DAY 1 The Inquiry

The Inquiry Tuesday 19th July 2016.

It opened at 10.00 am with the Inspector, John Gray explaining that he was an architect by profession and that he had been appointed by the Secretary of State to determine the two appeals. Later in the day he indicated that although both appeals were for “up to” 400 and 195 houses he was going to determine the appeals as though they were the numbers of dwellings applied for and not consider the impact lesser numbers might have.

Approximately sixteen members of the public and KV committee members were present as well as the professional teams for the three main parties- KV, AVBC and Catesby. Five residents indicated they would wish to make representations to the Inspector and that is likely to take place at 10.00am on Tuesday 26th July.

Mr Gray indicated that he had looked around the site and surroundings on Monday on his own but he was willing to discuss a further site visit accompanied by the three parties as the Inquiry progressed. He thought it was likely that it would take all eight days.

The three barristers were then invited to make opening remarks.

Rupert Warren QC of the Landmark Chambers in London was Catesby’s barrister. He asked for both appeals to be allowed because the extensive benefits of the proposals would in particular meet the serious housing and affordable housing shortfall in a sustainable location for housing in terms of proximity to the City, to jobs and to services.

Jonathan Mitchell of the Ropewalk Chambers in Nottingham responded for the Council. He described the central issue as being the impact of the proposed developments on the landscape and heritage issues. He confirmed that were it not for those adverse impacts AVBC would have approved the applications.

KV has two barristers. Jack Smyth and Nina Pindham are both from No5 Chambers in Birmingham. It was Jack’s turn to lead today. His opening remarks are reproduced below:

  1. It is a mark of the strength of local opinion that KV was formed, rule 6 status obtained and substantial fund-raising efforts made to allow it to take a meaningful role at this inquiry.

  2. Kedleston Hall (“the Hall”) is one the greatest examples of Neo-Classical taste executed in England.

  3. The appeal sites occupy a highly sensitive location in close proximity to the grade 1 listed Hall, the grade 1 Registered Park and Garden, the Kedleston Conservation Area and the grade II Kedleston Hotel. Indeed, there are few rural places in our country where such a high concentration of the highest value heritage assets can be found. Importantly, the agricultural fields (which include the appeal sites) have remained largely unchanged since the construction of the Hall. Accordingly, they represent the character of the original setting to the Hall and Registered Park and Garden. Historic maps demonstrate that medieval plot boundaries remain largely intact.

  4. The appeal sites lie on land which is designated by LP policy EN33 as land which lies within the defined setting of the Historic Park and Garden of the Hall. EN33 protects the land jealously. It states unequivocally: “planning permission will not be granted for any development proposals that would have an adverse impact on the landscape setting, including views into and out of Historic Park and Garden”.

  5. The appellant, appreciating how devastating the protection afforded by EN33 is to its case, seeks to attack the policy on the grounds that the evidence base which underpins is inadequate (The Lovejoy report). In making this attack, it is engaged in a hopeless attempt to undermine a development plan which has been adopted and stood the test of time. Further and in any event, recent evidence which touches upon the historic and cultural associations of the Hall and its Historic Park and Garden, reinforce and support the original characterisation.

  6. Para 132 of the Framework tells us: “When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation. The more important the asset, the greater the weight should be”. So it is here.

  7. The appeal site plainly falls to be considered as a valued landscape which para 109 of the Framework requires to be protected and enhanced. This provides an additional layer of protection for the appeal sites against the proposed residential development.

  8. It is a mark of how extreme and unconvincing the appellant’s case to this inquiry that it avers that the appeal sites, whilst falling within the setting of the Registered Park and Garden, do not fall within the setting of the Hall. Given the explicit design and intimate connection between the Hall and Registered Park and Garden it is implausible and illogical for them to have different settings. They are a unified heritage feature with a single setting. Given the historic and cultural associations of the land around the Hall, it is difficult to see how the appellant could be right in concluding that the Hall cannot be experienced on the appeal sites.

  9. The Inspector will have to consider and evaluate competing sources of expert evidence. In this regard it is respectfully submitted that particular assistance can be derived from the appraisal of Gallagher. He is one of the country’s top experts on historic parks and gardens. He is not a generalist historic heritage expert, but a specialist in the specific area of controversy which occupies a main issue of this inquiry. He has a depth of expertise and practical, hands-on experience which the appellant does not match. The inquiry is fortunate to have an expert of such stature before it.

  10. The Inspector will not need to be reminded that when applying the statutory duty set out in sections 66 (1) and 72 (1) of the 1990 Act, “considerable importance and weight” should be given to the desirability of preserving the setting of listed buildings when carrying out the final balancing exercise. The appeals offend important policies of the Council’s development plan. By operation of para 134 of the Framework, it is submitted that the appeals should be dismissed.

  11. KV accepts that the Council is unable to demonstrate a 5 year supply of housing. This means that those policies of its development plan for the supply of housing are out of date. However, the appellant is wrong to say that because those policies are out of date they should be afforded very little weight. Weight is a matter for the decision maker. As a matter of principle, an out of date policy may still be given significant weight. Whether a policy is out of date in terms recognised by the Framework is not synonymous with it being afforded little weight.

  12. KV’s case extends beyond the Council’s reasons for refusal by identifying the adverse impacts on drainage and highways. In the interests of brevity, these points are not rehearsed here but remain important matters which the Inspector is invited to give his anxious scrutiny.

  13. There are plainly a number of valuable benefits associated with the appeals which properly stand in the appellant’s favour not least the provision of much needed market and affordable housing. However, it is submitted that this highly sensitive location is not a sustainable place to meet the borough’s housing needs.

He indicated that he would be asking Mr Gray to refuse both applications.

In accordance with normal procedures AVBC presented its case first. David Hickie was the landscape witness and he was on the witness stand for nearly three hours. He was followed by the conservation witness, Mel Morris, who is approximately half way through the cross examination by Rupert Warren which is also estimated to take three hours.

The Inquiry will resume tomorrow morning at 9.30am.


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