Before the statements commenced, Councillor Judith Mills raised a point about the traffic crossing at Windy Corner. The relevant document needs formal amendment. Peter Goatley said that they were not amending any notes at this stage.
Nina Pindham’s Closing Statement
“At its heart, it’s a very simple appeal”, she commenced and continued, summarising:
There’s a conflict with the spatial strategy. Mainly, the impact on the Area of Outstanding Natural Beauty (AONB), and whether it’s a sustainable location. In addition, the other issues raised by objectors as against the benefits.
“Whether the conservation and AONB effects were acceptable.”
She stressed that the 1997 Business Park proposal confirmed the importance of the site. The efforts that went in to resisting that proposal have paid off. There are “remarkable views”.
However, that was becoming less and less as the level of development encroaches. She described it as “death by 1000 cuts, and that drawing a line becomes more and more important.”
She accused the appellant of obfuscation by performing a “detailed analysis of the 1997 scheme that as irrelevant”.
She cited the Planning Practice Guidance (PPG) relating to AONBs that asks the question: “How should development in National Parks and AONBs be dealt with?”. The Guidance says that: “Poorly designed development brings significant harm” and that the issue required “sensitive handling”.
In addition, “The AONB Management Plan says that significant harm depends on effects and the impact on its natural beauty.”
“The AONB relies upon its natural backdrop to maintain separation with urban areas.”
“It’s the impact, not distance, that matters. From the AONB, the site stands out more than the urban area of Torbay.”
On the special qualities, there are three that are of primary importance:
The Iconic wide panoramic views - there would be a “detracting” effect.
Tranquility - it’s not possible to “argue otherwise; and nighttime must be considered.”
The Setting - The AONB Management Plan says that “rural hinterland is relevant; natural beauty derives from wide panoramic views.”
Additionally, the four other special qualities “cause harm.”
“The rolling landscape with its patchwork, is a loss of natural beauty.”
This was a “relevant consideration; there is a breach of AONB policies. This is precisely the type of land that the PPG contemplates in need of protection. The development would need sensitive handling. This proposal does not do that. It has a significant adverse effect. The Torbay Landscape Character Assessment describes this land as ‘highly sensitive’.”
The LVIA (Landscape Visual Impact Assessment) report states that: “clear and transparent reasons must be provided” for its conclusions. The submitted LVIA “starts from the wrong baseline, and therefore gets the wrong conclusions.”
“The LVIA falls apart - it considers the sensitivity of the lower site not the higher part of the appeal site. This is an ‘enormous problem’ for the appellant.”
“It’s a fatal flaw that undermines the appellant’s landscape case.”
Nina Pindham then, having a bit of quotable fun, reminded the Inspector that the urban areas that protruded into the countryside looked like “a middle finger of encroachment.”
The location is “not appropriate for development. It conflicts with the spatial strategy and policies of the Local Plan and the Neighbourhood Plan. We are in a plan-led system.”
She commended the work of the Brixham & Peninsula Neighbourhood Plan… “precision could be improved but that’s forgivable.”
She reminded that all five of the relevant Brixham & Peninsula Neighbourhood Plan policies would be breached.
On the settlement gap, it is the “most visual location; it does not support greenfield development, and a ‘new edge’ is not acceptable.”
Torbay Council accepts that growth is essential but it was “brutally honest, rather than hiding its head in the sand. Torbay Council is doing all it can but unlocking sites takes time.”
“The AONB is economically critical. Houses can go anywhere but the natural beauty of the AONB must be protected.”
On whether the tilted balance should apply she said that “the harm to the AONB is a clear reason for refusal - it is impossible to see how it could be sustainable development.”
“The AONB is of international importance. The issue is wider than the local need for housing."
Whether there is economic harm to tourism is a “matter of judgement”. The 1997 plan thought that there was harm.
“Housing is not the be-all-and-end-all of planning decisions."
“We respectfully request that the appeal be dismissed.”
Peter Goatley’s Turn
In regard to Nina Pindham’s closing submission, Peter Goatley went to great lengths to draw the Inspector’s attention to specific points where he believed Nina Pindham had not accurately represented (in his view) some of the evidence that had been presented.
He proceeded to ‘correct’ no less than 21 of Nina Pindham’s closing statement paragraphs. Very lawyerly it all was. Somewhat grandstanding one might be inclined to add… replete with phases such as:
“I respectfully submit that that contention is simply wrong.”
“In what must have been a late night rhetorical flourish, to say that an inaccurate LVIA report is just as useless as a single page; I would contend that a 21-page closing submission is just as useless.”
“In paragraph 34, in the line that starts: 'It is also worth noting’, there is no inappropriate elision of considerations here. In reference to mitigation planning it was exclusively by reference to the 1997 proposals and in marked contrast to the appeal proposals.”
The Inspector was desperately writing all this down, word by word, as Peter Goatley read slowly.
“In paragraph 40, the last two sentences - perhaps another late night rhetorical flourish…”
“In paragraphs 43 to 48, there is a return to m’learned friend’s unhelpful and unwarranted interventions to parts of my re-examination of my own witness.
I contend again, a wholly and wrongfully assertion that any leading questions were asked of my own witnesses in re-examination. M’learned friend was unable to differentiate between a leading question and a non-leading question. This is disappointing for what was an early matter in my barrister’s training. It is unfortunate to deal with this at this stage but there we are. It was binary and m’learned friend was seemingly unable to differentiate.”
For those old enough, I was reminded of Rumpole of the Bailey.
There then followed much more detailed legal stuff. I hope the Inspector has a legal background.
All a bit odd, as before Peter Goatley started his statement, he was concerned enough to ask the Inspector if he should read out some quotations that he was going to include “so that those watching might understand”.
I can assure readers that this writer understood every single word. Honest.
Cynically, one might be inclined to think that the whole lawyer thing is about finding a reference, ideally in an Act or high court decision, that supports your own argument. Then tie the judge/jury in knots over words and interpretation of words.
In science we call it scientific language; non-scientists might call it mumbo-jumbo.
It is however critically important to how this appeal decision will be arrived at.
(Sorry for the preposition at the end of that sentence).
Eventually we got on to:
Peter Goatley’s Closing Statement
“The appellant appealed on the basis of non-determination”, meaning that Torbay Council did not approve or refuse planning permission. Had Torbay Council been forced to make a decision, it would have refused.
Peter Goatley stated the principal issues upon which there was not agreement (as the appellant saw them):
The impact on the local landscape; particularly the AONB and its setting, and the conflicts within the Local Plan and the Brixham & Peninsula Neighbourhood Plan.
On landscape: he stated that “There are no direct impacts on the setting”. The dispute is with the impact of the application. Torbay Council says there is an impact, the appellant says there is not. The judgement on whether there is, or not, is up to you Inspector.”
“In NPPF terms, this is not a ‘valued’ landscape.”
There has been discussion during earlier days about the use of the phrase “to have regard”; as in, for example “It is necessary to have regard for the natural beauty”. Peter Goatley contends that, legally, it means “to look at something” but not necessarily to give it any weight in decision-making. This, in turn, means that certain interpreted-requirements may be dismissed easily.
Such as, referring to issues raised by interested parties on day-1: “The matter has been given enough consideration.” Meaning: we may move on now.
Referring to the issues of the Special Qualities that were discussed at length over preceding days:
“Which special qualities are relevant? We have disagreement over that. Three have been stated.”
“Roger English added four others; Steve Knott did not. The reason is evident: the additional four are not relevant.”
“Peter Leaver said they relate to physical qualities in the AONB; not perceptual in its setting. If land was special it would have been included in the AONB.”
Playing one expert’s evidence against another’s whilst quoting a third’s.
Visually-Verified Montages (VVMs)
VVMs: Photographs of views from, and towards, the AONB.
Peter Goatley made points, not about the contents of the images but their nature:
“It is possible to zoom-in when we’re looking at the screen but without binoculars it’s not possible in real-life.”
He doesn’t want the eye to be drawn towards the development site.
“The photographs put the development site at its centre; the eye naturally focuses on the site.”
He doesn’t want the eye to be drawn towards the development site.
“The longer distance VVMs don’t show the proposed softening materials.”
Some of the houses will not just be painted concrete.
He pointed out that the views already “include substantial elements” of urban development. There are “fingers of green” that provide a “soft edge to built form.”
I’m sure that Nina Pindham referred to the fingers as being urban. Either way, fingers there are.
He believes that the site (indicative) masterplan "integrates site well into its setting.”
Night-time effects were “only minimal”. The site as “not any closer than existing urban”, and that the “characteristics of the view will be maintained”.
The visual change is “barely perceptible” and the change in night views are “minimal in the context of that existing” already.
“There will remain a gap; although the distance will be diminished. The appeal cannot be refused due to the changes to the settlement gap.”
On the issue of why both the Torbay Landscape Character Assessment and the Devon Landscape Character Assessment were considered in the LVIA. It was important to a “bespoke” assessment of the landscape character LVIA because the site “involves Devon”. Torbay’s assessment is “too restrictive”.
There is a difference of “professional judgement on landscape and impact.”
In general though, the effects are “negligible or minor adverse.” That’s “not enough for a clear reason of refusal.”
Housing Land Supply
Torbay Council is in a “dire” situation. Its “under-performance is baked-in to the development plan.”
“This troubled the Local Plan Inspector as the Local Plan passed through the examination process”. The Local Plan states that it’s a “plan for growth”. It has “delegated delivery almost entirely to Neighbourhood Plans”.
If a Neighbourhood Plan “doesn’t provide”, then “the Local Plan must. It has policy mechanisms to do that.”
“All Neighbourhood Plans must deliver - the Brixham & Peninsula Neighbourhood Plan met its requirements - but is was an arbitrary allocation of how much was possible.”
“A district-wide basis is necessary. The approach using Neighbourhood Plans has failed. At no point has the Local Plan delivered of its requirements. The 2.9 years supply is not agreed - the appellants show it’s lower.”
“The cupboard is bare. There is an almost complete absence of sites to offset the deficit.”
That cannot happen “until 2023 at the earliest; no use for the present dire predicament.”
"Something must be done.”
“Torbay Council specifically included this site in its Local Development Scheme.”
“Torbay Council has a mechanism within the Local Plan for it to consider favourably sites. But there’s tension between policies.”
“The Local Plan contemplates remedial action that may conflict with other policies in the same plan.”
“Although a Local Plan has a legal status (it’s not the same as, for example, that of a contract). It has policies which must give way to others - it requires judgement - and that lies within the jurisdiction of the planning department.”
The main conflict is with Policy C1. “This is an open countryside policy. The Local Plan contemplates that action must be taken. This means outside existing development sites.”
The implication is that development needs to be in the countryside.
This is an “issue of such significance that it is desperate."
“There is an annual requirement of 492 houses. The past three year’s average is 50 delivered per year. The waiting list is now over 1300. This is a critical fail. It’s not a case of stats… a maths exercise… it’s a problem for real people - year after year.”
“The stalled sites and those unable to sell on the open market do not inspire hope.”
“This proposal will deliver 112 affordable homes - not far short of the total for the past three years combined. There is a profound seriousness of this issue.”
On these issues, Peter Goatley simply stated: “These are vague assertions without any objective evidence. They’re fanciful.”
He concluded with:
"Torbay Council has no answer to these problems.”
“Benefits outweigh harm, as does the tilted-balance towards sustainable development.”
“We respectfully ask the Inspector to grant planning permission.”
Brixham & Peninsula Neighbourhood Forum Representations
At the start of proceedings there was an issue the was consistently raised by Peter Goatley regarding the relationship between the Brixham & Peninsula Neighbourhood Forum and Brixham Town Council. The Inspector requested clarification.
Peter Goatley responded: “The Brixham & Peninsula Neighbourhood Forum does not exist as an independent body. Brixham Town Council withdrew from the appeal. It was raised not as a point against Brixham & Peninsula Neighbourhood Forum members’ entitlement to speak but whether they were representing Brixham Town Council - given that no resolution was provided by Brixham Town Council. It’s a question of how you would posit their representations as of Brixham Town Council.”
The Inspector further queried: “There is a letter from Brixham Town Council advising of its intention to withdraw. They highlighted that members would wish to give representations. They were representing Brixham & Peninsula Neighbourhood Forum not Brixham Town Council?”
Peter Goatley: “Brixham & Peninsula Neighbourhood Forum is not a discreet entity; but the reason it is raised is not narrow. It’s about the status of representatives.”
The Inspector left it as that. It raises the question, of course, as to what difference that would have on the weight of the Brixham & Peninsula Neighbourhood Forum member’s evidence in the eyes of the Inspector?
The agenda and the route for the Inspector’s unaccompanied site visit has been agreed and cross-related to the agreed VVMs (viewpoint photographs). The Inspector will visit as soon as possible.
The Inspector closed the Inquiry, thanking to all who attended. He seemed impressed with the number of people who ‘persisted’ over its course. (It was never less than 50; usually over 60).
We await the Inspector's decision (with bated breath?)