On 11 June 2014, the Planning Inspectorate upheld the decision of a local planning authority and refused to grant planning permission for a biomass renewable energy facility at an old airfield in Norfolk. If approved, the development would have converted an annual throughput of 30,000 tonnes of maize and grass into organic fertilisers and generated enough energy for an estimated 4000 homes.
The application for planning permission was first made by the appellant, Black Bridge Energy Ltd, in June 2013. The application was rejected by the local authority, Broadland District Council, in November 2013 on the grounds that it would pose a danger to highway safety in the area and would have a detrimental impact on residential amenity.
Following this refusal, an appeal was lodged by the appellant under powers contained in s.78 of the Town and Country Planning Act 1990. The appeal was heard by the Planning Inspectorate. An Inspector held a site visit and hearing on 9 April 2014 before issuing her decision to reject the appeal and uphold the council’s original decision.
The Inspector identified two main issues in finding against the appellant.
Whether the development would have a detrimental effect on traffic flows and highway safety on the local road network.
Whether the development would have a negative impact on residential amenity, particularly in terms of noise and general disturbance.
Issue 1: Highway safety
The appeal site is located in a rural and highly agricultural area. It is bordered on one side by a turkey farm and on another by farmland used for growing food crops. Both of these sites, and the proposed facility, are accessed via Oulton Street, although the appellant proposed a separate access point to the road from that used by the existing developments.
The new access point on to Oulton Street would be subject to appropriate improvement works (including new visibility sprays and trimming of hedgerows) to ensure the safety of this junction. Oulton Street is also used as a popular route to the nearest residential properties surrounding the appeal site and to Itteringham village, which is located to the north of the facility.
Under the terms of the appellant’s proposal, the new facility would be used to convert agricultural products (primarily maize, rye and grass) into energy. The appellant estimated that the process would generate enough electricity to serve up to 4000 homes in the area. The energy conversion process would also produce significant quantities of liquid and solid digestate fertilisers as a by-product.
The crops to be processed would be purpose-grown on 10 farms that had committed to the appellant’s project. Once harvested, these crops would be delivered to the appeal site where they would be stored in silage clamps until ready to be processed. Once the conversion process had taken place, the fertilisers would then be transported back to the farms to be used on the land.
The appellant anticipated that 30,000 tonnes of crops would be delivered to the site each year, which would produce up to 17,500 tonnes of liquid fertiliser. There would also be a further quantity of solid digestate fertiliser produced by the process.
When considering the original application, the local authority had raised concerns that the large quantities of inputs and outputs involved would inevitably require a significant number of traffic movements to and from the site. In particular, the movement of the crops and fertiliser would require the use of heavy goods vehicles and/or other agricultural vehicles. These would need to use Oulton Street to access the appeal site given that this is the only access route.
In the council’s view, the increased presence of such vehicles on Oulton Street would not only have an impact on traffic congestion but would also pose a danger to other users of this road.
Responding to this point at the appeal hearing, the appellant noted that the large majority of traffic movements to and from the site would take place during a four-month window each year. This would coincide with the harvest periods for each of the crops involved. While the appellant conceded that there would be an increase in traffic volume, and that the vehicles used would be large agricultural vehicles, it argued that the impact would be mitigated by the fact that disruption would mainly be limited to this four-month period.
In considering these arguments, the Inspector drew attention to the relevant planning policy provisions concerned with highway safety. Policy TRA14 of the Broadland District Local Plan Replacement 2006 (the Local Plan) prohibits any development that would “endanger highway safety” and “the satisfactory functioning of the highway network”. A similar position is achieved by the provisions of paragraph 32 of the National Planning Policy Framework (NPPF), which is also relevant to the appeal.
Applying these policies to the appeal, the Inspector started by highlighting her findings from the site visit and her inspection of Oulton Street. She noted that Oulton Street is a rural road ill-suited for use by industrial vehicles. While two cars may pass by safely at most parts of the road, this would not be the case where a car and a larger vehicle were trying to pass.
The Inspector acknowledged that the road has a number of “informal passing places” where cars and larger vehicles can pass. However, these are not frequent and would not be sufficient at present to deal with a situation where two larger vehicles were trying to pass.
However, the Inspector recognised that, under the appellant’s proposal, these passing places would be formalised and others added so that there would be six passing places where vehicles of all sizes could safely pass. These plans had been reviewed by the Highway Authority, which had confirmed them as acceptable.
Despite the proposed remedial works and the approval of the Highway Authority, the Inspector identified a number of problems that the appeal would generate in this respect. While accepting that the rural nature of the area meant that agricultural vehicles were to be expected, the Inspector emphasised that the new facility would not only increase the volume of traffic but such movements would be highly concentrated during the harvest period.
The appellant’s proposed operating hours for the facility would mean that a notable number of these movements would take place during periods of dusk or darkness. This was likely to pose a more significant challenge for other road users than during the day, even with the proposed improvement works to Oulton Street.
Furthermore, while the new passing places would be able to accommodate two HGVs passing one another, there would still be problems for those vehicles following behind the HGVs that would be unable to also use the passing place. This could result in situations where other vehicles were forced to reverse significant lengths of the road to the previous passing place in order to allow the HGV to pass. Again, this would be particularly difficult during the evening or where the vehicle reversing was also a large vehicle.
The Inspector emphasised that the consequences of any mistake during such manoeuvres could be severe. In her view, the creation of the formal passing places would be insufficient to either remove or sufficiently mitigate these potential issues and there was a high risk to both highway safety and congestion.
As such, the Inspector concluded that the appeal proposal would not satisfy the requirements of either the Local Plan or the NPPF; it therefore found against the appellant on the first issue.
Issue 2: Residential amenity
The site visit had revealed that the nearest residential property to the appeal site is located on Oulton Street. The owner of this property had objected to the new facility during the original application process on the basis that it would generate increased noise and disturbance that would detrimentally affect their living standards. This objection had subsequently been withdrawn after the appellant had offered to purchase the property if the appeal were successful.
While the Inspector acknowledged that, for practical purposes, this would remove any issues in this regard for the time being, she also emphasised that this issue was likely to arise in future should the property be sold on. The Inspector therefore determined that the issue merited consideration at this point.
The property in question is a single-storeyed property situated close to the edge of Oulton Street. It has windows facing on to the road and looking along the length of the road in both directions. While these windows are double-glazed, the Inspector’s visit to the property revealed that traffic noise is still audible from the road. Given that the noise from cars was audible in the house, the noise of large vehicles and HGVs using the road would be even more acute for those in the property.
The impact of the noise from such vehicles would be even more noticeable given their frequency and the prolonged period over each day in which such movements would take place.
In addressing this issue, the appellant produced evidence of noise surveys that it had conducted in the area. These suggested that the likely increase in noise would only be 3dB(A), which would be classified as minor under relevant planning policies. This increase was calculated by averaging the surveyed noise levels over the duration of the survey.
By contrast, the council submitted opposing evidence suggesting that the increase would in fact be up to 7dB(A), which would be “noticeable and intrusive”. These figures were calculated by focusing on noise generated from peak flows rather than average noise levels over the day.
While the Inspector accepted that both methods were recognised as standard and used in everyday practice, she noted that the appellant’s approach had the effect of understating the impact of increased noise from large vehicles generated in short, sharp intervals. In this regard, the Inspector identified the provisions of the latest version of the Planning Practice Guidance on Noise (the Guidance).
The Guidance adopts an approach that focuses on qualitative descriptors rather than on pure numerical analysis. It creates a distinction between increased noise levels that are “noticeable and intrusive” and those that are “noticeable and disruptive”. The Guidance suggests that the former types of increase are those most capable of being mitigated (such as keeping windows closed during noisy periods). By contrast, the Guidance states that the latter types of increase are those that are unlikely to be mitigated without a change in behaviour (such as keeping windows closed for most of the day and not using exterior parts of a property). In the Inspector’s view, the appeal development would, as a minimum, result in noise that was “noticeable and intrusive” with a significant likelihood that “noticeable and disruptive” increases would occur at times. As such, the proposal would be likely to have a negative impact on the amenity of anyone staying in this property.
This would be contrary to the terms of the Guidance and the provisions of Policy GS3(d) of the Local Plan, which emphasises that use of the highway network must not have a significant detriment on nearby occupiers.
The Inspector therefore found against the appellant on this issue.
Having found against the appellant on the two main issues, the Inspector proceeded to briefly consider two further issues raised at the appeal hearing.
Character of the area
It had been argued before the Inspector that the presence of the appeal development would have a negative impact on the character of the area. The main element of this argument was that the new facility would be a notable addition to the landscape and would also have a negative impact on the old airfield, which is considered a heritage asset.
In considering this argument, the Inspector noted that a biomass energy facility using food crops would, as a general proposition, be in keeping with an agricultural area such as here. Although the new facility would result in the creation of a number of new buildings, the plans submitted indicated that these would only be marginally taller than the existing agricultural buildings in the vicinity of the site. Furthermore, most of these new buildings would be screened from sight by trees that would help reduce any visual impact of the new development.
While the appeal site is located on one of the fields on the outskirts of the old airfield complex, the Inspector emphasised that this did not appear to have impacted on the airfield, and no evidence had been produced to suggest there had been any negative impact.
On this basis, the Inspector held that the new facility would not have a detrimental impact on the character of the area.
Renewable energy policy
The appellant had emphasised that the new facility would be in keeping with paragraphs 97 and 98 of the NPPF, which support renewable energy projects. In this regard, the appellant highlighted the significant energy volumes that would be produced by the facility in an environmentally friendly manner.
While the Inspector accepted the merits of the proposed facility, she noted that the support for such projects in the NPPF was not unconditional and was subject to there being no “material considerations” that would militate against granting permission. On the basis of the appeal findings, the Inspector stated that the impact on both highway safety and residential amenity were sufficient to amount to material considerations.
As such, the provisions of the NPPF could not assist the appellant on this issue.
In concluding the appeal, the Inspector acknowledged the benefits that the proposed facility could produce in terms of a renewable and environmentally friendly energy source. However, she emphasised that the findings on the first and second issue had highlighted that the proposal was likely to have an unacceptable detrimental impact on those living and commuting in the area. For this reason, the Inspector rejected the appeal and reaffirmed the decision of the local authority.
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