Proof of Evidence from Peter Leaver
There’s a small amount of paraphasing in this report. A great deal of time is spent by all concerned going backwards and forwards opening documents, closing them, and then opening them again.
Before proceedings-proper commenced, the Inspector heard a contribution from an interested party.
Anne-Marie Curror, a Paignton resident and Paignton Neighbourhood Forum member raised an issue (about which the Inspector seemed unaware).
She is disappointed that there has been no consideration of the cumulative effect of planning applications.
There is a continuous vista of urban sprawl along the Brixham Road of densely-built and poor quality housing. Inglewood is proposed on top of the remaining green space.
She highlighted that at Devonshire Park warehouses had been built but 180 planned houses had not. The cumulative development was having an effect on wildlife, such as Curl Buntings.
She also rebutted a point made in the previous day’s proceedings relating to Peter Goatley's assertion that there was presently no public access to the fields of the development site, and that the proposed estate would provide that access. Anne-Marie Curror pointed out that the reason that there was no access at present was because it is farmland!
Peter Goatley appeared to brush away the comments by stating that: “An environmental statement has been prepared including an ecology chapter, and a cumulative assessment, did you read it?”.
On to Peter Leaver’s evidence.
Each witness produces a Proof of Evidence. We then see examinations from the advocates: Examination in Chief, Cross-Examination, and Re-Examination.
Peter Goatley introduced Peter Leaver as a Chartered Landscape Architect with a focus on the landscape impact of housing. He’s a Director of David Wilson Architects.
Peter Leaver became involved in 2018 to provide an independent opinion on the impact on the South Devon Area of Outstanding Natural Beauty (AONB).
He doesn’t think the development is likely to have significant effects - scenic or landscape.
There are three directly relevant documents that define the character of the area: The National Character Area Assessment, the Devon Character Area and the Torbay Character Area assessments.
They each have their own definitions for the character of an area. For example: Undulating farmland with a wooded appearance.
The document that forms a focus of the evidence is the Landscape and Visual Impact Assessment (LVIA). This was produced by Nicholas Pearson Associates for the developer (Abacus Projects Ltd).
Peter Leaver explained that there is a layering of different character assessments.
Presumably, meaning that the Torbay Assessment is more specific than the Devon Assessment. However, advocates refer to whichever assessment best suits their own argument. The other advocate then has to rebut those assertions… and around and around we go. I guess lawyers are paid by the hour. The Inspector (the only person that matters) has to make sense of it all.
Peter Leaver suggested that the updating of character types causes some confusion.
That’s why the other advocate’s argument is less relevant?
Nicholas Pearson Associates' assessment shows the area as less sensitive to change - next to Brixham Road - urban - only moderate - unremarkable area.
Peter Leaver used the interesting phrase: the softening of the urban edge with fingers of countryside coming-in.
This stood out. The countryside has the temerity to intrude on the urban development. Does this say a lot? It does to me.
Peter Goatley built on the ‘fingers’ observation: When viewing the way that, from the AONB, Galmpton and White Rock build up a ‘scalloped’ edge - a softening of edge of the Torbay countryside that flows in and around the urban development.
Thank you urban build.
Peter Leaver continued, “Nicholas Pearson Associates set up a study area - which I agree with - set. A series of landscape receptors to overcome the issues of overlapping character assessments. Special qualities are taken into account in the LVIA - tranquillity, remoteness, open views, dark night skies are all referenced in the LIVA baseline."
Meaning that, in an attempt to clarify the ‘confusion’ between the differing character assessments, and types, they looked at the site from another angle. It’s interesting that Peter Leaver describes the character assessments as overlapping; earlier he described them as layered. Not the same thing.
On the so-called masterplan, Peter Leaver emphasised that: “Design. and layout was taken into account - a lot of detail for an outline scheme than one might expect. The scheme is respectful of the landscape… providing better views into the AONB than currently available from Brixham Road.”
I’m really not sure how placing a housing estate between the Brixham Road and the AONB provides ‘better’ views from the Brixham Road. To be fair, I suppose the few people who live on the western edge of the development, if they go upstairs, will get better views (except that there will be trees in the way. Nevermind.)
The re-working of the first version of the masterplan has moved houses towards the eastern edge of the development (next to the Brixham Road). That side of the development, in Peter Leaver’s words, would be ‘dense’.
Don’t we just love that word.
Peter Leaver: “After initial discussions with the local planning authority, efforts were made to pull development away from the AONB”.
They knew that the development would be a problem but initially proposed a development that would be problematical? Maybe thought was not given in the first place?
Peter Leaver outlined how the developer was “Undertaking to mitigate around the site before development starts.” Tree planting would commence a year before development starts. By the end of construction there will have been five growing seasons.
Peter Leaver: “I would expect 30 to 70cm growth per year, depending on species and the initial size of the trees… a season has been extended due to climate changes”.
Interesting… climate change, but that’s a different topic. (Actually, it’s not; everything's connected).
Peter Leaver added that, from the AONB visual views, “an extra metre or 1.5 metres, won’t make much difference. The mitigation is “more to help with integration of development rather than screening”.
So, there is an implied acknowledgement that the development will effect the views. Of course, the question is to what extent? Peter Leaver is trying to advance the proposition that the development will be ‘integrated’.
We then moved on to a discussion of “special qualities”.
Peter Goatley asked: “How many special qualities are engaged is an issue? You and Steve Knott have three in mind. What do you think about Roger English’s other four?”
To which Peter Leaver responded: “It seems to me that they relate to physical features which, because the site is not in the AONB, are not relevant. In this circumstance they’re perceptual not physical.”
Continuing, Peter Goatley asked: “How would you characterise tranquility, high tranquility, relative tranquility?"
Referring to Roger English’s evidence, Peter Leaver agreed: “He’s right, nowhere in England has absolute tranquility. He’s right, it’s relative. Taking all factors into account there are places in the AONB that are more tranquil than others.
On top of Beacon Hill is more tranquil than walking along Brixham Road but there are strong detractors - the sense of human habitation - the impact of human kind - the urban form of Paignton.”
“You can’t get away from that”.
The inquiry spends considerable time analysing the photographs of views of the development site, particularly as viewed from the AONB. These are called Visually Verified Montages (VVMs). The photographs are produced by n independent organisation but each party is able to verify that they are ‘correct’.
Peter Goatley asked Peter Leaver for his comments on a selection of those views.
“All have built form of human interaction. Paignton, and Torbay, form a large part of it and therefore reduce the tranquility; even at night the built up area is still there”
“There is a real sense of openness and the sea views add to the feel of remoteness and therefore help to build that relative tranquility — looking towards Brixham Road”.
The question of noise was broached by Peter Goatley:
“Yes traffic noise is evident - a distant rumbling - but it depends on weather conditions”, replied Peter Leaver.
On the night-scape views, Peter Leaver said:
“The influence of Paignton and Torbay is evident - there is a slight change to the built form and lighting but it should be seen within the context of the rest of the panoramic view. Most people will take in the whole panoramic view. Traffic movement is not something one notices, you have to be looking for it.”
“Built up areas are large and prominent, the site would only add a small addition to that. In these views, it’s an urban setting - the developed nature is prominent - this is not a deeply rural setting.”
“What’s the consequence of the development?” asked Peter Goatley.
“It would be perceptible but not out of character. It’s only a small part of the overall view. A walker would notice the change but the character would not fundamentally change. The near skyline is a developed skyline.”
“On the John Musgrave Trail you would only view the site for about twenty minutes. Your eyes are drawn to long distance views of Dartmoor. What is being proposed is of a similar character to what is already in the view”.
Two arguments are being introduced here: One, that people would be looking towards Dartmoor, not towards the development (even though there’s a little thing called “Tor Bay”, which, to be honest, is pretty obvious to the eye).
And secondly, that the view towards the development site is already urban (so what difference will a bit more development make?). The military have a similar problem; they call it “mission creep”. You start off with a clear objective, and bit by bit, you get into a mess.
The issue of the settlement gap, between Paignton and Galmpton was handled by Peter Leaver by suggesting that the gap was a “corridor effect” that would be “emphasised by the development”.
He added: “In perceptual terms there is still a view of the AONB”.
Presumably, if even more development was to take place, the “emphasis” would be even greater.
1997 Business Park Proposal
In 1997, there was a planning application to build a business park on the same (-ish) site. It was rejected. The Secretary of State and appeal Inspector both presented arguments against approval.
Peter Goatley needs to minimise the impact of that decision. This Inspector is likely to put great weight on what his fellow Inspector said previously.
He asked Peter Leaver: “Do you think the Secretary of State observations can be carried across?”
The answer: “No. The characteristics are different. We now have an AONB Management Plan that is comprehensive and researched. It would have been of great help to the Inspector then.”
Nina Pindham’s Cross-Examination
Upfront, Nina Pindham made the point that “All issues are utterly subjective”.
She asked Peter Leaver: “Given that open panoramic views are resources of exceptional value, for example from Beacon Hill, does that effect on those views bringing the urban edge closer?”
Strangely, Peter Leaver responded: “I dispute that, the John Musgrave Trail is already close; Brixham Road would be slightly closer.”
Nina Pindham had a well worked-out series of questions. She continued with:
“Relating to distinctive characteristics would you agree that they contribute to a sense of tranquility, not only areas of high tranquility?”
As you would have read from previous evidence, the issue of tranquility is being seen as important. Obviously it is. The ‘legal’ arguments stem from the degree of tranquilly.
Peter Leaver tried to explain: “It’s the special qualities that’re high; the distinctive characteristics refers to the juxtaposition that contributes to tranquility; not necessarily to high tranquility.”
Trying to grasp what that meant, Nina Pindham asked: “It’s based on context?”
Peter Leaver: “Yes”
Nina Pindham brought in the surroundings: “Agricultural fields contribute to the sense of tranquility don’t they?”
Stumbling a bit, Peter Leaver replied: “I guess … to some extent… in relation to urban they give… depending on context.”
Nina Pindham: “There is an impinging effect of the development?”
Peter Leaver: “A slight impinging effect”.
Nina Pindham: “So, you agree that it’s the changes that are of significance.”
Peter Leaver: “Yes”
Nina Pindham: “The Devon Landscape Character Assessment values valley slopes (of the type 3B). This landscape is associated with Dart Valley slopes, yes?”
Peter Leaver: “There are different types of 3B including lower rolling farmland. It doesn’t appear to me it has the characteristics of a valley slope. Not like the deep wooded valley slopes.”
Nina Pindham: “It is geographically part of the network of water courses?”
Peter Leaver: “Yes, these are characteristics of the AONB - they may be outside but are not worthy of protection.”
Nina Pindham: “By that logic you could develop right up to the boundary of the AONB?”
Peter Leaver: “Yes but that’s a different special quality.”
Nina Pindham: “But it must be holistic of all special qualities that are relevant?”
Peter Leaver: “One of the things that makes it special is the setting and nature of views… there’s a distinction between the pattern.”
Nina Pindham: “We agree that where there are features in the settings that affect, we look at the special qualities of the AONB?”
Peter Leaver: “Yes I would look at all relevant special qualities.”
Nina Pindham then introduced the idea of the development site and surroundings being of long-standing use: a “landscape of rich time depth”. It’s worth remembering that all arguments put forward are derived from a range of documents. Nothing is made up on the fly.
Nina Pindham: “This is ancient pastoral farmland, in historically continual use. This is a complimentary landscape setting. The site is within its ancient use?”
Peter Leaver: “Post medieval, yes.”
Nina Pindham: “There would be sustained stretches of footpath where changes would be visible?”
Peter Leaver: “There’s a 200 metre stretch of the Brixham Road with a view of the AONB.”
Nina Pindham: “It’s a panorama?”
Peter Leaver: “Yes”
Nina Pindham: “The value of the view is considered important in the Brixham Neighbourhood Plan?”
Peter Leaver: “Yes, in the settlement gap policy.”
Nina Pindham: “That policy states that the settlement gap is highly sensitive to change, and must be retained as open countryside… residents recognise it’s a view they value?
Peter Leaver: “Yes”
Nina Pindham: “As a result there will be encroachment on that view?”
Peter Leaver: “Yes. The development will change the gap’s nature.”
1997 Business Park Proposal
Nina Pindham: In the 1997 Inspector’s report he said: “When viewed form the Brixham Road, the business park would obstruct the views… that’s important because it’s the first view seen - hundreds of tourists - particularly important - would readily perceive the change of views. The qualities are the same as today?”
Peter Leaver: “Partially, there’s been some erosion due to White Rock. It’s not exactly the same site.”
Nina Pindham: “But the qualities remain the same don’t they?”
Peter Leaver: “ I’d suggest that White Rock has had an impact…”
Nina Pindham cut him off at this point, she wanted a yes/no answer, not a deviation from the question she had asked.
Nina Pindham: The Torbay Landscape Character Assessment states that much of the area allows for open views and is highly sensitive with only limited potential to accommodate change. Is this Landscape Character Assessment appropriate?”
Peter Leaver: “The LVIA references many character assessments.”
Earlier we saw that there are several character assessments of the land. The advocates spend a great deal of time exploring the bits of the report which suits them best. I hope that the inquiry Inspector is able to follow this.
Nina Pindham then referred to the Guidance for Landscape Visual Impact Assessment from the Landscape Institute and Institute of Environmental Management & Assessment.
That’s a guidance assessment document explaining how to write assessment documents.
Nina Pindham: It states that there is a need for clear and transparent reasoning. The LVIA doesn’t have any reasoning, does it?”
Peter Leaver: “The reasoning is there, by inference.”
Moving on to the effects of the development, and looking at one of the photographs that showed a view towards the sea, with the development in the mid-ground, and the River Dart in the foreground, Nina Pindham asked: “The eye is drawn to large bodies of water?”
Peter Leave: “Yes, tends to be.”
Nina Pindham: “The ocean and river are sandwiched, does that attract the eye?”
Peter Leave: “I’ve not considered that but I can see the interest in the view.”
Nina Pindham: “The noticeable impact of the development is exactly where your eye is drawn?
Referring to the fact that the development is at a point where the Bay and the Dart meet at a fork (from the eye’s perspective).
Peter Leaver: “Yes, it is what it is, yes.”
Nina Pindham: “Your evidence is that it is not significant and acceptable. Steve Knott and Roger English say it is significant. It’s subjective.”
Peter Leaver: “We’re not going to agree.”
Here Nina Pindham concluded her cross-examination.
The Inspector asked if anyone else had any questions for Peter Leaver.
Interested party, Brian Payne: “There is an absence of evidence of Brixham Road. There is a footpath/cycleway from White Rock Knoll to Hunters Tor Drive immediately opposite the development that’s used by cyclists and pedestrians. Is there a footpath Mr Leaver?”
“Yes, I’ve walked along it.”
Brian Payne: “Roughly how far from the road is it?”
Peter Leaver: “I would say 10 to 15 metres rather than 2 to 3 metres.
Brian Payne: “Would you agree that there is a very wide countryside view?”
Peter Leaver: “There is no dispute, yes, there is an open view. Where it runs inland, the open views are obscured by mature trees and a high hedgerow. There are two layers of vegetation. There are occasional glimpses.”
Brian Payne: “What time of the year did you visit, did you notice any Ash die-back?”
Peter Leaver: “Summer and winter. I wasn’t looking for it.”
At this point Peter Goatley is able to re-examine his witness after Nina Pindham’s cross-examination. He has to try to undo any ‘damage’ to his case that Nina Pindham may have inflicted. For us, this helps us to understand what he considers to be damaging.
Peter Goatley: What is your view of the relationship between the site and the estuary?
Peter Leaver: “There is a clear separation of the character types.”
Peter Goatley: “Do you agree with the description of the deeply rural feature with the appeal site?”
Peter Leaver: “No, it’s heavily influenced by the urban development.”
Peter Goatley: “Is that a view or a vista?”
Peter Leaver: The Brixham Neighbourhood Plan Policy E3 relates to the settlement gap, it doesn’t identify individual views.”
At this point, Nina Pindham interrupted (in a nice lawyerly way):
She accused Peter Goatley of asking leading questions: “I ask that they are more open.”
Peter Goatley “No, they are binary, he could answer yes or no.”
A short exchange took place that was worthy of a television courtroom drama. Was the day getting late, or was Peter Goatley a tad rattled?
He said: “I’m not going to have a lecture on what is considered a leading question.”
Nina Pindham: “I’m not content with these questions.”
Eventually returning to his questioning he asked: “Do you consider that the settlement gap is sensitive to change?”
Peter Leaver: “Not as far as landscape separation goes. It doesn’t close off the corridor but there is a sensitivity in drawing-in the landscape.”
1997 Business Park Proposal
Peter Goatley referring to the I997 Inspector’s Report “The first view of Dart Valley, once clearing White Rock, during the holiday season… Would it be interrupted or not?”
Peter Leaver replied: No, the vista is still there over the tops of the houses.”
Oh, that’s OK then.
Earlier, in Nina Pindham’s cross-examination, she had referred to a specific policy (C1) in the Torbay Local Plan. However, she had carefully only focused on one aspect of that policy. Peter Goatley would, in her view, only be able to re-examine Peter Leaver on that specific aspect that she had raised.
Peter Goatley then continued his questioning by expanding beyond that aspect…
Nina Pindham interrupting again, but with slightly less reservation than the previous interruption: “This is not what was put to Mr Leaver”.
Clearly, Peter Goatley was not happy: “NO NO Ms Pindham.”
Nina Pindham: “Only the character assessment part of C1 was the subject of my questioning, not all of C1.”
Peter Goatley: “I don’t know where this approach to cross-examination comes from. It is becoming a little tiresome, you are just plain wrong.”
Words don’t describe the noticeable change that took place in the ‘tone’ of the proceedings.
We’re only half-way through. There's a lot to play for.