Rolling Five Year Housing Land Supply Table at 2020

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Comment

Supporting Documents to Main Modifications (for comment)

Representation ID: 10518

Received: 14/01/2021

Respondent: Mr Paul Johnson

Representation Summary:

See attached document.

Full text:

ADDITIONAL COMMENTS AND EVIDENCE.
NEDDC LOCAL PLAN.
(See photographs in the attachment)

My comments are both personal and made on behalf of a group of Killamarsh residents who are opposed to building on Green Belt land in Killamarsh. The comments are relevant to one particular proposed site in Killamarsh not currently covered in the main modifications. They relate, in the main, to the unfairness of the allocation of this specific site, together with evidenced reasons for its removal.

In addition, new evidence, that was not available during the period for the submission of comments during the public consultation period prior to the November/December, 2018 public hearings, is now available. It is my submission that this new evidence, outlined within this document, has a strategic implication for the Local Plan (The Plan) and not just a site-specific one to be considered by the Planning Authority.

I totally support the removal from the North East Derbyshire Local Plan (Publication Draft), (subsequently referred to as ‘the Plan’) of 2.5 sites, in Dronfield, Coal Aston (DR/1 and DR/2) and Eckington (EC/1), because of the problematic planning issues identified by the Inspector.

However, this leaves an anomalous situation in respect of one of the remaining sites, currently within a Green Belt location in Killamarsh – site KL/1.

Site KL/1 bears a remarkable similarity, in descriptive terms, to the site at Eckington (EC1), now quite properly removed from the Plan.

The Inspector referred to Site EC1 thus, “…it extends along an elevated ridgeline creating a distinctive west – east axis to the built up area. In contrast, the proposed site allocation would extend in a north – south down the hillside……..opening up views of the development. The new dwellings, access road and changes to vegetation and landform would be readily visible due to the topography of the site” (Letter from Inspector to NEDDC Planning Office Manager, dated 18.2.19).

This exactly describes the situation of Site KL1, as the appended photograph, taken from Station Road, Spinkhill, shows. (Photograph 1).

Background evidence documents show that there is a 43 metre drop from the northeast to the southwest of this site. The proposed buildings on this site would fill any of the green space shown on photograph 1, showing an obvious extension to the built area of Killamarsh.

This view is supported by the Sustainability Appraisal (SA) of KL/1 which states, “However, a development would have a visual impact because of its prominent setting on the southern edge of Killamarsh and its slope downward to the southwest “.

An amber score was recorded for the site, when it should have been red. Views from the northern aspects of the proposed site give wide-ranging views of the hills and valleys of Derbyshire to the south and west. These will be lost, giving a significantly negative impact on a public visual amenity (see below).

Although the site is privately-owned currently there are five public rights of way crossing the land, all of which give access to such views.

Local knowledge of the consequences of development is supported by the SA, dated February, 2018, in a table at paragraph 1.20.2, which states, “The proposed development would alter the urban fringe and extend the built form of Killamarsh into the countryside. It would be likely to detract from southward views into the countryside for existing residents and from nearby public footpaths”.

Photograph 1.



Table 5.1 of this SA (page 55) assesses the site KL/1 to have 6 negative points while the two sites subsequently removed have only five.

It is fully appreciated that the Westthorpe Fields Business Park is located in low-lying ground, to the left of the proposed site as it is viewed from Spinkhill, but it is completely concealed from long views of the area because of the tree and shrub cover. The proposed site would be an obvious and significant intrusion into the countryside, as described by the Inspector in her letter dated 18.2.19, and contravenes policy SS11, paragraphs 1 (a.ii), and 1 (c).

However, the challenges in respect of this particular site do not end there.

Now that Sites EC/1, DR/1 and part of DR/2 have been removed from the Plan a totally disproportionate development burden falls upon Killamarsh. This is contrary to the principles of Paragraph 1.5 of the Plan, which states that, “In addition, a revised spatial distribution of development was proposed to give greater focus on development at the main towns of Dronfield, Eckington and Killamarsh in the north of the District”.

The removal of the sites in Dronfield and Eckington, in my view, creates a contravention of paragraph 1(a) of Policy SS1 in terms of ‘meeting the need in defined settlements or other allocated areas having regard to the defined settlement hierarchy’. Policy SS2, paragraph 8(c) refers to ‘new development that is appropriate in scale and reflects their position in the settlement hierarchy’.

This is clearly no longer the case in respect of Killamarsh, and appears to be a contravention of MM/008, MM/009 and MM/010.

The figures shown for the three northern towns of the District in MM10 are as follows:

Dronfield 303
Eckington 213
Killamarsh 560

The alleged need for an additional 560 dwellings in Killamarsh makes it the highest requirement amongst all the tier 1 settlements and the highest in the district, apart from the strategic sites.

The removal of site KL/1 from the Plan would reduce the Killamarsh requirement to 230 additional homes, a figure much more relevant to its size within the northern settlements.

It may be considered that the removal of this site from the Plan allocations will fail to allow the Objectively Assessed Need (OAN) to be achieved. Please bear in mind that the OAN for North East Derbyshire was significantly less than the Regeneration Scenario decided upon. If this should lead to an eventual small shortfall in numbers it would be in accord with the eventual decision reached in R (Hunstanton Properties Ltd.) v SSLG and St. Albans City and District Council (2013). Here, on appeal, Sir David Kean commented that, “Local Planning Authorities are required to ensure that the full OAN for housing are to be met, as far as is consistent with the policies set out in the framework”.

He continued, “The government attaches great importance to Green Belts and it seems clear, and is not in dispute in this appeal, that a Local Plan could properly fall short of meeting the full OAN for housing in its area because of the conflict which would otherwise arise with policies on the Green Belt (and other protected land designations)”. He also commented that, “What is likely to be significant in the preparation of this Local Plan ….is that virtually all the undeveloped land in the district outside the built up areas forms part of the…Green Belt”. He also stated that the removal of land from the Green Belt designation was not an automatic result of there being less than a five year supply of development land; it was more a question of the scale of any shortfall.

He further commented upon the planning context of relevant decisions, stating that if a district was subject ‘to a considerable scale’ to policies protecting much or most of the undeveloped land (through Green Belt or other designations) it may be wholly unsurprising that there is not a five year supply. He concluded this aspect of the discussions by saying that “a decision maker is entitled to conclude that ‘some shortfall of land supply was inevitable”.

North East Derbyshire does have a five year housing supply of deliverable land and so should be even less subject to Green Belt removal than the case in point.

Sir David Kean could have been commenting on the situation in the northern part of North East Derbyshire instead of the location he was considering.

Sir David also made some interesting and relevant comments about Green Belt removal in this same judgement. He recognises that the Local Plan process envisages some review of Green Belt boundaries but emphasises that, “The general extent of the Green Belt across the country is already established. A new Local Plan process is not sufficient to justify change, it still needs ‘exceptional circumstances’ to be demonstrated. Once a Green Belt boundary has been established and approved it requires more than general planning concepts to justify an alteration”. Mr Lockhart-Mummery confirmed that the test is “a very stringent one”.

It is noteworthy that Sir David used the same terminology for the removal of land from the Green Belt as the 2012 NPPF, i.e. ‘exceptional circumstances’. There is no mention within the NPPF of ‘least harm’ to the Green Belt, a phrase still used in MM/094 in respect of Dronfield, and which is used in respect of site KL/1 in Killamarsh. Where is the legitimacy of the ‘least harm’ option against the stringency of ‘exceptional circumstances’?

There is no suggestion that the North East Derbyshire Green Belt designation has been incorrectly made, and I completely agree with the refined wording of MM/020, in respect of Policy SS10 (1), that now accords with the NPPF.

In terms of the NEDDC Local Plan Inspector Housden has queried whether the Aireborough Neighbourhood Development Forum v Leeds City Council (and others), (2020), has any relevance. I believe that this Judgement has relevance, with my comments relating to the period of time when the public consultation was taking place prior to the Publication Draft being considered.

One of the issues considered in Aireborough was the illegality of failing to provide up-to-date information on the actual surplus of delivery of dwellings.

I contend that such up-to-date information was not provided by the then NEDDC administration in sufficient time prior to the public hearings in November/December, 2018, thus preventing a more focussed discussion and challenge to the ‘exceptional circumstances’ allegedly informing the need for Green Belt release. This relates to information omitted in respect of:
• Completed dwellings,
• Plots with existing planning permission,
• Brownfield plots inappropriately disregarded , and
• The exclusion of windfall predictions and the use of inappropriate lapse rates.

Completed Dwellings.

The completion figures provided by the Council took into account completions from 2014 to 31.3.17. This left a year or more where completion figures were not provided before the consultation documents were published and some 20 months before the hearings began.

The % Year Housing Land Supply document (April 2020) shows that there were 396 completions between 2017 and 2018. This is a figure which, if added to the disclosed figures, would obviate the requirement for both of the GB sites within Killamarsh being utilised.

Existing Permissions.

The figures for level 1 and 2 sites were provided up to January, 2018 (still 10 months before the hearings), but those in respect of level 3 and 4 sites were only provided up to 31.3.17 – again some 20 months before the hearings began. NEDDC only released figures up to 17.1.18 - 2 days prior to the scheduled public hearings. This may have allowed experts to assimilate the new information, but it was insufficient for lay people. The figures showed that 113 dwellings had received planning permission in level 3 and 4 settlements.

Brownfield plots inappropriately disregarded.

The Coalite strategic site had all 660 proposed dwellings excluded from the Plan due to fears of incursion by HS2. This only affected a small part of the site and should have allowed at least a proportion of the dwellings to be built. This is even more relevant now due to the probability that the relevant HS2 line will not be constructed.

The Avenue strategic site only brought forward 400 of the 1,100 proposed plots before 2034 and only 825 of the potential 1,000 plots at the Bywaters strategic site were included before 2034.

Additionally, only 225 of the potential 550 dwellings were included at a Holmewood development. The Housing Topic paper, Jan. 2018, raised a query about this site, but there was no explanation as to why only 225 dwellings had been shown as deliverable.

Windfall sites/Lapse rates.

Windfall site figures were only included in the calculations up to 17.3.17, and an assumption within the Plan does not include any windfall sites having:

• Become available,
• Gained planning permission, or
• Being completed

Before 2021/2022.

Lapse rates were calculated at more than twice the actual rate (5% against an actual of 2.13%) despite LGA advice stating that such rates should be calculated on ‘historic data rather than a standard approach’.

The above issues give rise to a reasonable belief that full, accurate and up-to-date data was not provided prior to the 2018 public hearings, thus precluding a viable challenge on both housing need requirements and the ‘exceptional circumstances’ justifying the removal of land from the Green Belt.

Whilst this differs significantly, in terms of scale, from the Aireborough Judgement it correlates in terms of the finding that a failure to provide up-to-date data is an error in law.

As Mrs. Justice Lieven stated in the Aireborough case, “The level of discrepancy is such as to wipe out the entire numerical need for the Green Belt release”. She also commented that, “Even if the error figure was somewhat less….it would materially diminish the need for Green Belt release, and in pure numerical terms remove it from Aireborough, where the Green Belt release figure was 475”. Again this differs from the NEDDC Plan only in scale.

A similar issue was raised by the Inspector in the case of the County Durham Local Plan in 2014. The Inspector gave a ruling that the release of Green Belt land was unnecessary, because housing supply was not being accounted for elsewhere. The Inspector’s report states, “Given the Plan is reliant on demonstrating exceptional circumstances for the release of Green Belt sites, in this particular situation I consider it of paramount importance that sources of supply are fully accounted for”.

Settlement Gaps.

MM/021 relates to Policy SS11. Paragraph 1(c) of the amended document is much clearer in respect of the closure of settlement gaps. I believe that the development of site KL/1 contravenes this section by ‘resulting in the erosion of existing settlement separation and identity, created by the undeveloped character of those spaces’ (see photograph 1), in relation to its proximity to Spinkhill.

Exceptional Circumstances and Spatial Strategy.

Taking these findings into account, together with subsequent evidence, it is apparent that the retention of site KL/1 does not now demonstrate the necessary ‘exceptional circumstances’ and that its removal, even if this leads to a small shortfall in the delivery of new homes is the District, would be legally acceptable. Paragraph 2.14 of the Plan identifies the need for ‘balancing the housing need of these specific areas (Dronfield, Eckington and Killamarsh) against the impact on the Green Belt and countryside’.

In terms of size and population Killamarsh will now meet not only the lion’s share of the defined development need identified within the settlement hierarchy, certainly within the north of the District, but will cause the most damage to the well-established Green Belt.

This is totally unfair because the Green Belt and countryside needs of Dronfield and Eckington are being rightly and justifiably protected, whereas those of Killamarsh are not.

In background evidence to the Local Plan Killamarsh was judged to have inadequate green space at present. Development on this site will only exacerbate this situation, thereby contravening Policy N2 in respect of countryside recreational pursuits. The site in question has five public footpaths/rights of way crossing it, with views to the south and west being particularly attractive to walkers.

The next important issue relates to the reasons why the Regeneration Scenario of ‘a minimum of 6,600 (dwellings)’ was chosen as the housing target rather than the OAN target of 5,660. Three reasons were given for this choice, with the third one being ‘the delivery of more affordable homes’. This requirement of the Plan is still present at paragraph 3.5 of the revised Plan which states that the policies within it will be “helping to deliver much-needed affordable homes”.

If the removal of site KL/1 from its Green Belt designation is viewed as a rational, unavoidable decision necessitated by ‘exceptional circumstances’, then the sites chosen for development should be judged against their ability to deliver affordable homes, bearing in mind the many occasions when the ‘viability’ card is played by developers to obviate their previously agreed commitments. This issue is particularly pertinent in relation to development undertaken in areas of high mining risk and ground contamination, as is undeniably the case for Site KL/1, due to the costs inherent in remediation work.

It is worth noting that an examination of a specific site in the Amber Valley Local Plan examination in May, 2018, (PPG Ref: EMS.1640) relates to a proposal to build 200 homes on a landfill site, in a mining area, where contamination was an issue. The potential S. 106 agreement required funds to move the land tenants (a Rugby Club) to a different location, to remediate the land and to provide affordable homes accounting for 20%-30% of the development. Amber Valley did not have a 5 year housing supply (only 3.3 years). North East Derbyshire has a Housing Land Supply of 8.3 years (amended 5 Year Housing Land Supply Statement, 22.5.20).

The Amber Valley site was removed from the Plan and an Appeal was launched, commencing on the 19th July, 2017.

The Inspector in this case accepted that the Authority had a significant under-supply of much-needed housing and noted that an expert’s view was that the risks were unlikely to be more extensive than previously identified. This is not the definitive case in respect of site KL/1.

Whilst weighing the benefits of the scheme against the drawbacks the Inspector commented that the remediation costs of the development would result in the provision of affordable homes being far less that the 20% - 30% required by the Plan and gave only limited weight to that, possibly due to the insufficient 5 year housing supply.

However, in the case of the NEDDC Local Plan, the need for more affordable homes was a prime consideration in the decision to opt for a Regeneration Scenario that significantly exceeded the OAN, suggesting that more weight needs to be given to a potential failure to provide the required percentage of affordable homes (and the many other compensatory benefits promised to ameliorate the loss of a well-used and locally-important Green Belt site).

The Inspector for the Amber Valley plan placed great weight on the potential for harm to health and living conditions, due to contamination on the proposed site, when deciding that the potential for harm outweighed the benefits and would ‘not accord with the environmental dimension’. When considering the issues as a whole he decided that the proposed development would not be sustainable and dismissed the appeal.

Site KL/1 contains a myriad of development challenges including, but exceeding, those encountered in the above case, and including land contamination (see later for contamination evidence).

While these issues may be regarded as a decision for the Planning Committee of the North East Derbyshire District Council they are absolutely at the core of the Local Plan because they impinge upon the very basis of policies within the Plan and challenge the foundations of the decision to adopt the Regeneration Scenario as the housing target, which necessitated the decision to remove land from the Green Belt due to the presence of alleged ‘exceptional circumstances’.

Viability Issues.

Additionally, and importantly, the viability of the development is very probably at issue – a fact even admitted by the agent of the developer, if the developer is obliged to provide compensatory benefits and 20% affordable homes on site KL/1.

This site is not classed as ‘high value’ within the Plan despite it being claimed as such by the owners of the site, due to the alleged clamour from people wishing to move from Sheffield to a more rural area. If it were classed as high value it would require 30% affordable homes to be built, bringing viability even more into play. It is also interesting to note that Dronfield and Killamarsh are still referred to as areas of ‘high demand for growth’. Eckington was so labelled before the relevant site was removed from the Plan, as indicated in MM/096. Surely this ‘high demand’ for growth should result in the areas being designated as ‘high value’, and a requirement for 30% of affordable homes to be built on the relevant sites?

Mr Adam Murray, then of Coda Planning, consultants to Harworth Estates, states in a pre-application planning statement for site KL/1 (page 7), “On a more practical level the developers of the site will, where viability allows, be required to provide financial contributions which will be ring-fenced by the Local Authority to go towards the provision of local community infrastructure, such as school and GP places”.

Later in the same statement, in respect of Developer Contributions and Affordable housing (page 20 of statement), “The applicant is aware of these requirements and intends to fulfil these obligations where viability allows, bearing in mind the significant remediation works required as a result of the historic use of the site”.

A planning error by the would-be developer will also cause additional expenditure or loss of revenue by preventing the developing of some plots of land as a report from Yorkshire Water states that the indicative Master Plan for site KL/1 shows that “buildings, trees and the attenuation pond will be located over the line of a 225/300mm public combined sewer (which is not shown on the drawings) which would jeopardise Yorkshire Water’s ability to maintain the sewerage network”.

Buildings, landscape features and an attenuation pond will have to be moved elsewhere, impinging even more on viability.

The last, and possibly most relevant issue, is that the Local Plan allocation for this site is 330 dwellings, while the OPL submitted by the developer is for 397 dwellings. NEDDC still appear to support their estimate of 330 dwellings being the optimum number for this site. The potential ‘loss’ of 67 dwellings will be a significant financial issue, and will certainly impinge upon viability.

The Judgement in Parkhurst Road Ltd v Secretary of State for Communities and Local Government (and others) (2018) EWHC 991 (Admin), albeit based on actual figures rather than high probability, found that the ‘appeal proposals would not provide the maximum reasonable level of affordable housing in accordance with policies’. Holgate J commented that, “It is also important to ensure that new development is sustainable, delivering the maximum level of affordable houses in all cases so as to meet the needs of all”.

There are many reported cases where the viability clause has been used by developers to change and reduce S 106 agreements designed to ameliorate and mitigate the damage done to a community by large-scale development. Developers then get the benefit of sales, but local people have to live with the damage, disruption and consequences afterwards. Hopefully this anomalous situation will be remedied if the newly-published government white paper on housing is enacted, which proposes to replace the porous S 106 agreements with a mandatory Infrastructure Levy.

The clear and present danger of a viability challenge, leading to fewer affordable homes being built, and ameliorating benefits dropped, would contravene MM3 and objective D5 – Housing for All.

The ICENI Objectively Assessed Housing Need report of July, 2020, at paragraph 35, shows that the housing need has received a 10% uplift to assist the delivery of affordable homes. Surely this means that the provision of affordable homes should be a significant and compelling priority consideration when deciding on a site’s suitability, particularly when it forms one of the three pillars used to enforce its removal from the Green Belt?

Obviously the viability is realistic conjecture, but based on ‘hard’ evidence.

In respect of MM/063 I suggest an additional paragraph should be entered on page 78, paragraph 5.72. After the first sentence ending ‘proposed scheme’ an extra sentence should be added. This should read, “Where the provision of the full requirement of affordable homes within a development scheme is manifestly unviable from the outset, due to significant remediation costs, then the proposed site will not be considered for inclusion within the Plan”.

(See further within the ‘Sustainability’ section).


Mining Risk.

In Killamarsh the site KL/1 is located in a mining high risk area. Six mine entrances are recorded as being present on-site and mining plan maps show that mine workings lie beneath much of the site. Only one of these mine entrances had been capped. There is no evidence that the entrances or workings have been treated. One entrance has not even been found during an initial site survey. The reason that I have stressed the recording aspect in relation to this site is that there is evidence of unrecorded mining works that pre-date records maintained by The Coal Authority.

There are a number of other challenges that will cause significant expenditure for the developer(s) at this site, and which will consequently impinge on the viability of it. These issues are evidenced by site examination documents made public during an outline planning application in respect of the site, but are relevant in respect of the strategic aspects of this site and the Local Plan. These documents, produced by Rogers Leask Environmental Ltd. (RLE), show;

• Collapsed unrecorded mine workings were observed to the north of the site (during test drilling),
• Unrecorded shallow working has likely occurred from the five recorded mine shafts to the east of the site,
• The risk of unrecorded workings at shallow depth impacting the development is considered high,
• The known mine work remediation will affect 175 of the proposed 397 dwellings (330 in the Local Plan draft),
• The Technical Note provided by RLE in respect of this site shows that 275 potential building plots would be affected by the need to grout mine entrances and shafts,
• There is a geological fault line running through the centre of the site (NE to SW). In areas of significant coal mining there is an increased risk of fault reactivation, particularly when unrecorded workings have taken place in the vicinity of the fault,
• High concentrations of carbon dioxide gas are being generated from the old coal spoil heap to the north of the site,
• Gas escapes are occurring on other parts to the east of the site. Gas escapes will impact upon 18 of the dwellings planned for the site,
• Untreated mineshafts may provide a possible migration path for mine gasses to reach the surface,
• A book (Holbrook and Halfway, The Early Years – by James Walton), published in 1996, shows that there are 442 old, abandoned mine workings between Killamarsh and Barlborough, the locations of which are ‘not known with any certainty’. These pre-date Coal Authority records. (Not from RLE findings),
• The geological fault crosses the centre of the proposed site. This could also be reactivated due to ground disturbance during excavations and construction. The potential movement of the ground, together with the collapse of unrecorded bell pits (seen during ground survey) and other unrecorded mine workings (alleged high chance of their existence) could well lead to the appearance of sink holes, either during construction or subsequently.
• One such sink hole appeared on this plot of land when it was being cultivated by a local farmer (local knowledge). These circumstances could well injure the site workforce and existing residents in the properties adjoining the site. Some parts of the site remain unexamined – providing the opportunity for further dangers/abnormal costs to become apparent (RLE report).

Contaminated Land.

Further issues relating to the former mining use of the site relate to the presence of;

• Contaminated material amongst the soil samples taken that would present ‘a potential risk to end users’,
• This means that the spoil heap and contaminated ground will have to be dug up and transported away from the site to a safe disposal area. New, clean topsoil will have to be transported to the site to replace that which has been taken away,
• Obviously this will not only bring significant additional costs to the remediation project but will ensure that current residents to the east, northeast and southwest of the site will be plagued and impacted by dust, fumes, unpleasant smells and the potential transfer of contaminated material to local dwellings from the site, certainly for the early part of the project but for the full duration of it. This may span 10-15 years.
• Most importantly, some of the contaminants are potential carcinogens, predominantly Polycyclic Aromatic Hydrocarbons (PAH), which incorporate other potential health threats.

These known and identified issues have been commented upon by the agent of the land owner in the Planning Statement that accompanies planning application 18/01003/OL, which can be found on the North East Derbyshire District Council Planning Portal. These matters, together with many others will, without doubt, impinge upon the site viability previously referred to.

More importantly, in my view, they contravene Policy SDC 14, paragraphs 1,2 and 3.

Archaeological and Historical Issues.

The investigative work undertaken on this site by Wessex Archaeology (WA) has also shown the presence of medieval and post-medieval features:

• a rectilinear enclosure with internal features,
• a medieval Holloway,
• ring ditches,
• evidence of a strip field system, ridge and furrow ploughing and field boundaries corresponding with the 1845 Tithe Map of Killamarsh.

The Detailed Gradiometer Survey Report by WA highlighted the presence of:

• potential archaeological anomalies, ferrous burnt and fired objects and magnetic trends.

Just as importantly a bell pit was identified together with evidence of mining or mineral extraction, of uncertain date (WA), giving support to the assertion made by this company that “the risk of unrecorded workings at shallow depth impacting the development is considered to be high”.

This company also identified that “large pit-like anomalies have also been noted throughout the survey area [due to] activity on uncertain dates”.

The report by WA notes that, “small, weakly magnetised features may produce responses that are below the detection threshold for magnetometers. It may therefore be the case that more archaeological features may be present than have been identified through geophysical survey”.

Apart from the potential to harm workers on the site this evidence shows that the costs of remediation will be extremely significant. The investigation of the archaeological evidence will likely be expensive and, potentially time-consuming to resolve in order to comply with the 2012 NPPF. This recognises heritage assets as an irreplaceable resource, a fact acknowledged by WA in their comment, “Any adverse impact to buried archaeological features would be permanent and irreversible in nature”.

The appropriate investigation of the findings described above will, no doubt, prove to be a time-consuming and expensive challenge to MM/106 and policy SDC 7.

It is my submission that the development of this site would contravene paragraph 2.25 on the Plan, Policy D10 and Paragraph 192 (a) and (b) of the NPPF, 2012.

Air Quality (relevant to MM/113 and SDC 13).

The northern part of site KL/1 is flanked on three sides by existing dwellings, many pre-dating the former Westthorpe Colliery. The building of a large housing estate, together with the traffic pollution inherent in the habitation of the eventual buildings, must have a negative effect on existing residents – a fact acknowledged in the SA of the Local Plan. Amongst a number of points that placed the site into an ‘amber’ category the SA stated that it would “engender a significant increase in Greenhouse Gas emissions”.

Background evidence document supporting the Local Plan show no Air Quality Management Areas (AQMAs) in Killamarsh. However, they show that the east of the North East Derbyshire District (including Killamarsh) suffers the most from air pollution, due to its proximity to the M1 motorway.

Killamarsh is located at the north-eastern tip of the District and site KL/1 is located less than 1 mile, as the crow flies, from the M1. Killamarsh and this site KL/1 were specifically highlighted within an area then currently suffering from the highest levels of nitrogen dioxide and particulates in the District, in a map shown at page 24 of the ‘Scoping Report for the Sustainability Appraisal of the NE Derbyshire Core Strategy, February, 2012’.

This situation has not improved, in fact it has likely deteriorated due to the expansion of the M1 motorway in this area to 8 lanes. The M1 motorway to the north of Killamarsh, on the eastern approach to the city of Sheffield, also has eight lanes. This is currently subjected to a 60mph speed limit which, according to motorway signs, is to ‘reduce air pollution’. Those same eight lanes pass beside Killamarsh where the speed limit on the motorway is still 70mph, leading to an increased pollution probability.

Despite these factors a response from the Environmental Protection Officer (Ms. Caroline McMaffrey) to comments about application 18/01003/OL states that ‘the application is not accompanied by an air quality assessment and although it is a large development we do not consider we have sufficient grounds to request an assessment’. This seems to be a remarkable omission.

The Institute of Air Quality Management (IAQM) has produced guidance entitled ‘Land-use Planning and Development Control: Planning for Air Quality’ V1.2, dated January, 2017. Table 6.2 of that document sets out indicative criteria for proceeding to an Air Quality Assessment.

“A significant change in LDV (light-duty vehicle) flows (cars and small vans) is classed as an increase of more than 500 trips as AADT (Annual Average Daily Traffic), outside of AQMAs”.

The Transport Assessment which accompanies the application indicates that the trip generation of the scheme will result in almost 2000 additional daily trips. This exceeds the IAQM’s screening criteria by almost four times, therefore clearly triggering the need for an appropriate Air Quality Assessment to be undertaken.

In addition to potential operational phase traffic impacts, the scheme also exceeds the IAQM’s screening criteria for assessment of potential dust impacts during the construction phase given the proximity of existing residential properties to the north, east and west. The criteria state that an assessment will normally be required where there is a human receptor within:
• 350m of the boundary of the site; or
• 50m of the route(s) used by construction vehicles on the public highway, up to 500m from the site entrance(s); or an ecological receptor,
• Within 50m of the boundary of the site; or
• 50m of the route(s) used by construction vehicles on the public highway, up to 500m from the site entrance(s).

As this proposed development is intended to be built beside existing, longstanding homes all the requirements for an air quality assessment are fulfilled.

In short, a full Air Quality Assessment, including detailed dispersion modelling of traffic impacts, should be submitted in order to assess the potential risks to existing sensitive receptors during both the construction and operational phases of the development.

This will be another expense for the developer, additional to the very significant known remediation costs, and added to the costs and time delays inherent in exploring the potentially-significant archaeological evidence on the site.

Clearly, each of the identified problems on this site is capable of eventual remediation, but at what cost, both financial, disruption-wise and danger to the lives, health and welfare of existing and future local residents?

It is my submission that development on this site would contravene Policy SDC 13, points 1, 2 and 4, together with paragraph 109, bullet points 3 and 4 of the NPPF 2012. It also contravenes paragraph 3.4 of the Plan in terms of creating safe, integrated and healthy communities.

Sustainability.

Paragraph 173 of the NPPF 2012 states, “Pursuing sustainable development requires careful attention to viability and costs in plan-making and decision-taking. Plans should be deliverable. Therefore, the sites and the scale of development identified in the plan should not be subject to such a scale of obligations and policy burdens that their ability to be developed viably is threatened. To ensure viability, the costs of any requirements likely to be applied to developments, such as requirements for affordable housing, standards, infrastructure contributions or other requirements should, when taking account of the normal cost of development and mitigation, provide competitive returns to a willing landowner and willing developer to enable the development to be deliverable”.

Returning to the viability argument I believe that paragraph 173 is stating that plans for development should be carried out, in total, when development and mitigation costs are known at the outset, thereby negating any subsequent viability claim. The known costs of remediation at site KL/1, together with the additional costs which will be necessary, show that viability is at issue right from the outset. The requisite number of affordable homes will not be built, despite this being a keystone in the decision to remove site KL/1 from its Green Belt status.

In Parkhurst Road Ltd v SSCLG and London Borough of Islington (2018) Holgate J said, “It is clear that the appeal proposal would not provide the maximum reasonable level of affordable housing in accordance with policies”. He continued, “It is also important to ensure that new development is sustainable, delivering the maximum reasonable level of affordable housing in all cases so as to meet the needs of all”.

Gallagher Homes v Solihull MBC (2014) shows that sustainable development is an ‘ongoing duty’.

The NPPF, 2012, paragraphs 83 and 84 states that “When drawing up or reviewing Green Belt boundaries Local Planning Authorities should take account of the need to promote sustainable patterns of development”.

Whilst most of the foregoing and subsequent information emanates from local knowledge and a specific Outline Planning Application (OLP) in respect of KL/1, the evidence contained within it must be considered when qualifying and enhancing the educated guesses and estimates included within the SA for this site. Actual evidence, particularly when this emanates from professional investigation, should ‘trump’ a mere opinion, despite the quality of the expert giving the ‘opinion’.

The following issues also challenge the sustainability of development on this site.

Ecological Matters.

The whole concept of development in this location appears to contravene MM/101, 103 and 104, together with policies SDC 3 and SDC 4.

There are significant ecological challenges to the development of Site KL/1, and major issues in respect of the site’s sustainability – contrary to the rosy picture painted by the developer’s agent. The whole site sustainability, within the terms of the NPPF, is also questionable, despite assertions to the contrary made by the planning consultant to the developer.

Policy SDC4 promotes the enhancement of all sites of bio/geo diversity value, together with sites providing habitats for priority and protected species.

A survey report completed by Access Ecology (AE) shows that significant damage will be caused to ecology at the site location. It does indicate that mitigation measures to ameliorate some of the effect can be taken. The Ecological Impact Assessment, revision B, May, 2018 (page 60) states that development of this site will cause,

• Habitat loss,
• Disturbance of and damage to habitats,
• Pollution from dust, spoils and run-off,
• Fragmentation or isolation of habitats,
• Disturbance and injury/death to fauna.

The construction work will require the removal of both sections and whole hedgerows, the felling of mature trees and the removal of approximately 70% of the species-rich, semi-improved grassland. There are:

• 14 hedgerows on site,
• 11 of these have been examined,
• 5 of these hedgerows are ecologically important under the Hedgerow Regulations, 1997 and of high value, being assessed as more than 140 years old (the three unexamined hedgerows may be similarly important, but we do not yet know). Their loss will reduce ecological connectivity across the site,
• Construction work will require the removal of five full hedgerows. More than half of two more hedgerows will also be removed, together with smaller parts of six more (of the 14 shown on the site). The removal of the hedgerows will cause the loss of 8 mature trees.
• An assessment of these trees believes them not to be important species. This may be true of the tree per se, but they have ecological importance to the myriad of birds, mammals and animals that use them,
• The Environmental Impact Assessment (EIA) for this potential site states that, “the hedgerow and tree removal will cause a noticeable change to existing environmental conditions across the site in that connective habitat features across the site will be lost and the functionality and structure of the retained hedgerows will mean that there is no longer a functional green network across the site”. The developer will, again dependent upon viability, introduce a new greenway at the edge of the site, having destroyed a functional existing greenway.
• 66 different species of bird have been identified as using the site,
• At least 15 of these species are on the ‘red’ endangered species list,
• 5 species of bat use the site,
• Great crested newts have been found in the vicinity of the site, with more expected to be actually on-site,
• 25 Local Wildlife Sites (LWS) are located within a 2km radius of the site,
• 1 LWS is located on the site,
• 2 others are located within 150 metres of the site,
• The disturbance, damage and pollution of the site will be of ‘moderate negative significance’, according to the report by Access Ecology, although the EIA for the site says, “the impacts are considered to be present in both the short and the long term and are unlikely to be reversible over a reasonable period of time”. This is surely would be a contravention of policy SDC 4 (2).
• The EIA states that there will be ‘adverse effects, mostly at the local level’
• The fields of the site are described as ‘fairly species-rich, semi improved grassland’. They were remediated by RJB Mining (a predecessor of the current developer) and made into a wildflower meadow. They contain many species of wildflower and orchid. Their removal during construction is described as having ‘moderate negative significance’,
• A report in 1998 by RJB mining showed that the company, as part of their efforts to clean up, remediate and improve the site, removed the culvert directing water from the site into Park Brook. This was removed because there was a significant increase in iron concentrations between the entrance and the exit of the culvert. RJB reinstated an open watercourse to Park Brook in the belief that this would ‘significantly improve water quality downstream of the site’. It did, and there are local wildlife sites now associated with Park Brook.
• Development plans for the site include the re-introduction of a culvert emptying into Park Brook (MM/109, SDC and Local Plan page 150, para 8.51)
• This site, if developed, will increase the flooding risk at the lowest points of Green Lane and Spinkhill Road, which are currently susceptible to infrequent flooding and closure, although the periods between flooding are reducing, possibly due to climate change. This flooding is not a 100 year event; it has happened three times in the last 12 months to both roads (see photographs 2 and 3 for examples).
• The development will rob this rural site of most of its ability to absorb excess water, which will then, because of the topography of the area, run onto the road system – mainly the Green Lane carriageway. The output from the detention ponds will flow into Park Brook, which does, and will, flood Spinkhill Road which, despite being an unclassified road, is a main route into Killamarsh from the south and M1, J30, and for those travelling south of Killamarsh. Green Lane serves a similar function. (see photographs 2 and 3).

Photograph 2 – Green Lane, Killamarsh,
taken 11.59am, 7.11.19.

Photograph 3 – Spinkhill Road, 11.32am, 7.11.19.


The Green Infrastructure section of the Plan (page 176, paragraph 9.67, bullet point 8) states, in respect of Sustainable Drainage, that, “green infrastructure helps to manage water flow and quality by holding it in times of high rainfall and releasing it slowly, reducing the likelihood of flood and drought, and can prevent pollution by filtration of surface water runoff, thereby contributing to improvements in quality of watercourses…”

• This important safeguard will be removed if this site is allowed to be developed.

The proposals for this site show an intention to enhance the amenity of the remaining land. How this will be achieved, by devastating a large proportion of the site with the construction of houses and tinkering with a small portion of the site to make that tiny portion better than the original free-ranging land, is an interesting conundrum. Will this ‘minimise harm to biodiversity, or provide gains where possible?’ I believe that the development of this site will cause significant, long-lasting and irreversible damage.

Extensive views of the Derbyshire hills to the west of the site will be lost, as will the public amenity of five public rights of way that cross the site. Any upgrading of land to the south of the site will not provide viable views due to the topography (MM/1212 and SDC12).


Economic Issues.

The development is alleged to be part of a scheme to regenerate the economy of Killamarsh. This will be challenging as the background papers to the Local Plan assert that 80% of the current economic benefit accrued from residents in the northern part of North East Derbyshire goes to Sheffield. NEDDC will benefit from ‘one-off’ New Homes Bonus and Council Tax payments, but there is no guarantee that this money will be used to benefit the areas where development has taken place.

This fact negates the intention, articulated in Policy N1, of ‘supporting improvements compatible with their local employment’. Policy SS2 (6) states that, ‘new employment should be focussed on principle protected employment sites’

The Local Plan intention for Killamarsh is that the Norwood Industrial Estate will remain as a protected site, thereby providing current businesses and incoming start-ups to provide work.

The Aspinall Verdi Employment Sites Review (evidence base document), December, 2017, states that ‘the site will be attractive to users looking for a site for open storage and other ‘dirty’ uses (suitable for B2 and B8 uses). This is unlikely to provide many substantive opportunities for employment. The Employment and Economic Topic Paper (EETP), August 2018, page 39, states that this site is ‘distant from most services, which would encourage car use’. There has been little interest in developing this site for much more than a decade.

In terms of site KL/1 the Westthorpe Fields Business Park has only one available plot of land upon which development might take place. This has been available since the last Local Plan was introduced and has not proved to be an attractive proposition to businesses either. An old planning application for the site expired in June, 2011. There has been nothing since, other than an extension to one of the businesses already on site. The EETP states that this site has ‘poor access to local services’ and is ‘not compatible with surrounding uses’

The possibility of local employment that minimises out-commuting by car is almost non-existent.

This appears to be a contravention of MM/007 which relates to “the improvement of the employment portfolio through the loss of existing, less marketable employment land”. Surely the retention of these two sites fall into this category.

How this situation is expected to miraculously change is not explained within the Plan. Without locally-available work for current and new residents the only result will be a significant increase in out-commuting, thus increasing traffic emissions and ever- worsening air quality.

MM 8 and 9 and paragraph 4.33 of the Plan state that Level 1 towns will be the focus for growth. However, this should not be achieved by breaching the requirements of Policy SS2.

The proposal for a sustainable transport policy, which might obviate such a situation, is superficially attractive, yet arguably doomed to failure.

The proposed development site (KL/1) is located as far away from the centre of Killamarsh as it is possible to be, whilst still being a part of Killamarsh. It is well outside the distance that a report published in April, 2015, by the Chartered Institute of Highways and Transportation – ‘Planning for Walking’ recommended. This report states that “Most people will walk if their destination is less than a mile away….with a typical catchment area of around 800 metres, or a 10 minute walk”. The facilities and amenities of Killamarsh centre are 2 kilometres from the site. It is also worth noting that the Supertram service to Sheffield has a local tram stop which is 3km from the site.

Distance is not the only challenge to walking or cycling to the shops, schools or work. The topography of the area provides a major challenge. Every route from the proposed site to the centre of Killamarsh contains steep hills; some being 1:10.

Public Transport is another issue that is relevant to a sustainable transport policy. The Settlement Hierarchy Study for the Local Plan scored each area for public transport value. Killamarsh scored 26 points in this survey, giving it 15th place in the Settlement Hierarchy, by far the lowest score of the Tier 1 settlements and significantly below many in Tier 2. The public transport service has diminished further since this survey was conducted, with some services being withdrawn.

In terms of existing footpaths, for those fit enough to walk the 2 kilometres up and down the hills, the site agent, in the Planning Statement for application 18/01003/OL, states, “increased activity levels through this area of the settlement will provide new and improved connectivity, particularly for pedestrians. In turn this will contribute towards a greater sense of safety for residents….”.

Unfortunately, residents leaving the newly built estate will have to use connective footways to visit the facilities that Killamarsh has. An investigation was conducted and a report prepared by ODEM entitled ‘Killamarsh 2035 A Vision for the Village’ (background/evidence documents for the Local Plan) concludes, “The layout of the 20th century housing areas include many footpaths and alleyways that vary in condition and use. Many are either poorly maintained or suffer from anti-social behaviour because of the absence of ‘natural’ surveillance”. There are no known or identified plans to provide infrastructure improvements that mitigate these issues; certainly there is nothing suggested in any Infrastructure Delivery Plan I have seen. This contravenes MM/117 and Policy ID3.

The wording of the Sustainable Travel proposal from the developer is compliant with the Plan; the reality of practical application is not. It also contravenes Policy D12.

It is fully accepted that all these identified matters are capable of some remediation, but at considerable expense. If the applicant is asked to foot the bill for such remediation it creates a significant risk that the ability to provide affordable homes will be hidden even further under the ‘affordability’ get-out-of-jail-free card.

MM/115 suggests that the relatively small quantum of development at Killamarsh and Eckington ‘will not necessitate improvements to M1, J30’, despite the fact that the relevant site is located at the south eastern edge of Killamarsh, which would naturally require people travelling anywhere to the south to use J30. Paradoxically, MM/116 shows that infrastructure requirements from developer contributions will be targeted at the A61 corridor, Dronfield and the MI, J30. This seems to contradict MM/115, although it does link to ‘other transport policies as identified in Dronfield, Clay Cross, Eckington and Killamarsh’. I have not seen any transport policy change relevant to Killamarsh that might improve either connectivity or ease congestion.

Perhaps my argument in respect of increased traffic, and diminishing air quality, is best supported by an article published in October, 2018 by the BBC, entitled “Young Couples Trapped in Car Dependency”, relating to the situation where planners allow edge-of-town housing estates where travel by car is the only option.

Jenny Raggett, a researcher for Transport for New Homes, is quoted as saying, “We were appalled to find so many new housing developments built around the car, with residents driving for almost every journey. As those cars head for our towns and cities they clog up existing roads. Commuter times get longer and longer. Car-based living of this kind is not good for our health or quality of life” (BBC News, 24.10.18). This will epitomise the situation in Killamarsh if site KL/1 is included in the Local Plan, and could have been written specifically in respect of this proposed site.

Given the facts and issues outlined I strongly contend that site KL/1 complies with the sustainability requirements of the NPPF in terms of economic, social and environmental elements.

Concluding Comments.

It may be considered that many of the comments made within this document are more appropriate for consideration by a Local Planning Authority at any subsequent planning application.

In my view the issues I have raised relate directly to the strategic aspects of the NEDDC Local Plan, including the Main Modifications as indicated.

As previously stated, comments within the SA, and in important evidence documents such as the Green Belt Review, are based upon educated guesswork, albeit based on expert opinion. The work I have referred to, again carried out by experts, gives actual, examined and tested evidence rather than opinion and, in my view, should be given more weight.

It is accepted that many of the issues raised in respect of site KL/1 are capable of a measure of remediation – some of the areas more than others. No expert has said that the damage done can be totally remediated.

When the total havoc wrought on the proposed site is fully taken into consideration the question posed should not be whether partial remediation can be satisfactorily carried out, rather whether it should be contemplated at all, in view of the many and disparate challenges outlined.

A key question is whether a significant amount of affordable homes – a key aspect of the ill-considered ‘regeneration strategy’, leading to an illogically high housing target – will be built. The need for affordable homes was proffered as part of the ‘exceptional circumstances’ argument in respect of Green Belt removal. Even the agent for the developer doubts that the requisite number of homes will be built, or the compensatory aspects delivered, as already evidenced.

Personally, and on behalf of R.A.G.E. supporters, who are residents of Killamarsh, I request that site KL/1 be removed as an allocated site for development within the NEDDC Local Plan.