David Pickhaver’s Proof of Evidence
Nina Pindham, advocate for Torbay Council introduced David Pickhaver: Senior Planning Officer at the council, with 33 years experience.
Decision making framework
The National Planing Policy Framework (NPPF) has a provision to allow a “tilted balance” in favour of development. Specifically, a “presumption in favour of sustainable development”.
This clause (NPPF 11) comes into play when plan policies are out-of-date or housing targets are not met. This is important because the clause effectively overrides (or at least, causes them to lose weight) any other plan policies If a neighbourhood plan is more than two years old, they lose weight in planning decisions also.
So, as we’ll see, the targets for housing delivery can be of critical importance.
All the what-if scenarios can get a little tricky to follow; especially when all the subjective (e.g., when is the harm to a view ‘significant’?) issues are considered.
Let’s try to consider today’s evidence as simply, as possible.
One key issue, as we’ve seen in previous evidence, is the whether the harm (if any) caused to the Area of Outstanding Natural Beauty (AONB) is outweighed by the benefits.
If it does, then that provides the Inspector with a clear reason to move onto consideration of whether a “titled balance” applies.
If the tilted balance is found to not apply, then the Inspector should consider the council’s development plan. The development plan is a combination of the Torbay Local Plan and the Brixham & Peninsula Neighbourhood Plan.
David Pickhaver believes that the tilted balance should not be engaged if harm to the AONB is too great.
Nina Pindham asked: "Is the inspector informed of what weight should be given?”
To which David Pickhaver replied: “No it’s a matter for planning judgement. If the Neighbourhood Plan is considered to be out-of-date it should be given significant weight.”
Out-of-date? More on that later.
David Pickhaver added that if there is a shortfall of housing development, it doesn’t arise because of the Brixham & Peninsula Neighbourhood Plan. A huge amount of effort has gone into creating the Brixham & Peninsula Neighbourhood Plan, he stressed.
Nina Pindham asked about the AONB Management Plan.
David Pickhaver considered it to be a material consideration (as it is an informed interpretation of the Countryside and Rights of Way Act), and should be given great weight.
Nina Pindham’s second area of interest for David Pickhaver is the:
Housing Delivery Issue
She stated that some of the sites under consideration for calculating potential housing construction numbers were in dispute: “Is it useful to go into details?”
David Pickhaver thought it served “no useful purpose to go into detail.”
Peter Goatley thought otherwise and later would go into detail.
David Pickhaver stated that “We don’t think that housing delivery outweighs landscape harm.”
He knew that it was going to be a major stumbling block for the council.
“A very high bar is set but the council is trying to bring forward housing.” He cited (approximate numbers):
Between Devonshire Park and Yalberton, 350 houses;
The council’s development company (TorVista) bringing forward Preston Down Road: 100;
Paignton Town Centre Victoria Square: 85;
He emphasised that Torbay Council is “going to significant effort”.
Nina Pindham’s third area of interest related to the so-called:
It was agreed that the Paignton Neighbourhood Plan is not particularly relevant, covering only northern access roads into the site, and associated road junction. The development is overwhelmingly covered by the Brixham & Peninsula Neighbourhood Plan.
Nina Pindham asked whether there is a conflict with the Development Plan?
David Pickhaver pointed out that Brixham has already provided for 660 houses (already over its target) and that this proposal significantly exceeds that.
It is a “leap too far to say that the development can be brought into general conformity with the development plan."
There is a conflict with the Brixham & Peninsula Neighbourhood Plan in that the plan “prioritises brownfield sites”; plus this site is a significant development within the settlement gap (between Galmpton and Paignton).
Yes, he said, “there would still be a gap but this site is clearly on the settlement gap. It’s even shown on photographs in the Brixham & Peninsula Neighbourhood Plan.”
Nina Pindham: “Is housing delivery is an important consideration?”
“Torbay Council has admitted that there are benefits to this development - school and employment (although the school site is not the only school site available) but must be weighed against landscape harm. My assessment is that harm outweighs benefits.”
David Pickhaver believes that “Localism is important, I have sympathy with Brixham & Peninsula Neighbourhood Forum members.”
NPPF clause 14 says that very significant weight should be given to the Brixham & Peninsula Neighbourhood Plan.
Peter Goatley’s cross-examination
There has been much made of the 1997 inquiry into the proposed Torbay Business Park.
Peter Goatley tried all he could to show that the rejection of the 1997 plan was of little relevance here.
One Inspector didn’t want to approve the site… would this Inspector be influenced by that?
Some time was spent searching for pages of the 1997 plan drawings and determining that it was designed on a series of plateaus.
I lost track of what point PG was trying to make. Eventually…
Peter Goatley asked: “It’s a question of judgement?”
To which David Pickhaver replied, “Yes but also a detailed landscape assessment. The 1997 plan had a more complex landscape and is largely Paignton-facing; whereas the appeal site is Brixham/AONB-facing.”
Moving on, Peter Goatley questioned David Pickhaver on why the site was considered in earlier deliberations during the creation of the Local Plan: “In the latest plan you brought forward the site?”
David Pickhaver: “Yes, because housing needs dictated we look at it. We were aware that it would be a controversial site. In 2015 the emphasis was on the habitat assessment. Also, the landscape impacts. Had we persisted, we would have had the debate we are having now.”
Peter Goatley: “This was the largest and most strategic site that came forwards?”
David Pickhaver: “Yes. In 2015 the initial Local Plan officers thought the site to have potential to be acceptable but didn’t have the time to go into details.”
Peter Goatley: “At the time no-one was flagging that the site could not be brought forward. TC and plan examiner were saying that this would be one of the best locations for Greenfield?”
David Pickhaver: “Yes”.
Peter Goatley then targeted the Local Plan itself.
Peter Goatley: “The Local Plan says that it is a ‘step change for Torbay, a plan for growth’… with 400-500 additional homes per annum?”
David Pickhaver: “Yes but within environmental limits.”
Peter Goatley: “Is it fair to say that housing delivery hasn’t worked out that way?
David Pickhaver: “Yes, at this point in the plan there is a shortfall. About 578 houses”.
Peter Goatley: The Local Plan examiner had concerns about how the plan was brought forward. That there was derogation to Neighbourhood Plans… A concern that Neighbourhood Plans would bring forward the land necessary?”
David Pickhaver: “I wouldn’t disagree with that interpretation.”
Peter Goatley up-ed the ante by having David Pickhaver agree that the Local Plan is “Strategic”.
David Pickhaver: “Correct. I would rather sites came through the Local Plan process rather than through appeals.”
Peter Goatley: “In terms of the emerging plan, Torbay Council hasn’t identified any site that would meet the strategic process?”
David Pickhaver: “With respect… we are currently underway to see if other sites can come forward. Some other sites are within the AONB. There are other sites but the Standard Methodology [of calculating housing need] of 578 houses is higher than Torbay has ever achieved. There may well be demand but Torbay will struggle. There are concerns of environmental sensitivity. The Local Plan strategy is one of constrained growth in Brixham because of environmental constraints in terms of landscape impacts.”
Peter Goatley: “In the context of the emerging Local Plan, some sites are in the AONB, so you cannot rule out that you are going to have to look at this site in order to provide strategic growth?”
David Pickhaver, avoiding: “It comes down to the Inspector’s view of this site. There is an emphasis on urban regeneration and renewal.”
Peter Goatley: This site should have been re-considered after approximately five years, when the Local Plan is reviewed but the government expects 10-15 years in advance. Therefore Neighbourhood Plans may be produced that do not effectively take that into account.”
Peter Goatley: “This Local Plan is not being effective in identifying its strategic objective?”
David Pickhaver: “Yes”.
Peter Goatley: “As far as Brixham is concerned the site ought to be identified and … in the Local Plan to allow the Neighbourhood Plan to come forward with guidance for the site. The vacuum has come to pass. The nature of the examiner’s highlighted concern has come to fruition?”
David Pickhaver: “There was broad allocation across the bay.”
Peter Goatley: “Was the Local Plan drawn up to assess the needs in each Neighbourhood area, not what they say they can do, but the needs?”
David Pickhaver: “No, Torbay is one housing market area. It’s difficult to dig down.”
Peter Goatley: “The distribution in numerical and arbitrary and depends on what is being objected to?”
David Pickhaver: “I prefer to say it was driven by environmental constraints rather than Brixham & Peninsula Neighbourhood Plan as a standalone document. Torbay is a very constrained authority,. There are not many Greenfield sites.”
Peter Goatley: “There are many more constrained authorities than Torbay.”
David Pickhaver: “Torbay has severe constraints of the AONB and SAC (Special Area of Conservation)”.
Peter Goatley: “There are other areas that have ecology, heritage, …. issues. They satisfy their housing requirements. Torbay says it’s unique”.
David Pickhaver: “I’m not saying we’re unique.”
Peter Goatley: The Local Plan review will take until 2023, even with the ’light touch’ approach?”
David Pickhaver: “Yes”.
Peter Goatley: “Concerning the shortfall in supply relative to the 5-year requirement, the cumulative shortfall has been evident throughout. Torbay Council has never gone positive?”
David Pickhaver: “Not in the decade just gone but the economic climate was better before.”
A reference to austerity and local authority budget cuts.
Peter Goatley: “In your evidence you refer to negative economic impact on Torbay if this development was to go ahead?”
David Pickhaver: “Torbay is a tourist resort and this is an iconic view. There would clearly be an impact.”
Peter Goatley: “Was there any negative economic impact due to White Rock?”
David Pickhaver: :”I’m not aware but there would be a problem if Torbay was to become over-developed.”
Peter Goatley: “Do you have anything other than rhetoric or assertion that we could assess?”
David Pickhaver: “It’s difficult to do. The only way would be to do survey work on people on the rights of way.”
Peter Goatley: ”Any other evidence other than parasitic assertion?”
David Pickhaver: “If would be difficult to do in quantitative terms.The issue is the landscape harm.”
Peter Goatley “In your evidence, we agree that Torbay Council is only able to achieve a 2.9 housing land supply?”
David Pickhaver: “Yes”
Peter Goatley: “Therefore policies are out-of-date.”
David Pickhaver: “Yes”
David Pickhaver: “There are other sites that we want to include but in a 5-year plan, will not be able to able to.”
There were then discussions on the following, from Peter Goatley’s viewpoint, to show the ‘weakness’ of each:
Hollacombe: Currently stalled. The developer says that the site is not viable due to contamination . In discussions to ‘unlock’.
“Any other sites that pray and aid your 5-year land supply problem?”
Devonshire Park and Yalberton Road have permission.
“They are in the 5-year supply already. Is there a white charger?”
Preston Down Road has no planning permission; ecology issues.
“It was put to market but no interest?”
TorVista are bringing it forward.
“Is there a there a planning application for Collaton St. Mary (Little Blagdon)?”
No not yet.
“Has it gone to the market?”
Yes, in 2020.
“It did not produce a willing developer?”
Not to pay what Torbay Council was asking. But we now have assurance that a contract is imminent.
“Edginswell, is only at stage one of seven stages?”
“So, in conclusion, the shortfall of the 5-year supply is more than marginal?”
David Pickhaver: “Yes”
Peter Goatley then made very strong points regarding affordable housing. In the latest available data (from 2011) Torbay Council had to produce 820 houses a year of which 60% needed to be affordable.
Peter Goatley: “Would you agree that the Local Plan has not come forward with that?”
David Pickhaver: “I would agree.”
Peter Goatley: “In the Home Choice register for 2016/17, only 42 were available. In 2015/16: only 46. In April 2019 there was a need for 1,073. Currently there is a need for 1321. It appears that very very little coming forward.”
David Pickhaver: “Yes”
Peter Goatley: “It’s the nature of the strategy of the Local Plan. It’s a failure of the Local Plan…”
David Pickhaver: “It’s undeniable that it’s harder on brownfield. A strategy of balancing pros and cons.”
Peter Goatley: “Is there a discernible affordable housing strategy?”
David Pickhaver: “It wouldn’t be possible to get greenfield to deliver 500 affordable houses a year.”
Peter Goatley: “It’s about achieving a core objective of the strategy. Your authority has been resistant to the delivery of sites?”
David Pickhaver: “Torbay Council is trying.”
Peter Goatley: “The tilted balance will be applied come-what-may (next year if not this year)?”
David Pickhaver: “I’d rather not engage in speculation.”
Peter Goatley: “What would happen to people who are homeless… over many years?”
Peter Goatley: “The Brixham & Peninsula Neighbourhood Forum did not proceed in a manner that was ‘constructively inviting’.”
David Pickhaver: “I’d rather not comment, I have involvement with the Paignton Neighbourhood Forum, not the Brixham & Peninsula Neighbourhood Forum”.
Considerable time was then spent working through the logic of numerous policies from the Brixham & Peninsula Neighbourhood Plan and Local Plan. Working out which policy would still be relevant if certain other conditions were, or were not met.
This was followed by a discussion on what was deemed “countryside” as opposed to “open countryside”. The distinction resting on whether a development was already connected to existing urban development. This is best summed-up with:
Peter Goatley: “In and off itself it doesn’t create urban sprawl?”
David Pickhaver: “It can be an emotive term.”
Yes, it can.
This lovely phrase refers to how to satisfy the sometimes conflict between policies in the same, or another document. This where the buck is passed to the Inspector to use “planning judgement” to decide.
If it’s possible to rule policies out of contention, then the task is simplified.
Policies (Local Plan and Neighbourhood Plans) would be out-of-date if Torbay Council doesn’t have 5-year housing land supply.
However, there is an exception in that only three years needs to be shown if a Neighbourhood Plan is less than two years old. The Brixham & Peninsula Neighbourhood Plan is… just.
But, Torbay Council cannot shown a 3-year housing land supply either.
David Pickhaver tried: “It’s highly contentious but the Neighbourhood should still be given significant weight.”
Peter Goatley on the settlement gap: “This is not a Local Plan gap, it’s a Neighbourhood Plan gap. Galmpton to White Rock gap would still remain?”
David Pickhaver: “There is a visual impact on the gap.”
Peter Goatley: “The Inspector would need to weigh that given that the policy is out-of-date.”
David Pickhaver: “There is a clear conflict with the Brixham & Peninsula Neighbourhood Plan”.
Peter Goatley: “If AONB does not suffer from acceptable harm, should Inspector withhold consent because of this gap issue.”
David Pickhaver: “Torbay Council thinks he should. Objectors believe it’s a big deviation.”
Peter Goatley: “If the Inspector thought that there was not significant landscape harm, should he withhold acceptance?”
David Pickhaver: “The Brixham & Peninsula Neighbourhood Forum would say yes. My professional view is that this decision should stand on actual harm, Torbay Council says, yes, there is harm. If the Inspector ignored that then it would be unusually draconian to withhold on an abstract principle.”
Brian Payne, of the Community Partnership, wanted to ask David Pickhaver questions but was told it was not possible to question someone “on the same side”.
A bit odd, these “court-style” procedures. One would have thought that the Inspector would want to know all relevant information.
The main takeaway (sorry, marketing-speak) for the day is that because of the lack of housing land supply, the Brixham & Peninsula Neighbourhood Plan may be (is) out-of-date and therefore of little, if any, relevance. Wow.