Case Officer: Tony Wallace File No: CHE/14/00269/FUL Tel. No: Plot No: 2/1292 Date: 28 th October 2013 ITEM 3

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1 Case Officer: Tony Wallace File No: CHE/14/00269/FUL Tel. No: Plot No: 2/1292 Date: 28 th October 2013 ITEM 3 FAMILY TRAVELLER SITE WITH 2 PITCHES AND ASSOCIATED FACILITIES AT GARAGE SITE, HADY LANE, CHESTERFIELD. S41 0DE for MR JAMES CASH Local Plan: Ward: Open Countryside and Other Open Land St Leonards 1.0 CONSULTATIONS Ward Members Coal Authority Community Safety Officer Derbyshire Constabulary Derbyshire County Council Waste Management Derbyshire County Council Public Rights of Way Team Derbyshire County Council Legal Services Derbyshire County Council Planning Services Derbyshire Wildlife Trust Drainage Services Environment Agency Environmental Services (CBC) No representations received No objection No objection No comments received No objection No objection No comments received No comments received No objection No objection No objection No objection 38

2 Estates (CBC) Housing (CBC) Leisure Services Private Sector Housing (CBC) DCC Highways Severn Trent Water Spatial Planning Team (CBC) Tree Officer (CBC) Yorkshire Water Neighbours/Site Notice/Publicity No specific comments made on the proposal No objection No specific comments made on the proposal No comments received No objection No comments received No objection No objection No objection In totality: 103 letters and s objecting to the development and 1 letter of comment. 1.1 Publicity has been by neighbour letters, site notices and in the local press. The publicity has been carried out under article 13 of the Town and Country Planning (Development Management Procedure) (England) Order 2010, the application being for a minor development. The site address was given incorrectly and so the initial publicity was incorrect. Hence a second round of publicity by letters and site notices was carried out. The publicity included reference to the development affecting a public right of way on the basis of pre-empting designation of the proposed footpath near to the site as a public right of way. The statutory period of consultation and publicity has expired. 2.0 SITE LOCATION 2.1 The site is approximately 1.3km to the east of Chesterfield Town Centre within the ward of St Leonards, within a wider area of open land which is to a greater degree surrounded by existing development, primarily residential in use. This existing residential development consists of Hady to the east and north, and Spital to the south and west. The site is approximately 50m to the west of Hady Lane an unclassified highway 39

3 and minor road from which the site has an existing vehicular access. Hady Lane joins the classified Hady Hill (A632) 500m to the north and Hady Hill links Chesterfield Town Centre to the settlement of Calow and beyond. Hady Hill also serves Chesterfield Royal Hospital which is approximately 1.0km to the north of the site. To the south east, Hady Lane joins Calow Lane, a classified highway linking Calow and Hasland. 3.0 SITE DESCRIPTION 3.1 The application site is approximately 1500sqm in area and sits within a wider area of land at least 25ha in area, designated in the Replacement Chesterfield Borough Local Plan (2006) as a mixture of Open Countryside and Other Open Land, sports pitches and playing fields and wildlife sites. The playing fields are to the north of the site and the wildlife area, a wood to the south west. This wider area of land contains predominantly sports pitches, woods, hedgerows, shrubs and grassed fields, itself being to a greater degree surrounded by existing residential development. The open land connects to allotments and Spital Cemetery to the north west and (bar crossing Spital Lane) to the open land adjoining Spital Brook to the south east. 3.2 The open land is criss-crossed by informal paths, and a designated public right of way runs across the northern edge of the sports pitches approximately 170m to the north of the site (No.118). To the south is designated route 139 running along the former railway line route from Hady Hill to Spital to the west. A proposed public right of way links the two routes referred to above and which runs through land to the west of the application site (No.129). 3.3 Whilst the wider area has designations as Open Countryside and Other Open Land, Sports Pitches and Playing Fields (in the Regulation 22 (1) (b) Submission Policies Map), the designations also cover land containing the following elements of development: Hady Primary School (approximately 310m to the north of the site); A row of three large detached dwellings (approximately 130m to the south east of the site); A landfill gas burner/flare (approximately 280m to the east of the site (a significant part of the open land being a former landfill site); A sports pavilion building (approximately 80m to the north east of the site); 40

4 A disused and overgrown garage court consisting of hard standing and kerbing (the application site) A disused and overgrown parking court to the west of the application site. An area of parking adjacent to a vehicular access which serves the open land. A Local Wildlife Area (as identified in the Council s Green Infrastructure Study) and deciduous woodland. 3.4 There is an existing vehicular access to the wider open land which is situated approximately 50m to the east of the site. It meets Hady Lane at an unmarked T-junction and provides access to the open land, sports pavilion and recycling area. It is also used to provide access to the now disused garage court (application site), the disused parking area and the applicants own land to the west. A section of this access is owned by the Derbyshire County Council and leased to the Chesterfield Borough Council. It is a section of around 17m in length running from the gated access into the unauthorised traveller site to the west of the application site towards Hady Lane. At least half of this section is within the red edged line of the application site. The remainder of the application site is on land owned by the Chesterfield Borough Council. 3.5 The site is a rectangular plot of land enclosed to a degree by a combination of vegetation and fencing. The northern boundary is unenclosed. The eastern boundary of the site is enclosed to a degree mainly by what appears to be Hawthorn trees to an estimated height of at least 3.0m, with undergrowth and the remnants of a fence. The southern boundary enclosure is similar but with a post and rail fence in a lesser state of disrepair albeit there not being a complete enclosure of land, a track being evident through the site and western perimeter. The western boundary is a mixture of vegetation and post and rail fence beyond which is the former parking court and the applicant s existing unauthorised development (private family traveller site). The application site has hard surfacing visible, but also extensive areas of ground covered by vegetation. The adjacent section of land corresponds to a car park extension which was provided at the time of the nearby pavilion on the playing field to the north. This land has a track running through it passing from the north boundary through the south boundary. The division between the former garage site and the parking court appears to approximate to the edge of a former landfill site (which ceased operation in 1979) which stretches to the west and sits under a significant part of the wider open land. The site contains several trees, 41

5 mainly self-set Goats Willow and also some Ash trees. A fruit tree is also present as well as a dead tree on the east boundary. 3.6 The site would not fall within the definition of previously developed land in the National Planning Policy Framework (NPPF) given that vegetation now covers the majority of hard surfacing on the site. 4.0 SITE HISTORY 4.1 The following planning history of the site is relevant to the consideration of the proposal: CHE/13/00089/FUL CHE/882/465 Family traveller site with two pitches and associated facilities. WITHDRAWN. Renewal of Garage Site Consent (the final permanent permission in a series of temporary permissions). GRANTED The following planning history of adjoining and nearby sites is relevant to the consideration of the proposal: CHE/12/00052/COU Family traveller site with 2 pitches and associated facilities. REFUSED PERMISSION The decision was made at Planning Committee on the 14 th May 2012 for the following reasons: 1. In the opinion of the Local Planning Authority it is considered that insufficient information has been submitted to demonstrate that the site can be adequately serviced with sewerage and therefore to assess the development against saved policies HSN8 (b) and EVR12 of the Replacement Chesterfield Borough Local Plan.. 2. A land contamination assessment has not been carried out by any party in respect of the development applied for and it is considered by the Local Planning Authority that one is necessary to be able to determine the suitability or otherwise of the location for the development applied for and to assess it against saved policies EVR15 and EVR23 of the Replacement Chesterfield Borough Local Plan and the National Planning Policy Framework 42

6 CHE/11/00405/FUL CHE/10/00464/FUL CHE/07/00941/FUL CHE/07/00416/FUL CHE/04/00121/FUL CHE/0284/0078 Use of field for paddocks and erection of storage timber sheds resubmission of CHE/10/00464/FUL. GRANTED Use of field for paddocks and erection of storage sheds to hold horse feeds and riding equipment, paddock area and sheds to be used for ponies. REFUSED Land Adjacent To Farm Cottage 148 Hady Lane Chesterfield Derbyshire. 2 Houses and garages (Re-submission of CHE/07/00416/FUL). GRANTED Land Adjacent To Farm Cottage 148 Hady Lane Chesterfield Derbyshire. 2 Houses, triple garage and double garage REFUSED APPEAL DISMISSED Land Adjacent To Farm Cottage 148 Hady Lane Chesterfield Derbyshire. Erection of three detached houses with garages. GRANTED Permission for playing fields and allotments including pavilion and associated car parking on land off Hady Lane. GRANTED THE PROPOSAL 5.1 The proposal is a full planning application for the following development as per the description of development submitted by the applicant s agent: Family Traveller Site with Two Pitches and Associated Facilities. 5.2 The applicant identifies his family and himself as Irish Travellers. 5.3 The application was submitted with the following supporting information: Design and Access Statement 1:2500 Location Plan with a red line and blue line 43

7 1:500 Site Plan showing indicative areas of existing hedgerow to be retained, an area to be covered by a gas membrane (and in effect hard surfacing), a new boundary fence to form a northern and western enclosure with a gated access, siting of 2 touring caravans, two dayroom buildings and two mobile homes. 1:50 Elevation Plans showing the elevations of two single storey pitched roof structures with doors and windows described as prefabricated day rooms not involving operational development. Phase II Environmental Assessment with results of soil chemical testing and gas monitoring (T.J Booths Associates dated 26 th March 2014) Amount and Land Use 5.4 The design and access statement refers to 2 residential Traveller pitches, each containing a mobile home, a touring caravan and a timber structure described as a day room. Also provision for two additional visiting touring caravans which is unlikely to occur on more than 6 two week periods annually. 5.5 The proposal is for the change of use of the land for the siting of 5 caravans. The design and access statement submitted explains that the proposed day rooms will be prefabricated which require no foundations. The[y] will merely rest on the surfaced areas. It also explains that No other structures representing operational development are proposed. 5.6 It is noted that the proposal does include operational development in the form of new boundary fencing shown on the submitted site plan and also works to mitigate land contamination (engineering works to form a new raised and layered surface), as detailed in the submitted Phase II land contamination assessment. Furthermore, operational development off-site and under the ground will be necessary to install the mains drainage connection proposed. 5.7 The design and access statement confirms that:- 5.8 No lighting columns are proposed and any lighting would be fixed to perimeter fencing and that the applicant will accept a condition requiring details of such lighting to be approved prior to development commencing. 44

8 5.9 An electricity supply has already been provided from the mains to the adjacent site to the west, with the consent of the statutory undertaker. Mains water will be brought to the site. With regard to foul drainage, agreement has been reached to connect the site to the main sewer in Hady Lane 5.10 It is not clear from the submitted information if the development will need to rely on the existing unauthorised electricity block within the unauthorised traveller site to the west or if this is to be relocated. Either way it represents development for which permission is required. Scale 5.11 The structures described in the submission as dayrooms are shown with dimensions of 6.0m length x 3.0m width 2.0m x height to eaves and 3.0m height to ridge. These would be relocated from the unauthorised site to the west The touring caravans and mobile homes as shown on the site plan would be within the dimensions prescribed in Section 29 (1) of the Caravan Sites and Control of Development Act 1960 as modified by Section 13 (1) of the Caravan Sites Act The prescribed maximum dimensions are: length (exclusive of any drawbar); 60 feet ( metres); width: 20 feet (6.096 metres); overall height of living accommodation (measured internally from the floor at the lowest level to the ceiling at the highest level): 10 feet (3.048 metres) The area of the site shown on the site plan is approximately 1500 sqm Whilst not on the submitted plans the Electricity block off-site to the west is of the approximate dimensions of 1.0m width x 1.0m length x maximum 1.0m height. Appearance 5.15 No information has been provided on the appearance of trailer caravans or mobile homes. It is expected that their appearance will be typical of touring caravans and mobile homes. The proposed dayroom structures are described as single storey timber buildings, in contradiction to the agents assertion that they are not operational 45

9 development. The electricity block whilst off-site and not applied for, is flat roofed and constructed with concrete. Layout, Access and Parking 5.16 The submitted layout plan shows a rectangular area enclosed by some form of vegetation (it not being specific on the plan whether the irregular areas marked are wholly existing or proposed vegetation and if so what species). The marking of the plan appears to be indicative only following a site visit and not precise in respect of the crown spread of trees and area of vegetation on the site, the existing hard surfacing being significantly overgrown. A 2.0m tall fence of indeterminate design is shown running along parallel to the access track forming a northern boundary with a gated access to its eastern end, and also along the western boundary of the site What appears to be the approximate route of proposed public right of way (No.129) is shown on the layout plan to the west and outside of the application site. Landscaping 5.18 The site plan depicts vegetation in an indicative manner. It is not fully clear from the plan what is existing vegetation, versus proposed. The design and access statement refers to existing hedgerows and fences providing good screening of the site. It also claims that the hedgerow to the east of the site will be unaffected by the contamination protection measures proposed and that additional hedgerow planting will be provided to reinforce the existing screen planting. It appears that some removal of vegetation would be required to facilitate the land contamination mitigation and siting shown of mobile homes on the submitted layout plan. No further detail s of planting (e.g. species, quantities, height s) has been provided. 6.0 CONSIDERATONS Environmental Impact Regulations 6.1 The Local Planning Authority carried out a screening of the proposal on the 5 th May 2014, under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 to The development would not be Schedule 2 development, and no significant environmental impacts are thought to be likely. 46

10 Consequently an Environmental Statement/Assessment is not considered necessary. A screening for Appropriate Assessment is not necessary given the small scale of development. Planning Policy - The Development Plan 6.2 Section 38(6) of the Planning and Compulsory Purchase Act 2004 and section 70(2) of the Town and Country Planning Act 1990 require that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise. The relevant Development Plan for the area comprises of the saved policies of the Replacement Chesterfield Borough Local Plan adopted June 2006 (RCLP) and the adopted Chesterfield Local Plan: Core Strategy ( ). Replacement Chesterfield Borough Local Plan Policies ( RCBLP ) 6.3 The saved Local Plan policies relevant to the decision are: EVR2 POS4 Development in the Open Countryside and Other Open Land Sports Pitches and Playing Fields Chesterfield Local Plan: Core Strategy The policies relevant to the decision are: CS1 CS2 CS3 CS4 CS6 CS7 CS8 CS9 CS10 CS12 CS18 CS20 Spatial Strategy Principles for Location of Development Presumption in Favour of Sustainable Development Infrastructure Delivery Sustainable Design and Construction Managing the Water Cycle Environmental Quality Green Infrastructure and Biodiversity Flexibility in Delivery of Housing Sites for Travellers Design Influencing the Demand for Travel 47

11 National Planning Policies 6.5 The Sections of the National Planning Policy Framework (NPPF) relevant to the consideration of the proposal are; Building a Strong, Competitive Economy Promoting Sustainable Transport Objectives Delivering a Wide Choice of High Quality Homes Requiring good design Promoting Healthy Communities Meeting the challenge of climate change, flooding and coastal change Conserving and Enhancing the Natural Environment 6.6 The National Planning Policy for Traveller Sites (PPTS) published in March 2012 is also a material consideration Other Relevant Policy and Document 6.7 Supplementary Planning Documents relevant to the decision are; SPD - Successful Places (adopted July 2010). SPD - Designing Out Crime (adopted June 2007). 6.8 Other relevant documents include; Assessing local housing authorities progress in meeting the accommodation needs of Gypsy and Traveller communities in England (Equalities and Human Rights Commission) 2009 CLG Circular 06/05. Chesterfield & North East Derbyshire Sustainable Community Strategy ( ). Designing Gypsy and Traveller Sites: Good Practice Guide (DCLG May 2008) Derbyshire Gypsy and Traveller Accommodation Assessment (the DGTAA) (Opinion Research Services) 2008 Environmental Protection Act 1990:Part 2A Contaminated Land Statutory Guidance (DEFRA April 2012) Green Infrastructure Study (CBC May 2009) 48

12 7.0 Key Issues Inequalities Experience by Gypsy and Traveller Communities: A Review (Equalities and Human Rights Commission) 2009 Lighting in the Countryside: Towards Good Practice (DCLG 1997) Manual for Streets 2 (DfT March 2007) National Planning Practice Guidance Parks and Open Spaces Strategy (CBC 2002) Progress Report on Gypsy and Traveller Policy (DCLG) July 2009 The Landscape Character of Derbyshire (Nov 2007) DCLG Consultation: planning and travellers (Sep 2014) 1. Principle of Development in Open Countryside 2. Infrastructure 3. Community Safety, Cohesion and Fear 4. Visual Amenity and Local Character 5. Residential Amenity 6. Pollution Control 7. Highway Safety 8. Biodiversity 9. Flood Risk 10. Land Stability 11. Equalities Act 12. Other Considerations 1. Principle of Development in Open Countryside 7.1 The site is located within an open area of land defined in the Local Plan as Open Countryside and Other Open Land and is not within a green wedge or strategic gap on the Core Strategy Key Diagram. The Local Plan makes no distinction between what is Open Countryside and what is Other Open Land and provides no definition from which to do so. National policies similarly do not define countryside nor rural areas. Chesterfield Borough is not classified as a rural area and is classified as other urban in the Department for the Environment and Rural Affairs (DEFRA) classification of Local Authorities in England. However, it has open land around its fringes where a tight boundary is drawn between it and the rural authority of North East Derbyshire District Council. 49

13 7.2 The majority of the existing Hady settlement/development to the east of the application site constitutes housing built post World War II, the earlier pattern of dispersed dwellings and farms related to Hady Hill which persisted into the 1920 s, disappearing within the scale of this later housing development on open land. Whilst arguably as a consequence of this development the rurality of the immediate locality has declined considerably since WWII, Hady as a settlement is still predominantly surrounded by open land. In this instance open countryside is taken to be predominantly open land outside settlement boundaries with visual and functional links to wider tracts of open land surrounding Chesterfield. Consequently the proposal is considered to be located within open countryside. The land is not identified on the Regulation 22 (10) (b) submissions policy map as an existing park or open space, a sports pitch or playing field or allotments. 7.3 Accordingly the Development Plan has policies of particular relevance to the principle of the development which address the matter of development in open countryside. Core Strategy policies CS1, CS2, CS9, CS12 and saved policy EVR2 from the 2006 Local Plan. The other Core Strategy Housing Policies i.e. CS10 and CS11 are not considered relevant as these were specifically adopted and worded to deal with bricks and mortar housing, policy CS12 being specifically adopted to cover Traveller Site provision. 7.4 It is noted that the LPA cannot currently demonstrate a deliverable 5 year supply of housing sites and that Paragraph 49 of the NPPF states that relevant policies for the supply of housing should not be considered up-to-date if the LPA cannot demonstrate a five-year supply of deliverable housing sites. The Borough Council s Spatial Planning Team (in summary) has advised that as a matter of policy the Core Strategy policy for Traveller Sites (CS12) is not out of date in relation to paragraph 49 of the NPPF and still carries significant weight. Also, that Section 6 of the NPPF (and so paragraph 49) does not specifically cover Traveller sites given the publication of the PPTS following the publication of the NPPF. 7.5 Hence when considering the principle of the proposed private family Traveller site in open countryside the relevant Development Plan policies are saved RCBLP policy EVR2 and Core Strategy policy CS12. The proposal would fail to accord with RCBLP policy EVR2 in that this policy was restrictive in principle to development for anything other than that necessary for the needs of agriculture and forestry or; that related to recreation tourism or other types of farm or rural diversification. 50

14 7.6 However, the approach in EVR2 is in direct conflict with Core Strategy policy CS12 which accepts the principle of the proposed development in open countryside provided it is not in Green Belt or a Local Green Space. Policy CS12 appears consistent with the NPPF and PPTS and so is a more up to date policy than EVR2 and should carry more weight than EVR2. Similarly, EVR2 is also contradictory to the PPTS in that the PPTS does not preclude Traveller sites in open countryside. 7.7 In considering the matter of the principle of development in open countryside it is acknowledged that previously in relation to a refused permission on the unauthorised site to the west, the Council considered that the NPPF and Planning Policy for Traveller Sites did not explicitly permit Traveller Sites in Open Countryside. However appeal decisions have clarified the matter, an example being Appeal APP/N2739/A/12/ in which the Government s appointed Inspector states that Policy C of the Government s Planning policy for traveller sites (PPTS or Traveller Policy ) accepts that sites for showpeople are acceptable, in principle, in the countryside. The aim, therefore, must be to minimise not necessarily avoid harm. 7.8 The PPTS states local planning authorities should strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan. Local planning authorities should ensure that sites in rural areas respect the scale of, and do not dominate the nearest settled community, and avoid placing an undue pressure on the local infrastructure. The NPPF also requires that decisions on such development should recognise the intrinsic character and beauty of the countryside. 7.9 The PPTS also sets out considerations to be taken into account for sites in rural areas and the open countryside. Accordingly, it is evident that PPTS envisages that rural and open countryside sites may be considered acceptable in certain circumstances and that the NPPF and PPTS do not preclude Traveller accommodation in open countryside in principle per se The site is near to (and not away from) an existing settlement and the scale of the development would not physically dominate the nearby existing settlements of Hady and Spital. Whilst the site is not allocated for any development it is a material consideration that the LPA has not got an up to date accommodation needs assessment for Travellers, has 51

15 not set local targets for provision and has not carried out a Local Plan process of identification of a 5 year deliverable supply of sites with associated allocation s Based on current information (as detailed later in this report) there appears to be an unmet need for sites and the LPA has failed to identify a 5 year deliverable supply to meet this need. The PPTS is clear in Policy H paragraph 25, that if a local planning authority cannot demonstrate an up to-date five-year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission. Whilst the proposal is not for temporary permission, the LPA must bear in mind the option of a temporary permission when considering the proposals planning merits The consideration of whether or not any special circumstances exist and if so whether or not these outweigh the impact on the intrinsic character of this area of open countryside, require further analysis and are considered later in this report. 2. Infrastructure 7.13 The Core Strategy policy CS4, NPPF and Planning Policy for Traveller Sites require adequate provision of infrastructure for new development and also that new development does not lead to a deficiency in infrastructure (green, social and physical). Accessibility to Public transport, Employment, Services and Facilities 7.14 The location of the development is within approximately 1.3km of Chesterfield Town Centre, and within 800m of bus services on Hady Hill including the Stagecoach Castleline with a frequency of up to 2 services per hour and a lesser number and frequency of services on Hady Lane. The site is within 400m of a primary/infant school which the Council s Community Infrastructure Study (2009) identifies as having a deficit of pupils on its register. The site is also within a 2km catchment area of a secondary school albeit with a surplus of pupils and within 2.5km of a secondary school with a deficit of pupils based on the same infrastructure study. The study identifies the north east of the Borough (not Hady) as having the longest journey times to key facilities. Hady has no local shops (albeit an extant planning permission for the redevelopment of a Social Club to include a local convenience store) and relies on Chesterfield Town centre, other local and district centres 52

16 for employment, services and facilities. It is considered to be reasonably accessible on foot to some community services and also to public transport via which the necessary employment, services and facilities to meet essential day to day needs can be accessed. As such in respect of accessibility and the capacity of existing health and educational facilities the proposal would not conflict with of Core Strategy policies CS2(e)(f) and CS12(c), the NPPF and PPTS. Open Space 7.15 The site is within metres of playing fields, and a significant area of informal open space. It is also within approximately 360m of the Locally Equipped Area of Play (LEAP) within Hady to the south east. The Council s Open Space and Play Provision SPD (now withdrawn) and Parks and Open Spaces Strategy (not up to date) indicated a need for a Neighbourhood Equipped Area of Play (NEAP) in Hady, specifically on Hady Playing Fields. This need has not been met to date. The proposal in itself would not lead to a requirement in terms of planning policy for a contribution towards new or enhanced open space provision and would not be so poorly served as to conflict with Policy H paragraph 24(c) of the PPTS or the NPPF Whilst the site has not been identified as critical or important to the provision of open space in Hady in the withdrawn Open Space and Play Provision SPD and out of date Parks and Open Spaces Strategy, or through consultation with the Borough Council s Housing, Estates and Leisure Services, objections have been received which attribute significance to the site as a place for social interaction, appreciating nature and walking and also as a location for a new recreational or sports facility The Council s Sustainability Officer has identified the site as being of great wildlife value and that the site is likely to merit retention as an urbanised wild space for which the community of Hady would benefit, in effect attributing the site value as an area of informal public open space The site would, based on representations appear to have significant value to the local community as an open space. The application site is conveniently located for residents of Hady and is large enough (being in excess of 1000sqm) to cater for a NEAP. Less positively the site lacks natural surveillance and is likely to require mitigation given its proximity to the former landfill site to the west. Furthermore the site represents a 53

17 small part of a wider area of open space which includes a Local Wildlife Site, hedgerows, woodland, grassland, playing fields, informal open space and a LEAP all of which are accessible to the public. There are also several other locations where a Neighbourhood Equipped Play Area (NEAP) could be located including the existing location of the LEAP off Barnes Road. There is insufficient evidence to conclude that the loss of the application site would have a significant adverse effect on open space provision in the Borough The site is not identified as a proposed play area in the Issues and Options Sites and Boundaries DPD consultation document. The LPA is aware that an application has been made to Derbyshire County Council to designate the application site and a wider area as a Village Green. This is being processed by DCC but as no designation has occurred yet no weight is given to this. Furthermore, the site is not proposed as a Local Green Space in the Local Plan Issues and Options Sites and Boundaries document, nor is there a relevant neighbourhood plan in preparation or adopted The proposal will undoubtedly result in the loss of the existing overgrown character within the site However, there is insufficient evidence to support a stance that the site is critical to planned provision of open space in Hady to meet community needs or critical to achieving the aims and objectives of the Council s Green Print and Local Biodiversity Action Plan. Furthermore, the adverse impact on existing provision and potential for future provision would be minor given the availability of other open space. The proposal would not conflict with Core Strategy policies CS4 CS12(a)(b) and saved RCBLP policies POS1 and POS4. Physical Infrastructure 7.21 Yorkshire Water Services do not identify a need for further sewerage capacity arising from the proposal and make the observation that the local foul water system has no additional capacity for surface water discharge. Severn Trent has been given the opportunity to comment on the application and has not responded. Given this, and the nature and scale of the development it is unlikely that the proposal will result in a deficiency in water supply in the Borough or the locality. 54

18 7.22 In respect of the provision of specific infrastructure and facilities for the application site in respect of day to day living, the applicant has (according to CBC s estates team) secured the option of connecting to an existing electricity supply (overcoming the need for generators) and a mains water supply. He also has the option of connecting to the main sewage system which exists to the north east in Hady Lane, the agent confirming that an agreement has been reached to do so. No specific details of the agreement reached referred to, has been provided by the applicant s agent. The Council s estates team has previously confirmed that subject to the correct procedure and appropriate compensation there would be no legal barrier to the applicant running services through the Council s land In respect of a water supply Severn Trent previously confirmed in relation to the refused Traveller Site application to the west, that there are 2 mains water pipes to the east in Hady Lane. However they commented that no further information can be provided to the LPA as a consequence of data protection laws. The land between the application site and water supply is owned by Chesterfield Borough Council however connection to both a mains water and electricity supply appears to be a realistic prospect Soakaways have been proposed for surface water drainage but no specific details of feasibility or design, although the applicant s land contamination consultant has confirmed that strips of vegetated land can be maintained inside the perimeter of the proposed site, which would provide areas for water to drain to In terms of foul water provision, a connection to mains is proposed but no specific details of the means of connection have been provided other than that a pump will be required. Yorkshire Water raise no objection but make the observation that sewage pumping is likely to be required from the site. The Council s Drainage Services has previously commented that the site is not at risk of flooding on the Environment Agency s flood map, that there are no foul water issues subject to connection agreements being obtained from Yorkshire Water The prospect of a mains sewerage connection is less clear cut. The applicant s land contamination consultant has had regard to the provision of services and recommends mitigation, whilst the applicant s agent has claimed that agreement has been reached to connect to mains. The LPA has no evidence to dispute the agent s claim. Yorkshire Water and the Council s drainage engineers have confirmed 55

19 that connection is theoretically possible (with pumping on the site) to the mains system to the north of the site (approximately 250m distant) near the junction of Hady Lane and the vehicular access to the primary school to the north. The provision of a connection may prove expensive and a package treatment plant or septic tank may prove less expensive. However, the provision of a septic tank or package treatment plant would require separate consideration, being a materially different development with materially different implications In considering whether or not to accept the level of information submitted on foul water provision, and if it is appropriate to apply conditions which require approval of the full details of foul sewage provision and also to prevent the site being occupied until full details had been approved and implemented, the LPA must have regard to the National Planning Practice Guidance (NPPG) (paragraphs 21a to 21a ) In considering the guidance in the NPPG a condition requiring further details and also provision of a foul water system is necessary to meet planning requirements. Given that the applicant has proposed a mains connection it would seem reasonable to conclude that the applicant and his advisors have considered the matter of cost and concluded that a mains connection is viable. No technical obstacle that would preclude a mains connection has been identified and evidenced by consultees and objectors, cost appearing to be the main constraint In respect of enforceability, a condition which prevents the occupation of the site from beginning until the condition has been complied with would be appropriate, given that the requirements of the condition (including the timing of compliance) are so fundamental to the development permitted that otherwise it would be necessary to refuse the whole permission Consequently it is considered that sufficient information has been submitted to apply a condition that will ensure that the site will be adequately serviced in respect of foul water, drinking water and electric supply and in these respects, would not conflict with Core Strategy policies CS4 and CS12(e) the NPPF and Planning Policy for Traveller Sites. 56

20 3. Community Safety, Cohesion and Fear 7.31 The application has generated representations from the local community similar to that expressed in relation to the refused planning application for the Traveller families current unauthorised site to the west and also the enforcement investigation into that unauthorised development. Following the refusal of the retrospective application for the unauthorised development, the Council was required to consider the matter of enforcement action. The Council resolved on 15 th October 2012 that: Planning Committee note the continued unauthorised occupation and consequential operational development of Land to the West of the Garage Site, Hady Lane, Chesterfield and that due to the new information received and changed circumstances that enforcement action is warranted as the long term residential occupation of the land is unacceptable. That appropriate investigations be made with housing officers into finding an alternative site which the travellers could relocate to and which could provide a temporary or long term solution to address the risks to the safety of the travellers arising from the occupation of the former landfill site. Planning Committee further resolve that if the occupants of the unauthorised development do not engage positively with the Council in the next 6 months to be appropriately relocated then enforcement action including injunctive proceedings, if required, are authorised to remove them from the existing site on Hady Lane In arriving at this resolution the Council considered the risk to the family from the former landfill waste and also considered the deliverability of alternative sites. The consideration of alternative sites was not done via the Development Plan process but as part of the enforcement investigation. Where as officers received written confirmation that the travellers would work with the Council in finding an appropriate relocation site, the process of considering alternative sites was preempted by the application on the site currently under consideration. This was submitted within 6 months of the committee resolution referred to above. This is referred to later in the report however the Council did not pursue the search further in order that the suitability of the application site could be determined first. 57

21 7.33 Some of the objectors making representations believe that the open space within which the application site exists is of great amenity, landscape, recreational and wildlife value. They also have expressed a view to the Council, that the application site should be put to a recreational use or used as public parking and that the Council is obliged to not consider the current planning application whilst other more policy compliant uses are theoretically possible However, the LPA are not in receipt of a planning application for any other development of the site and other Council Department s have not provided details of any schemes submitted to them. The LPA are also not in receipt of a robust and up to date open space assessment from objectors or information from the Council s Leisure Services that there is a need to protect the site to be developed as recreational open space, which cannot be provided elsewhere. Some objectors believe that the Council must investigate the opportunity for the site to be used for recreational and other uses before even considering the planning application. However, this is a misunderstanding given that when a valid planning application is submitted it must be considered on its individual merits, the Council having no choice in the matter. The Council has not identified a Green Wedge or Strategic Gap over land upon which the site would be located in its Issues and Options consultation document for the Sites and Boundaries DPD There is concern that the same rules should apply to all and that there is consistency with a previous decision to refuse development for an equestrian use on the unauthorised site to the west. Also there is widespread opposition in the local community to the application and also allegations concerning the applicant s intentions having regard to previous applications and development on the unauthorised site to the west. National and local planning policy on development in open countryside applies equally to applications for planning permission from Travellers and the settled population. In Chesterfield the Core Strategy currently has identified broad locations for new land for house building for the settled community (taking account of population change including migration), including greenfield locations in open countryside whereas it has not identified any land within the Borough for the Travelling community to reside on, hence the presence of a policy (CS12) to cater for individual applications made by the Travelling community for sites. The Council still awaits the publication of an up to date Derbyshire wide Traveller Accommodation Assessment, and without this it cannot set local targets for provision through the Local 58

22 Plan process should a need be identified. The result is a situation where in England there is insufficient allocated or authorised sites to meet national need, this being manifested at a local level in Chesterfield as unauthorised development There is no disputing that the applicant currently occupies a site to the west without the benefit of planning permission and that the related change of use is a breach of planning control and is unlawful. There is, however, statutory provision to apply for planning permission in such circumstances, as the applicants have done and also to seek alternatives to their current site. The fact that development has already taken place is not relevant to assessing the planning arguments arising from the current application. The applicants past and future intentions in respect of the site are similarly not relevant to assessing the planning arguments arising from the application There is no substantive evidence to support a view that there is a significant threat to the local community of anti-social behaviour and criminal activity from the occupation of the site by a family of the applicant s ethnicity. The Community Safety Officer and Derbyshire Constabulary have raised no objection to the proposed land use or to the applicant s current occupation of the unauthorised site to the west. There is no evidence of a significant concentration of Traveller sites in Hady and this small residential caravan site for two pitches for one extended family, would respect the scale of and not dominate the nearest settled community Concern has been raised that residents are avoiding the use of the wider open space within which the proposal sits on the basis of a fear of the occupants of the site and their pets. There is no substantive evidence to justify a view that the family pets and indeed the land use applied for are a significant threat to the personal safety of users of the open space with only one allegation being received of a dog walkers dogs been attacked. Consequently only limited weight should be given to the expressions of fear received in representations. Two dogs have been observed outside the nearby unauthorised site barking at officers on the application site however this could be remedied by use of appropriate fencing within the proposed development which could be secured by condition. 59

23 7.39 The Derbyshire Constabulary has previously advised that there may be surveillance issues with the degree to which the site will be screened, however raise no objection. The site is isolated and needs to form defensible space given the surrounding land uses and public access and therefore screening is considered appropriate. Consequently provided that adequate locks are provided on caravans, day rooms and the sites gate, it is considered that a sufficient level of security will be provided to avoid conflict with Core Strategy policy CS18 (l) the Planning Policy for Traveller Sites and the NPPF An issue was previously raised by a local resident to the withdrawn application which preceeded the current application, that the presence of the unauthorised Travellers Site to the west, the Council toleration of the unauthorised development and what is seen as collaboration with the applicant s is causing resentment in local residents to the point that their health could be adversely affected, as a consequence of the perceived injustice of applying different rules to Travellers than to those not of that ethnic group. However, no evidence has been provided of such an effect and no representations received on this basis. 4. Visual Amenity and Local Character Landscape Character 7.41 Core Strategy policy CS9 (e) requires that development conserves or enhances the local distinctiveness and character of the landscape. The NPPF requires that the intrinsic character and beauty of the countryside should be recognised in decision making and that planning should protect and enhance valued landscapes. The NPPF in paragraph 109 requires that the planning system protects and enhances valued landscapes and in paragraph 115 requires that great weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty (para 115). The site is not within an area which the NPPF affords great weight to conserving landscape and scenic beauty. However, it is acknowledged that the site is within an area where there is an element of local character which requires protection and enhancement as supported by the landscape characterisation carried out by the Derbyshire County Council (The Landscape Character of Derbyshire Nov 2007) 60

24 7.42 The site lies within a landscape type categorised in the The Landscape Character of Derbyshire as Coalfield Village Farmlands (Character Area 38). The key characteristics of this landscape are stated as: Gently undulating landform. Dairy farming with pasture and localised arable cropping. Relict ancient semi-natural woodland, copses and linear tree-belts. Dense streamline trees and scattered hedgerow trees. Towns and villages on ridge lines surrounded by remnant medieval strip fields. Network of small irregular lanes between larger urban roads. Small villages with sandstone buildings expanded by red brick former mining terraces and ribbon development Tree cover in this landscape is described as, essentially a small scale, organic landscape with small woodlands, copses, linear tree belts and hedgerow trees. The pattern of enclosure appropriate to this location is described as, complex, reflecting a diverse history of enclosure and the impact of opencast coal extraction 7.44 The application site forms only a minor part of the landscape character, and whilst little evidence of former garage development remains, it is visually well delineated from the wider open space by existing vegetation. It is also located close to Hady Lane and the settlement near the edge of the wider open space. Subject to reinforcement of existing hedges and provision of a new hedge to the northern boundary (obtainable by condition) the visual effect of vehicles, caravans, hard surfacing, domestic paraphernalia and movement on landscape character beyond the sites boundaries would be neutral. Given the proximity of the site to a parking area used in connection with the recreational use of the wider open space, the impact of vehicular activity on landscape character would also be limited. However, screening and the location of the site would not completely remove the urbanising effect of light pollution from external lighting on the site and also light from within the day rooms and caravans. The light pollution from external lighting could be minimised through design and timing controls, however light from within caravans could not. Consequently the impact of light pollution from the site would be adverse on landscape character, albeit limited in scale. This limited adverse effect could be regarded as contrary to Core Strategy CS9 (e) and the NPPF. 61

25 Tranquility 7.45 The NPPF (paragraph 123) requires that planning decisions should identify and protect areas of tranquillity which have remained relatively undisturbed by noise and are prized for their recreational and amenity value for this reason. Previous representations to the refused Traveller Site to the west opined that the wider open space has attractive qualities in terms of tranquillity and natural beauty with reference to the visual impact of the development, noise and activity. No evidence was or has been presented on existing noise levels or background noise levels, nor qualification of what is meant by tranquillity Tranquillity is recognised as an emotional state and is to a degree subjective. Despite the presence of subjectivity the Governments Rural White Paper (DEFRA 2000) acknowledged that tranquillity and a lack of noise and visual intrusion are key factors that contribute to the unique character of the British countryside. The CPRE has carried out a mapping exercise of tranquillity across the UK. However, tranquillity is not the absence of all noise, activity and buildings. Research has found that many rural activities, such as farming and hiking, and natural noises such as birdsong and cows lowing, enhance people s experience of tranquility The Council has not adopted its own definition of tranquillity nor a method of assessing tranquillity. However, tranquillity arguably is part of the intrinsic character of countryside and methods have been developed for assessing tranquility (Tranquility Mapping: Developing a Robust Methodology for Planning Support: January 2008) There are members of the local community who perceive a loss of tranquillity and the urbanising of the application site will adversely effect tranquillity based on a knowledge of the indictors of tranquillity identified in relevant research, which include birdsong, wide open spaces, trees in the landscape and the converse such as the presence of other people, urban development and any signs of human impact and vehicle noise Bearing in mind the absence of a tranquillity study to set a baseline, it is likely that the main impacts of the development applied for on tranquillity (subject to appropriate screening planting) would be from noise, vehicular movements and light pollution. In respect of noise and vehicular movements these will be in close proximity to an existing 62

26 access already serving and providing parking for the wider open space and sports fields. As such the impact of vehicular activity is not considered to be likely to significantly affect the wider open areas tranquillity. Light pollution from caravans, day rooms and vehicles and noise from within the site (voices, dogs) is however unlikely to prove so insignificant in close proximity to the site. There would be an adverse impact on tranquillity and the character of the locality contrary to Core Strategy policy CS9 (e) and paragraph 123 of the NPPF, however this would be minor in scale It was noted during a site visit that two pet dogs were able to exit the unauthorised site to the west and come in close proximity to officers, whilst barking. The ability of pet dogs to do so adversely effects the appreciable pleasant qualities of the wider open space, including tranquillity. Accordingly it would be necessary if granting permission to apply a condition requiring an inner mesh fence within the site to prevent pets such as those observed, from straying into the wider open space in the interests not just of the areas character/tranquillity but also to reduce the opportunity for such anti-social behaviour and fear of anti-social behaviour in accordance with Core Strategy policy CS9 (e), CS18 (l) and paragraph 58 of the NPPF. Visual Amenity 7.51 Core Strategy policy CS12 (g) requires that Traveller Sites have satisfactory boundary treatments to ensure privacy and to maintain visual amenities. The NPPF requires that the intrinsic character and beauty of the countryside should be recognised in decision making The development applied for is associated with vehicles, timber structures and caravans, and domestic paraphernalia, the majority of which are likely to be in colours which make them conspicuous in a countryside area. Whilst conditions could be applied to the mobile homes to ensure a subdued colour these being available in green, such a condition applied to touring caravans would be onerous and unreasonable given that the standard colour for such vehicles is white The wider open area within which the site is located is used by the local community for informal and formal recreational purposes and wooded elements of which have locally and potentially county level significance in terms of biodiversity. This open land sees considerable day time activity in the form of walkers, parents collecting children from school, people playing on the sports fields and football matches. It possess 63

27 attractive visual qualities and other qualities of amenity value, these being mainly attributable to a mix of open fields, woods and a predominant lack of buildings and vehicles. Representations received indicate that members of the public value the open space for its tranquillity, natural beauty and open character and consider that the development has a significant and adverse impact on this The number of people likely to see the site is high given its proximity to the access track into the wider open space and the presence of the route of a proposed footpath through it. However vantage points of the site are limited in number and views from other parts of the open space and Hady Lane are severely restricted by existing vegetation with the exception of the playing fields to the north when within 50m of the site. The closest dwellings with views are those on the west side of Hady Lane to the south east of the application site. Views are also possible from the 7 dwellings on the southern extent of High View Close to the north and also from at least 13 dwellings on Hady Lane Given the existing restricted visibility of the site and the feasibility of further soft landscape screening, the use and associated vehicles, structures, caravans and paraphernalia would not be visually intrusive and would have an insignificant impact outside of the application site. Any adverse effect would be negligible and not sufficient to conclude that a conflict exists with RCBLP policy EVR2, Core Strategy policies CS12 (g) and the NPPF It is acknowledged that to completely screen the development would give a visual sense of isolation of the site from the nearby settled community. Planting would need to ensure an effective visual screen between the proposed footpath and the area of the proposed development where caravans and dayrooms would be located. However, the site is already isolated to a greater degree visually and screening would not be at odds with the existing visual qualities of the wider open land within which the application site sits. Furthermore given the context, the provision of a small length of fencing and bolstering of boundary vegetation with hedgerow planting around the site would not conflict with paragraph 24 (d) (Policy H) of the national Planning Policy for Traveller Sites which seeks to prevent sites being enclosed with so much hard landscaping, high walls or fences, that the impression may be given that the site and its occupants are deliberately isolated from the rest of the community 64

28 5. Residential Amenity 7.57 Whilst elements of the site are likely to be visible from the upper floors of the three properties to the south east on the west side of Hady Lane and properties to the east and north east, it is considered that the site is a sufficient distance from nearby residential properties to afford a reasonable degree of privacy between existing dwellings and the development. The provision of appropriate planting to reinforce boundary hedges and fencing on the northern boundary of the site to protect the applicant family from views from the adjacent proposed footpath, would further minimise any overlooking into the site and ensure a reasonable degree of privacy With regard to noise, the development applied for is a residential use and if occupied in a reasonable manner should be compatible with nearby residential land uses. Representations have been made which object to the noise from dogs barking and also vehicular activity on a commercial scale. The application is for a residential use and not a mixed use, and it is considered on this basis. Furthermore, it would not be reasonable to refuse planning permission for a residential development on the basis that the residential land use applied for will be incompatible in terms of noise and general disturbance with other residential land use in the locality. The Council s Environmental Health team has investigated a noise complaint at the applicant s dogs barking but during investigations have not found an enforceable statutory nuisance The proposal is for a residential land use and therefore it is considered to be appropriate in terms of impact, on existing residential properties. Any adverse impact which arises as a consequence of unreasonable behaviour or a material change of use to a mixed use would be controlled by the Environmental Protection Act 1990 and Planning Acts respectively. Consequently it is considered that in respect of impact on residential amenity the proposal would accord with Core Strategy policies CS2 and CS18 and the NPPF paragraph 17. There has been no objection from the Council s Housing team in regard to the ability of the site to be licensed for the number of pitches proposed and therefore it is assumed that the site would have sufficient space to satisfy licensing requirements and to afford reasonable daylight, sunlight and outlook for the occupiers of the caravans. 65

29 7.60 The good practice guide, Designing Gypsy and Traveller Sites (2008) is not limited to socially provided sites. It provides relevant guidance but it recognizes that not all aspects of it will necessarily be met and that it should not be used in isolation to decide whether planning permission should be given. There would be no deviation of significance with the proposed development from relevant principles in the good practice guide. 6. Pollution Control 7.61 The land to the west of the application site on which no changes are proposed is located on part of a former landfill site closed in approximately 1979 and is currently managed by Derbyshire County Council. The application site is outside the boundary of the former landfill. The former landfill is managed by means of a cap (in this instance a layer of earth likely to be of varying depths in relation to its original laid depth) and also the provision of a methane burning unit (flare). The Environment Agency has previously in connection with the refused retrospective application to the west, confirmed that the landfill is currently classified as containing hazardous waste under UK waste regulations. The Hazardous Waste (England and Wales) (Amendment) Regulations 2009 and WM (updated 2009) guidance defines such waste as that which is chemically hazardous or infectious to humans or the environment The Council has records of a 1996 report to members on the rapid decombustion of the landfill as a consequence of burning off gas, and a subsequent dramatic but variable sinkage of land with undulations and broken land drainage. Furthermore that for the foreseeable future it is likely that subsidence will continue which precludes the possibility of undertaking extensive remedial works to bring all the [sports] pitches back into use. Representations have also been received giving the opinion that the site is unsuitable for human habitation and a threat to the public given the risk of gas migration (caused by the weight of the development and land movement), explosion, dioxins and possible breaching of the landfill site capping layer The NPPF in paragraph 120 requires that planning decisions should ensure that new development is appropriate for its location in order to prevent unacceptable risks from pollution and land instability. It also requires that the effects (including cumulative effects) of pollution on health be considered. The natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse 66

30 effects from pollution, should be taken into account. Where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and/or land owner The NPPF goes further as follows: Paragraph 121: - Planning policies and decisions should also ensure that: the site is suitable for its new use taking account of ground conditions and land instability, including natural hazards or former activities such as mining, pollution arising from previous uses and any proposals for mitigation including land remediation or impacts on the natural environment arising from that remediation; after remediation, as a minimum, land should not be capable of being determined as contaminated land under Part IIA of the Environmental Protection Act 1990; and adequate site investigation information, prepared by a competent person, is presented. Paragraph 122: In doing so, local planning authorities should focus on whether the development itself is an acceptable use of the land, and the impact of the use, rather than the control of processes or emissions themselves where these are subject to approval under pollution control regimes. Local planning authorities should assume that these regimes will operate effectively. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities The Core Strategy in policy CS2 requires that all development will be required to have an acceptable impact on the amenity of users or adjoining occupiers, taking into account things such as odour, air quality or other environmental impacts. Policy CS8 requires that proposals for development on land that is, or is suspected as being contaminated or unstable will only be permitted if the land is capable of remediation and fit for the proposed use and shall include: a desk top study with the planning application; a phase II study and strategy for remediation and final remediation may be necessary where the desk top survey indicates remediation may be necessary, on any full or reserved matters planning applications. Also that a programme of 67

31 remediation and validation must be agreed before the implementation of any planning permission on contaminated and/or unstable land. The requirement to undertake this programme will be secured using planning conditions The new national planning policy guidance which replaces the technical annexes to PPS22 has been replaced by the following paragraphs: To ensure a site is suitable for its new use and to prevent unacceptable risk from pollution, the implications of contamination for new development would be considered by the local planning authority to the extent that it is not addressed by other regimes. Contamination is more likely to arise in former industrial areas but cannot be ruled out in other locations including in the countryside. Only a specific investigation can establish whether there is contamination at a particular site, but the possibility should always be considered particularly when the development proposed involves a sensitive use such as housing with gardens, schools or nurseries. The guidance contains a flow chart as follows: 68

32 7.67 The guidance further states that: Local planning authorities should work with developers to find acceptable ways forward if there are concerns about land contamination. For example, planning permission can be granted subject to conditions and/or planning obligations can be sought in the light of the information currently available about contamination on the site and the proposed remediation measures and standards. However, local planning authorities should be satisfied that a proposed development will be appropriate for its location and not pose an unacceptable risk The unacceptable risk referred to in the Planning Policy Guidance means a risk of such a nature that it would give grounds for land to be considered contaminated land under Part 2A of the DEFRA Contaminated Land Statutory Guidance. The DEFRA guidance states that Only land where unacceptable risks are clearly identified, after a 69