FLEB2 - Fleggburgh Parish Council response to examiner's questions
The following is the written response from Fleggburgh Parish Council to the Neighbourhood Plan examiner.
| Examiner question | NP group response |
|---|---|
| Policy 1 As presented, the Policy would restrict any proposal for a single dwelling to a maximum of two bedrooms. Please could you point me to information in respect of how this part of the Policy has regard to national policy and is in general conformity with the strategic policies of the development plan? | The policy sets out to ensure that any new housing development meets local need, as set out in the supporting text and evidence base. |
| Policy 1 Please can you point me to information in respect of how "a lower number" might be "justified," who would determine this and on what basis. (As set out, this part of the Policy appears vague and open to wide interpretation). | The applicant would need to provide supporting evidence of local need based on more up to date housing needs data than that set out in the neighbourhood plan. This would be determined on an individual application basis by the planning authority. |
| Policy 1 Please can you point me to information in respect of how "a significant encroachment" will be measured, who by and on what basis. (This part of the Policy also appears vague and open to wide interpretation). | This would be a judgement for the planning authority to make. |
| Policy 1 Does the last part of Policy 1 apply only to applications submitted at the same time? If not, please can you point me to information in respect of how this part of the Policy is expected to work in practice? | This paragraph is to ensure that developers/landowners do not divide plots to avoid having to deliver affordable housing, which is needed within Fleggburgh. It is not intended that this is just applied to applications submitted at the same time. We are open to guidance on what would be an acceptable amount of time to demonstrate this, should a time period be required. |
| Policy 1 Please can you clarify what "or have a planning history indicating that they have been considered together" means in respect of decision making, and how this should be interpreted by a decision maker? | As above, this is about evidence that plots may have been subdivided to avoid having to provide affordable housing. |
| Policy 2 The Policy requires all development to provide electric car charging points. Please could you point me to evidence in respect of deliverability in this regard, or is it the (unstated) intention of this part of the Policy to only apply to say, new housing development? | New housing development only. |
| Policy 3 A high proportion of planning applications are for householder development, for example residential extensions. Others might be, for example, for signage above a shop. Please can you point me to evidence of deliverability in respect of the requirement for all development to "enhance the natural environment and contribute to local wildlife habitat" as well as to achieve the other requirements of the Policy? | Envisaged this would be in relation to new development - residential/business/industrial, not householder applications. |
| Policy 3 The Broads Authority has commented on Policy 3 - please could you respond to the comments made? | Our intention here is to ensure that where habitat will be lost (ie tree cut down / hedgerow removed) as part of development, which is often the case, this is compensated for appropriately, with the expectation that native species are used that are to a greater ecological value. It is not our intention to state that habitat loss is acceptable. |
Policy 4 Notwithstanding the above, please can you point me to any substantive information in justification of the Local Green Space policy seeking to control land not designated as Local Green Space and to information in respect of the definition of "inappropriate development" in such circumstances (in addition to the general reference in the supporting text)? | It is perhaps a stretch to influence land adjacent LGS, though due to the small nature of LGS development adjacent could have a significant impact on their special qualities. Regarding substantive information, regarding inappropriate development, this is included at the end of this table. |
| Policy 4 Please can you point me to any evidence in respect of the deliverability of new public rights of way connecting areas of Local Green Space? | This is an aspiration, to improve public accessibility to green space that is important to the community. |
| Policy 5 Please can you point me to substantive evidence in justification of what appears to be an onerous requirement for all development outside of the National Park to "enhance character" as opposed to say, respect or be in keeping with it? NB, I note that, whilst the Policy requires development to enhance the "setting of the Parish," the Policies of the Neighbourhood Plan cannot apply outside the Neighbourhood Area. | This wording is because the caveats set out in the Fleggburgh Neighbourhood plan (NP) policy (unless the community benefits of such significantly and demonstrably outweigh the harm of losing the land in the long term, such as affordable housing) are slightly different to the Broads Authority (BA) strategic policy on soils, copied below. The Fleggburgh NP policy is trying to say that in the Broads area, SP4 applies rather than policy 5 of the Fleggburgh NP. Policy SP4 Soils: Proposals shall, in relation to soils in the Broads: i) Protect the best and most versatile agricultural land, defined as Grades 1, 2 and 3a of the Agricultural Land Classification (See map at Appendix G); ii) Address decontamination where needed in order to improve quality; iii) Re-use top soil locally; iv) Take particular care in the transportation and disposal of soil during development to prevent possible movement of invasive species; and v) Address soil erosion and possible contamination of the water environment. The Authority will require all applications for development to include realistic proposals to demonstrate that soil resources were protected and used sustainably in line with accepted best practice, including the DEFRA safeguarding soils strategy. |
| Policy 5 Please can you point me to information in respect of what "any harm" to a view comprises? | Intention is to protect what is special about the view, which in most cases is its openness or specific view of an asset such as the church. The views assessment sets out what is important about each. |
| Policy 5 The Grade 1 agricultural land referred to in Figure 5 lies largely outside the Broads National Park. Please can you point me to relevant local or national policy in support of this part of the Policy. | As above. |
| Policy 5 Please could you comment on the Broads Authority's representation re: Policy 5? | The policy doesn't apply in the Broads area as the Broads LP policy would. Fleggburgh is a productive farming area with some of the best soils, the intention is to direct development away from the most productive land, unless it can be demonstrated to have significant community benefit. |
| Policy 6 Please can you point me to information (eg, a definition or similar) in respect of how "thoroughly justified" should be interpreted by a decision maker? | "Thoroughly" has been used to emphasise the importance of the dark skies, to ensure great consideration is given to the inclusion of external lighting in developments. That justification is strong and demonstrates the complete necessity of the use of external lighting. |
| Policy 6 Also, the requirements set out in the final sentence appear confusingly worded - is the general aim of this part of the Policy also to seek to apply the requirements of Broads Local Plan Policy DM22 to non-Broads locations within the Neighbourhood Area? | Paragraph 63 says that policy 6 does not apply to the Broads because DM22 of the Local Plan does. However, a suggested improved wording to the last part of policy 6 is: Remove: they will also need to be accompanied by a lighting scheme that shows how the status of dark skies will be protected and designed to minimise light spillage. Replace with: proposals will also need to be accompanied by a lighting scheme that shows how dark skies will be protected and how schemes will be designed to minimise light spillage. |
| Policy 8 Taking the example of an extension to a house, how might such development demonstrate "safe and suitable access using sustainable transport modes" and can you point me to evidence to why such a policy requirement is necessary and deliverable in respect of all development, having regard to the Framework? | Focus is on influencing new housing development, not household extensions. |
| Policy 8 The second part of Policy 8 appears as a general statement perhaps more suited to supporting text, as opposed to a land use planning policy requirement. Is there information you can point me to in respect of what this part of the Policy seeks to achieve? | There is community support for additional everyday facilities in the village, which was identified during the consultation exercises. Key priority would be a shop, but other community facilities would be welcome too. |
| Policy 9 Please can you point me to information in respect of the definition of the "integrity" of a heritage asset and how it should be interpreted by a decision maker? | This relates to the historic fabric of the asset and retaining the integrity of this. |
| Policy 9 Planning application requirements are set out nationally and in respect of local requirements, by the Local Planning Authority. The Policy's heritage statement requirements appear as a subjective interpretation of what a heritage statement should comprise. Please could you point me to evidence or information in support of the heritage statement requirement in the Policy; and also in support of the Policy's interpretation of what a heritage statement should comprise? | The policy was amended in line with comments from the Broads Authority at Reg 14: |
| Policy 10 Please can you point me to information in respect of when it would and would not be "appropriate" for the requirements of Policy 10 to apply to development? | May not be appropriate for householder applications. |
| Policy 11 Please could you point me to information in respect of what scale, type and location of new development the requirements of the first part of the Policy should apply to? | To be determined by the highway authority. Would have thought that to fund a crossing it would need to be major development. |
| Policy 11 Also, is there information you can point me to in respect of why the statement in the second sentence is included as part of the Policy, rather than as supporting text? | Speeding was identified as a key concern for residents during the consultation exercises, this is identified in the consultation statement. |
| Policy 12 Is there any information you could point me to in respect of when a "small scale local convenience store" would not be "proportionate to meet the day-day needs of the community" (part a) of the Policy appears unnecessary)? | Wording of Policy 12 was to ensure consistency with the Borough Council in respect of Policy CS7 which identifies retail centres in the Borough and the broad approach to retail outside of such centres. |
Local Green Space (LGS) information
The LGS policy is important, as is the precise wording. Paragraph 103 of the National Planning Policy Framework sets out that, "Policies for managing development within a Local Green Space should be consistent with those for Green Belts."This at least implies that LGS designations require a policy for managing development, rather than just a list of those designations. This seems likely as:
- First, it refers to LGS 'policy' for managing development. Policy should set out how decisions should be made when determining a planning application. A list of LGSs does not do this as it does not guide the decision maker, simply informing them of which sites are LGSs.
- Second, Para 103 implies that LGS policy is a separate entity to national Green Belt policy
- Third, development affecting a LGS cannot be determined using Green Belt policy; Green Belt policy applies only to Green Belt, not to LGSs. An attempt to use Green Belt policy is likely to be unlawful and challengeable.
- Fourth, the NPPF does not contain policy for LGSs, so without a policy in the NP, there would be no policy and therefore in effect no mechanism for managing development within each LGS.
Regarding Lochailort Investments Limited v. Mendip District Council and Norton St Philip Parish Council, [2020] EWCA Civ 1259, this found that LGS policy need to be consistent with Green Belt policy and that any departure needs to be explained in a reasoned way.
According to that judgement, "The ordinary meaning of "consistent" is "agreeing or according in substance or form; congruous, compatible". What this means, in my judgment, is that national planning policy provides that policies for managing land within an LGS should be substantially the same as policies for managing development within the Green Belt."
The Neighbourhood Plan needs to have 'due regard' to this requirement. 'Due regard' does not mean Local Green Space policy has to conform to the requirement in every respect, but any departure will nevertheless need to be fully justified and explained. The judgements support this, explaining that, "provided the departure from the NPPF is explained, there may be divergence between LGS policies in a neighbourhood plan and national Green Belt policy."
It is therefore necessary to assess Green Belt policy in the NPPF to identify its features and requirements.
National Green Belt policy at para 148 explains that openness and permanence are essential characteristics of Green Belt and that it why it is designated - to preserve its openness and permanence. This is the purpose. The designation of Local Green Spaces aims to protect smaller parcels of land for a variety of purposes that are in addition to their openness, such as its ecology, recreational value or history as set out as examples in the NPPF.
These must (NPPF para. 101) be capable of enduring beyond the plan period; this is a lower bar than needing to be permanent. It can endure beyond the plan period as long as there is not undue pressure for needed housing on those parcels of land, either by virtue of allocations for meeting local housing need being provided in the NP, or their being other land available to meet any unmet need. Another threat to the capability to endure would be a long list of different types of development that could be appropriate or acceptable (see later).
The judgement in the case of R (Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council [2020] UKSC 3, found that openness is not just a spatial or volumetric concept, but a visual one such that visual impact is a key matter. This is likely to be a particular matter of relevance for Local Green Spaces given that they tend to be small and so any development will have a visual impact.
Green Belt policy concerns ensuring permanence and openness and resisting development that threatens that permanence and openness.
The NPPF sets out that local planning authorities should plan positively to enhance their beneficial use.
Green Belt policy sets out that inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. It goes on to say that 'very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.
New buildings are considered to be inappropriate in Green Belt. There are some exceptions to this. Green Belt policy sets out a list of development that is not inappropriate, such as in-fill in villages, and affordable housing. Certain other forms of development are also not inappropriate in the Green Belt provided they preserve its openness and do not conflict with the purposes of including land within it. This includes mineral extraction and local transport infrastructure. These examples might still not be permitted if they would result in harm as para 148 says, "When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt."
There is a large number of exceptions listed at paras. 149 and 150 of the NPPF. As Green Belt areas are large, it is plausible that many such developments could take place within the Green Belt without undermining its overall openness and permanence, or resulting in only minor harm. This is not the case for LGSs, which cannot be extensive tracts of land. This means that even small-scale development risks undermining the purpose of designation and having an immediate and harmful visual impact. A Local Green Space policy that would simply refer to the list of Green Belt exceptions in the NPPF could undermine the designation process as this large number of exceptions would suggest that the designation is not capable of enduring beyond the plan period as there would simply be too many exceptions that could potentially be allowed. LGS policy therefore needs to consider each in turn, and with the aim of limiting the number.
These aspects of Green Belt policy will be analysed to help understand which aspects can be carried across to LGS policy which in turn will ensure consistency of LGS policy with Green Belt policy whilst also providing a rationale for any departure.
| Green Belt | Local Green Space |
|---|---|
| Remain open. | LGS policy should aim to keep the land open. |
| Permanent. | LGS policy should ensure that the designation is capable to enduring for the plan period. |
| Preserving openness and permanence, not about enhancement. | LGS policy should not refer to allowing development that would enhance the designation. |
| Preserve openness and permanence as these are essential characteristics that are the reasons for the designation. | LGS sites are designated for other reasons, such as recreation and ecology and these are essential characteristic that explain why it was designated. These characteristics need protecting in LGS policy. |
| Enhance beneficial use. | Include in LGS policy. |
| Resist inappropriate development. Buildings are inappropriate development. | LGS policy should also resist inappropriate development such as new buildings. |
| Exceptional circumstances can apply that would allow for such inappropriate development. | LGS policy should allow for exceptional circumstances. |
| Give substantial weight to any harm. | LGS policy should include something on this in the policy. |
| There are exceptions. Appropriate development examples, such as in-fill in villages and mineral extraction, in general. | LGS policy will need to have considered the exceptions. The Norton St Phillip judgement* found that the NP should have considered these exceptions. Not including the categories of appropriate development in a LGS policy is a departure that needs to be justified. (*Lochailort Investments Limited v. Mendip District Council and Norton St Philip Parish Council, [2020] EWCA Civ 1259.) |
| Exception - buildings for agriculture and forestry. | Would be a reasonable exception for LGS policy to include if land is commercial woodland or farmland as it might otherwise hinder someone's business. Not applicable to Rollesby. |
| Exception - the provision of appropriate facilities (in connection with the existing use of land or a change of use) for outdoor sport, outdoor recreation, cemeteries and Burial grounds and allotments; as long as the facilities preserve the openness of the Green Belt and do not conflict with the purposes of including land within it. | Would be a reasonable exception for LGS policy to include if LGS is any of these uses given that such development could support the ongoing use and help it to make it capable of enduring. |
The extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building. | Reasonable exception if a building already exists. |
The replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces. | Reasonable exception if a building already exists. |
| Limited infilling in villages affordable housing. | Openness is not just a spatial concept (so, volumetric), it is also visual, as determined by the Supreme Court. Any in-fill or affordable housing on small LGS designations will seriously undermine the reasons for the designation. (*R (Samuel Smith Old Brewery (Tadcaster) and others) v North Yorkshire County Council [2020] UKSC 3) |
Limited infilling or the partial or complete redevelopment of previously developed land, whether redundant or in continuing use (excluding temporary buildings). | Unlikely to be brownfield as LGSs should be green spaces as per para 101 of the NPPF. LGS policy could allow for partial redevelopment if any are brownfield as long as the purpose of the designation and the openness are not undermined or harmed. But in-filling and complete redevelopment is likely to undermine completely undermine the designation. |
| Mineral extraction. | Highly unlikely to apply in any LGS, but nevertheless the quarry would be so large and the operations so long term that it would not enable the LGS to endure beyond the plan period. |
| Engineering operations. | LGS policy could allow for this if temporary, small-scale and restored fully. |
| Local transport infrastructure which can demonstrate a requirement for a Green Belt location. | Not applicable as specifically requires a Green Belt location. |
| The re-use of buildings provided that the buildings are of permanent and substantial construction. | LGS policy could allow for this. |
| Material changes in the use of land (such as changes of use for outdoor sport or recreation, or for cemeteries and burial grounds. | LGSs are designated for reasons related to their specific use or quality, such as recreation or ecology. Change of use could be supported in LGS policy as long as the new use would not undermine the reason for the designation and what makes it special to the community. |
| Development, including buildings, brought forward under a Community Right to Build Order or Neighbourhood Development Order. | This would not apply as the community is designating the LGS so as to keep it open. |
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