Neighbourhood Forum




Inglewood Inquiry Day 6


Wednesday 20 January 2021


Remaining Planning Issues… continued

Peter Goatley QC introduced Simon Fitton; specialising in Urban Planning and Management. He’s the Head of Planning, and a Partner at Alderking.

Simon Fitton submitted a Proof of Evidence and a Summary Proof of Evidence.

Torbay Council performance - delivery and supply

Simon Fitton opened his evidence with this summary:

“The Housing Delivery Test (as introduced in 2018): Torbay was an action-plan authority. Meaning: ‘There’s a problem but you can pull yourself out of it’,

The Council had an Action Plan over a 3-year period. But it has not yielded results, so now Torbay Council is a 20% buffer authority.

It is a cast iron certainly that Torbay Council will fall even greater (by March ’21) and become a presumption authority - critical failure - and therefore forced into a sustainable development category.

On the supply side, supply will continue to decrease.

In July 2021, a 5-year supply will become necessary because the Neighbourhood Plans will be two years old.

The clause in the National Planning Policy Framework (NPPF) that offers protection to Neighbourhood Plans will no longer apply, so the distinction between needing a 3-year supply or 5-year supply will have to be 5-year.

There is no sign of finding 1,500 houses and the Local Plan update is years down the line."

Peter Goatley: “So, in terms of this proposal?”

Simon Fitton: “It should be given very significant weight.”

Peter Goatley: “Considering time horizons, when will the current supply and demand be resolved?”

Simon Fitton: “Looking at the local development scheme and a relevant Torbay Council Cabinet report, I’d say August 2023 and that’s awfully optimistic.”

Peter Goatley: “What’s the consequence for housing provision?”

Simon Fitton: “It’s a desperate situation. Considering affordable housing, Torbay Council is averaging 50 per annum against a need of 500 - it’s a critical fail. It’s not just numbers though, it’s about people in need of a house.”

Peter Goatley: “Are there any plan-related mechanisms that could help?”

Simon Fitton: “Yes but there’s a tension between plan policies on greenfield sites (that are not designated as Future Growth Areas). There’s a clear process within the Torbay Local Plan policies but Torbay Council has not acted on them.

The Local Plan Inspector set out a fair assessment of issues, including the apparent importance of the White Rock sites. He was uncertain whether Neighbourhood Plans would deliver. The Brixham & Peninsula Neighbourhood Plan has, but others have not: We’re in the crisis we’re in now.”

Peter Goatley “How was the housing need for the Neighbourhood Plan areas arrived at?”

Simon Fitton: “Torbay is one housing market area, but it is very clear that requirements are more based on the supply available, rather than a fair and reasonable spatial distribution across all areas. Supply was never going to happen through the Neighbourhood Plan process. A full Local Plan Review could have [boosted supply] but that did not happen.”

Peter Goatley “Much effort and work went into the production of the Neighbourhood Plans. If the appeal is upheld, that outcome would be punishing the BNP for matters not really in its control?”

Simon Fitton: “I sympathise with the Brixham & Peninsula Neighbourhood Plan with the amount of work done. I respect that. Beyond that, Torbay is whitewashed with Neighbourhood Plans. Clause 14 of the NPPF is there to protect Neighbourhood Plans but not at any cost. There are four criteria that, when a Local Plan is delivering housing, then Neighbourhood Plans have full weight but they cannot have full-weight in a Torbay with under-delivery.”

He added: “Land delivery requirements are of such critical importance.”

Peter Goatley: “Does Secretary of State Jenrick’s letter mentioned by MP Anthony Magnell add to the Inspector’s consideration?”

Simon Fitton: “That statement was made in November 2019, barely six months after the Neighbourhood Plan was made, it had 18 months to run with protection afforded to it. If he asked the same question now, he might take a different view given the housing position, in particular for affordable housing.”

Settlement Gap

Simon Fitton said that he “agrees with David Pickhaver - it would be draconian to refuse on an abstract principle - which the settlement gap policy is, and concerning the school, the only reason that Torbay Council is looking at others is uncertainty over whether this site will be delivered. The land will be given free; that helps the public purse.”

Peter Goatley: “And on the planning balance?”

Simon Fitton: “Our overall case is that any AONB settings harm; while Peter Leaver says the harm is minor or negligible, my view is that there’s no real harm.

On the tilted balance in favour of development, Torbay Council is in a dire position. It cannot be that the settlement gap policy should override sustainable development.

Peter Goatley sought to emphasise that the settlement gap is not a strategic objective of the Torbay Local Plan by asking: “Is it strategic in the Local Plan?”

A leading question clearly, as Simon Fitton replied: “No, there’s nothing in the Local Plan that sees the settlement gap as strategic.”

All of this, of course, is for the benefit of the Inspector’s note-taking.

Peter Goatley then minimised the importance of the Neighbourhood Plans: “What’s the difference between the plans?”

Simon Fitton: “Neighbourhood Plans are much more local and don’t go to the heart of the development plan as a whole.”

Nina Pindham's Cross-examination

Nina Pindham wanted to highlight that even when policies are considered out-of-date, the Inspector still decides how much weight to give to them. Simon Fitton acknowledged that that is the case.

Settlement Gap

Trying to re-establish the settlement gap as an important issue, all Nina Pindham got from Simon Fitton was: “I’m not a landscape expert, I don’t agree with David Pickhaver’s statement that the settlement gap is an ‘iconic view’.”

Urban Sprawl

Nina Pindham, referring to Local Plan Policy C1 (which relates to countryside development), asked: “The term urban sprawl is emotive, there is no standard definition, except maybe ‘beyond identifiable limits’.”

Simon Fitton agreed “That’s a fair definition. To be urban sprawl development it has to be left unchecked. I can’t see how it could extend beyond the appeal development site. It’s a matter of design. It’s important to define a new settlement edge as part of this proposal.”


Returning to the 1997 Torbay Business Park decision, the question of an effect on tourism was raised (again) by Nina Pindham: “It is important not to prejudice tourists. The AONB is the first view of the Dart Valley for hundreds of tourists. The Dart Valley trail is promoted in tourist literature - a splendid panorama. Would there be adverse impact on tourists?”

Simon Fitton, oddly, responded: “It’s not that the level of tourism is going to go down.”

The Paignton Neighbourhood Forum’s Mike Parkes was able to put questions to Simon Fitton. His concern was whether the proposed school was actually needed: “I feel strongly that the school should not be given significant weight. In July 2020, Government’s pupil projections, primary places going down; Torbay Council’s education department numbers show a fall also.”

Peter Goatley stopped Mike Parkes’ input, insisting that the time for providing evidence has passed. Mike Parkes made the point that issues arise as the inquiry proceeds… but to no avail.

Settlement Gap

Peter Goatley, again lessening the relevance of the settlement gap issue, asked: “The reference in the Brixham & Peninsula Neighbourhood Plan that the settlement gap ‘must be retained’ is in the explanatory text not the policy?”

Simon Fitton: “The Inspector must decide against actual policies. The text is there to help the reader understand the overall intent of the policy. If it’s important, it should be in the policy, it’s not.”

Urban Sprawl

Peter Goatley also needs to defuse the notion of urban sprawl. He asked Simon Fitton for his definition:

Simon Fitton: “Mainly due to lack of containment. Proposals should provide containment otherwise there is danger that sprawl could be a likely prospect.”

Peter Goatley: “Could this proposal be fairly characterised as urban sprawl?”

Simon Fitton, firmly, “No, not at all. I am convinced the development will sit quite naturally within a scalloped-edge urban framework.”


Peter Goatley: “If moving southbound along the Brixham Road, have any views been identified in any publicity or tourist guides that describe the view as being as particularly significant for Torbay attractiveness?”

Simon Fitton simply replied: “No”

I’m impressed that he’s been able to read all Torbay tourist literature.

He added: “Torbay Council didn’t think that the 1997 proposal prejudiced attractiveness to tourists. The vista won’t be lost to tourists”.

… except that a housing estate will be in the way. Der.

Planning Conditions

The Inspector then reviewed the Schedule of Conditions that would accompany the application agreement (if the appeal was allowed).

Highlights from the roundtable discussion were:

Development would be completed in phases - to make sure that landscape and ecological mitigation is carried out in a timely fashion.

A palette of materials would be used - houses need to be of a sufficiently unobtrusive form.

Green infrastructure should be delivered in a timely fashion.

Mitigation Planting - Torbay Council would carry out annual monitoring.

Biodiversity - dark areas would be maintained for bats but there was a balance between safety and ecological mitigation.

Archaeology work would take place - there is evidence of ancient quarrying on site, and of gallows at Windy Corner.

A subsidised bus service would stop at the hub near the entrance of the site.

Travels Plans would comprise an Info pack for residents - showing cycle routes/bus timetables.

The pub/restaurant would be limited in its sales of takeaway food - to mitigate conflict with sales from the local centre.

At the request of Natural England, soil re-use would be encouraged.

A waste audit would ensure that materials on site were re-used efficiently.

Section 106 Agreement

Representing the Torbay & South Devon NHS Trust and the Clinical Commissioning Group, Leenamari Aantaa-Collier outlined how a financial contribution was requested from the developer for hospital services and for expanding the GP surgery at Galmpton House, plus for the Well-Being Centre planned. This contribution covers the demands from the development; carefully calculated.

Curiously, Peter Goatley spent 40 minutes, backwards and forwards over five documents explaining why it was not necessary to provide a financial contribution requested for the maintenance of the Berry Head grasslands; requested due to extra people visiting the site from the planned development.

He showed how the development was over 6km from Berry Head, but the limit for a financial contribution was 5km.

The developer was happy to pay but would the contribution be legal? He was concerned that someone in the future might question the payment, and impune the decision-making process.

Site Visit

Arrangements for the Inspector’s site visit were discussed with him making clear he wanted to visit the area unaccompanied, sometime over the next few days.

Brian Payne

Brian Payne was afforded the opportunity to question Simon Fitton: He opened by saying he was confident that the public would be confused by two things from the previous day's proceedings - firstly the emergence from the ether of something titled "Housing Delivery Report 2019/20" apparently changing everything on 3-year housing land supply, and secondly a tug of war in evidence [from Mr Pickhaver] over in excess of 1100 houses.

In summary, the Q&A produced the following responses or conclusions:

- The only Housing Land Supply Statement before and during the Inquiry available to the public via the Torbay Council website is that dated July 2020 showing, crucially, a 3 year land supply.

- The new Housing Delivery Report means that a 5% buffer in website housing land supply calculations online now needs to be a 20% buffer.

- It has been stated in proceedings, more than once, that the difference, substituting this 20% buffer makes, between "them and us" on housing land supply is 0.3 years - they say 2.6 [more accurately 2.63], Torbay Council says 2.9. This appears also in Simon Fitton's Proof of Evidence, and David Pickhaver had stated 2.9 to be Torbay Council's "best case position".

- Asked to quantify the "3 year calculation" shortfall these figures represent in numbers of houses, Simon Fitton was unable to do so. Brian Payne assisted him by confirming that 2.63 years represents a shortfall of 289 houses, and 2.9 years represents a shortfall of just 78 houses. Simon Fitton did not dispute these figures. Brian Payne said the calculations are "spuriously accurate" [i.e., purporting to be precise when based on highly judgmental data]. Simon Fitton disagreed.

- According to an Inglewood project delivery table prepared by Simon Fitton, Inglewood will deliver precisely ZERO houses in its first 3 years, and just 100 houses in its first 5 years.

- Simon Fitton confirmed when given the Core Document reference that in 2015 Inspector Holland [extensively quoted in proceedings] had said in relation to his examination of the Local Plan, "Detailed monitoring and review are important considerations in the development plan process and the Council is committed to regular reviews of the Plan. There will be ample opportunity to increase housing numbers if justified by jobs growth. Alternatively it may be necessary to reduce housing numbers over the plan period if the Council’s jobs growth strategy is less successful than is hoped [my italics]."

That's it. It shows how just 78 houses shortfall potentially stood in the way of arguing a 3-year land supply, how Torbay Council have avoided acknowledging and adjusting for the impact of jobs shrinkage which would have pushed these calculations over the line, and how Abacus Deeley Freed do not represent any sort of "white knight" in numbers terms.

Last Updated: Saturday 18 December 2021