The Forum’s Mike Parkes pointed out that since the application was proposed, two additional primary schools in Paignton are opening, therefore would the inclusion of a primary school in the application still be necessary? If it was not, this would have an impact on the employment that the application says that it will bring.
To understand what goes on in an inquiry, it may be helpful to picture a courtroom trial. There are two advocates, one for the Council - Nina Pindham - and one for the appellant (property developer) - Peter Goatley QC.
Today, the whole day was spent examining Roger English - an expert witness for the defence, if you will.
Nina Pindham introduced Roger English - Manager of the South Devon Area of Outstanding Natural Beauty (AONB); with 25 years of experience.
The AONB organisation produces a Management Plan.
Nina Pindham, knowing that Peter Goatley would argue that the AONB Management Plan should carry less weight since it was not statutory, asked Roger English to clarify:
The Management Plan is created under the Countryside and Rights of Way Act 2000. The first plan was produced in 2004, with a review every five years. It is not a planning document itself; however, it provides a voice for AONB as an entity, and is used by planning authorities as guidance.
The South Devon AONB is in close proximity to the development site. The proposition is that the views from the AONB (which include the Dart Valley) will be adversely impacted by the development.
Roger English's focus was on the special qualities of the AONB setting. The setting of the development site in the relation to the AONB’s physical location is important.
It's more complex than looking at the location of the development site’s proximity to the AONB.
The question is:
Does the proposed development have a significant effect on the AONB that would be a substantive reason for refusal?
Roger English presented evidence that it would. Peter Goatley spent many hours pulling apart the evidence, and even Roger English’s credibility: Do you have professional qualifications as a Landscape Architect? Do you have a document showing the workings of your analysis?
The South Devon AONB was created in 1960 based upon the criterion of natural beauty; since then the criteria of designation have been firmed-up, there are now six criteria.
Unpicking the term "natural beauty" is tricky but explanation in terms of special qualities is easier, there are ten of them - seven are relevant to this application; three of which specifically so.
The way that the rolling patchwork landscape washes around the "nature of the scheme" - there are perceptual and physical qualities.
The narrow form of the AONB relies upon the setting which surrounds it.
The rural nature of the land is important as it transitions into the AONB. It relies upon an undeveloped rural setting to contribute to the natural beauty.
A degree of separation to the urban built environment of Torbay is necessary. A sense of remoteness and naturalness is essential. This area is not remote and wild (like Dartmoor).
The three special qualities of import are:
- Iconic wide and unspoilt panoramic views.
- Areas of high tranquillity.
- The variety and setting of the AONB.
Tranquility is relative. There is no absolute tranquility; it must be considered as relative.
The "natural nightscape" contributes to tranquility. Sky glow and glare seriously affect it.
Since White Rock has been built, light spill has increased; from the housing and especially the sports pitch flood lighting.
If light spills into an area that is usually dark, the setting diminishes.
The AONB organisation also follows International Nature Conservation principles and guidelines. These are not statutory however; they were generally considered as "soft law". This prompted Nina Pindham to say: "We don't like soft law".
White Rock sits in a bowl but Inglewood is oriented, and flows, towards the Dart Valley. There is a topographical variation, with the site tipping towards the Dart Valley. This was stated in response to the argument that if Inglewood is a problem, then why isn’t White Rock?
The development site breaches the ridge-line, creating a sprawl effect. The White Rock development is at the ridge-line but not within the scene, so in that sense it's not the same argument.
Policy SS8 of the Torbay Local Plan is concerned that there is not "unacceptable impact" on the natural environment. What's "acceptable"?
There was much discussion around clause 172 of the National Planning Policy Framework (NPPF). The reason being the weight given to the AONB issue. If this issue can be lowered in weight then the NPPF clause related to the "presumption of sustainable development" (the so-called tilted balance) kicks in. This presumption is used to sway many planning applications.
In Peter Goatley’s cross examination, he first asked Roger English:
Do you have professional qualifications as a Landscape Architect?
Can we see the workings of your analysis?
At one stage the cross-examination became quite tense, as Peter Goatley (like a prosecuting lawyer) tried to get Roger English to answer the question "Do you consider this is a 'Valued Landscape'?". He wanted Roger English to make a statement about an area that he was not there to discuss.
To his credit, Roger English refused to be cornered.
People will wonder how these shenanigans dovetail with community-led neighbourhood planning.
Peter Goatley asked "Has the AONB organisation made any effort to expand the AONB to include the development site?" The response: "No. But community groups have indicated that they would like National Park designation, which shows the value put on the area by the community". This response did not seem to impress the questioner.
"Is there any impact on the skyline?" asked Peter Goatley, to which Roger English responded: "No, but this is not about skylines, it's about ridge lines".
A fair amount of time was spent by Peter Goatley debating the difference between: high tranquility, tranquility, and relative tranquility. Nina Pindham found a reference in a document that said simply: Tranquillity may be found on top of a mountain during sunrise but relative tranquility of high value may be found in an urban green space despite noise and the presence of many other people.
Peter Goatley argued a distinction between "countryside" and "open countryside".
Let’s see if the Inspector is swayed by these distinctions.
Given that Roger English's evidence was specifically focused on the natural beauty of the AONB, it was disappointing to hear Peter Goatley say, of a specific approach to determining natural beauty: "You could stick a moistened finger in the air and call that natural beauty".
The issue of the settlement gap (between White Rock and Galmpton) was raised, with Roger English illustrating that the nature of the dark area of the provided by the settlement gap is of value from an AONB view.
This was in response to Peter Goatley suggesting that the development only generated a "small amount of additional light".
Peter Goatley introduced two other cases where judgements have been found in favour of the premise that "moderate harm is not a reason for refusal". This is an attempt to get the tilted balance in favour of development to apply to this application.
Roger English's view is that: The development is a fundamental incursion against which it is not able to mitigate.
It's important to remember that the point of the examinations of "expert witnesses" is to influence the Inspector. Somewhat amusingly, each time that Roger English made an excellent point, Peter Goatley would say: "We'll leave that to the Inspector to make his own determination on that point".
Through the process of this inquiry many people are going to be shocked at the not-cheap advocates employed to press the developments of deep-pocketed clients. A point specifically made by one of the interested parties yesterday.