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BioPark Appeal Decision

The news of the decision to allow the BioPark appeal was a hard blow to the team that had dedicated itself to fighting it. The amount of work that Keep the G and WGC Heritage Trust expended preparing and speaking to the hearing was extraordinary. Put that with all the donations and support from residents, the belief evident in the public demonstrations and it is clear how much this town means to its people. 

So, thank you all. We may have lost this one but we have learnt many invaluable lessons about the planning system in the UK that will stand us in good stead for the next fight.

For those that would like to read the appeal decision it is reproduced below:


Appeal Decision

Inquiry held on 12-15 and 18-20 July 2022. Site visit made on 21 July 2022 by Michael Boniface MSc MRTPI an Inspector appointed by the Secretary of State.

Decisiodate: 25 August 2022   

Appeal Ref: APP/C1950/W/22/3294860

BioPark, Broadwater Road, Welwyn Garden City, Hertfordshire, AL7 3AX

• The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.

• The appeal is made by HG Group against the decision of Welwyn Hatfield Borough Council.

• The application Ref. 6/2020/3420/MAJ, dated 18 December 2020, was refused by notice dated 16 September 2021.

• The development proposed is demolition of existing buildings and construction of 289 residential units (Use Class C3) and community hub (Use Class E/F.2), with public realm and open space, landscaping, access, associated car and cycle parking, refuse and recycling storage and supporting infrastructure.



1. The appeal is allowed and planning permission is granted for demolition of existing buildings and construction of 289 residential units (Use Class C3) and community hub (Use Class E/F.2), with public realm and open space, landscaping, access, associated car and cycle parking, refuse and recycling storage and supporting infrastructure at BioPark, Broadwater Road, Welwyn Garden City, Hertfordshire, AL7 3AX in accordance with the terms of the application, Ref 6/2020/3420/MAJ, dated 18 December 2020, subject to the conditions contained in the attached Schedule.

Application for costs

2. At the Inquiry an application for costs was made by HG Group against Welwyn Hatfield Borough Council. This application is the subject of a separate Decision.


Preliminary Matters 

3. Two groups were granted Rule 6 status in the appeal, the Welwyn Garden City Society (the Society) and, acting together, Keep the G in WGC and the Welwyn Garden City Heritage Trust (Keep the G/the Trust). Both parties actively participated in the inquiry throughout.

4. On 7 July 2022, shortly before the inquiry opened, the Council confirmed that it no longer intended to defend its second reason for refusal in light of evidence produced by the appellant. It was agreed that the level of on-site car parking proposed would be sufficient to meet anticipated demand and that occupation of the appeal site would not result in a detrimental impact on surrounding roads.  The inquiry proceeded on this basis, albeit that Rule 6 parties continued to raise concerns on this topic.


Main Issues

5. Having regard to the above, the main issues in the appeal are whether the proposed design is acceptable and the effect on the character and appearance of the area; and whether the development would provide suitable housing in terms of tenure and mix.



Design, character and appearance 

6. The appeal site accommodates a large commercial/industrial building which has been vacant for some time, served by a long access drive leading to Broadwater Road.  There is no dispute by any party that the site is now a suitable location for residential development given the lack of demand/unsuitability of the building for the current use. Indeed, the Council now actively encourages such development as part of efforts to regenerate this formerly industrial part of the city.

7. The site is a proposed allocation for 250 dwellings in the Council’s emerging Local Plan1 and sits in the context of large-scale redevelopment in the area, known as the Shredded Wheat Quarter. As early as 2008, the Council adopted the Broadwater Road West Supplementary Planning Document (the SPD) outlining the vision for Broadwater Road West and setting out a masterplan to guide and promote the comprehensive redevelopment of this key site, albeit that the appeal site was not expected to be developed at that stage. 

8. Given the size of the site and the amount of development anticipated, there should be no illusion that the Council expects sizeable buildings to be accommodated on the appeal site. Importantly, the site now sits in the context of adjacent buildings that will extend to 8 and 9 stories high and were under construction at the time of my visit. This represents development far in excess of the guideline parameters for development contained in the, now dated, SPD in terms of height and density. 

9. Understandably, the proposed scheme has been designed with this recent development in mind, as well as the height and scale of the existing building on the appeal site, which is tall and bulky. This seems to me, to be a perfectly legitimate reference point, notwithstanding that buildings of lower height and density are also part of the context, including the Mirage development and neighbouring Broadwater Crescent.

10. The appellant’s evidence carefully and convincingly sets out the design process followed in arriving at the scheme subject of this appeal and assesses the effect on townscape.  The height of the proposed buildings is comparable to those under construction in the Broadwater Road West area and they would transition across the site to much lower heights where they adjoin Broadwater Crescent to the south. 

11. When viewed in the context of the wider Broadwater Road West development, the transition would be less successful given that the tallest buildings proposed would be nine stories, the maximum allowed in the northern parts of the redevelopment area, but they would still be close to sizeable eight storey buildings on more southerly parts of the SPD area such that they would not appear unduly tall or out of context. The greater height in the northern part of the appeal site would, in my view, be mitigated by the very successful transition that would be achieved within the site itself.

12. The perception of height is also reduced through the detailed roof design of the tallest buildings, which would be in the style of a mansard roof, tapering inwards from their base. Although the roofs are not set back from the face of the buildings as might normally be expected from traditional mansards, the design would add visual interest and assist in diminishing the mass of the upper parts of the building.

13. There was much debate about these features, which are undoubtedly very different to the stye of mansard commonly found in the city, but the building is not seeking to replicate existing buildings, nor is there any reason why it should. Mansard roofs and other steeply pitched roof designs are a common feature in the city and the proposed roof structure would reflect this, with a contemporary and interesting interpretation. 

14. This approach is also seen in other elements of the design, including the sweeping curved edge of Block F and the fenestration design of the proposed community hub and Block E stair core, both of which reflect Art Deco precedents in the area, notably the Roche building. A varied palette of materials would ensure visual interest whilst seeking to reflect the local vernacular in terms of colour, whilst protruding balconies and dormer windows would punctuate the facades.

15. The buildings would be arranged in blocks surrounded by communal gardens and open space of various types, including children’s play space and areas for growing fruit with high quality landscaping, including trees. This would reflect the green and open character that is notable in the city and the garden city principles on which the city was founded, albeit that it is part of a relatively high-density residential development.

16. The density of the appeal scheme, in numerical terms, would be high for the area. Higher than the majority of development in the locality and higher even than that of the development under construction in the SPD area. However, that is not in itself objectionable. What is important, is not the numerical figure, but any harm that would arise from that density. In this case, I have found none.  The development would be high quality, it would reflect the scale and height of other development nearby, it would provide good quality living conditions both internally and externally, including amenity space beyond policy requirements.  The fact that the scheme achieves this at a relatively high density, delivering a significant number of residential units in an area where they are desperately needed, is to be commended.

17. Although tall, the buildings would not become an overly prominent feature in the city. During my extensive site visit it was clear that there are very few vantage points where the existing building has a notable presence and that would remain the case with the new buildings. The picturesque Parkway and Campus areas of the city that are so iconic as part of its identity are set apart from the former industrial zone. The Howard shopping centre and multi-storey car park is itself a tall building that turns its back on the railway line and largely screens views of the appeal site from the town centre. It is also another building that is relevant to any contextual analysis of the appeal site. 

18. Those views that are available currently reveal the unsightly BioPark building which lacks architectural merit, being tall, wide and uncompromising its mass. Replacement of the building with a high quality and well-conceived scheme that would significantly break up the mass of built form on site into separate blocks with spaces between would be an improvement. This includes views from the residential gardens on the opposite side of the railway track and when approaching on the railway, removing the very sorry looking vacant building and raising the standard of architecture in this neglected part of the city. 

19. The development cannot be said to fully accord with the SPD in that it would deliver development taller and denser than anticipated. That said, much has changed since its adoption in 2008, not least the urgent need for housing in this area and the Council’s recognition that more development will be needed on this site and in the SPD area. It has itself granted planning permission for development that is significantly taller and denser than the SPD would suggest, albeit that so far as height is concerned, the SPD allows some flexibility. 

20. Although the appeal site was not originally anticipated to be developed in the SPD, the principles it sets out are a guide and have been considered above so far as they are relevant. That said, given the changes that have occurred and bearing in mind that it includes design principles that fail to have regard to the contemporary contextual baseline, the usefulness of the SPD is significantly reduced and it attracts only limited weight.



21. As the proposal is close to a conservation area and listed buildings, I have had special regard to sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.


Roche building and Shredded Wheat Factory

22. The development would be in the setting of the Roche building and Shredded Wheat Factory, which are both listed at Grade II. The former has been converted into residential use as part of a larger scheme whilst the latter is awaiting redevelopment for similar purposes.  New residential buildings have been constructed between the appeal site and the listed buildings and so the setting is much changed, having previously been an industrial area. No party argues that the development would harm these heritage assets and I agree that they do not derive significance from the appeal site or BioPark building such that harm would result.


Hatfield House and Gardens

23. Hatfield House is located around 4km from the appeal site and is listed Grade I, as are its Registered Park and Gardens. The submitted Heritage and Townscape Visual Impact Assessment (HTVIA) and other evidence before the inquiry demonstrate that views of the proposed development would be available from the house and gardens, albeit at great distance.  The surrounding landscape is part of their setting, as a large country estate that derives much significance from its prominence in the landscape and impressive views and vistas towards the buildings and beyond. 

24. However, the heritage assets do not stand alone in splendid isolation. They now stand close to large urban centres and views of the buildings, street lighting and other urban paraphernalia associated with Welwyn Garden City are part of its backdrop. In this context, the existing BioPark building is barely distinguishable in the long-distance views that are available from some vantage points and it is largely distinguished as a result of its bright white finish. This includes important views from the Hatfield House parkland looking north where the buildings would just be distinguishable between the central clock tower and the chimneys on the east wing. 

25. The proposed development would be similar in height to the existing building, albeit very different in design and configuration. It would, however, utilise materials that are more similar in colour to the built form in the city and would become a more subtle part of the urban fabric when viewed over the significant distance involved, even having regard to the likely increase in the use of lighting, which would again, be seen in the context of the well-lit urban environment.  Whilst the proposed development is unlikely to appreciably enhance the heritage assets or their setting, it would not harm them. 

26. I have carefully considered the comments from Historic England which conclude that less than substantial harm (low is scale) would result and I attach this view great weight in my deliberations. The conclusions of Gascoyne Estates on behalf of Hatfield House are broadly in line with this assessment. Whilst I do not agree that any harm would result in this case for the reasons I have set out above, even less than substantial harm would be of considerable importance and weight in the decision making process. However, even considering any such harm, taking it at its highest identified in evidence to this appeal, I am satisfied that the delivery of a significant amount of much needed market and affordable housing would be a public benefit sufficient to easily outweigh the level of harm anticipated such that it would not be a reason to refuse planning permission in any case.


Welwyn Garden City Conservation Area

27. The Welwyn Garden City Conservation Area is located on the opposite side of the railway line but as I have described, there are few positions from which the appeal site features prominently. The designed Parkway and Campus within the town centre are largely unaffected by the scheme, as would be the majority of the residential areas surrounding. The old industrial area was purposely set apart from these areas in designing the city and remains so. Whilst the former industrial area was part of the original concept for Welwyn Garden City, providing employment for the residents, its character and that of Broadwater Road is very different and continues to evolve. Whilst views of the proposed development would be possible from some parts of the conservation area, the existing building is a detracting feature and its replacement with buildings of higher architectural quality would not harm its character or appearance.


Other heritage matters 

28. No other designated or non-designated heritage assets would be harmed by the development.


Design, character and appearance conclusion 

29. Overall, I conclude that the development would achieve the high-quality design expected by local and national planning policy and would not harm heritage assets. As such, I find no conflict with Policies D1, D2 or EMP2 of the Welwyn Hatfield District Plan (2005) (WHDP), or emerging Policies SP 9 and SADM 15 of the Draft Local Plan (emerging LP).


Housing tenure and mix

30. Policy H7 of the WHDP and Policy SP 7 of the emerging LP require that 30% of residential developments should be delivered as affordable housing, with the latter recognising that this is subject to viability. In this case, the appellant has provided a detailed viability appraisal which demonstrates that the scheme cannot viably provide any affordable housing whilst remaining deliverable. This appraisal has been reviewed independently on behalf of the Council, whose consultants agree. No other party has produced professional evidence that calls the conclusions of the viability appraisal into question and I am satisfied that it is a robust assessment. 

31. Despite the lack of technical viability, the appellant has undertaken to provide 10% affordable housing. The proposal accords with draft Policy SP 7 in this regard, bearing in mind viability. There is a conflict with Policy H7 in that the minimum 30% provision would not be achieved but the policy is now dated and the emerging LP recognises the need to take viability into account in line with national policy and guidance. As it has been demonstrated that the scheme cannot viably deliver 30% affordable housing, the policy conflict attracts only limited weight.  Conversely, the benefit of delivering 10% affordable housing in an area where there it is demonstrated that there is an acute and unmet need, weighs in favour of the development.

32. The development plan does not stipulate the mix of housing required in the Borough, but emerging policy SP 7 seeks to deliver a choice of homes and to help create sustainable, inclusive and mixed communities. Proposals should, according to the latest wording in the main modifications to the emerging LP, demonstrate how the mix of tenure, type and size of housing proposed has had regard to the Council’s latest evidence of housing need and market demand with the aim of meeting the various needs of different households.

33. The latest evidence is contained in the Strategic Housing Market Assessment Update (2017) and the Welwyn Hatfield Technical OAN Paper (2019). It can be readily seen from this evidence that the greatest need is for three bed properties but there is a need for all sizes, from one bed to 4+ beds.

34. The vast majority of recent housing completions have been smaller properties, largely one and two bed flats. That could be for many reasons, including the nature and location of the sites that have been delivered over the past few years, but there remains a need for housing of all sizes nonetheless.

35. The proposed development would provide mainly one and two bed flats but some three bed units and four bed houses are also proposed such that there is some variation in house types and sizes proposed. There would be a high proportion of smaller flats, but this allows for the efficient use of brownfield land at a very centrally located site, close to public transport links and the various shops, services and facilities available within easy walking distance.

36. The mix is also supported by the appellant’s viability and market evidence, which shows increasing house prices with distance from the town centre and a good number of past transactions for smaller flats in the vicinity of the town centre, indicating demand within the market. The appellant’s evidence also shows that an alternative scheme incorporating a greater proportion of larger units would become less viable than the current proposal and so there is little prospect of such a scheme coming forward, even if it were desirable. 

37. There are a large number of flats being developed in the Shredded Wheat Quarter in line with the Council’s aspirations for redevelopment, but this again includes a mix of house types, including a proportion of extra-care properties suitable for elderly people. The proposed flats would add to the local mix and would also be suitable for a range of people, being accessible and adaptable dwellings able to meet a range of needs, including a proportion of wheelchair user dwellings. 

38. With this in mind, the development would likely be attractive and/or available to a wide variety of prospective occupants, not confined to only a small section of the housing market. There is also a supply of houses and larger units nearby, within the Mirage development and at Broadwater Crescent such that there would not be an over proliferation of small flats in the wider area. There is no reason why residents of the scheme would not become part of that wider community, using the various services and facilities open to all local residents, including schools, shops, cafes and gyms. 

39. The Council accepts that the implied housing mix requirement in the emerging LP should not be applied as an absolute requirement for individual schemes and this is clear from the SHMA itself. It is a Borough-wide requirement to be achieved over the plan period and there will inevitably be sites that lend themselves to higher density schemes with a high proportion of smaller units and other sites where the opposite is true. 

40. The development would deliver housing in line with the identified need, albeit that there would remain a need for further housing, including a large proportion of three and four bed units. Such delivery would not be jeopardised by allowing this scheme or prevent the Council from achieving the overall implied housing mix during the plan period. Available Brownfield land close to the town centre is a scarce resource in the city and development should be optimised where there are opportunities to do so.  There is no reason to think that the development, as part of the large mixed use redevelopment taking place in the Shredded Wheat Quarter, would not become part of a sustainable, inclusive and mixed community. 

41. The proposed scheme has had regard to the latest evidence available in relation to housing need and market demand and would deliver housing that would contribute towards meeting that Borough-wide need. It would also provide a suitable proportion of affordable housing. As such, I find no conflict with Policy SP 7 of the emerging LP. So far as there is a conflict with Policy H7 of the WHDP, I attach this only limited weight.


Other matters 

Parking and highways 

42. The submitted Transport Assessment concludes that the development can be accommodated without unacceptable harm to highway safety or capacity. The scheme would provide 219 car parking spaces which is comfortably within the range (80-289) suggested by the Council’s Parking Standards SPG (January 2004) and Interim Policy for Car Parking Standards (August 2014), albeit that these provide local guidance and not development plan policy. 

43. The guidance places the onus on the developer to demonstrate the appropriate level of parking and a thorough assessment has been undertaken as part of the planning application and appeal process. Having regard to the latest census data available, the level of parking provision will exceed likely car ownership levels for the proposed development, bearing in mind typical car ownership levels associated with flats. This allows for some flexibility given that the 2011 census data is now dated, though there is no more reliable data before the inquiry that suggests car ownership levels have significantly changed. 

44. The Rule 6 parties suggest that insufficient parking provision has been made at other recent developments, but it is difficult to find other schemes that are directly comparable to the appeal proposal in terms of the housing mix, tenure, accessibility and sustainable transport measures. Parking demand can be influenced by many factors. Although I acknowledge the evidence provided in relation to other schemes, it does not persuade me that the level of parking proposed, based on empirical evidence and data specific to this scheme are unreliable. 

45. Even if the site could not accommodate future parking demand, parking management provisions are to be secured and the submitted parking survey demonstrates that there is ample on-street parking available locally. The Council has indicated that it intends to introduce parking restrictions in the area, and this would further discourage car ownership in favour of sustainable modes of travel if onsite parking provision proved insufficient.

46. The site is located very close to the town centre and all of its services, shops, restaurants and facilities, as well as the train station and various bus stops, all of which are within a reasonable walking distance. Whilst the closest bus stops provide a limited service, additional bus stops are within walking distance and serve a greater variety of destinations with their attendant services and facilities, including employment opportunities.

47. Local people have reservations about the potential for using public transport but it seems to me that the site is in a highly sustainable location where sustainable travel is a realistic prospect and should be encouraged. Very good public transport options exist and future residents would not need to be reliant on private cars, particularly if sustainable travel patterns are encouraged from first occupation. In this case, additional measures would be secured, such as a Travel Plan, car club and cycle storage facilities. 

48. As such, I find no conflict with Policy H2 or M14 of the WHDP, the Council's Parking Standards SPG, Interim Policy for Car Parking Standards; or Policies SP 4, SADM 2 and SADM 3 of the emerging LP.


Garden City Principles 

49. The Garden City Principles upon which Welwyn Garden City was founded, specifically those set out by the Town and Country Planning Association were referenced during the appeal. These were important principles that have guided the inception and successful development of the city. As such, whilst not planning policy, they are a relevant material consideration, and the appeal documents explain how the design of the appeal scheme has sought to have regard to them.  That said, the principles are broad ranging, and it was accepted during the inquiry that it would not be appropriate, or indeed possible, to apply each and every one to individual developments or to the appeal proposal. 

50. Local people spoke passionately about Welwyn Garden City and it was clear to me that there is a great desire to protect it and maintain the principles upon which it was built.  That is understandable, as an acclaimed and pioneering Garden City.  However, it remains necessary for the city to grow and meet modern needs. For the reasons that I have set out, I do not consider that the proposed development would detract from the city or be at odds with the Garden City Principles. Rather, it is the next phase in the cities evolution.



51. At a very late stage in the appeal, the Society raised concerns regarding the sustainability of demolishing the existing building and replacing it with new buildings. Matters relating to sustainability are considered in the appellant’s Sustainability Statement, which explains the measures taken to ensure a sustainable development, including reducing carbon dioxide emissions through the installation of renewable technology.

52. It was also explained during the inquiry that the existing building is not suitable for conversion to residential use as it would not provide acceptable living conditions for future occupants. Furthermore, removal of the existing building is clearly desirable given my conclusion on the main issues. No evidence was provided to demonstrate that the scheme would be likely to compromise the Government’s ability to achieve net-zero by 2050 and it is not credible to suggest that it would, given the small scale of the proposal in the context of a long-term national objective.


Air quality 

53. The application is accompanied by an air quality assessment carried out in accordance with industry standard guidelines and practice. No significant adverse effects are anticipated.


Flooding and drainage 

54. The Council and Lead Local Flood Authority are satisfied that the development can be suitably drained and will not lead to flooding on site or elsewhere. There is no evidence before me that leads me to a different conclusion and a suitable scheme for the drainage of the site can be secured by condition.


Living conditions 

55. The proposed buildings are set away from neighbouring properties within open space and the height of buildings is significantly lower where it meets established residential areas, particularly those adjoining Broadwater Crescent. Having regard to the arrangement of the proposed buildings, and bearing in mind the existing building on the site, I see no reason why the scheme should unacceptably harm neighbours living conditions. 

56. The height and scale of the tallest buildings would be similar to the BioPark buildings currently experienced by residents though the spaces between buildings, open green spaces surrounding and transition in heights are likely to improve the current outlook for many residents and would not result in any harmful visual or overbearing impacts. 

57. There would be increased activity within the site, with many residential windows facing towards established residential areas but again, the distances involved and the arrangement of the buildings is such that this would not harm living conditions.  It must be remembered that the site is located in an urban context and a degree of mutual overlooking is to be expected. Good levels of privacy would be maintained by existing residents. 

58. The submitted Daylight and Sunlight Report (December 2020) demonstrates that the development will not materially reduce the levels of light reaching the rooms of neighbouring properties, and in many cases will improve the situation when considering the existing building. 

59. The development would deliver good sized units with access to both private and communal amenity spaces. A further Daylight & Sunlight Report2 demonstrates that the proposed dwellings and associated amenity spaces would receive suitable levels of light. Conditions would ensure that measures are incorporated to protect future residents from noise.


Crime and disorder 

60. There is no evidence of particular issues with crime and disorder in this location and having regard to the submitted information, the Hertfordshire Constabulary support the application from a crime prevention and safety perspective.


Other issues 

61. Concerns are raised that the development would adversely affect house prices in the area.  There is no evidence before me to support this assertion but in any case, maintaining private house prices is not an objective of the planning system or a matter that attracts any significant weight in the planning balance.


Planning Obligations

62. The appellant has entered into two S106 agreements to secure planning obligations, one with the Council and another with Hertfordshire County Council (HCC). The obligations have been identified by the respective authorities and are supported by CIL Compliance Statements which explain how each obligation accords with Regulation 122 of the Community Infrastructure Levy Regulations 2010. 

63. There is no dispute between the appellant and the Council that the obligations contained in the agreement are necessary and would otherwise meet the tests contained at Regulation 122. Having regard to the Council’s policies and the need to mitigate the impacts of the development, I have no reason to take a different view and have taken the obligations into account. 

64. The appellant had agreed to provide the various obligations sought by HCC but the requested financial contributions were subsequently increased during the course of the appeal, following adoption of the HertfordshirCounty CounciGuidtDeveloper InfrastructurContributions (2021(the HCC Guide). Whilst the appellant does not dispute the methodology used by HCC in arriving at the requested contributions, they are opposed on the basis that the scheme is not viable or deliverable if the additional amounts are required. 

65. It is clear from the viability appraisal submitted that the scheme is already technically unviable and so additional contributions would worsen the situation and compromise deliverability of the scheme.  The HCC Guide is not an SPD and has not been viability tested, meaning that the effect of the policy on development viability in the area is unknown. 

66. HCC accepted during the inquiry that viability is a relevant consideration but has not sought to consider the viability evidence provided for the appeal proposal itself, instead choosing to defer to the Borough Council to decide whether the contributions can be reasonably made without compromising deliverability of the scheme. The Borough Council accepts the appellant’s viability case and does not support the additional contributions.

67. As such, it would not be reasonable to require the Revised Requested County Contributions.  This would worsen the viability position and likely make the scheme undeliverable, such that its wider benefits would be lost. Therefore, the additional contributions are not necessary to make the development acceptable in planning terms, they do not accord with the requirements of the CIL Regulations and I have not taken them into account. Option A in the S106 agreement is rejected. 

68. Although the development will not fully mitigate its impacts based on the new HCC Guide, it would make a proportionate contribution, having regard to viability, in line with the amounts originally sought be HCC. These contributions were taken into account in the appellant’s viability appraisal and accepted as necessary contributions that would not jeopardise deliverability of the scheme.  I am satisfied that the Initially Requested County Contributions, referred to as Option B in the S106 agreement, meet the requirements of the CIL Regulations and have taken them into account in reaching my decision. If it transpires that the viability of the scheme improves by the time of development, the S106 agreement makes provision for additional contributions where there is a surplus profit. 

69. The obligations secured are based on evidence provided by the various authorities and service providers. There is no detailed evidence before me to justify further obligations or to suggest that other services and infrastructure could not accommodate the development.


Planning Balance

70. The Council accepts that the development is broadly in line with the spatial strategy contained in the emerging LP, but until such time as it is adopted the proposal is to be considered as a windfall site in line with Policy H2 of the WHDP. Either way, there is strong policy support for redevelopment of the site for residential purposes in principle. 

71. The proposal is not entirely in accordance with Policy H7 of the WHDP due to its absolute requirement for 30% affordable housing, but for the reasons set out above I attach this conflict little weight. In addition, the failure of the scheme to fully mitigate its impacts on local infrastructure weighs against the proposal.

72. However, the policies most important for determining the application are out of date due to the lack of a five-year housing land supply, as required by the National Planning Policy Framework (the Framework). The Council and the appellant agree that the housing land supply in the Borough is currently in the range of 1.75-2.46 years and the most recent Housing Delivery Test has been failed by a substantial margin. The Council is persistently failing to provide the number of homes needed in the area and there is currently no firm plan to rectify that situation.

73. The emerging LP has progressed at an exceptionally slow pace and there remain significant uncertainties as to whether or when it will be adopted, with fundamental questions outstanding surrounding how the housing requirement identified by the Examining Inspector will be met. Meanwhile, the housing requirement contained in the WHDP is hopelessly out of date and inadequate. In this context, the provision of market and affordable housing attracts substantial weight. 

74. In addition, the proposed development would deliver other benefits, including a substantial net biodiversity gain; the provision of jobs during the construction and operational phases; increased expenditure in the local area that will contribute to the local economy in a relatively deprived part of the city; and the provision of publicly accessible open space and play equipment.


75. The proposal is in accordance with the development plan, taken as a whole. The benefits arising from the proposed development would be substantial. I have identified no adverse impacts that would significantly and demonstrably outweigh the benefits, when assessed against the policies of the Framework taken as a whole. Having regard to the provisions of the development plan and all material considerations, planning permission should clearly be granted.



76. The Council and the appellant have agreed conditions that are considered necessary in the event that planning permission is granted. I have largely attached the conditions as agreed, noting that the appellant has provided written agreement to all pre-commencement conditions. However, I have altered the wording of conditions as necessary to improve their precision or otherwise ensure accordance with the relevant tests contained within the Framework.  The reason for each condition is set out alongside it in the attached Schedule.

77. I have not attached the suggested condition removing permitted development rights for the town houses as no exceptional circumstances have been identified that would justify such removal. The Government has granted consent by virtue of the Town and Country Planning (General Permitted Development) (England) Order 2015 for various forms of household development which are generally considered acceptable without the need for a planning application and I was not persuaded that such development would be unduly harmful in this case.



78. In light of the above, the appeal is allowed.


Michael Boniface