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|Successes for 2012|
Land off Park Road Malmesbury February 2012 APP/Y3940/A/11/2159115
43. I understand that there is currently no collective agreement as to the means by which the deficiency in primary education provision should be addressed; options may include the use of mobile classrooms on the existing site, or the relocation of all or part of the school to an alternative site, but I am told that these and other possible solutions will be considered as part of the Neighbourhood Plan process (of which more later). That being the case, I do not attach any weight to the appellant’s payment of a financial contribution toward primary education infrastructure through the mechanism of the S.106 Undertaking. Since the use to which such a financial contribution would be put is currently unknown, it cannot meet the tests of CIL Regulation 122.
44. However, that is not to say I share the Council’s view that the current absence of any solution to the existing primary school capacity problem is reason enough to refuse planning permission for the development now proposed. The implications of that approach would be that all new residential development of any significance could be prevented by the consequential demand for places at local schools, irrespective of how desperate the need for more housing may be. The Council has a duty to provide sufficient quantities of housing, and a duty to provide the population of its area with sufficient school places. I understand and applaud its attempts to ensure that both are delivered in a timely and integrated manner, but the planning system recognises that due assessment of a wide range of (often conflicting) considerations needs to be made in respect of each proposal for development.
45. In my judgment, the increased strain that the proposed new housing would place upon the already pressured primary education infrastructure of Malmesbury is not, of itself, sufficient reason to refuse planning permission outright for residential development; it is, however, one of the many material considerations to be weighed in the overall planning balance.
Land at Kentwood Farm Wokingham July 2012 APP/X0360/A/11/2157754
9.48 In relation to the contribution to SEN, the Council argues that children occupying the appeal scheme with SEN may need to attend a special school or a specialised unit located at a mainstream school107, and that places for these SEN pupils are substantially more costly than places for mainstream pupils. As a result the Council seeks an additional educational contribution to cover the provision of additional SEN facilities across the Borough. The Council seeks contributions for a proportion of the pupils generated by the appeal scheme, who might require special needs provision. The appellant does not agree the percentage identified by the Council, but is prepared to pay a lower percentage contribution if in principle it is considered by the Secretary of State to meet the Regulation 122 tests. However, it is the appellant’s view that it is not a reasonable expectation for a developer to specify the disabilities of children resident in a development in advance, and a clear link between new housing and SEN requirements cannot be demonstrated108.
9.49 Provision for the primary and secondary education needs of the children likely to be accommodated within a new development can be calculated on a straightforward basis, in terms of numbers of places. The link with the development is direct, and proportionate. For SEN the Council seeks to apply a Borough wide average of SEN pupils to an individual development, with no evidence to demonstrate that this proportion of SEN requirements is likely to arise.
However, SEN provision tends to be provided on an individual needs basis rather than in accordance with a pre-determined formula based on population statistics or dwelling numbers109. The developer would not be in a position to investigate the number of SEN pupils who might be in the households locating to the development since this would be an invasion of the privacy of such families. In these circumstances I find that the obligation to pay a SEN contribution cannot be said to be directly related to the proposed development; or fairly and reasonably related in scale and kind to the development.
Land at Brookfield Farm Rothley March 2012 APP/X2410/A/11/2161715
Primary school capacity
34. It was not disputed at the hearing that there is insufficient capacity at the primary school in Rothley to accommodate the demand that would be generated by the development and there would be no spare capacity in 2015 at either Mountsorrel or Cossington primary schools, both within 2 miles of the site. The UU provides for an education contribution, agreed with the County Council as Local Education Authority (LEA), ‘for the purpose of providing extending improving or altering facilities or services at Rothley Church of England Primary School or such other schools as will provide additional accommodation that will provide capacity directly or indirectly to accommodate pupil growth from the development’. The LEA provided a statement and attended the hearing and I am satisfied that the obligation meets the CIL tests and those in Circular 05/2005.
35. It was the LEA’s view that because of physical site constraints at Rothley primary school, the additional capacity was likely to have to be provided at Cossington, subject to a feasibility study. However it was the appellants’ evidence that not all possible options to enlarge the school at Rothley have been thoroughly explored and exhausted. Reference was made to the lack of objection by the Borough Council to an application made in July 2011 to add 4 classrooms. Although it was later withdrawn by the LEA, the scheme was clearly sufficiently advanced to be considered practicable. The provision of an artificial playing surface, which is treated as if it were twice its actual area, might also allow for the school to be enlarged and the LEA’s concerns about flood risk and maintenance and possible objection from Sports England do not appear so far to have been seriously investigated. It would be reasonable to expect the feasibility study to consider these options in greater detail.
36. But in any event, if it were decided for whatever reason not to enlarge Rothley school and to provide capacity elsewhere, the assumption made by the Borough Council that this would necessarily result in families living on the site having to make unsustainable car journeys of more than 2 miles to access primary school education is not supported by evidence and is inconsistent with the way school admissions are currently determined.
37. It would take time for the development to generate demand for places at the local school. The appeal site lies within the catchment area for Rothley primary school. Many of the current pupils do not live within the catchment area. If permission were to be granted for the development and the school were not enlarged, the effect would not be that children living on the site would have to go elsewhere to school but that those applying to attend Rothley from outside the catchment area would over time have progressively fewer places available to them. Catchment areas are not statutory but changes to their boundaries are not undertaken lightly. Looking longer term it seems it will not be where a child lives but parental choice that will determine school admissions.
38. For these reasons I do not accept that the consequences outlined by the Council in its decision are inevitable or supported by the evidence. Nor that they indicate that the development is unsustainable in this location and therefore inappropriate. Whilst I am satisfied that there is pressure on spaces across the local primary schools, this could be mitigated to the extent necessary to provide additional capacity by way of the UU education contribution which meets the CIL tests and accords with LP policy ST/3 and the
15. At the hearing the BC failed to provide a clear and rational explanation of the position it was taking. In the event Mr Clyne’s detailed evidence to the hearing on the statutory responsibilities of the education authority, on current admissions policy, catchment areas and numbers of out of catchment pupils at Rothley school, demonstrated that the outcome identified in the reason for refusal, that children from the development would have to go to primary schools some distance away, was unlikely to happen. The BC would have also known all that if it had sought earlier to clearly understand the CC’s position.
16. When the CC’s agreement to a developer’s contribution became known late in January 2012, the BC had the opportunity to reconsider the second reason for refusal and determined to continue to defend it. To avoid a risk of costs, evidence should be produced at appeal stage to substantiate each reason for refusal with reference to the development plan and all other material considerations. I do not consider that the evidence produced by the BC, both in its statement and at the hearing, went anywhere need providing a respectable basis for its stance on this matter.
17. Accordingly I therefore find that unreasonable behaviour resulting in unnecessary expense, as described in Circular 03/2009, has been demonstrated and that a partial award of costs is justified. I am not limiting the costs to those of Mr Clyne’s appearance at the hearing as the BC’s behaviour before was unreasonable in terms of its failure to critically examine the CC’s consultation advice (B23) and in its vague drafting of the reason for refusal (B16).
Land to the north of Lancaster Close Hamstreet Nov 2012
26. Kent County Council have objected as Local Education Authority, to the secondary school contribution at an expansion rate, stating that there is not room to expand existing schools in the area, and that a new school is to be provided to which a new-build rate of contributions should be directed. The appellant has provided information on the likely yield of secondary school-age pupils and the timescale for development set against doubts over the timescale for the provision of a new school, possibly starting as a Year 7 only intake, taking longer to accept all ages. Further information has been provided on the likely movement of school rolls and both the likelihood of there being spaces or room to expand, and the duty to provide a school place in any event. On the information available, the contribution would be necessary and reasonable, and proportionate to the effect of the development.
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