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Planning Inspectorate Inquiry – Overview of Proceedings

On 26 January 2021, a public Inquiry was opened by Ms Claire Sherratt for the Planning Inspectorate which dealt with three appeals made by Countrywide Park Homes Ltd regarding Haytop Country Park Ltd (the Appellant). Two of the appeals were made against the two Enforcement Notices issued by Amber Valley Borough Council (LPA) relating to 1) an alleged breach of planning with a material change of use of land, and 2) alleged operational development. Together, they require the removal of the twin unit lodges and all of the operational development works and for the land to be put back to the same condition as it was prior to the development, respectively. The third appeal was against the refusal by the LPA to grant a Certificate of Lawfulness of Proposed Use or Development (CLOPUD) for the siting of 30 twin-unit lodges for permanent residential occupation and 30 twin-unit lodges for 12-month holiday occupation. The Inquiry lasted for seven sitting days.

Due to the pandemic, the Inquiry was conducted as a virtual event which proceeded very much the same way as a physical ‘in person’ event held at a venue. The Inspector heard the majority of evidence on oath and considered both the legal and non-legal grounds of appeal.

Grounds for the appeal

The legal grounds of appeal were essentially that, (a) no breach of planning had occurred – the Appellant argued that planning permission exists and that there is no material change of use from that which can lawfully occur; (b) it is too late to take action because the material change of use (through intensification) has occurred for a continuous period of 10 years or more prior to issue of the notice; (c) the operational development alleged is not a breach of planning control.

The non-legal grounds of appeal were that planning permission ought to be granted for both the material change of use and the operational development, that the Enforcement Notice requirements are excessive, and that the time to comply (6 months) is too short.

The advocates and witnesses

Mr Richard Harwood QC represented the Appellant and called various expert witnesses, all from the consultancy RPS, who provided evidence on the planning merits, heritage matters, how the development affected the significance of the surrounding woodland and landscape and visual amenity of the surrounding area.

The Local Planning Authority (LPA) AVBC, was represented by Mr Jonathan Mitchell, who called the Council’s Enforcement Officer and Assistant Director (Planning), as well as independent expert witnesses Deborah Evans and Melanie Morris who gave extraordinarily thoughtful, compelling and interesting accounts regarding the landscape and heritage.

In addition to the above two main parties, there were two Rule 6 Parties, WACAG and the Derwent Valley Mills World Heritage Site Partnership (DVMWHS).

WACAG was represented by Mr Alex Shattock, a barrister from Landmark Chambers, London. He called four Whatstandwell ‘resident’/ non-professional witnesses, one of whom presented evidence for the community action group on how the site looked before and after the redevelopment, and of the impact of the off-site effects (visual amenity, light pollution etc.). A further three residents provided evidence under oath of the unlawful tree-felling that took place in March 2017. Mr Shattock also called two ex-Haytoppers to give evidence of their experience of using the site under Mr George’s ownership. WACAG also submitted three separate videos as part of its proofs of evidence, which were taken on-site at three different times prior to the redevelopment work commencing. This was to allow the Inspector to have an appreciation of what Haytop used to look like and help her to determine the extent and nature of the changes that have since taken place.

Mr Adam Lathbury gave evidence on behalf of the Derwent Valley Mills World Heritage Site Partnership.

Representations from 67 interested parties

Two additional residents read statements on their concerns of the impact of the development on the valley. The Inspector remarked that she had also received written representations from 67 other interested parties, including many from local residents as well as Alderwasley and Crich Parish Councils and Friends of Cromford Canal, all urging the Inspector to dismiss the three appeals.

The evidence

The Inspector heard evidence in relation to the material change of use and deemed planning applications and the effect on:

• the significance of the following heritage assets; Alderwasley Conservation Area, the setting of Alderwasley Hall, and that of the DVMWHS given that Haytop falls within its Buffer Zone
• the character and appearance of the surrounding area designated a Special Landscape Area

In addition to evidence given on planning merits, the Inquiry also looked at any benefits to be weighed in the planning balance whether the steps to be taken regarding the operational development notice are excessive and whether 6 months is a reasonable period to comply.

Existing planning permissions – claims that they allow twin unit lodges

Over the seven days, the Inspector heard from the Appellant’s QC and expert witnesses that it is their belief that the existing planning permissions allow twin unit lodges for residential use and if not, they are allowed because static caravans had been sited at Haytop continuously for at least 10 years and it has therefore become lawful through the passage of time. They argued that the siting of twin-unit lodges for residential use does not amount to a material change of use, that the works (recontouring of land and introduction of concrete bases, gabion walls, roads, services and hard landscaping etc.) fall under permitted development, there are little or no off-site effects from the development and that the development has resulted in a very low level of less than substantial harm to the DVMWHS, and negligible harm to the setting of Alderwasley Hall and Conservation Area. They argued that the development met a housing need (specialist accommodation for the elderly) in Amber Valley.

Material change of use and unlawful operation without a site licence

Mr Mitchell for the LPA argued that the existing planning permissions only allowed for touring caravans but conceded that statics had been stationed on-site from time to time in breach of planning. He said that the twin-unit lodges amounted to a material change of use (from single statics), as they are much larger, having the appearance of bungalows, and are being used residentially. He said the site is currently being operated without a site licence, itself unlawful. He said that ‘the baseline by which the Appellant has conducted it’s assessments is wrong (it should be that which existed prior to the unlawful tree felling)’, and that the Appellant’s expert witnesses on heritage and landscape had failed to ‘appreciate the significance of what is before them and the impact upon that significance.’, that their assessment of impact in each case ‘is superficial and wrong.’, and ‘under-assesses the harm caused by that which has occurred.’

Illegal tree felling

Mr Mitchell said that the tree felling ‘was the enabler for that which is complained of in these appeals…; the Appellant must live with the consequences of its actions. It should not be allowed to benefit from its wrong-doing.’ In essence, it was the Appellant’s illegal and deliberate tree felling activity, without which it would not have been able to introduce the twin-unit park homes onto the site. Mr Mitchell said that the operational development had scarred this part of the Buffer Zone of the WHS and as a result the significance of the WHS is diminished. He described the activity at Haytop as a classic case of ‘the development cart coming before the planning horse.’

Permission for touring caravans only

Mr Shattock, representing WACAG, agreed with the Council that two extant permissions limit the number of units that may be stationed at Haytop to 60, that all of these are limited to touring caravans of which only half can be occupied all year round, and that the operational development that facilitated the twin-unit lodges was unlawful. He argued that the twin-unit lodges constituted a material change of use given they

• have a significantly higher visual impact
• have resulted in significant earthworks to accommodate them
• are much more likely as a matter of fact to be occupied all year round compared to tourers
• have resulted in an overall change to the character of the land

“A cynical and calculated act”

He went on to say that the baseline position is that the unlawfully felled trees should be taken to be in the same places as they were felled from (as this is the positioning required by the Tree Replacement Notice), and consequently the Appellant has the benefit of the historical permissions within the physical constraints of the site as it was before the felling, i.e., he has only been able to proceed with the development because he first unlawfully felled the trees. Regarding the Appellant’s criminal conduct, Mr Shattock questioned the validity of the Appellant’s excuses regarding the tree felling. He invited the Inspector to find ‘on the balance of probabilities it was not an honest mistake on the Appellant’s part.’, but that ‘It was a cynical and calculated act, carried out while the Council Offices were closed….’ Mr Shattock added that the Appellant’s conduct over the tree felling was ‘unconscionable, deceptive and of course criminal.’

“A person cannot profit from their own wrongdoing”

He said in his closing submissions that ‘the key legal principle in these three appeals is this: a person cannot profit from their own wrongdoing. That is the prism through which each of the appeals should be viewed.’ He said that ‘the Appellant’s related criminal conduct would in these circumstances disentitle it to an Lawful Development Certificate in these extreme circumstances, on the basis that Parliament could not have intended the Town and Country Planning Act 1990 to be used to allow an Appellant to profit from their wrong’. He argued that ‘there is a very strong nexus between the criminal conduct on the site, the felling of the trees, and the certificate applied for, which aims to regularise the Appellant’s actions on the site (including the direct consequences of the tree felling).’ He said the Appellant must first put the land back into its previous original condition before a Lawful Development Certificate can be granted.

“The development imposes itself on the landscape”

Mr Shattock echoed the remarks of Mr Lathbury from the DVMWHS (see below), that the Appellant had not applied sufficient weight to the importance of the WHS and its conservation. He also submitted that in assessing the landscape impact of the development, the Appellant had used the wrong baseline, ‘how the site is now, without any consideration of the trees that have been felled.’ He remarked that in contrast, the Council’s expert witness Ms Evans, had used the correct baseline. She also noted that the site was currently ‘at odds with the surroundings’, ‘imposes itself on the landscape’ and came across as ‘manipulated’ and ‘engineered.’ She added that any planting would not screen or mitigate the development and that the previous state of the site was constrained, with caravans tucked between mature trees.

In terms of planning balance, as stated by Mr Shattock, WACAG believes

• the Appellant’s criminal conduct is clearly a material consideration that weighs heavily against the granting of planning permission
• that the Heritage and Landscape factors that weigh against the granting of planning permission are heavy indeed
• that the benefits (claims of specialist housing for the elderly – when in fact the site was marketed for the over 45’s!) are minimal
• the site is not well suited to the very elderly (long hilly walk to train, bus and distance to nearest GP, Post Office and shop facilities in Crich)

Global significance of the World Heritage Site

The DVMWHS Partnership argued that the World Heritage Sites are places of global significance, recognised by UNESCO and that the UK’s National Planning Policy Framework (NPPF) identifies them as heritage assets of the highest significance. Mr Lathbury said “the development and change from single static caravans plots to double pile residential bungalow-type units represents an unacceptable intensification and urbanisation of this site.”, that “the intrusive and urbanising works to this site clearly impact on the documented attribute of the DVMWHS.”, and “the incongruity of the urbanised development on the site dilutes the appreciation of the rural setting of the WHS.” He did not think the Appellant fully understood the magnitude of the impact on the DVMWHS – that you need to consider the UNESCO World Heritage Committee’s reason for inscribing the Site – that ‘in the Derwent Valley for the first time there was large-scale industrial production in a hitherto rural landscape.’ Mr Lathbury quoted Inspector Ball in the Bullsmoor (Belper) inquiry who said “….UNESCO considers that any harm to the Outstanding Universal Value (OUV) of a WHS is unacceptable and will judge that loss accordingly. The cumulative effect of small losses to the surviving ‘relict’ landscape poses one of the most significant threats to the OUV of the DVMWHS and could lead to the site being placed on UNESCO’s World Heritage in Danger List or even deletion from the WH list.” Mr Lathbury finished by saying that the NPPF states: Any harm to a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification.

The Inspector’s decision

The Inspector will make her decision known in the coming weeks. We will post the decision notice on the WACAG website as soon as it becomes available.

Associated documents

WACAG’s Proof of Evidence, Final Remarks and our barrister’s Closing Statement to the Inquiry can all be found on the Documents page of the website together with the Closing Statement from the DVMWHS Partnership.