Bonnell & Anor Carmarthenshire County Council [2014] UKUT 413 (LC)

IN THE MATTER OF TWO APPEALS UNDER S.18 OF THE
UT Neutral citation number: [2014] UKUT 0413 (LC)Venue LAND COMPENSATION ACT 1961
Between
Bonnell & Anor Carmarthenshire County Council
Graham Walters , instructed by Harmers Ltd, town planning consultants, by direct professional access for the AppellantsMichael Bedford , instructed by Senior Solicitor, Carmarthenshire County Council for the RespondentFletcher Estates (Harlescott) Ltd v Secretary of State for the Environment [2000] 1 All ER 929
[1]These are two appeals, heard together, under s.18 of the Land Compensation Act 1961 (the 1961 Act), against certificates of appropriate alternative development issued by Carmarthenshire County Council (CCC). The first appeal, by Mr R Bonnell, now sadly deceased, relates to 3.9 ha of land adjoining Abernant Farm, Black Lion Road, Cross Hands. The second appeal is by Mr W K Morgan. It concerns 3.89 ha of land adjoining a house known as Dolwerdd. I shall refer to the two appeal sites as the Bonnell land and the Morgan land respectively.[2]Both sites were compulsorily acquired under the Carmarthenshire County Council (Cross Hands East Strategic Employment Site, Cross Hands, Llanelli) Compulsory Purchase Order 2012 (the CPO). The CPO was made on 29 November 2012 and confirmed by the Welsh Ministers on 22 October 2013. The acquiring authority served notices to treat on 6 January 2014 and took possession of both sites on 6 March 2014. Both sites front on to the south-western side of Black Lion Road at the eastern end of Cross Hands, the Morgan land lying further to the south-east. The sites are separated by a narrow lane which runs in a north-east/south-west direction from Black Lion Road towards the Cross Hands Business Park, passing Greengrove Farm and Greengrove Cottage. The more southerly section of this lane – approximately half its total length – is unmade.[3]Mr Graham Walters of counsel appeared for the appellants. He called expert evidence from Mr L A Forse MA (Cantab), MSc, MRICS, MRTPI, a director of Harmers Ltd, town planning and development consultants of Cardiff. Counsel for CCC, Mr Michael Bedford, called expert evidence from Mr E Bowen BSc (Hons), Dip TP, MRTPI, the Council’s Head of Planning Services. Mr Bowen is an adviser to the Welsh Local Government Association on land use planning and past Chair and Secretary of the Planning Officers’ Society of Wales.[4]Accompanied by the two experts I inspected the appeal sites and the surrounding area on the morning of the second day of the hearing. The certificates of appropriate alternative development (CAADs) The Bonnell land[5]CCC received an application for a CAAD on 25 March 2013. The application requested a positive certificate for the entire site for residential and industrial use, or a mix of the two.[6]The CAAD was issued on 20 June 2013. It certified that planning permission would have been granted for the development of business and industrial units (Use Classes B1 and B8) on the south-westerly part of the site. The reason for the decision was as follows:
“Residential development of the entire site would be of a scale considered contrary to Policy CUDP 1 of the Carmarthenshire Unitary Development Plan which allocates further development in Carmarthenshire to settlements in accordance to a sustainable strategic settlement framework. While Cross Hands is allocated as a Growth Area adequate land has been allocated to meet the housing element of this role and the development of the entire site would lead to an over provision of housing to the detriment of the concept of a sustainable community. The site is however located adjacent to the existing industrial estate and the south westerly part would be an acceptable extension to the estate subject to conditions to protect the residential amenities of properties in the area.”
[7]The CAAD was subject to the following conditions:
“1. As the site is located in the meta-population area for the Marsh Fritillary Butterfly and in order to meet the requirements of Policy EN 9 – Site Protection Habitats and Species of Biodiversity Concern a contribution of £31,290 per hectare will be required to support the mitigation programme in development to enhance the landscape in the Cross Hands area designed to secure the future of the species. 2. Adequate screening is provided to secure the amenities of existing adjacent residential properties, Greengrove Cottage in particular. 3. The existing industrial estate road provides access to the development area in order to protect the amenities of residential properties at the junction of the unclassified road with Black Lion Road.”
The Morgan land[8]CCC received an application for a CAAD on 25 March 2013. A positive certificate was sought for residential use.[9]The CAAD was dated 19 June 2013. It certified that planning permission would have been granted for residential development (Class C3) only in respect of the frontage land to Black Lion Road to a depth of approximately 50m.[10]The reason for the decision was as follows: “The scale of the residential development proposed would be considered contrary to Policy CUDP 1 of the Carmarthenshire Unitary Development Plan which allocates future development in Carmarthenshire to settlements in accordance to a sustainable strategic settlement framework. While Cross Hands is allocated as a Growth Area adequate land has been allocated to meet the housing element of this role and the development of the entire site would lead to an over provision of housing to the detriment of the concept of a sustainable community. The frontage of the site however aligns with the present pattern of development along Black Lion Road and the development of such an area is not regarded as undermining this key strategic policy of the Unitary Development Plan.[11]The CAAD was subject to one condition. This was identical to the first condition in respect of the Bonnell land, save that a contribution of £1,034 per dwelling was required to meet the requirements of EN9. The statutory framework[12]S.5A(3) of the 1961 Act provides:
"If the land is the subject of a notice to treat, the relevant valuation date is the earlier of - (a) the date when the acquiring authority enters on and takes possession of the land, and (b) the date when the assessment is made."
[13]So far as is relevant, s.14 of the 1961 Act, as amended by s232 of the Localism Act 2011, provides as follows:
"14(1) This section is about assessing the value of land in accordance with rule (2) in section 5 for the purpose of assessing compensation in respect of a compulsory acquisition of an interest in land. (2) In consequence of that rule, account may be taken - (a) of planning permission, whether for development on the relevant land or other land, if it is in force at the relevant valuation date, and (b) of the prospect, on the assumptions set out in subsection (5) but otherwise in the circumstances known to the market at the relevant valuation date, of planning permission being granted on or after that date for development, on the relevant land or other land, other than - (i) development for which planning permission is in force at the relevant valuation date, and (ii) appropriate alternative developments (3) In addition, it may be assumed - (a) that planning permission is in force at the relevant valuation date for any development that is appropriate alternative development to which subsection (4)(b)(i) applies, and (b) that, in the case of any development that is appropriate alternative development to which subsection (4)(b)(ii) applies and subsection (4)(b)(i) does not apply, it is certain at the relevant valuation date that planning permission for that development will be granted at the later time at which at that date it could reasonably have been expected to be granted. (4) For the purposes of this section, development is appropriate alternative development if - (a) it is development, on the relevant land alone or on the relevant land together with other land, other than development for which planning permission is in force at the relevant valuation date, and (b) on the assumptions set out in subsection (5) but otherwise in the circumstances known to the market at the relevant valuation date, planning permission for the development could at that date reasonably have been expected to be granted on an application decided - (i) on that date, or (ii) at a time after that date (5) The assumptions referred to in subsections (2)(b) and (4)(b) are - (a) that the scheme of development underlying the acquisition had been cancelled on the launch date, (b) that no action has been taken (including acquisition of any land, and any development or works) by the acquiring authority wholly or mainly for the purposes of the scheme, (c) that there is no prospect of the same scheme, or any other project to meet the same or substantially the same need, being carried out in the exercise of a statutory function or by the exercise of compulsory purchase powers ..."
[14]Sections 17 and 18 of the 1961 Act as amended provide, so far as is relevant, as follows:
“17(1) Where an interest in land is proposed to be acquired by an authority possessing compulsory purchase powers, either of the parties directly concerned may ... apply to the local planning authority for a certificate containing whichever of the following statements is the applicable statement - (a) that in the local planning authority's opinion there is development that, for the purposes of section 14, is appropriate alternative development in relation to the acquisition; (b) that in the local planning authority's opinion there is no development that, for the purposes of section 14, is appropriate alternative development in relation to the acquisition ... 18(1) Where the local planning authority have issued a certificate under section 17 in respect of an interest in land - (a) the person for the time being entitled to that interest, or (b) any authority possessing compulsory purchase powers by whom that interest is proposed to be, or is, acquired, may appeal to the Upper Tribunal against that certificate. (2) On any appeal under this section against a certificate, the Upper Tribunal - (a) must consider the matters to which the certificate relates as if the application for a certificate under section 17 had been made to the Upper Tribunal in the first place, and (b) must - (i) confirm the certificate, or (ii) vary it, or (iii) cancel it and issue a different certificate in its place, as the Upper Tribunal may consider appropriate.”
[15]It is agreed that, in both appeals, the launch date for the purpose of s.14(5)(a) is 5 December 2012 and that the relevant valuation date for the purpose of s.5A(3)(a) is 6 March 2014. The latter date was some 8½ months after the date of the two CAAD the subject of these appeals.[16]S.38(6) of the Planning and Compulsory Purchase Act 2004 provides that:
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
Facts[17]In the light of two Statements of Agreed Facts and Issues, the evidence and my inspection I find the following facts.[18]Both appeal sites are situated to the north-east of the Cross Hands Business Park.[19]The Bonnell land comprises a generally rectangular parcel comprising three regular enclosures. The first two areas to the south of Abernant extend to 1.15ha and 0.74 ha respectively. A residential property, Greengrove Cottage, intrudes into the overall site at approximately its mid-point, and the south-western enclosure has an area of 2.01ha. The land was used for agriculture, and each of the enclosures is relatively flat, with the land falling gently towards the south-west in the direction of the business park.[20]The Morgan land is an undeveloped parcel lying between the single dwelling Dolwerdd to the west and the recent housing development at Heol Derwen to the south-east. The site encloses the rear boundary of Dolwerdd and extends to approximately 3.89 ha. It has a frontage of approximately 85m to Black Lion Road and is one of the few undeveloped parcels along the road's frontage. The existing development of the area appears to have occurred in a piecemeal fashion along the highway, resulting in a ribbon pattern of development with a multitude of house types and styles on varying plot sizes.[21]The Morgan land was mostly laid to pasture with remnant hedgerows enclosing the side and front boundaries. The rear boundary abuts various dwellings at Greengrove. A minor watercourse crosses the land from north to south via a culvert in Black Lion Road and extending through Greengrove Farm towards the business park where it is diverted. The land has a generally level topography , but there is a gentle valley landform around the stream.[22]The existing business park lies approximately 300m to the south-west of the site.[23]Planning permission for the recent residential development at Heol Derwen was granted on appeal in January 2005, before the Carmarthenshire Unitary Development Plan (the UDP) was adopted.[24]The UDP was adopted in July 2006 and is the statutory development plan in respect of both applications.[25]In Part 1 of the UDP, CCC proposed "a sustainable strategic settlement framework." Under this policy (SSSF) new development and investment is to be directed to locations which already have a range of facilities and services and have the effect of minimising the distances between trip origins and destinations, thus reducing the need for additional private car travel. The Council have chosen a strategy which directs more employment, housing and other development on a proportional basis to pre-selected urban growth areas - Llanelli, Carmarthen and Ammanford/Cross Hands. The appeal sites are both located within the latter growth area.[26]In terms of housing, the Plan envisages the need to allocate 12,161 houses over the plan period (2001-2016). Policy H1 - Housing Provision envisages 4,609 dwellings being provided within the growth areas.[27]In tandem with the SSSF the Plan makes employment allocation under Policy E1, providing employment allocations for the growth areas of: Carmarthen - 40.35 hectares Llanelli - 159.07 hectares Ammanford/Cross Hands - 137.79 hectares TOTAL 337.21 hectares[28]Policy E1 also indicates that over and above the key employment land, additional employment land will also be identified with strategic and local regeneration sites in accordance with Policies E15 and E16. The appeal sites are identified as being within allocation PDB31 under Policy E16 Local Regeneration Sites - for which planning and development briefs are to be prepared.[29]There is no objection to the proposed development of the appeal sites on access or highway grounds, nor on the grounds of infrastructure or drainage facilities. Evidence of Mr Forse[30]Mr Forse's first expert report was dated December 2013. It was directed to CCC's policy as indicated in its decision on the two CAAD applications. He submitted a further report dated July 2014. This was basically in the same form, but it added comments on matters raised in Mr Bowen's expert report, particularly in relation to the suggestion that the appeal sites were in the open countryside. The Bonnell land[31]Mr Forse said that, strictly speaking, the appellants did not need to apply for a certificate for industrial development, as such could be assumed under CCC's scheme, whereby the site was required as part of an allocation of employment land as a local regeneration site under policy E16.[32]Whilst it was true that the UDP proposed a SSSP, it must be recognised that it was to an extent aspirational. The scale of the Plan did not necessarily guarantee that it would be delivered in full by the end of the Plan period.[33]In respect of housing the UDP recognised that, with the number of variables involved, actual population growth and actual migration patterns might vary and consequently growth might vary. To reflect this position, CCC ran three population and household projections using the "Chelmer Model" in April 2004. In para 4.18 of the Housing section of the UDP:
"it was concluded that the original population forecast which estimated a growth of approximately 24,000 persons by the end of the Plan period is an achievable target provided that out-migration can be reduced by 40%. If out-migration cannot be reduced it is estimated that the population increase in the county may be as low as 10,000 persons. The Local Planning Authority is confident that the Sustainable Strategic Settlement Framework promoted in the UDP will be able to accommodate either an over or underestimate of population and household growth."
Mr Forse also quoted the following two paragraphs of the UDP: “4.19. In the event that the actual population and household growth exceeds the predicted figure of 2016, and manifests itself in terms of an under-supply of housing land, this can be satisfied by the potential housing capacity that may emerge within the UDP's designated Development Brief Sites. 4.20 Conversely, should the predicted population and household growth not materialise by 2016, the excess supply of housing land provided within the Plan will further reinforce the County Council's policy ambitions in respect of providing a land use framework that is driven by sustainable development principles and interests."[34]He concluded that CCC regarded their SSSF as being extremely flexible and adaptable, catering for a possible projected population variation of up to 14,000 people. If one took the UDP's average household size of 2.33 for 2001 (paragraph 4.24), the potential population variation would be equivalent to some 6,008 dwellings.[35]Assuming a development density of 30 units per hectare, the Bonnell land could potentially accommodate 117 dwellings. That represented 1.9% of the potential range. This showed that the development of the site for housing would cause no appreciable prejudice to the SSSF.[36]Moreover, said Mr Forse, although Table 3 in para 4.28 indicated a residual housing requirement of 1,988 after allowing for the existing supply, small site allowance, windfall/conversion allowance and a contribution from identified planning and Development Brief sites, CCC decided:
"to allocate land... for a higher figure of 2,849 dwellings within the Plan area."
This, when combined with the other figures previously referred to "gives a resultant housing supply of 12,161 dwellings for the Plan period." (para 4.29).[37]The Plan continued:
"4.30. This higher figure of 12,161 will provide an appropriate degree of flexibility in the Plan's housing provision, particularly for those sites identified within the Authority's Joint Housing Land Availability Studies which may not come forward during the Plan period due to significant physical, infrastructure or other constraints. Consideration also needs to be given to those sites which may be developed at lower densities than those suggested in the Plan. The Authority also considers the additional housing provision a necessity, if the objectives of the Plan's Sustainable Strategic Settlement Framework are to be achieved."
[38]Mr Forse concluded that CCC considered that the UDP was sufficiently robust to cater for growth ranging from their low estimate of 10,000 up to approximately 26,000 people. Thus the Plan and its SSSF were felt to be capable of accommodating a very large range of dwelling numbers, whilst the building in of further flexibility recognised the realities of housing supply. In some cases allocated sites might not come forward due to physical problems, ownership issues and infrastructure constraints. Moreover, whilst allowances were made for small sites, windfall sites and Development Brief sites it remained uncertain as to what provision would actually be delivered in the timescale in question.[39]In the light of the above considerations the two appeal sites could hardly be adjudged critical to the implementation of the Plan. Assuming a density of 30 units per hectare, the Bonnell site could accommodate approximately 117 units. This represented 4.1% of the residual land to be allocated. It could make a contribution by replacing any one of the number of sites/allowances which CCC accepted might not come forward during the Plan period. Similarly, in the local context the proposed development of the site would represent some 6.2% of the overall allocation of 1,868 dwelling for the Ammanford/Cross Hands Growth Area; not a massive figure completely disrupting CCC’s strategy.[40]Furthermore, said Mr Forse, the Joint Housing Land Availability Study (JHLAS) dated November 2012 showed that, using the residual method set out in Planning Policy Wales, Technical Advice Note No.1 (TAN1) and the Guidance Note on the JHLAS process (September 2012), CCC had 4.1 years housing land supply at 1 April 2012.[41]Paragraph 5 of TAN1 applied where land supply was below 5 years. It said this: “The results of the Joint Housing Land Availability Studies should be treated as a material consideration in determining planning applications for housing. Where the current study shows a land supply below the 5 year requirement , the need to increase supply should be given considerable weight when dealing with planning applications, provided that the development would otherwise comply with national planning policies. In addition, local planning authorities must take steps to increase the supply of housing land. This may include reviewing the development plan, releasing land in its ownership, expediting planning applications or securing the provision of infrastructure for particular sites, which prospective developers may be prepared to finance in whole or in part. The local planning authority must include a statement in the JHLA study outlining the measures it is taking to address the shortfall in housing land supply.” (Original emphasis).[42]Mr Forse said that this advice lent further strong support to the granting of a positive certificate for residential development. Indeed, he suggested, CCC had been somewhat disingenuous in failing to acknowledge the then shortfall of a 5 year supply of housing land. He added that his estimate that the appeal site could be developed at a density of 30 units per hectare was realistic, if not overgenerous, given that the Schedule of Residential Allocations in Appendix 1 to the UDP showed 293 dwellings on 15.77 ha on sites in Cross Hands, or a density of 18.57 per ha, while in Ammanford/Cross Hands as a whole the density was 17.67 dwellings per ha.[43]There was no great surfeit of residential sites under construction in the area on the relevant date. Consequently, the grant of planning permission on the Bonnell site would have had no great impact on the adopted Plan, would have satisfied a shortfall in land supply and would not have substantially prejudiced the SSSF. There was therefore no good reason why a positive certificate should not be granted for residential purposes.[44]Similarly, in respect of employment land, Policy EN1 allocated 137.79 ha of key employment land in the Ammanford/Cross Hands area. The PDB31 allocation within which the appeal site was situated was an additional area of employment land identified under Policy E16 as a local regeneration site. In the light of the scale of the overall allocation of employment land, which was substantial, the potential loss of 3.9 ha as part of an additional local regeneration site was not critical to the employment allocation.[45]Turning to the details of the site, it was evident from the UDP that to all intents and purposes the allocations consolidated the unbuilt areas of Cross Hands. In so doing the Plan expanded the urban area. Further, as a starting point one was permitted to assume that planning permission would be granted for the acquiring authority’s scheme – that is, further employment land, by way of a local regeneration site. That development would of itself further consolidate and expand the urban area of Cross Hands.[46]CCC’s only expressed objection to residential development on the Bonnell land was its inconsistency with the SSSF. For the reasons he had given, Mr Forse did not consider that objection was justified. In the absence of the site being required for employment purposes it was admirably suited for residential development, and could be suitably accessed for that purpose. In respect of the north-eastern part of the site down to Greengrove Cottage, the development of the site for residential purposes would produce a further consolidation of development within the Cross Hands growth area, and as such be generally in accordance with the Council’s intentions for the area. There were no major obstacles to development, with the land being relatively flat and clear of planting apart from the existing boundary hedgerows. The residential caravan site on the south-western boundary of the site set some precedent for and would be compatible with the residential development, whilst the development of the housing estate at Heol Derwen set a further precedent for the ongoing consolidation of the eastern part of Cross Hands. The site at Heol Derwen had been built out, and clearly set a precedent for development well beyond frontage development on Black Lion Road. The new estate had to a degree changed the character of development locally. In the absence of its allocation as key employment land one would anticipate that the land would have been ripe for further residential development. In the light of the above, a positive Certificate should have been granted for residential purposes.[47]Mr Forse noted that CCC had granted a positive certificate for industrial purposes on the south-western half of the site. In so doing they appeared to recognise that the land was immediately suitable for development. Moreover, CCC’s indication that some screening was required to buffer such development from residential properties, especially Greengrove Cottage, to a certain extent supported the principle of residential development of the north-eastern half of the site, extending to 1.89ha.[48]With regard to the south-western part of the site, in the absence of a development of the land for the purpose of the acquiring authority, there was no reason why the land should not have been developed for residential purposes. It comprised a relatively flat and unobstructed parcel, and the development would have been compatible with the residential caravan site to the north and north-west; with a residential development of the north-eastern part of the site; and with the existing dwellings at and adjacent to Greengrove Farm. Such development would form a natural consolidation of development within the allocated growth area, and serve to meet the shortfall of housing land. In the absence of any overriding need for more employment land, a positive certificate for residential development should have been granted.[49]Finally, Mr Forse expressed the view that CCC seemed to be “somewhat at cross purposes” as to how they should assess the proposals. Given that the appellant was allowed to assume that planning permission would be granted for the CCC’s scheme, they could rely on the fact that planning permission would have been forthcoming for the development of an employment use on the whole of the land. This would further consolidate the urban area of Cross Hands. In those circumstances there was no justification for objecting to the proposed development on the grounds that the site was in open countryside. The Morgan land[50]Mr Forse’s evidence on the principle of permitting residential development was effectively the same for both appeal sites. When considering the detail of the Morgan land, however, he divided the site into three phases. Phase 1a, extending to 0.59ha, was closest to Black Lion Road and was the subject of the positive certificate for residential development. Phase 1b extended to 1.15 ha immediately below 1a in a south-easterly direction to align with the rear boundary of the Hoel Derwen development. The balance of the site had an area of 2.15ha.[51]On the basis of a density of 30 units per hectare the entire site could potentially accommodate 117 dwellings. Phases 1a and 1b accounted for 52 of these units, of which approximately 18 had been certified positively by CCC, leaving a balance of 34 units to be provided in phase 1b. Mr Forse observed that development of the first two phases would account for 0.86% of 6,008, being the range of dwelling members anticipated by the UDP. The development of phases 1a and 1b for housing would therefore cause no appreciable prejudice to the SSSF. In Mr Forse’s opinion Phase 1c would be developed five years after the relevant date. It would contain approximately 65 dwellings and, since its development would fall outside the Plan period, it would not prejudice the SSSF either.[52]As with the Bonnell site, the notional 117 units which could be accommodated on the entire Morgan site represented only 4.1% of the residual land to be allocated within the UDP area. In reality the only land to be developed within the Plan period consisted of Phases 1a and 1b, and the 52 units erected there would be only 1.8% of the land allocation. Similarly, considered in the local context, development on the whole site would represent 6.2% of the 1,868 dwellings proposed in the Ammanford/Cross Hands growth area, and phases 1a and 1b would account for only 2.7%.[53]Mr Forse noted that CCC had granted a positive certificate for residential development of the frontage land to a depth of approximately 50m. He considered that allocation to be unduly conservative, given that planning permission had been granted on appeal in 2005 to add further residential development at Heol Derwen, which had been implemented and taken the overall estate much further to the south-east from Black Lion Road. Furthermore, given the application for a CAAD on the Bonnell land to the north-west on the other side of the access land, it was reasonable to conclude that a certificate for residential development should be granted for at least a first tranche of land extending back approximately halfway across the main body of the site. This would provide approximately 52 units on the 1.74 ha as a first phase of development.[54]The subsequent second tranche of 2.15ha would provide a further 65 units. This would represent a further consolidation of development within Cross Hands, and as such would be generally in accordance with CCC’s intentions for making Cross Hands a growth area. There were no major obstacles to such development, with the land involved being relatively flat and, apart from the existing boundary hedgerows, largely clear of planting. The Heol Derwen site to the south-east clearly set a precedent for development which extended well beyond the frontage development on Black Lion Road, and one would have thought that under the circumstances the Council would have recognised that fact. The new estate at Heol Derwen had to a degree changed the character of development locally, and in the absence of its actual allocation the land would have been ripe for further residential development. In the light of the above, a positive certificate should have been granted for residential purposes on this area of approximately 1.74 ha (approximately 52 units).[55]In Mr Forse’s opinion a second tranche of development could have been contemplated in five years time on the remaining balance of 2.15 ha, providing a further 65 units. At that time, the land to the north-west of the land would in theory have been developed, as would the first tranche of the appeal site. This would then leave the rear part of the appeal site to further consolidate residential development between the first tranche of the site to the north-west and the existing line of residential development adjacent to Greengrove Farm. Such development would continue the consolidation of the urban area of Cross Hands, albeit outside the UDP period. Evidence of Mr Bowen The Bonnell land[56]Mr Bowen’s first expert report submitted to the Tribunal was dated 3 January 2014.[57]Mr Bowen set out his understanding of the assumptions which should be made by a local planning authority when considering an application for a CAAD. In para 2.5 of his report he said:
“appropriate alternative uses of the land have to be considered in a ‘no scheme world’, by considering what land uses might have been permitted had the land not been designated for development resulting in the area being the subject of compulsory purchase procedures. My decision under the authority’s delegation scheme had regard to this requirement and has taken into account other relevant development policies, notwithstanding the site’s allocation in the UDP as a strategic employment site.”
Mr Bowen said that, although the site was included as a development brief site in the UDP (PDB31), the application was considered in the no scheme world. Other policies in the Plan were relevant. He highlighted those relating to the SSSF, transport, environmental and employment. PDB31 – Land at Greengrove, Cross Hands, was described in Appendix 3 of the UDP as:
“Located adjacent to Cross Hands Business Park and the route of the proposed Gwendraeth Valley Link Road, the site of approximately six hectares offers potential for employment use and related activities together with appropriate measures to protect the amenity of existing residential properties.”
[58]Notwithstanding this designation, said Mr Bowen, the site lies in open countryside, being shown on map GR3 of the UDP as outside the identified development limits.[59]The UDP established an overall strategic land and planning framework that would guide future development within the county. It was built on the sustainable “Growth Area and Village Cluster” strategy, heavily influenced by a need to secure a more sustainable land use pattern within the county. Urban centres were more sustainable than rural areas, given their comparative size, population density and level of higher order services and facilities. Although there was little difficulty in justifying the channelling of investment and development to these larger urban centres, such an unbalanced concentration of development opportunities would have a detrimental effect on rural communities. In order to try and introduce a settlement pattern that catered for the interests of the rural areas and at the same time readily embraced the concept of sustainable development, the UDP directed all employment, housing and other development on a proportional basis to: Three selected Urban Growth Areas, Llanelli, Carmarthen and Ammanford/Cross Hands (including surrounding settlements); 18 key settlements which were further sub-divided into secondary and tertiary settlements and were accessible to a range of services and facilities; and 51 Village Clusters.[60]All settlements relied on an element of development in order to sustain their communities. Whatever the scale of settlement, growth needed to be proportionate in order to maintain the balance and avoid detriment to the long term viability of other settlements.[61]The appeal site lay outside the settlement boundary for Cross Hands. Whilst it was part of an area of land allocated in the UDP as a development brief, in a “no scheme world” it had no status in terms of allocation, as it was situated in what would be regarded as open countryside.[62]Looking firstly at residential development on the entire site, in applying Welsh Government advice as outlined in Planning Policy Wales (PPW) (para 9.3.4) – Increases in density help to conserve land resources – the area had the potential to accommodate between 140-160 dwellings (based on 35/40 per ha). Mr Bowen considered this to be a large number, albeit in a growth area. Such a scale would undermine the balance and pattern of development underpinning the UDP’s strategic objective of achieving a SSSF.[63]The site lay within the Ammanford/Cross Hands growth area. Mr Bowen considered there was no justification for releasing land for housing on this scale in the light of development already delivered and under way. In this connection he referred to land opposite Ty Newydd Terrace (reference GR3/20), where 67 dwellings had been completed on a site which the UDP suggested had potential for only 20; land adjacent to Cefneithin Road, Gorslae (reference PDB30), which had been identified as a development brief site to include relocation of a scrap yard with residential to the east and where the area allocated for residential was under construction; and West Tip, Cross Hands (reference PDB 29), identified for mixed use and with outline planning permission already in place for 250 dwellings.[64]Whilst there was an acceptance in the UDP that there would be some windfall sites, the potential to erect over 160 dwellings on the Bonnell land represented an excessive proportion of the 530 dwellings which had been set aside as windfall development.[65]In addition to the strategic policy objection to the proposed residential development, Mr Bowen thought that the elongated shape of the site and its relationship to the existing development pattern would result in a disjointed form of development and set a precedent for further incongruous in-depth projects. New housing developments should be well integrated with and connected to the existing pattern of settlements.[66]During the UDP Inquiry the Inspector considered 235 proposed changes to the allocations and development limits for the Ammanford/Cross Hands growth area. The majority of these proposed incremental additions to the limits outlined in the Deposit Plan. Mr Bowen said that, in a report on the UDP to the full Council in July 2003, he had stated that the development of such sites: “would be detrimental to the physical character and general amenity of the settlement. Furthermore it is considered that there are alternative and more appropriate sites within the Growth Area for development” and he remained of that view.[67]Having rejected the possibility of developing the entire site Mr Bowen considered the development of part only. The lane running along the north-eastern site boundary served a number of properties. These were, however, ad hoc, piecemeal and individual dwellings established over a number of years. They did not form an established pattern of residential development.[68]National Planning Guidance on infill development in Planning Policy Wales was as follows:
“Sensitive infilling of small gaps within small groups of houses, or minor extensions to groups in particular for affordable housing to meet local need, may be acceptable, though much will depend upon the character of the surroundings and the number of such groups in the area.”
[69]Mr Bowen said that the long frontage of the site to the unclassified road extended over 150m up to Greengrove Cottage. Development of this section of the site would not be regarded as infilling, which was generally viewed as filling in a small gap in an otherwise built up frontage. Beyond the cottage the unclassified road was nothing more than a track and not capable of accommodating further residential development.[70]Mr Bowen had also considered the possibility of some form of in-depth development on part of the north-east half of the site. This area was better related to the existing development; it would have the caravan park to the north and housing to the east. However in order to justify the investment in improving the access such development would have to be at a scale that would be excessive and would undermine the strategic settlement policy.[71]Mr Bowen said that the appellants had submitted a technical note which outlined how an adequate access could be provided for the industrial use of the site. This would take the form of an access into the site off the lane to the north-east of Greengrove Cottage, widening the unclassified road and creating an improved T-junction with Black Lion Road. The note indicated that some 14,000m 2 of general industrial floor space could be accommodated on the site, generating 190 trips in the am peak hour and 160 trips in the pm peak hour, equivalent to 3 trips per minute.[72]While the calculations showed that the road design could accommodate this scale of traffic from a highway engineering and safety perspective, in Mr Bowen’s opinion the general disturbance created by such traffic would result in unacceptable harm to the amenities of the residential properties located at the junction. Maesawel and Dan-y-coed were situated close to the road, and use of the access on the scale proposed would involve heavy industrial traffic slowing down to turn and accelerate on a frequent basis through the day. The property directly opposite the access, Llety Emlyn, would be subject to constant disturbance, particularly during hours of darkness, from emerging traffic. Mr Bowen considered that the use of the entire site for industrial purposes was not acceptable.[73]Permitting the use of the entire site in this way would also result in Greengrove Cottage being encircled by industrial uses to the detriment of its amenities. While screening and building could mitigate the position to a certain degree, this would result in a sense of enclosing and overbearing to that property.[74]That said, the existing roads within the Cross Hands business park had the potential to provide adequate access to part only of the site for industrial purposes. The two sites shared a common boundary at a point where an existing cul-de-sac could be extended into the south-western section of the appeal site. Industrial development of part of the site, as far north as Greengrove Cottage, was reasonable, provided a suitable buffer was kept between any development and Greengrove Cottage. This might involve a bund, but having such an embankment on one side of the house only would be acceptable. In addition the existing trees and hedgerows would provide screening from the caravan park and two existing residential properties, Oak Tree Cottage and Green Vale. It was on this basis that a certificate was issued for part of the site for B1 and B8 uses.[75]Mr Bowen said that, in addition to the strategic element of the UDP, policy GDC3 Development in the Countryside, was relevant. One of the Plan’s principal objectives was to prevent unjustified and unnecessary development in the open countryside, defined as any area of land outside the development limits. Mr Bowen considered that the development of the site would introduce an unjustified development into the open countryside, which provided a definitive setting to existing development. Although this policy applied to development generally, Policy E4 provided an exception to employment development in open countryside.[76]Mr Bowen produced a supplementary report dated 15 August 2014. It was prepared to address evidence by Mr Forse relating to land availability.[77]Mr Bowen said that the JHLAS was produced in accordance with guidance which, in relation to the 2012 study, was contained in Planning Policy Wales, Technical Advice Note 1 (TAN 1) and the Guidance Note on the JHLAS process (September 2012). In producing the 2012 Study CCC issued draft site schedules and site proformas for consultation from 6 July 2012 until 20 August 2012. Comments were provided by the House Builders Federation within this period. A Statement of Common Ground (SoCG) was subsequently prepared and, following consultation with the Group, was submitted to the Welsh Government on 29 October 2012.[78]JHLAS 2012 was published in November 2012. It concluded that the land supply calculations for Carmarthenshire showed that there was a 4.1 year housing land supply as at 1 April 2012. A more up to date assessment was provided in the 2013 JHLAS, based on the position on 1 April 2013. CCC issued draft site schedules and site proformas for consultation from 11 July 2013 until 28 August 2013. Responses were received from HBF and Asbri Planning on behalf of Persimmon Homes. A further consultation took place in response to the comments between 30 August and 13 September. Further comments were received from the HBF. The responses received were incorporated into the draft SoCG, which was subject to consultation between 27 September and 18 October 2013. A SoCG was subsequently prepared and, following consultation with the Study Group, was submitted to the Welsh Government on 21 November 2013. The Inspector’s report was provided to CCC on 3 March 2014. The Inspector’s report and the final 2013 JHLAS were published on 17 April 2014.[79]It was necessary for an appointed Planning Inspector to resolve a number of disputed matters, because details within the site schedule could not be agreed by all parties through the SoCG stage. The Inspector subsequently prepared a report making recommendations on the points of dispute. He concluded that the number of units within the five year land supply was 3,560 which provided a housing land supply of 5.3 years.[80]Mr Bowen said that, despite the advice in TAN1 to give considerable weight to the need to increase land supply in cases where the supply of housing land was below 5 years, the UDP was based on a sustainable settlement pattern. Any distortion of the framework, through over development in certain areas, would undermine the principles of sustainable development upon which national planning policy was based. He concluded that land supply over provision would not prevail in a conflict with the sustainable development policy. Overall, he concluded that the proposed scheme would be contrary to the development plan and national policies.[81]Moreover, the most recent available evidence demonstrated that during 2013 there was a 5 year land supply as evidenced by figures collected during the latter part of 2013. As at the relevant valuation date of 6 March 2014, any market assessment of what development could reasonably have been expected to be granted planning permission would have taken into account the information concerning the preparation of the 2013 JHLAS, which was a known process which by that time had already been the subject of an adjudication by the Inspector. In particular the disputed sites would have been part of the SoCG. These were known to those with an interest in residential development in CCC’s area, including the HBF, whose members included many housebuilders. The Inspector had concluded that the Council had a housing land supply in excess of 5 years at the base date of 1 April 2013. Whilst the final 2013 JHLAS was not published until 17 April 2014, those active in the house building market would have been aware at the valuation date of the matters before the Inspector and the local authority’s view that there was an adequate 5 year land supply. The Morgan land[82]As in the case of Mr Forse, Mr Bowen’s evidence was generally identical in both appeals, but there were a few differences on points of detail.[83]Mr Bowen said that, having rejected the possibility of supporting residential development on the entire site, the next option was developing part of the site only. The policy on infill development in PPW was as follows:
“Sensitive infilling of small gaps within small groups of houses or minor extensions to groups, in particular for affordable housing to meet local need, may be acceptable, though much will depend upon the character of the surroundings and the number of such groups in the area.”
[84]CCC took the view that development limited to the site’s frontage to Black Lion Road would be on an acceptable scale. It would reflect the general pattern of development along the road for most of its length, which was essentially linear. Discussion[85]I start with a legal point. One of the matters upon which Mr Forse relied was the fact that the appeal sites were shown on the UDP as falling largely within a local regeneration site, PDB31. The UDP referred to PDB31 in these terms:
“Land at Greengrove, Cross Hands. Located adjacent to Cross Hands Business Park and the route of the proposed Gwendraeth Valley Link Road, the site of approximately 6 hectares offers potential for employment use and related activities together with appropriate measures to protect the amenity of existing residential property.”
[86]PDB31 was one of the UDP allocations which, Mr Forse contended, “consolidates the unbuilt areas of Cross Hands and in so doing this expands the urban area.”[87]Mr Bedford accepted that any planning application would be determined in accordance with the UDP unless material considerations indicated otherwise. He submitted, however, that parts of the UDP which supported the scheme were not to be applied if this would contradict the assumption required by s.14(5)(a) of the 1961 Act, namely that the scheme has been cancelled. Whilst this proposition did not derive directly from the statutory provisions, Mr Bedford submitted that it was a necessary consequence of the cancellation assumption. Otherwise, the purpose of that assumption would be defeated in every case where the scheme had the benefit of development plan support.[88]In response Mr Walters submitted that, if Mr Bedford was right, any employment allocation for the whole of the area covered by the scheme would be removed from the UDP. In that case one would be considering a CAAD for development where there was effectively no relevant development plan; a planning void. That was not the correct position. Even if it was correct it did not mean that a positive CAAD would not be granted; it simply meant that there was no relevant development plan policy.[89]That Mr Bedford’s submission was incorrect, said Mr Walters, was demonstrated by the fact that the stated reason for refusal of a positive certificate in each case was a conflict with the SSSF. On a proper reading of the SSSF, the elements of development plan allocation upon which the appellants relied were integral and were not to be regarded as non-applicable merely because the scheme was cancelled.[90]Mr Walters sought to test the position by asking what would happen if a commercial developer had come forward with an effectively similar scheme the day after cancellation. The issue was the practicality of delivery, but the planning principles underlying the allocation were not lost simply because the scheme had been cancelled. If that approach was right, the allocations would remain and the settlement boundary/open countryside objections were unsustainable.[91]For the reasons that he gave, I accept Mr Walters’ submission that the development plan allocation of PDB31 is not to be ignored when considering what planning permission would have been granted in respect of the appeal sites.[92]The UDP shows the whole of PDB31 as falling outside the settlement boundary. On the face of it this allocation is contrary to the UDP policy GDC3, which states that development in the countryside will not be permitted unless one of nine specified exceptions applies. Mr Bowen said, however, that that allocation was consistent with the countryside policy, because the third exception to the general approach of policy GDC3 applied, namely development in accordance with Policy E4, which states:
“It is the policy of Carmarthenshire County Council to permit small-scale employment undertakings (B1 and B8) outside the limits of all regional settlements throughout the Plan area.”
[93]That policy was itself subject to further provisos. It is not necessary for me to set out those provisos, however, because I am satisfied that Mr Bowen’s reliance on E4 is unjustified. PDB31 is a very large site, extending to 6 ha. On 29 November 2012 planning permission was granted for development of the site as an “Industrial Park, including the development of business and industrial units (Use Classes B1 and B8), offices, business incubator units, a hotel, a business central hub, resource centre, energy centre…” In my judgment, such a development cannot realistically be described as comprising a small scale employment undertaking.[94]In his first expert report Mr Bowen placed emphasis on the fact that both appeal sites were shown on the UDP as being outside the Cross Hands settlement boundary and thus in the countryside. In my judgment CCC did not consider that boundary to be of material significance when considering proposals for development in the area. There are a number of reasons for this conclusion. Firstly, as I have said, PDB31 was allocated on the UDP for employment use, although it was outside the settlement boundary. Secondly, CCC did not rely on that boundary as a reason when they issued the certificates which are the subject of this appeal. Thirdly, CCC granted a positive certificate for an extension of the existing Cross Hands business park into the south-western section of the Bonnell land, which was itself outside the settlement boundary. Fourthly, there are other significant areas which were allocated for residential development beyond that boundary, namely PDB29 and PDB30. The former was identified in the UDP as being suitable for mixed use, and outline planning permission has been granted for 250 dwellings. PDB30 was identified as a development brief site to include relocation of a scrap yard with residential to the east.[95]In my view, the only objection of potential weight to the appellants’ proposals for a positive residential certificate is that which was referred to by CCC when it issued the CAADs under appeal, namely that the proposals would lead to an overprovision of housing in the Cross Hands growth area, to the detriment of the concept of a sustainable community. I now consider the merits of that objection.[96]In summary, the SSSF seeks to achieve a balance between directing new development to growth areas – including Ammanford/Cross Hands – which are served by sustainable transport routes and have a range of higher order services and facilities, and to smaller settlements. Mr Forse accepted the validity of that policy. He considered, however, that residential development of the appeal sites would not prejudice the policy, for two reasons. Firstly, because the policy incorporated a very large margin of flexibility – an allowance for differences in population growth of 16,000 people. Secondly, because the number of housing units that could be erected on the sites would not be disproportionate, given the size of the total housing allocation.[97]Before I state my conclusions on this issue it is necessary to decide how many units could be accommodated on the appeal sites. Mr Forse thought the likely density would be 30 units per hectare. Mr Bowen felt that 35 to 40 would be more realistic. At my request the experts agreed the densities which have been permitted at a number of sites in the locality which appeared to me to be comparable. As Mr Bedford observed, this is really a matter of impression. It seems to me, however, that the following developments provide a particularly helpful guide to the density which might be expected on the appeal sites:(i) Land at Gorsddu Terrace/Black Lion Road – 26 units on 0.75 ha = 34 units/ha approx(ii) Part GR3/30 – 50 units on 1.617 ha = 31 units/ha approx(iii) GR3/20 – 64 units on 1.79 ha = 36 units/ha approx[98]I conclude that any residential development on the appeal sites would have been at a density of 33 units per hectare, or a total of 128 units on each site.[99]Mr Forse’s evidence was that, if the sites were developed at his suggested density with 117 dwellings on each, this would not have any major effect on the strategic growth pattern, given the overall numbers of dwellings envisaged and the flexibility built into the Plan. In cross examination Mr Bowen said that, although there was considerable flexibility in the UDP to meet high and low population growth figures, the flexibility reduced as the end of the Plan period approached and there was more certainty as to how much development had taken place. He was asked whether he had any statistical evidence to suggest that the developments proposed by Mr Forse would result in an over-provision of housing in the growth area. He replied that he relied on the 2013 JHLAS, which demonstrated more than 5 years land supply; and the fact that there had been an increase in the number of allocated sites between 2012 and 2013. In his view one could assume that there would be a considerable increase in supply in the future as the country emerged from recession.[100]In considering applications for residential development on the appeal sites, one must bear in mind that they are located in an area which has been identified as one of three selected for growth, at the top of the hierarchy of sustainable centres for housing. They are sandwiched between a residential caravan site to the north-west and the residential development at Heol Derwen to the south-east.[101]At the relevant valuation date, therefore, both their general and specific locations made the appeal sites suitable for residential development. I accept Mr Forse’s opinion that there was a considerable degree of flexibility in the UDP. However, I consider that the fact – known to the market on the valuation date – that CCC considered there was now a five years land supply, together with the fact that the end of the Plan period was approaching, would have made the local planning authority cautious about permitting extensive residential development projects on any site which was not already allocated for that purpose. That said, too much emphasis should not be placed on the five years land supply at the valuation date since, as para 4.30 of the UDP explained (see para 37 above), development of some of the sites identified in the JHLAS might be delayed.[102]In my judgment residential planning permission would have been granted for a total of 1.74 ha on the Morgan land – comprising phase 1a for which the original CAAD included a positive certificate, and phase 1b, comprising a further 1.15a, resulting in development extending a broadly similar distance from Black Lion Road as had been approved at Heol Derwen. In the case of the Bonnell land I consider permission would have been granted for residential development on the site of 1.15 ha immediately adjacent to Abernant. Again, this would result in a form of development broadly in alignment with Heol Derwen. At a density of 33 units per hectare this would have produced 38 units on the Bonnell site and a total of 57 units on the Morgan site. I consider that development of this scale would not have prejudiced CCC’s policy of SSSF, but that any extension of development further away from Black Lion Road might have caused such prejudice, not least because it would set a precedent for further such extensions elsewhere.[103]I should also state my conclusion on the suggestion that the positive certificate for industrial development on the south-western section of the Bonnell land should be extended to the entire site. I accept Mr Bowen’s evidence that the traffic associated with such development would cause unacceptable damage to the amenities of the houses at the junction of the access road and Black Lion Road. I find that planning permission would not have been granted for such development.[104]For completeness I should add that I do not agree with Mr Forse’s suggestion that, because s.14(2)(a) of the 1961 Act requires account to be taken of the fact that planning permission for an industrial park on PDB31 was in force at the valuation date, that permission should be taken into account when considering whether permission would have been granted for an employment use on the whole of the Bonnell land. S.14 is concerned with assessing the market value of land acquired compulsorily. It has nothing to do with certification under the provisions of s.17, which sets out the “no scheme” assumptions which must be made when determining an application for a CAAD. Result[105]I allow the appeal, cancel the two certificates issued by Carmarthenshire County Council on 20 June 2013 and issue two positive certificates, Appendix A (Bonnell land) and Appendix B (Morgan land). Both certificates incorporate conditions which have been agreed by the parties.[106]The decision is final on all matters other than costs. The parties may now make submissions on the costs and a letter giving directions for the exchange of submissions accompanies this decision. Dated: 10 November 2014 N J Rose FRICS [2014] UKUT 0413 (LC) UTLC Case Number: DET/99/2013 APPENDIX A LAND COMPENSATION ACT 1961 (AS AMENDED) CERTIFICATE OF APPROPRIATE ALTERNATIVE DEVELOPMENT LAND ADJOINING ABERNANT FARM, BLACK LION ROAD, CROSS HANDS, CARMARTHENSHIRE PURSUANT TO its powers under section 18 of the Land Compensation Act 1961 (as amended) it is hereby CERTIFIED in relation to the said land that for the REASONS set out in its decision dated 10 November 2014: Planning Permission would have been granted for the development of business and industrial units (Use Classes B1 and B8 on a site of 2.01/ha on the south-westerly part of land adjoining Abernant Farm, Black Lion Road, Cross Hands, Carmarthenshire, as shown edged blue on the accompanying plan, subject to the following conditions:[1]As the site is located in the meta-population area for the Marsh Fritillary Butterfly and in order to meet the requirements of Policy EN9 – Site Protection Habitats and Species of Biodiversity Concern a contribution of £31,290 per hectare will be required to support the mitigation programme in development to enhance the landscape in the Cross Hands area designed to secure the future of the species.[2]Adequate screening is provided to secure the amenities of existing adjacent residential properties, Greengrove Cottage in particular.[3]The existing industrial estate road provides access to the development area in order to protect the amenities of residential properties at the junction of the unclassified road with Black Lion Road. And that Planning Permission would have been granted for residential development on a site of 1.15ha immediately adjacent to Abernant as shown edged pink on the accompanying plan, subject to the following conditions:[1]The development hereby permitted shall be begun either before the expiration of five years from the date of this permission, or before the expiration of two years from the date of approval of the last of the reserved matters to be approved, whichever is the later.[2]Approval of the details of the siting, design and external appearance of the buildings, the means of access thereto and the landscaping of the site (the reserved matters) shall be obtained from the Local Planning Authority (the LPA) in writing before any development is commenced.[3]Prior to the commencement of development a scheme of drainage for the site, indicating how foul and surface water flows are to be disposed of, shall be submitted to and approved by the LPA.[4]The approved drainage scheme shall be implemented to the satisfaction of the LPA prior to the dwellings on the site being brought into beneficial use.[5]No development shall take place until full details of landscape works have been submitted to and approved in writing by the LPA, and these works shall be carried out as approved. These details shall include the means of enclosure for the site together with a plan indicating the trees and hedgerows which are to be retained.[6]All hard and soft landscaping shall be carried out in accordance with the approved details. The means of enclosure shall be carried out prior to the occupation of the dwellings, and the soft landscaping shall be carried out in the first planting season following the substantial completion of the development.[7]No development approved by this permission shall be commenced until a method statement clearly stating how the mitigation for marsh fritillary butterfly habitat will be undertaken before, during and following construction, including timing of the work in relation to the phasing of the development has been submitted and approved. The method statement shall include details of the following:- · Grassland management inclusive of the translocation of species-rich grassland; · Grassland creation and management; · Protection and management of areas to be retained. The method statement shall then be implemented as approved unless, as an alternative, a commuted sum in respect of mitigation is paid in accordance with Supplementary Planning Guidance Caeau Mynydd Mawr Special Area of Conservation (adopted February 2014).[8]The development shall not begin until a scheme for the provision of affordable housing as part of the development has been submitted to and approved in writing by the LPA. The affordable housing shall be provided in accordance with the approved scheme and shall meet the definition of affordable housing in Annex B of TAN2 or any future guidance.[9]The development shall not commence until details of a scheme for the provision of open space, to meet the needs of the development in accordance with UDP policies, has been submitted to and approved in writing by the LPA. This scheme shall include the timetable for the provision to be made and details of the arrangement for its subsequent maintenance. The open space shall be provided in accordance with the approved details.[10]The density of development shall be 33 units/ha. Dated: 10 November 2014 N J Rose FRICS Member, Upper Tribunal (Lands Chamber) [2014] UKUT 0413 (LC) UTLC Case Number: DET/107/2013 APPENDIX B LAND COMPENSATION ACT 1961 (AS AMENDED) CERTIFICATE OF APPROPRIATE ALTERNATIVE DEVELOPMENT LAND ADJOINING DOLWERDD, BLACK LION ROAD, CROSS HANDS, CARMARTHENSHIRE PURSUANT TO its powers under section 18 of the Land Compensation Act 1961 (as amended) it is hereby CERTIFIED in relation to the said land that for the REASONS set out in its decision dated 10 November 2014: Planning permission would have been granted for residential development on 1.74ha of land, shown as Phase 1a and Phase 1b on the accompanying plan, subject to the following conditions:[1]The development hereby permitted shall be begun either before the expiration of five years from the date of this permission, or before the expiration of two years from the date of approval of the last of the reserved matters to be approved, whichever is the later.[2]Approval of the details of the siting, design and external appearance of the buildings, the means of access thereto and the landscaping of the site (the reserved matters) shall be obtained from the Local Planning Authority (the LPA) in writing before any development is commenced.[3]Prior to the commencement of development a scheme of drainage for the site, indicating how foul and surface water flows are to be disposed of, shall be submitted to and approved by the LPA.[4]The approved drainage scheme shall be implemented to the satisfaction of the LPA prior to the dwellings on the site being brought into beneficial use.[5]No development shall take place until full details of landscape works have been submitted to and approved in writing by the LPA, and these works shall be carried out as approved. These details shall include the means of enclosure for the site together with a plan indicating the trees and hedgerows which are to be retained.[6]All hard and soft landscaping shall be carried out in accordance with the approved details. The means of enclosure shall be carried out prior to the occupation of the dwellings, and the soft landscaping shall be carried out in the first planting season following the substantial completion of the development.[7]No development approved by this permission shall be commenced until a method statement clearly stating how the mitigation for marsh fritillary butterfly habitat will be undertaken before, during and following construction, including timing of the work in relation to the phasing of the development has been submitted and approved. The method statement shall include details of the following:-a. Grassland management inclusive of the translocation of species-rich grassland;b. Grassland creation and management;c. Protection and management of areas to be retained. The method statement shall then be implemented as approved unless, as an alternative, a commuted sum in respect of mitigation is paid in accordance with Supplementary Planning Guidance Caeau Mynydd Mawr Special Area of Conservation (adopted February 2014).[8]The development shall not begin until a scheme for the provision of affordable housing as part of the development has been submitted to and approved in writing by the LPA. The affordable housing shall be provided in accordance with the approved scheme and shall meet the definition of affordable housing in Annex B of TAN2 or any future guidance.[9]The development shall not commence until details of a scheme for the provision of open space, to meet the needs of the development in accordance with UDP policies, has been submitted to and approved in writing by the LPA. This scheme shall include the timetable for the provision to be made and details of the arrangement for its subsequent maintenance. The open space shall be provided in accordance with the approved details.[10]The density of development shall be 33 units/ha. Dated: 10 November 2014 N J Rose FRICS Member, Upper Tribunal (Lands Chamber)

Cited in 1 later judgment