Gladman’s appeal for Shear Brook dismissed!

“Jodrell Bank Observatory as an established world class facility should be afforded reasonable protection……the protection of Jodrell Bank Observatory as a facility of international importance transcends the housing land supply circumstances of the case.”

“…the Secretary of State agrees with the Inspector’s conclusion that even against Dr Trotta’s scenario, it has been reasonably demonstrated or ‘shown’ that the appeal development would impair the efficiency of the Jodrell Bank Radio Telescope such that it would conflict with Policy PS10 (IR268 and 271). The Secretary of State agrees with the Inspector that Jodrell Bank Observatory as an established world class facility should be afforded reasonable protection (IR270), and considers that this proposal could damage the world class work being carried out by the Observatory (IR308). In his view the harm to the efficiency of the Radio Telescope carries substantial weight against the proposal.”

re Swanwick Hall  “…agrees with the Inspector that it would very substantially reduce the gap between the Hall and the village, significantly diminishing the current open undeveloped character of the area….this would significantly affect the setting of Swanwick Hall, causing harm to the significance of the listed building that would lie within the middle to higher end of the less than substantial harm spectrum……. The Secretary of State, in accordance with the s.66 duty, attributes considerable weight to this harm.”

“…agrees that the protection of Jodrell Bank Observatory as a facility of international importance transcends the housing land supply circumstances of the case. The Secretary of State therefore attaches considerable weight to Policy PS10.”

“….the Secretary of State considers that the Council’s housing land supply shortfall – while significant and set in a national planning policy context – is largely a local issue, while Jodrell Bank Observatory is a facility of international importance such that its protection from the identified harm transcends the current housing land supply circumstances. He considers that the harm to the efficiency of the Radio Telescope carries substantial weight against the proposal.”

Formal decision:

The Secretary of State, Sajid Javid, agreed with the Inspector’s recommendation and dismissed the appeal, refusing outline planning permission “for residential development comprising of up to 119 dwellings (including a minimum of 30% affordable housing), structural planting and landscaping, informal open space, surface water attenuation, a vehicular access point from Main Road and associated ancillary works, at land off Main Road, Goostrey, Cheshire, CW4 8LH, in accordance with application ref: 14/5579C, dated 28 November 2014.”

Woop woop!  

[click the link to read the Inspectors recommendation and Sec of State’s decision:   Decision/Outcome 24th Nov 2016]

NB The validity of the Secretary of State’s decision may be challenged, by making an application to the High Court within 6 weeks from today (25 Nov 2016) for leave to bring a statutory review under section 288 of the Town and Country Planning Act 1990.

Planning Inspector’s ShearBrook report

The Planning Inspector for the Gladman inquiry back in May (for 119 houses by Shear Brook) has now completed his report and sent it on to the Secretary of State at the DCLG, Sajid Javid MP, for his determination.

However the Inspector’s report is not published yet, and won’t be until the decision by Sajid Javid is made: the date given for the determination is “on or before” 24th November 2016 ( but there is always the possibility that it might get delayed/postponed).

Gladman’s Shear Brook inquiry: day 5 Part 2

Closing statements.

The first to speak was Mr Christopher Katkowski QC on behalf of Cheshire East.

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Professor Garrington with Mr Katkowski QC

The first three paragraphs of his statement in full:

“This is a test case for the Secretary of State as it is the first in decades to fall to be determined by Central Government where the key issue is protecting the integrity of the Lovell Radio Telescope, and with it radio astronomy at Jodrell Bank.  As stressed repeatedly and it is common ground, the Lovell Radio Telescope is of international importance and protecting it and the work of the Observatory from harm is of global significance.”

“The Government has worked extremely hard to bring the global HQ of the Square Kilometre Array (SKA) to Jodrell Bank; the SKA decided to have its HQ at Jodrell Bank because it is a world-class, operational observatory.   “a key factor being that the [radio frequency interference] environment remains as benign as possible” (SKA Director-General).   Allowing 119 homes to be built close to the Observatory, in the direction (to the south west of the Observatory) where the Lovell Telescope is deployed for much the time conducting its most internationally significant work (pulsar timing measurements) in circumstances where it is agreed that the internationally accepted definition of the threshold above which interference would be detrimental to radio astronomy would be exceeded to a very large extent by emissions from the proposed development, would run the clear and present risk of undermining the confidence of the SKA in its desire to be associated with Jodrell Bank. The point is not (as put by the Inspector) whether the work of the SKA’s HQ would be directly impinged upon by interference from the development – it would not. Rather the point is one of esteem, of pride through association, if the Government does not protect the host – Jodrell Bank – from avoidable harm to its work, then what message does that send to the SKA about the continuing wisdom of its decision to have its HQ at Jodrell Bank? The question answers itself but in the words of the SKA’s Director-General this “may well have a negative impact on the view of the UK as an international partner to projects such as the SKA.”

“The point about avoidable harm is an important one. There is nothing practicable that the Government or the Observatory can do to reduce the relentless increase in devices used by existing residents near to Jodrell Bank e.g. in Goostrey, or in the wider Consultation Zone around Jodrell Bank, which already, and will increasingly in the future, cause very real problems for the efficacy of the Lovell Telescope.  BUT the Government does have the ability to stop new development adding to these problems; this can be achieved by the simple step of refusing planning permission e.g. for the appeal proposals which undoubtedly would amount to a very real additional threat to the globally significant work carried out at the Observatory.”

Mr Katkowski then became more technical, quoting policies and law and the NPPF and how these should be used in this case.

The protection of Swanwick Hall, a Grade II listed building was also a significant part of CEC’s defence in this appeal. Again using technicalities of law and quotes obtained from Gladman’s planner under cross examination Mr Katkowski showed that this alone should cause the appeal to be dismissed “come what may”.

The point that Cheshire East does not have a five year housing supply was not ignored, but he argued that the proposed development would only be a miniscule part of the solution to this problem and was not worthy of the harm that it would cause.

Then came the Parish Council’s barrister Mr John Hunter. 

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John Hunter; GPC’s barrister

He presented similar arguments regarding Jodrell Bank but also explored the concern of precedent. “Whilst a concern about precedent was dismissed by the Twemlow Inspector, the fact that the decision is being relied on by the Appellant in this appeal is one of the ironies of the case.”

Similarly the matter of harm to the setting of Swanwick Hall was covered with an accusation of Gladman’s heritage evidence defying common sense. “The building is a farmhouse. It reads as such and, it its current open and still relatively isolated setting, allows one to appreciate the aforementioned historic associations with the surrounding field and the area.  By contrast, when this part of its original setting is lost, those connections and even the building’s basic character as a historic farmhouse will be much harder appreciate.”   The Parish Council heritage case however also included protection of the unlisted Heritage Asset Holly Bank Farm and the historic hedgerows which can been seen from Main Road.

Cheshire East were only allowed to defend the appeal on the reasons which were given at the original Planning Committee hearing.  The Parish Council however had no such constraints, so John Hunter went on to speak about the significant impact on the views of Jodrell Bank and Swanwick Hall from Footpath 12.

But most significantly he was able to challenge the assertion that Goostrey is a sustainable location. “Therefore … even taking account of its rural context, the development would not:

* Be accessible for the local services required to support its needs and health, social and cultural well-being.
*Provide a “real choice” of sustainable modes of transport – on the contrary, it would inevitably depend predominantly on car use.
*Be located where the need to travel is minimised and the use of sustainable modes of transport can be maximised.”

A brief excursion into the loss of Best and Most Versatile agricultural land lead the remainder of his statement into technicalities of Planning law.

Finally Mr Richard Kimblin QC gave his statement on behalf Gladman Developments Ltd.

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Richard Kimblin QC for Gladman with Dr Trotta

Unusually he preceded his statement by thanking the Parish Council for the way in which they had conducted themselves.  (We are not sure what he was fearing they might get up to, or indeed what other Parish Councils do, but his kind words were appreciated.)

“A tenacious presumption in favour of the grant of Planning Permission”.  This is a phrase which comes from a recent High Court Judgement and was applied to sites which sit in areas where there is no proven housing land supply.  Mr Kimblin stressed that this should apply to this appeal and pointed out that development of this site would help to avoid the social ills which come with under provision of housing and give many economic benefits by supporting the construction industry.   All “without effect upon ecology, biodiversity, the creation of a flood risk or any other material environmental effect. … Moreover, the above benefits would be achieved in a sustainable location.”

“The Councils, and particularly the District Council, are to be congratulated for the ingenuity and imagination which has been directed to their cases. Those cases are replete with novel, imaginative and bold points.”

He then went through many technical points of interpretation of law pointing out the fallacies in the Councils’ logic.

The much quoted policy PS10 was considered yet again. “Within the Jodrell Bank Radio Telescope Consultation Zone … development will not be permitted which can be shown to impair the efficiency of the Jodrell Bank radio telescope.”  This might seem straight forward, but since there is already harm being done to Jodrell Bank by radio interference how much additional interference constitutes harm?

Mr Kimblin accused the three parties of using the Jodrell Bank issue for their own purposes.
“JBO is focused on one issue – observing and learning about space.  It is not required to consider the effects of its preferred environment on the wider social, economic and simply basic needs of society.”
“Cheshire East lacks enthusiasm for residential development” – as demonstrated by its lack of housing land supply, an underestimation of need for housing in the preparation of the Local Plan, and strong track record of challenging decisions which inhibit its scope to refuse planning permission.
“As for the Parish Council, it and many people who spoke at the Inquiry object on any and all grounds to residential development in Goostrey.”

The Parish Council were also criticised for presenting all kinds of planning materials to the inquiry but not calling experts to be cross examined on these, whilst enjoying the luxury of cross examining Gladman’s witnesses. (Cllr Ken Morris might not have wholeheartedly agreed with this after undergoing Mr Kimblin’s cross examination!)

Swanwick Hall concerns were dismissed; partly because it was already close to the edge of Goostrey settlement but also because the main heritage interest are the hidden 17th century timbers.

So what happens now?  The inquiry is complete. The Inspector will write a report summarising the arguments and making his recommendation. He does not have a deadline in which to do this, but hopes to finish it within five weeks. We don’t get to see this – it is sent straight to the Secretary of State for the Department of Communities and Local Government (DCLG) for a decision.  Mr Katkowski explained that the Secretary might take two months… or two years.  The Inspector said “it will take a long time”.    We will keep you posted!

(link to the morning session of Day 5)

Gladman’s Shear Brook inquiry: day 5 last day. Part 1

The Inspector returned to Cheshire early on Monday and took a walk around Goostrey (his second) looking at the areas which had been discussed. He, with a representative from each party, then had a tour of Jodrell Bank Observatory, hearing how it had developed from Sir Bernard Lovell’s first dreams, before going up the Lovell Telescope and setting foot on the dish.

Day 5 (Tuesday) started with Goostrey resident, Roger Dyke, who had been on holiday last week so unable to speak at the beginning with other residents.  He spoke in two capacities, first as Leader of the Goostrey Footpath Group. Footpath 12, he explained, runs alongside the proposed development site. It has a number of unique features in that at least part of it is fully accessible and it is the only rural footpath which links the two halves of the village. He pointed out that it is used by many Goostrey folk, in particular dog owners, but it is also well known to the Ramblers’ Association and appears in a number of walking books. The proposed development would block the view of the Lovell Telescope and housing would completely destroy the open rural feel.

He then spoke wearing the hat of a retired electronic engineer and licensed radio amateur. Having commended to the inquiry Professor Garrington’s rebuttal to Dr Trotta’s evidence he became the first witness to use visual aids and props.  He held the inquiry’s attention as he explained how houses will leak radio waves as holes are cut into the foil backed plasterboard to insert the wiring for the ring main. When appliances and gadgets are plugged into this the wiring conducts the radio interference out of the house and radiates it to the telescope. Gladmans, having stressed the great age of the average Goostrey resident, had earlier implied that the new development would attract younger residents. Roger took this argument and shot it back at them saying that younger people typically have more gadgets so would create more interference. His demonstration concluded with a dismantled LED bulb. These are great for saving greenhouse gasses, which is why they will be used in any new development, but most are made in the far east under price pressure and emit illegal levels of radio interference.

The second part of the morning was devoted to agreeing conditions which would apply to any development on the site, if permission is granted.  All very necessary but somewhat pedestrian. S106 payments were also covered, everything going through on the nod with the exception of CEC’s request for money for Goostrey Community School and Holmes Chapel Comprehensive School.  CEC’s case was that both these schools are full so they need money to cater for the children who would come from the proposed development. Gladman’s expert responded with the fact that they are only full because people travel from out of the catchment area and, indeed, out of the county to attend these schools.  CEC batted back that this was parent choice etc.  If the appeal fails we will not have to be concerned with such niceties.

However, that afternoon was the long awaited highlight of the inquiry:  the advocates’ closing submissions….(link to Day 5 part two)

(part one of two)

 

 

 

Gladman’s Shear Brook inquiry: day four

Day four began with Gladman’s Heritage expert, Jason Clemons, in the firing line as he was cross examined first by Chris Katkowski [CEC’s QC] and then John Hunter [GPC’s barrister].

There were two main themes to this: the heritage value of Grade II listed building Swanwick Hall, this needed to be established before it was possible to decide if the heritage value would be harmed, and whether or not the proposed development would have a significant effect on the setting of the hall.  Jason Clemons maintained that the rear of the houses in Swanwick Close and Sandy Lane already impinged so much that the proposed 119 houses would make little difference to the setting of the hall.  Both advocates disagreed; pointing out that, as you look at the hall, the edge of the village is behind you and does not impinge on the experience, at least not to the same degree as the proposed development would.  The Parish Council also introduced the unlisted heritage Holly Bank Farm, pointing out that its setting would also be affected.

Cllr Ken Morris with barrister John Hunter and Christopher Katkowski QC

Cllr Ken Morris with barrister John Hunter and Christopher Katkowski QC

The Parish Council’s John Hunter enthusiastically explored the differences between four different Heritage reports which had been presented to the inquiry, pointing out a three to one balance in favour of the Parish Council’s position.

The second witness to come forward on day four was Gladman’s planning expert, John Mackenzie. He presented a proof of evidence which showed Goostrey was in dire need of this new development.  He pointed out Goostrey’s ageing population, excellent facilities, good transport links (no, seriously) and ability to help out with Cheshire East’s housing shortage (you must admit, Goostrians are a helpful crowd). Particularly in light of the later he recommended the Inspector approved the appeal.

In cross examination, KitKat (ahem, Mr Christopher Katkowski QC) took the discussion to, amongst other things, Jodrell Bank with a detailed examination of exactly what ‘impair efficiency’ means; this being a key phrase in Policy PS10 which seeks to give protection to JBO.  This was followed by an exploration of how much impairment would be needed to be counted as impairment.  A technical issue, but one which is potentially vital to the case.

Planning Inspector Gareth Jones surrounded by files

Planning Inspector Gareth Jones surrounded by files

There were other detailed discussions regarding technical planning matters, with much quoting of policies and High Court cases.  One can only assume that the full significance will be revealed in Tuesday’s closing statements.

The Parish Council’s case that Goostrey is not a sustainable village was rigorously considered; the basis of their argument being that most future residents will make extensive use of cars for most journeys.  This is of significance since new developments should be located so as to minimise unsustainable travel.

After a quick consideration about the loss of best and most versatile agricultural land the discussion returned to JBO.  This time barrister John Hunter brought up the affect of cumulative damage to the observatory and the risk in an approval of this appeal setting a precedent for future applications.

Today’s inquiry session finally adjourned a little before 6.30pm with much banter about G & Ts.

Still to come:  The Inspector’s site visits (private), 106 discussions and closing statements on Tuesday 24th (public).   (link to Day 5 morning)

Gladman’s Shear Brook Inquiry: day three

Goostrey parish councillor Dr Ken Morris might have felt apprehensive this morning before he was ‘cross examined’ by Gladman’s QC Richard Kimblin (smooth as silk but sharp as a knife) but had clearly researched his subject well.  Mr Kimblin put forward the case that there is a housing need in Goostrey but sadly had no figures for this (sadly as in fact precise housing numbers would actually help the Neighbourhood Plan team!).

Barrister John Harding, QC Christopher Katkowski, cllr Dr Ken Morris and Inspector Gareth Jones

Barrister John Harding, QC Christopher Katkowski, cllr Dr Ken Morris and Inspector Gareth Jones

On highways Ken was able to point out that the ‘Crash map” used was not up to date, and even with developer money there would still be an issue with a bus service. Ken was asked to confirm that Goostrey is a sustainable village; he responded that this was “not correct” as it is predominantly car based so not sustainable – which gives a “reason to refuse” planning permission.

Next it was Dr Roberto Trotta’s turn to give evidence for Gladman. (I hope you don’t mind if I skip most of the science – best I leave that to the experts. Here is an amateur’s view, apologies in advance.)

Dr Roberto Trotta with Richard Kimblin QC

Dr Roberto Trotta with Richard Kimblin QC

Astro statistician Dr Trotta pointed out that his submission was similar to Professor Garrington’s – a radio astronomer of long standing don’t forget – but fundamentally different. Prof Garrington’s numbers include the surrounding terrain using a height of 3m but Dr Trotta believed his method was “better” as the wider terrain was not crucial and he estimated devices would be used on different storeys in homes. Their mitigation factors differed and, where Prof Garrington uses the internationally recognised ITU Threshold, it was Dr Trotta’s view that it was “not useful”.  Dr Trotta put forward a “more robust” benchmark of 3.5%. [to make more sense of all that you would have to read their submissions: 14/5579C ]

Cheshire East’s QC Christopher Katkowski took Dr Trotta through his evidence. Dr Trotta agreed with statements in a letter from the Royal Astronomical Society that JBO was internationally important and protecting it from harm was “globally significant”.  Dr Trotta is in fact a Fellow of the RAS (one of 4000) and the President’s letter strongly supported JBO stating “serious concern” of the threat from increased interference from the proposed development and the President urges to reject.

An element of humour crept in when it was suggested that one way of reducing all unwanted emissions would be to remove Goostrey houses but luckily it was accepted that this was not “practicable”.  Dr Trotta agreed that, whilst there may already be “currently lots of exceedences” of the international threshold [of interference] in Goostrey of “considerable margin, the new development would make things worse”.

Mr Katkowski pointed out that CRAF (the Committee on Radio Astronomy Frequencies) had endorsed that Prof Garrington’s methodology and modelling had been carried out in a “truly exemplary manner”.  On the other hand Dr Trotta’s proof of evidence had not been put out for review.

It must be said that Dr Trotta was at pains to point out that he was not “advocating a position” (he was not for or against the housing development) but was “providing facts” on levels of interference and the decision would be a “matter of judgement”.

Mr Katkowski asked Dr Trotta if he was aware of the expression “death by a thousand cuts” referring to the “incremental damage of each case”.  He was not, but we mustn’t hold that against him.

I’d say it was a good day.              (link to Day 4)

Gladman’s Shear Brook inquiry: day two

Gladman’s Mr Richard Kimblin QC, of No. 5 Chambers, cross examined Professor Garrington this morning.  Safe to say no stone was left unturned.

From Bernard Lovell choosing to move away from interference from sparking trams in Manchester (which had a remarkable similarity to sources from outerspace) to discussing the appeal in 2013 in Twemlow, when 13 houses were allowed, and on to JBO having to change the type of research they carry out due to existing interference – whilst still remaining an internationally recognised facility.

Richard Kimblin QC grilled Professor Garrington all morning; the Prof pointing out that the scientific and interference landscape change all the time.  JBO try and remove the strongest interference but 90% of data can still be affected [hence the iceberg analogy yesterday].  Whilst JBO still carry out “world class research” they have had to change their research due to interference from the surrounding area.

Prof Garrington pointed out that mitigation can help with some building (depending on the number of devices and the number of houses) but that “effective mitigation is difficult to achieve and control in perpetuity.”  It also complicates the issue, he added, that “some devices are used for minutes or hours or continuously”.

Sites are examined “one site at a time” with concerns for the cumulative increase – as it is this “continued increase that has the largest impact”.  In fact the Inspector wanted at one point to clarify to what extent JBO engage in the planning process – with the Prof replying that he tries “to respond to all”, prioritising the ones that will have the biggest impact; “even small developments will impair efficiency”.

CEC’s Adrian Crowther followed for Planning and covered several policy points, giving full weight to policy PS10 re JBO which on it’s own “is enough to recommend refusal” not wanting “harm to this unique facility in Cheshire”.

This afternoon Goostrey Parish Councillor Dr Ken Morris entered the fray. Ken covered all the sustainability points including a poor bus service, full health practice and schools and the difficulties in cycling to Holmes Chapel for services, etc etc.  He presented his case well and also touched on the fact that should this development go forward then several others are “highly likely to come forward” causing JBO further impairment.

[Gladman's] Richard Kimblin QC with Dr. Roberto Trotta at the inquiry

[Gladman’s] Richard Kimblin QC with Dr. Roberto Trotta at the inquiry

Tomorrow, Thursday, he will be cross examined by Gladman’s QC Richard Kimblin.

Astrophysicist Dr. Roberto Trotta will also then give evidence in favour of the development.

(link to Day 3)