Its implementation as parkland and ecological enhancement should have already been implemented in relation to a trigger in the S106 legal agreement for new housing in Cell C. This remains outstanding only because the Council has not sought to enforce its implementation. It is unlawful to refer to mitigation requirements focussed in this area, when works are already required in relation to a separate consent. If acting lawfully, the Council would have required compensatory works in other nearby locations within the control of the applicant, but outwith the boundary of the extant consent for the NGP. The OR was significantly misleading to Members by failing to refer to the extant consent for a landscaping scheme relating to Cell C3.
Paragraph 550 of the OR refers to the need for open spaces to include access to informal and formal recreational areas (xii of NN4), but fails to recognise the requirement for parks provision associated with the development
- ii) CSUCP Policy CS1
The OR fails to assess the application against Policy CS1 (8iii), which states development should be well designed to promote community cohesion, well being and to reflect and enhance an area’s character and natural environment. At Paragraph 93 the OR states the principle of housing and educational development is acceptable in relation to Policy CS1, but does not take into account the requirements of the policy. The unnecessary incursion into the Green Belt that would be caused by development cannot accord with these requirements for sustainable development as set out at Policy CS1. The Council erred in failing to interpret CS1 correctly.
iii) CSUCP Policy CS19
Policy CS19 states the Green Belt will be protected in accordance with national policy to, inter alia, safeguard the countryside from encroachment and to check unrestricted urban sprawl. The OR fails to assess the proposals in Cell B1 against these requirements. If the Council had done so, it would have recognised that these proposals would have an urbanising effect on the Green Belt. Development would be extended to a point beyond where the urban edge is presently clearly defined by the office building to the South. The Council erred in failing to address the physical impacts of developing the site and how this affects the purposes of including Cell B1 within the Green Belt, as required by CS19.
- iv) Saved UDP Policy OS1.2The Council has failed to address the need for parks provision as part of this application, as required by Policy OS1.2 (A). This material error was brought to the attention of officers in our representations dated 11thJanuary 2018, and a verbal response was made at the Committee meeting. This officer wrongly inferred the Local Nature Reserve (LNR) at Three Hills would provide an alternative location for residents to use as parks provision. The LNR is however a separate category of open space which serves a different function, and is clearly defined as such, being separately listed in relation to (E) of OS1.2.The LNR would also sit outside the accessibility standard for parks (0.5 km for most residents), for the majority of Cell A and Cell C residents, even if it were deemed to function as parkland. As an LNR the area does not provide a reasonably flat, amenity grassed area for a range of informal sports and activities which is a basic requirement of parks provision.
The Council made no assessment of the role and function of existing parkland at Cell B1 and C3, and how its loss as publicly accessible open space would affect the community, or indeed the availability of parks in the ward as a whole. This represents a significant error on a material issue that should have been given substantial weight, and demonstrates that OS1.2 (A) has not been taken into account.
- v) Draft DAP Policy DM30The relevant policy of the emerging development plan, DM30, also clearly defines Parks as a separate resource to natural green space. Parks and Recreation Grounds (public) are subject to their own bespoke standards, which should be applied to major housing proposals (0.80 ha per 1000 population) and an accessibility standard of 15 minutes walk or 720 metres from home (Table 1 and 3, page 67 and 70). These standards are gleaned from the Council’s own comprehensive Open Space Assessment (2016-2030), which forms part of the evidence base of the DAP. Thresholds for provision are provided at Table 2, Page 70 of the DAP, and states that on site provision of Parks and Recreation Grounds should be sought for developments of 100 dwellings or more. Importantly, these standards are separate from standards for amenity green space or natural green spaces.Whilst the standards in the draft DAP have been subject to representations (due to lower standards when compared to the UDP standards) the actual definitions of specific provision (and the principle of specific standards for each) are undisputed and should therefore have been given some weight in determining the application. The Council failed to refer to Policy DM30 or the special categorisation of open space resources therein. Had it done so, the Council would have recognised the needs of both existing and proposed housing in terms of the impact of the loss of existing parkland and the failure to address the need for new parks provision to serve the proposed housing on-site. This is a material error that has resulted in an unlawful interpretation of the categorisation of open space resources, as set out in the DAP.
- vi) Saved UDP Policy OS1.4, OS1.5Policy OS1.4 states development which would cause demonstrable harm to any public open space will only be allowed in exceptional circumstances. The OR fails to assess the harm against the criteria A – G and the policy is not listed as relevant to the consideration of the application (Paragraph 72). If the Council had acted lawfully and assessed the proposal against Policy OS1.4, it would have recognised the value of Cell B1 in relation to criteria A, C, E, F and G. All these criteria should have been taken into account in assessing the degree of harm caused by the proposal.Policy OS1.5 lists the exceptional circumstances where development affecting an open space may be allowed. The OR refers to this policy at Paragraph 338 and states the pitches on Cell B1 will provide a local community facility and have a community benefit, and would therefore comply with Policy OS1.5. The Council has made a material error in misinterpreting the meaning and requirements of the policy. It is not clear from the OR which criteria the Council is misapplying (A,B,C or D). It seems likely from the reference to a ‘local community facility’ and ‘community benefit’ that B or D are being misapplied by the Council. Either approach is fundamentally flawed because the playing fields could have been relocated to Cell A as an amendment to the application (if applying criteria B) and there is no alternative provision of parkland (if applying criteria D).
vii) Saved UDP Policy NC1.1, relating to NC1.3 and NC1.4
The southern part of Cell B1 is defined as an LNR, and is protected as such by UDP Policies NC1.4. At Paragraph 239 the OR states this designation appears to be an error in the drafting of the proposals map, as the site would not have had any public access at that time and would have been arable land. This stance is flawed and unreasonable.
In terms of the LNR designation, the UDP makes clear that the designation is a proposal that would require implementation during the Plan period (Policy NC1.4 and its accompanying text). The NGP was agreed in principle by the Inspector at the UDP Inquiry on the basis that significant ecological enhancement and a tree belt were planted in a swathe across the northern boundary of the NGP, as accessible parkland and compensatory ecological measures, associated with the development.
The assertion in the OR relies on the flawed assumption that an LNR needed to have public access prior to designation. The Cell B1 LNR extension is clearly a proposal, which therefore did not need to justify its designation on the basis of its existing value at the time of the UDP adoption. As part of the justification for the release of land from the Green Belt at that time, Cell B1 was identified as having the most potential to support Havannah and Three Hills designated sites.
The Havannah Management Plan 1995 (Map 3) shows the relevant area of Cell B1 as a tree planted area, reflecting the UDP Policy that the area is proposed as an extension to Havannah and Three Hills LNR. The UDP, at Paragraph 4.132, states the LNR boundaries in some cases are slightly wider to accommodate land required for proper management, which would further support the proposed extension of the LNR into Cell B1.
If the extant landscaping scheme had been lawfully implemented 15 years ago, the central and northern areas of Cell B1 would have provided specific habitat for Dingy Skipper, a rare species of butterfly. Any site that supports a population of this species automatically meets the designation criteria for a Local Wildlife Site (LWS), therefore the proposed development of the entire B1 site should have been assessed against the criteria contained in Policy NC1.4, as its status should lawfully reflect this designation.
The OR (at Paragraph 239) is incorrect in stating that the DAP draft policy is considered to be the more up to date policy in relation to Cell B1. The DAP biodiversity policies have been the subject of representations at the draft stage and further representations will be made by Save Newcastle Wildlife at the next consultation stage regarding the relevant designations of Cell B1. As such, the proposed changes in the draft DAP carry minuscule weight and it is the UDP which represents the adopted policy. The Council has made a material error in downgrading the importance of extant policy.
viii) CSUCP Policy CS15 (i) and Saved UDP Policy EN1.1
Policy CS15 refers to the need for development to respond positively to local distinctiveness and character. The accompanying Paragraph 12.16 states the relationship between a proposed development and local topography and landscape is very important. It states that views provide a distinctive feature of the area and that they need to be respected and maintained.
Policy EN1.1 states development should meet high standards of design and have regard for site features including landform and landscape.
The OR fails to address the need to assess the impact of the development of Cell B1 on its landscape character and appearance. There is no assessment of the value of the site at present, which has an essentially rural character and natural appearance. The Council should have assessed the highly perceptible change in character that would result from the change of use from parkland to playing fields, in addition to the impact of fencing and associated infrastructure. There is no assessment of the visibility of each element of the proposal from localised and wider viewpoints. The Council should have addressed the impact on landscape character that would be caused by flattening six hectares of countryside, replacing it with short mown amenity grass and enclosing it with security fencing. It failed to do so and has acted unlawfully in this regard.
- ix) UDP Saved Policy NC1.1 relating to NC1.5 and NC1.7 and CSUCP Policy CS18The OR acknowledges Cells A and B1 contain designated wildlife sites and wildlife enhancement corridors (at Paragraph 238) and the proposal is therefore subject to NC1.1, NC1.5, NC1.7 and CSUCP Policy CS18, however, the Council has failed to take into account the harmful and avoidable impact on the wildlife corridor as it traverses Cell B1 from east to west. It is irrational to assert that the wildlife corridor would be enhanced by the Cell A buffer proposed in a separate location, to the south of Havannah (Paragraph 250 of the OR).Wildlife corridors are defined as an interconnecting network of sites and the links from east to west would be severely curtailed by development in Cell B1, both as a movement corridor for terrestrial species and foraging, breeding and sheltering for all local wildlife. The impact of the proposal should have been assessed against Policy NC1.1 (B), which requires developers to demonstrate why the development cannot be accommodated in an alternative location, which would cause less harm to wildlife. If this policy had been applied, then it is logical to conclude that the playing fields would have relocated to Cell A, thus avoiding harm in Cell B1, with a consequent reduction in housing numbers to the development plan allocation to accord with CSUCP Policy NN4.
We believe this claim falls within Article 9 (3) of the Aarhus Convention, in light of the decision in Venn v SSCLG  1 WLR 2328 (CA), Paragraphs 10 -11, (Sullivan LJ). This is on the basis that the decision concerns the environment, and that the grounds for challenge relate to policy requirements that should protect aspects of the environment, for the community and for wildlife.
Save Newcastle Wildlife is therefore entitled to the costs protection set out in CPR r 45.43. If you disagree that this claim falls within the Aarhus Convention costs regime please set out why in your response.
ALTERNATIVE DISPUTE RESOLUTION
Alternative Dispute Resolution has been considered, but would not be appropriate in this case. The Committee has already been informed of our representations, but these have not been addressed in the decision. The Council’s corporate complaint procedure, or a subsequent Local Government Ombudsman complaint, would not quash the decision on the basis of illegality.
DETAILS OF INFORMATION SOUGHT AND DOCUMENTS REQUESTED AS RELEVANT AND NECESSARY
We seek the following information:
i) Consultation response of the Open Space policy officer
ii) Email correspondence between the case officer/senior officer and the open space policy officer, both prior to and during the application process
iii) Email correspondence between Mick Firth (Senior Specialist Advisor) and Kath Lawless (Assistant Director of Planning)/the case officer/senior planner, both prior to and during the application process
iv) Email correspondence between the applicant and the Senior Specialist Advisor/the Assistant Director of Planning/case officer/senior officer, both prior to and during the application process.
It is our view that the deficiencies in the decision are such that it should be quashed, subsequent to the issue of the decision notice. We would therefore give the Council the opportunity to withdraw the ‘minded to grant’ decision, dated 12th January 2018.
If, however, this is rejected, your PAP response to this letter will need to summarise your position on our proposed grounds claim and provide the correspondence requested. We intend to complete the PAP process in advance of the issuing of the decision notice, to ensure a prompt filing of our claim form subsequent to the formal decision. As previously agreed, we also require notification of the completion of the legal agreement, two weeks before it is signed.
We therefore require the information requested and your substantive response no later than 10th April, 2018.
Save Newcastle Wildlife