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200525 | PA18-10457 Carnsew Road I am responding to your letter of 5 March 2020 to the mayor of Hayle Town Council

Mr John Bennett

Comment submitted date:
Mon 25 May 2020

Louise Wood
Service Director
Planning & Sustainable Development
Cornwall Council
8 April 2020.

Dear Ms Wood,
PA18-10457 Carnsew Road
am responding to your letter of 5 March 2020 to the mayor of Hayle Town
Council which I believe is in conflict with the National Planning
Policy Framework (NPPF), Cornwall Council's Local Plan (CLP) and Hayle's
Neighbourhood Plan (NP). I also address the claim from the applicant
that the NP is invalidated by an update to the NPPF.
1. Hayle Neighbourhood Plan Invalidated by Updated National Planning Policy Framework
applicant has claimed that Hayle's Neighbourhood Plan (NP) has been
outdated and invalidated by the February 2019 update to the National
Planning Policy Framework (NPPF) which post-dates our NP which was
formally adopted on 28 June 2018. We sought the view of Cornwall
Council's NP group and this was the response:
Dear Eleanor,
I have
discussed your query with Robert Lacey the Local Plans manager, who is
also very familiar with the Hayle NDP. We don't take the view that the
NDP is out of date as a result of the updates to the NPPF in 2018 and
2019. Neighbourhood Plans have to 'have regard to national policies and
advice' and be 'in general conformity with the strategic policies of the
development plan of the area.' This doesn't mean that NDPs have to
replicate or have a policy on everything which is included in the NPPF,
but they must not constrain the delivery of important national policy
objectives. Some of the NPPF requirements listed in the legal advice
apply to local planning authorities rather than to NDPs and the points
listed don't give us cause to consider that the NDP is out of date.

Hayle the local strategic policies are provided by the Cornwall Local
Plan (CLP) and the Site Allocations DPD and so the development plan as a
whole includes the NDP, the CLP and the DPD - and the NPPF is a
material consideration in decision making. The decision maker must
balance the considerations when applying the policy. I think this is
more the issue, rather than the Hayle NDP being out of date.

As a
separate issue, if you did decide to review your NDP then yes, Cornwall
Council NDP officers would support you and you would be eligible again
to apply for the full MHCLG grant of £9000 plus technical support,
administered by Locality. However the points raised in your email would
not make me recommend that you revise your NDP. We have produced some
guidance on the triggers for and process of reviewing neighbourhood
plans Do we need to review our NDP?

Sarah Furley |Group Leader Neighbourhood Planning
Cornwall Council |Planning and Sustainable Development, 3B, Pydar House, Pydar Street, Truro, TR1 1XU

letter refutes the claim from the applicant's lawyer that our NP is
invalidated and I doubt that, at appeal, such a view would be upheld.
2. Planning Balance and Brownfield Land
is well understood that brownfield sites are preferred to greenfield
sites when all other factors are equal. The NPPF, however, lists many
restrictions to this simplistic approach and ministers have stated that
the purpose of the NPPF is get the right development in the right place.
Cornwall Council has produced and adopted a Local Plan and this
includes the Hayle Development Plan Document (DPD) which was an
important consideration in the preparation of Hayle's NP. Item 12 below
makes it clear that an application that is conflict with development
plans, including the NP, should not usually be granted. There is nothing
in the applicant's pedestrian plan for ordinary housing (which does not
include any affordable element and is in a World Heritage Site and
conservation area), that would allow 'planning balance' to overrule
development plans that were consulted on, inspected and adopted over a
lengthy period. The allocation for housing in the DPD, following long
consultation with the NP team and utilising key elements of the
masterplan that the town council procured, is greatly in excess of the
government mandated allocation. There is no need for housing at the
applicant's site, it is not allocated for housing and it definitely does
not "maintain or enhance the Outstanding Universal Value of the World
Heritage Site". A lack of objection from a heritage consultee does not
relieve the planning department from meeting the OUV test especially
given the high importance placed on this by the NPPF.
Here are some extracts from the NPPF. I have added underlining and colour.
1. Introduction
Framework should be read as a whole (including its footnotes and
annexes). General references to planning policies in the Framework
should be applied in a way that is appropriate to the type of plan being
produced, taking into account policy on plan-making in chapter 3.
The presumption in favour of sustainable development
11. Plans and decisions should apply a presumption in favour of sustainable development.
strategic policies should, as a minimum, provide for objectively
assessed needs for housing and other uses, as well as any needs that
cannot be met within neighbouring areas5, unless:
i. the application
of policies in this Framework that protect areas or assets of
particular importance provides a strong reason for restricting the
overall scale, type or distribution of development in the plan area6; or

ii. any adverse impacts of doing so would significantly and
demonstrably outweigh the benefits, when assessed against the policies
in this Framework taken as a whole.
6 The policies referred to are
those in this Framework (rather than those in development plans)
relating to: habitats sites (and those sites listed in paragraph 176)
and/or designated as Sites of Special Scientific Interest; land
designated as Green Belt, Local Green Space, an Area of Outstanding
Natural Beauty, a National Park (or within the Broads Authority) or
defined as Heritage Coast; irreplaceable habitats; designated heritage
assets (and other heritage assets of archaeological interest referred to
in footnote 63); and areas at risk of flooding or coastal change.
Non-designated heritage assets of archaeological interest, which are
demonstrably of equivalent significance to scheduled monuments, should
be considered subject to the policies for designated heritage assets.
The presumption in favour of sustainable development does not change
the statutory status of the development plan as the starting point for
decision making. Where a planning application conflicts with an
up-to-date development plan (including any neighbourhood plans that form
part of the development plan), permission should not usually be
granted. Local planning authorities may take decisions that depart from
an up-to-date development plan, but only if material considerations in a
particular case indicate that the plan should not be followed.
In situations where the presumption (at paragraph 11d) applies to
applications involving the provision of housing, the adverse impact of
allowing development that conflicts with the neighbourhood plan is
likely to significantly and demonstrably outweigh the benefits, provided
all of the following apply8:
a) the neighbourhood plan became part of the development plan two years or less before the date on which the decision is made;
b) the neighbourhood plan contains policies and allocations to meet its identified housing requirement;
the local planning authority has at least a three year supply of
deliverable housing sites (against its five year housing supply
requirement, including the appropriate buffer as set out in paragraph
73); and
d) the local planning authority's housing delivery was at least 45% of that required9 over the previous three years.
3. Plan-making
The planning system should be genuinely plan-led. Succinct and
up-to-date plans should provide a positive vision for the future of each
area; a framework for addressing housing needs and other economic,
social and environmental priorities; and a platform for local people to
shape their surroundings.
Examining plans
35. Local plans and
spatial development strategies are examined to assess whether they have
been prepared in accordance with legal and procedural requirements, and
whether they are sound. Plans are 'sound' if they are:
a) Positively
prepared - providing a strategy which, as a minimum, seeks to meet the
area's objectively assessed needs19; and is informed by agreements with
other authorities, so that unmet need from neighbouring areas is
accommodated where it is practical to do so and is consistent with
achieving sustainable development;
b) Justified - an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence;
Effective - deliverable over the plan period, and based on effective
joint working on cross-boundary strategic matters that have been dealt
with rather than deferred, as evidenced by the statement of common
ground; and
d) Consistent with national policy - enabling the
delivery of sustainable development in accordance with the policies in
this Framework.
37. Neighbourhood plans must meet certain 'basic
conditions' and other legal requirements21 before they can come into
force. These are tested through an independent examination before the
neighbourhood plan may proceed to referendum.
16. Conserving and enhancing the historic environment
Heritage assets range from sites and buildings of local historic value
to those of the highest significance, such as World Heritage Sites which
are internationally recognised to be of Outstanding Universal Value61.
These assets are an irreplaceable resource, and should be conserved in a
manner appropriate to their significance, so that they can be enjoyed
for their contribution to the quality of life of existing and future
202. Local planning authorities should assess whether
the benefits of a proposal for enabling development, which would
otherwise conflict with planning policies but which would secure the
future conservation of a heritage asset, outweigh the disbenefits of
departing from those policies.
Sajid Javid, when he was housing
minister, said the following in the Government response to the draft
revised National Planning Policy Framework consultation.
Our broken
housing market is one of the greatest barriers to progress in Britain
today. The Government wants to fix this and provide people with the
opportunities and the security that come with a place to call their own.
To do this we need to build many more of the right homes in the right
places, whilst protecting the environment and providing the facilities
and opportunities communities need.
The applicant is
cherry-picking supportive policies while not mentioning the many
policies that preclude planning consent being given. The NPPF gives
great weight to development plans, including the NP, which do not
support this application. Paragraphs 11, 12, 14, 184 and 202 of the NPPF
do not permit this application to succeed. They also set a high bar for
discretion such as "the adverse impact of allowing development that
conflicts with the neighbourhood plan is likely to significantly and
demonstrably outweigh the benefits."
In my view, if the Planning
Officer's view does not specifically, accurately and correctly address
how the application overcomes the NPPF proscriptions, there would be
strong grounds for a Judicial Review.
Yours sincerely,

John Bennett,
Chair, Neighbourhood Plan Steering Group
P.S. My letter does not repeat the additional issues raised by Cllr. Rance to the Town Council:
PA18/10457 Foundry Yard - propose objection
- The application is against policies SD1, SD2, and HB1 of the HNP. It is against policy 12, 16, 21 and 24 of the CLP.
There is an objection by Network Rail regarding the planning
application expanding over their land. It also does not allow at least
2m of clearance from the face of the piers to allow for inspection and
maintenance. This has still not been addressed. Further to comments made
on 30 November 2018 and 1 March 2019, we are still awaiting a response
from the developer to the previous comments submitted and therefore the
objection to this application remains. In part 4 of the Design and
Access statement relating to the Design layout, they show the properties
sited right up to the upside faces of the viaduct piers. It would also
appear that gardens, residents' paths and fences are also sited right up
to the viaduct piers. The fences present obstruction to the Structures
Engineers' who need to carry out routine checks on the structure and any
maintenance/repairs that may need doing to the piers. We would request
the applicant to retain a 2 metre strip of land between the viaduct and
the fencing to allow for this maintenance.
- The application can no
longer rely on the outdated Penwith local plan, to allow for permission.
Hayle's Neighbourhood plan defines the Built-Up Areas, so policy SD1
should stand. The Cornwall site allocation DPD document is adopted.
The noise and pollution from traffic and trains is great in this area.
The noise impact assessment was submitted in November 2018. Trains have
since been increased to every half an hour. Only noise pollution was
assessed at that time and not actual pollution. Therefore it is against
policy 12 and 16 of the CLP.
- The Gasworks were designed 1n 1830,
but not built until 1843. The area presents a rare opportunity to study a
single phase, single use industrial complex. Archaeologically an
investigation here could help understand the Gasworks at Falmouth and
Penzance too. They were all built by Harvey's in conjunction with
William Braunton of the Eagle Foundry in Birmingham. An in-depth
Archaeological study should be undertaken.
- The Gasworks are an
ancillary industry, as it formed part of the Harvey's and Company
foundry. The Plantation is an ancient scheduled monument. They fall
within the WHS and is afforded extra protection from planning
legislation. In section 16 of the NPPF parts 184 -these assets are an
irreplaceable resource, and should be conserved in a manner appropriate
to their significance. The development is also against policy 194b of
the NPPF. The setting of the Ancient Schedule Monument will be changed
significantly. The hillfort occupies a strategically significant
controlling position on a low, but prominent, small hill at the
north-east end of a broad ridge overlooking the Hayle Estuary from the
south. The previous planning permission was more open with a car park
between the commercial building and the monument. Therefore this
application would be against policy 21 a and b
- Para 117. NPPF.
Planning policies and decisions should promote an effective use of land
in meeting the need for homes and other uses, while safeguarding and
improving the environment and ensuring safe and healthy living
conditions. Strategic policies should set out a clear strategy for
accommodating objectively assessed needs, in a way that makes as much
use as possible of previously-developed or 'brownfield' land. Except
where this would conflict with other policies in this Framework,
including causing harm to designated sites of importance.
- The
building of the footbridge over Penpol Creek is only triggered when 8000
m2 of commercial property is built on South Quay and Foundry Yard. The
loss of a retail unit on Foundry Yard means that the trigger point for
the footbridge will never be reached.
- If CC is minded to approve the application then HTC would want it called in to committee.

Sent by email.
Clive Polkinghorne
Hayle Town Clerk
Mark Broomhead
John Pollard
Peter Bainbridge
Anne-Marie Rance
Graham Coad

Comment submitted date:
Fri 18 Jan 2019

This is a response to the comments made by the applicant's agent.

Cornwall Council's Local Plan web page states:
Saved Policies
Some policies from previous plans remain saved by the Local Plan. These include policies from:
- the Local plans of the former District and Borough Councils
- the Minerals and Waste Plans of the former County Council
These will be saved until they are replaced by the emerging Site Allocations Document or Neighbourhood Plans.
Neighbourhood Plan was adopted on the 28th of June, 2018. Consequently,
none of the saved policies for Hayle are now valid. In addition, the
DPD, while not formally adopted, is in its final stages of amendment.
None of the amendments affect Hayle. The DPD must carry some weight at
this stage.
It should be noted that the Penwith Local Plan was
adopted in 2004, before the World Heritage Site designation in 2006.
Policy TV-D has been superseded, not only by the WHS inscription, but by
subsequent planning actions.
The Site Allocation DPD indicates the
primary allocation for housing as area H-UE1. This area was allocated
following a lengthy process which included multiple consultations with
Hayle Town Council, the Neighbourhood Plan Steering Group and statutory
consultees and the public.
The Hayle Neighbourhood Plan supports the
DPD and, in addition, defines a Built-Up Area within which small
windfall developments can occur. Small-scale is defined as fewer than 10
The ING masterplan for the harbour was superseded by the
approval of a supermarket on South Quay and retail units on Foundry
The supermarket and retail units planning application was
supported by Hayle Town Council. A factor in supporting the retail units
was their small footprint, a large open area (car park) and
transparency through to the Harvey's Foundry Trust historic area.
the Hayle Neighbourhood Plan, now adopted, has passed all of the
stringent tests in compliance with the NPPF and the Cornwall Local Plan,
Policy SD1 must prevail. This would limit the development to fewer than
10 dwellings, provided other policies are complied with. The policy and
its preamble also set other constraints.
I believe it is unlikely that this site would be suitable for housing even if fewer than 10 dwellings were proposed.

Affordable housing is an important requirement for housing in Hayle. Cornwall Council Policy 10 states:
are fully committed to ensuring that sites come forward and homes are
delivered to meet housing needs without planning obligations imposing an
unrealistic burden on the developer.
What has not been demonstrated
is that there is a 'need' for this type of housing. With the large
amount of market housing recently built in Hayle, and the absence of
affordable housing in this development, this may not be the case.

issue is not whether it complies with the view of Cornwall Council, it
is whether it complies with the HNP. The HNP was reviewed by CC Highways
and approved by CC. The development does not meet policy SD4.

The comments from the WHS Office end with:
should be noted that World Heritage Sites are designated by the United
Nations, Educational, Scientific and Cultural Organisation (UNESCO) as
places of significance to the whole of humanity. This puts the Cornish
Mining World Heritage Site on a par with other international cultural
treasures such as the Taj Mahal, the Pyramids, Stonehenge, and the Great
Wall of China. Harm to any attributes of Outstanding Universal Value
(international significance) within the World Heritage Site risks the
loss of this status for the entire designated property across Cornwall
and west Devon."
Despite the WHS Office not specifically objecting,
this does not preclude Hayle Town Council, with its own special
knowledge of Hayle, and others, asking whether the proposed development
"maintains or enhances the WHS". One may also ask if it "maintains or
enhances the Conservation Area". In my view, I cannot see any way in
which this development, as a minimum, maintains the Outstanding
Universal Value of the WHS. Would it maintain the OUV if it were placed
next to Stonehenge or the Great Wall? This is meant to be a difficult
test and the fact that the WHS Office failed in its duty to protect this
site (fortunately, Historic Environment Planning West Majors did not
fold so easily), does not mean that Cornwall Council planning should do
Given the site's proximity to the Carnsew Hill Fort Scheduled
Monument and to the renovated Foundry Complex, extremely high standards
are required. The development will be highly visible from the Scheduled
The report from Historic Environment Planning West Majors is full of comments such as:
- a well-designed scheme with good quality materials and workmanship is key
The use of brick is disappointing. It is not a vernacular material for
the walls although it was used as paving and foundations according to
the Heritage Impact Assessment. This should be re-considered.
- The
proposed doors have surrounds which is welcomed but the windows do not,
which in existing historic housing, doors and windows have raised
surrounds. This should be re-considered.
- The development proposes
all the same front elevation for the single fronted plots with full
length windows serving the front lounge and first floor bedroom 1 and 3.
The proportions of these windows do not work and it is considered to
harm the Hayle Conservation Area.
- The width of the proposed rear
patio doors should be reduced as virtually the whole ground floor is
glazed and is out of keeping with the character of Hayle.
- The
semi-detached villas should have working chimneys on these buildings,
with centrally located with a flush chimney. It should not be a
projected chimney as this is not considered appropriate as it does not
reflect the vernacular character.
- The walls at the proposed vehicle
entrance to the development are proposed to be 1.8m blockwork walls
with a smooth render finish. It is considered to achieve the high
quality development as aspired to in the HIA that these two walls are
not rendered but are perhaps constructed of granite or local stone with
the brick roll top to given the site solidity and presence.
- The low
wall on the eastern part of the site is the remains of a building. It
proposed to repair these walls and incorporate them into the new
boundary wall providing a back drop for the open space proposed to be
granted to Harvey Foundry Trust for the site of the Goonvean Engine.
Also the developers have offered financial assistance to move the engine
to the new public open space, as part of the conservation enhancement
for this scheme.
There are more issues in their comments. There is little praise for how the development will enhance the OUV!
is also the issue of the S106 agreement. The document submitted with
the application does not give Harvey's Foundry Trust a freehold site to
relocate the Goonvean Engine. It is a private agreement between two
parties and does not include Harvey's Foundry Trust.

A final
note: the site does not provide a clear line of sight from the harbour
to Harvey's Foundry, which is an important part of the WHS.

In my
view, there are multiple grounds on which Cornwall Council should
refuse planning consent, and those grounds should survive an appeal.

Comment submitted date:
Thu 06 Dec 2018

By John Bennett, BSc(Hons), CEng, FIET
Former Chairman of the Hayle Neighbourhood Plan Steering Group

SD1: When forming the Neighbourhood Plan Steering Group (NPSG), Hayle
Town Council (HTC) resolved to leave the housing allocation to the
Development Plan Document, which forms part of Cornwall Council's Local
Plan (CLP). HTC and the NPSG worked closely with Cornwall Council to
ensure the DPD met local requirements. In addition, the NPSG procured a
masterplan study from AECOM that helped inform the DPD. The DPD has
allocated land to the south of Hayle (H-UE1), which has capacity greatly
in excess of the 1,600 dwellings allocated to Hayle up to 2030.
the Hayle Neighbourhood Plan (HNP) focusses only on small-scale
developments within Built-up Areas. The Built-up Areas are defined on
Map 3 of the HNP and 'small-scale' is defined as 'fewer than 10
The application site is shown in the DPD as 'Site with
Permission/under construction' and the HNP shows it to be within the
Built-up Area. The previous permission was for retail units on the west
side of the site, with the rest of the site to be used for car parking.
The advantage was good visual and physical 'transparency' through the
site to the important Foundry area - a key part of the World Heritage
Site (WHS). Had the site not already had a planning permission, it is
likely that either the DPD or the HNP would have identified this area as
'employment' - certainly not 'housing'.
Policy SD1 clearly states
that within the Built-up Area, as defined in Map 3 of the HNP, only
small-scale developments (again, defined as fewer than 10 dwellings) are
permitted. On this point alone the application must fail.
SD2: There is no evidence that the mix of housing types and size
reflects local needs and the composition of households. There is a
strong demand for affordable housing in Hayle and the application
provides no allocation for this. Since the CLP requires 30% affordable
allocation, the developer must make a case for viability. The net result
is that there may be no affordable housing, housing would be built in
an inappropriate location not allocated in the DPD or HNP, and the
developer will make a minimum agreed profit. This appears to be
unsatisfactory in every way.
In addition, there is no provision for
public open space within the development equipped for outdoor play and
communal use. This is similar to the very unsatisfactory situation at
Water Lane where children have to play in the road.
Policy SD4: The
HNP parking requirements are for 39 spaces. The site allocates 37. Given
that there is no nearby parking, 39 spaces should be taken as a
minimum. The nearest parking is probably Foundry Car Park.
TR3: Given that much of Hayle's historic fabric has been demolished, the
remaining significant elements are Hayle Harbour and Harvey's Foundry.
This development sits between these two important sites and, despite
modest efforts to provide 'transparency' through the site, provides a
blockage completely out of keeping with the adjacent heritage elements.
If one asks the simple question: 'Does this site maintain or improve the
Outstanding Universal Value of the World Heritage Site?' it is hard to
answer this in the affirmative. Consequently, the application must fail.





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