Advice on objecting to reserved matters

You may recently have received a letter from AVBC relating to an application for all matters reserved pursuant to conditions 1, 15 and 16 of the appeal decision APP/M1005/W/15/31327 and want to write to object to this application. Equally, you may have not been written to but may also want to object to this unsustainable development application on the land adjacent to Kedleston Road and Memorial Road, Allestree, Derby.

If the latter, you may also want to refer to the AVBC site (https://www.ambervalley.gov.uk/planning/development-management/view-a-planning-application/) utilising the reference number AVA/2019/0573 to find more detail on this application. Please note that if you want to read the full application then you will have to put aside a good afternoon. The best document to read is the covering letter, https://info.ambervalley.gov.uk/WebServices/AVBCFeeds/IdoxEDMJSON.asmx/StreamIdoxEDMDoc?docId=949893&docApplication=planning, and be guided by that.

We apologise for the delay in offering guidance on this application. This is partly due to holiday commitments but also due to KV having to draw breath. As a group, we were very badly impacted by the unjust decision by the Appeal Court and the associated behaviours by the applicant’s representatives and supporters. This has led us all to have grave reservations about the planning and legal system we employ within England.

That said, we are now back up and running. We are determined to make sure that the applicant complies with the conditions laid out in the appeal judgement. We will also make sure that any subsequent developers maintain these conditions and, with your support, will take enforcement action through the courts if they do not.

Please read the attachment for guidance on how to respond to the current application, which already differs in its sustainability from the original outline application for 400 house. It will also give you further background on the processes in play.

We are happy to respond to any specific questions you have. KV will also be providing a formal objection based on this material over the next two weeks.

Lastly, do not forget that you need to have your responses in by the 12 July 2019, if possible, although they may be considered after this. In earlier times, we have seen many hundreds of objections and it would be great if we could repeat this.

Kind regards

Kedleston Voice

Guidance Note – Response to AVA/2019/0573

Background

If you have been following the progress of this proposed development then you will be aware that there is a proposal to build up to 400 houses on the land adjacent to Kedleston Road. The outline planning application that relates to this is AVA/2014/0928. Despite this development being unsustainable by planning definition and it being built on heritage land, the Court of Appeal allowed it to proceed, despite the High Court and perhaps our most well regarded and expert heritage planning Judge being very clear that it should not, due to the harm it will cause. Despite the national importance of this decision, the Supreme Court declined the opportunity to review it.

This means that heritage land across the country is now at threat from unsustainable development. Like it or not, houses will now be built on this land in Allestree.

AVA/2019/0573

This is not a re-application for permission to build houses on this land. Given the Appeal Court decision, this application is related to reserved planning matters linked to the conditions of the outline planning decision. The applicant/developers have to comply with these conditions for the housing development to be confirmed. They do this by providing detailed information as to how the development will proceed and also how it complies with these conditions.

In our experience, this is when the applicant starts to “negotiate” with AVBC. They try to get around the conditions they do not like and, if they do not get compliance, they may threaten the council by indicating that the development is unviable. In doing so, recent experience suggests that councils will acquiesce and not take enforcement action, leaving the developer to virtually do what they want.

To object to this planning application, residents need to find reasons as to why the detailed planning application does not comply with the outline permission or satisfy the conditions that were put in place.

With deference to those that have already objected, this does not mean that you should object on the grounds of traffic, amenities, junctions etc. This has already been done as part of the outline planning and failed. You have to object to what has been presented in the current application, based on the conditions approved. For those of you that have already objected in the manner above, you can always resubmit an objection letter based on this guidance. Please note that any submissions you may have made in the outline planning application will not be considered against this application.

Objection process

The process is really simple. You can:

and fill in the form provided. It is better to prepare your thoughts first before cutting and pasting them into the document. You may want to cut and paste some of our material below, if this helps.

  • Send an email to development@ambervalley.gov.uk with a reference of AVA/2019/0573 in the title. The rest of the first bullet point then applies.

  • Write to AVBC at Town Hall, Ripley, Derbyshire DE5 3BT with a reference of AVA/2019/0573 in the title. The rest of the first bullet point then applies.

It is very important that you write to the council individually if you can. Petitions have little or no weight in these situations, often counting as just one objection. KV is considering sharing a template for an easier resident response process and will update shortly on this. That said it will be better to respond directly in your own words if you can.

Grounds for Objection

KV are still analysing all of the material presented by the applicant. However, from a first view, it is clear that the detailed application does not comply with the outline planning permission and there are grounds for this application to be rejected.

The primary requirements of the applicant are to discharge the Planning Conditions and reserved matters related to appearance, landscaping, layout and scale, see Annex 1. These are covered in conditions 1 and 4. They also want to discharge conditions 15 and 16, also see Annex 1.

The following points of objection would appear to be relevant:

  • The original outline application for this site was for up to 400 dwellings. The detailed application is for 400 dwellings, the maximum available. We would question whether this results in a housing density much beyond that already indicated in the drawings that were presented alongside the application and considered by the planning inspector and appeal court. It appears that the applicant is solely interested in maximising the return on their investment rather than showing any concerns for the impact on locality.

  • Review of the housing designs suggests a significant alteration in the scale of development contained within the outline application. In some cases there are whole streets of co-joined houses and blocks of flats which were not referenced within the outline application. The scale and massing of the proposed dwelling falls way outside of the initial proposals and should be rejected. The designs are also not in keeping with the current dwelling profile of the vicinity and do nothing to enhance or protect what is currently the heritage setting of Kedleston Hall and the Registered Park and Garden. This fails to comply with paragraph 190 of the National Planning Policy Framework, (NPPF) and duty, ‘to avoid or minimise any conflict between the heritage asset’s conservation and any aspect of the proposal’.

  • The very large number of house types, colours and finishes also moves substantially away from the outline permission. Again, these are neither appropriate to the local vicinity or heritage setting of Kedleston Hall and the Registered Park and Garden, which are heritage assets of the highest significance.

  • The conceptual drainage strategy shows a diversion of the plans for the main sewer that ran originally from the site boundary at Askerfield Avenue to the north east corner of the Somme and Lens Road development. It now bends to follow the road layout and requires 18 new inspection chambers. There are no new submitted calculations to prove the design of the replacement foul drainage. The design is also materially different from the outline application. Given there are significant concerns about foul drainage capacity and incidences of sewer overflow in the Lens Road area, this application must be rejected due to the risk of further issues until proven confirmation can be obtained that foul drainage provision is safe.

  • There is an underestimation of the capacity and discharge rates of the two attenuation ponds which have been downsized from the outline planning application. This flies in the face of the need to include a climate change allowance of 30% to 40% in historical applications. This detailed scheme is not in line with the outline permission granted. It also increases the risks of flooding of adjacent properties, which is in direct breach of paragraph 163 of the NPPF, ‘When determining any planning applications, local planning authorities should ensure that flood risk is not increased elsewhere’. It should be rejected as a consequence.

  • The outline planning application showed a convenience store to aid the sustainability of the development. This has now been lost from the detail application, with an expectation that people will travel to the nearest convenience store. Increased footfall along Kedleston Road will increase the risk of accidents. The removal of the store again is a material breach of the outline planning permission, which specifically references this store, as part of its sustainability credential. The current application should be rejected until this sustainable element is reconfirmed. Again this is a sign that the applicant is looking to maximise housing density and return on investment over development sustainability.

  • The area of the site that, despite being at its far reaches, was earmarked for recreational purposes and particularly targeted at younger children, has been turned into an off-road cycle track. This is another material breach of the outline planning permission. It will also attract greater external footfall and external car journeys to access this facility, increasing the already congested traffic flow and risking the safety of cyclists. Moreover, there is no parking provision made for this facility. With a natural focus on older children, this planned design is likely to attract such children from outside the area and increase the chance of anti-social behaviour and in a location nearest to the Site of Special Scientific Interest. The application should be rejected for these reasons.

  • The level of investment planned for protecting biodiversity is minimal, despite what was said in the outline application and which amusingly suggested that biodiversity would improve. AVBC needs to remember that this site is on heritage land and adjacent to a Site of Special Scientific Interest. Despite the promises made in the outline application, the proposed development has coalesced into two high density housing sites separated by a thin boundary of trees, hedgerow and green space. The remainder of the landscaping appears to be on the edge of the development. This will do little to enhance the biodiversity of the site whilst compromising this completely in its centre. At a time that red kites have been reported to have returned to the area, this development as designed does much to destroy the diversity of the area on which such animals rely. As designed, this development cannot have Conditions 15 and 16 discharged and these conditions must be upheld, as they are fundamental to ensuring protection for existing trees and hedgerows both during and after construction and will require the developers to enhance biodiversity in the resulting development. Moreover, adequate mitigation from the significant harm to biodiversity resulting from this development is required by paragraph 175.a of the NPPF.

In summary, this is not a sustainable, integrated development. It would be better described as a housing site that is parasitic in nature; adding nothing to the character, heritage or biodiversity of Allestree. It just feeds from it for the benefit of the developers.

There may be other issues that we find as KV explore the mountain of information provided by the applicant. We will update you further on these as they emerge.

Please feel free to cut and paste some or all of these objections in your objection to AVBC. These are material beaches in the outline planning permission and AVBC should not approve the discharge of the requested conditions because of them.

Also, please do not expect AVBC to do this work themselves. Previous experience suggests that developers rely on the lack of capability and capacity within councils to get changes to the outline planning permission that benefits them. It is really important that each resident brings these points to their attention to hold AVBC responsible for their decision making.

Infrastructural Promises

As a resident and / or interested party, you may be concerned that none of these objections above relate to mitigation of important matters such as traffic flow, provision of schooling and access to essential services such as doctors, dentists etc. This is because they have already been considered and approved as part of the outline planning permission.

This does not mean that the developers can avoid these. Their Section 106 payments to AVBC will be required to facilitate the mitigation that they have committed to within their application. The issue is that residents often struggle to have visibility as to what AVBC and the other statutory bodies have agreed with the developer to mitigate these issues. For example, there is no secondary school provision available to this development. Derbyshire County Council have indicated that they will solve this problem but residents have no sight as to how this will be achieved as yet.

Should you have concerns about these issues, there is nothing lost in writing to AVBC to enquire how these issues will actually be mitigated. Just make sure you do this separately to the response to the above planning application to ensure you do not dilute your specific objections to this.

It also does no harm to label your enquiry under Freedom of Information. Unless your request is unreasonable, commercial in confidence or too costly to respond to, AVBC has a duty to respond. KV will also be asking such probing questions shortly.

Enforcement

It is really important that you object to this detailed planning application based on reserve matters and the discharge of conditions. This is the time to get AVBC to make sure that the development complies with the outline application given the sensitive nature of the site. Without pressure, the applicant and subsequent developers will have “carte blanche” to develop the site as they wish.

Despite this campaigning and subsequent challenge/change, the reserved matters will eventually be discharged and houses will be built on this site, even though the development is parasitic and unsustainable. We must just try to mitigate the worst excesses of this.

Once detailed conditions are granted, it will be down to residents to “police” the developers to ensure they follow the conditions that are agreed by AVBC. Whilst this should be AVBC’s role, experience of other sites suggests that they will neither have the appetite nor interest in taking on the developer. Their enforcement approach is negligible unless dealing with individuals and developers often rely on threatening to sue councils to get around inconvenient planning conditions once the development is underway. Alternatively, the developers simply breach the condition in their favour and rely on the council failing to require the breach to be corrected.

Consequently, KV suggests that residents may have to take legal action through them to ensure that the conditions of the planning development are met. We would not take this action lightly but it is important that any prospective developer understands that this could be the case. Once we see how AVBC responds to the above objections, we will call a series of public meetings again in order to discuss the further enforcement steps that are available.

Annex 1 – Conditions Involved

Condition 1 – Details of the appearance, landscaping, layout and scale (therein called “the reserved matters”) should be submitted to and approved in writing by the local planning authority before any development begins and the development shall be carried out as approved.

Condition 4 – The development hereby permitted shall be carried out in accordance with the following approved plans: dwg, no. 1011 (red-line plan), dwg. No. 29232-5504-015, rev B (access roundabout at the junction of Kedleston Road and Askerfield Avenue) and dwg. No. 29232-5504-016, rev A (priority junction with Kedleston Road).

Condition 15 – The landscaping reserved matter referred to in condition no. 1 above shall include full details of both hard and soft landscape works. These details should include proposed finished levels or contours; means of enclosure; car parking layouts; other vehicle and pedestrian access and circulation areas; hard surfacing materials; minor artefacts and structures ; proposed functional services above and below ground; planting plans; written specifications; schedules of plants; identification of all trees and hedgerows to be retained and measures for their protection throughout the course of construction works; an implementation programme; and a management and maintenance programme. All landscaping shall be carried out in accordance with the approved details.

Condition 16 – The soft landscaping proposals in condition no. 15 above shall include measure for biodiversity enhancement in accordance with the proposals at paragraph 6.4 of the Ecological Appraisal by EDP dated October 2014.


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