Archived decisions

Contact: Karin Taylor, ext. 5938

1. Summary

1.1 This report concerns the re-consideration of a scheme for the provision and management of alternative grassland in mitigation for the loss of land to the development of the extension to the Bar End Park and Ride facility.

1.2 Planning permission for Phase II of the Winchester Park and Ride facility was granted in 1998. A series of conditions attached to the permission require certain details to be submitted for approval before the development can commence. Although these have been approved the High Court has quashed the earlier decisions in so far as they relate to the approval of details under condition No. 5 of the Park and Ride permissions.

1.3 The County Council has applied to the Appeal Court to have the judgement overturned. Notwithstanding this it is considered prudent for the County Council as local planning authority to simultaneously reconsider the details required in connection with condition No. 5 along the lines outlined in the judgement.

1.4 Accordingly the details for the provision and management of the alternative grassland along with information on the various other sites considered for this purpose have been resubmitted for the Regulatory Committee to consider. The details have been publicised in accordance with the County Council's normal practice.

1.5 The report outlines the details submitted and summarises additional material information and the comments of third parties. It is concluded that the land at Magdalen Hill Down - Site 7 - is the best most practicable of the alternative sites and that the scheme for management provides an appropriate compensation for the loss of the land at Bar End.

2. Background

2.1 In October 1998 the (then) Secretary of State for the Environment, Transport and the Regions granted planning permission - after a Public Local Inquiry in 1997 - for the extension of the Winchester Park and Ride car park at Bar End. A series of conditions attached to the permission required certain details to be submitted for approval before the development could commence.

2.2 Condition No.5 of the planning permission states:

"No development shall take place until there has been submitted to and approved by the local planning authority a scheme for the provision and management of alternative grassland (in mitigation for the 2.66 hectares which will be lost as a result of implementation of the permission hereby granted) on one of the sites marked 3,4,7,8 or 11 on Plan 1 attached to Inquiry Document H3. The scheme shall be implemented as so approved."

2.3 Site 11 was already in the ownership of the County Council. However, in the light of the Inquiry Inspector's comments - further endorsed by the Secretary of State - this was considered as the site of last resort. After taking into account factors of restoration practicalities and availability the County Council purchased 22 hectares (55 acres) of land at Magdalen Hill between the Alresford Road and the A31, and identified part for use as "mitigation land" to satisfy condition No. 5. Details of this land were included in a submission approved by the Asset Management Sub-Committee (the relevant regulatory committee at that time) on 9 July 2001, and a further report outlining the proposed management of the land was approved at a subsequent meeting of the Asset Management Sub-Committee on 27 July 2001.

2.4 In May 2002 the area to be made available as mitigation land was revised taking into account additional information, for example archaeological constraints, land management, use and access. The Regulatory Committee approved the revised scheme on 29 May 2002.

2.5 On 21 November 2002 the decisions of 9 July 2001 and 29 May 2002 were quashed in the High Court in so far as they approved the details submitted in relation to condition No.5. The County Council is seeking leave to appeal but, notwithstanding and without prejudice to this, it is considered expedient that the Regulatory Committee consider a re-submission and take a decision taking into account the views contained in Mr Justice Ouseley's judgement.

2.6 In his judgement, Mr Justice Ouseley took the view that the County Council should have undertaken a comparative assessment of the five possible mitigation sites considered acceptable by the Inspector, and that it was for the planning committee, not the developer committee, to reach an overall view on these issues with the benefit of public consultation. The selection of a mitigation site should have regard to the Secretary of State's order of preference, based on relative ecological quality or degree of mitigation and public accessibility. He considered that what is required is an overall judgement by the Council as planning authority that the combination of size of site, subsoil, current use, location, links, management, neighbouring uses and public accessibility means that there is no net ecological loss to Winchester and its surroundings and that appropriate compensation for the loss of Bar End meadows is provided.

2.7 Notwithstanding the above, Mr Justice Ouseley also concluded that that the cost of acquisition and the timetable of acquisition in relation to implementing the Bar End site are relevant considerations. Also that the implementation of condition No.5 should not frustrate the development of the Park and Ride scheme.

3. The Proposals

3.1 The submitted details comprise:

3.1.1 A background report that explains the history of the proposed extension of the Bar End Park and Ride car park and an examination of the relative merits of the different sites - summarised in the table in Appendix 1 attached to this report.

3.1.2 A report by Jonathan Cox Associates, which reviews the four potential sites most favoured by the Inspector from a nature conservation perspective. The report covers a comparative evaluation of the potential nature conservation value of the potential mitigation sites and a review of the sites from the view of providing the best compensation for the loss of the land at Bar End.

3.1.3 A management plan for the proposed mitigation land - Site 7 - at Magdalen Hill Down. Detailed, large scale maps (Drawing Nos. 01 to 04) will be displayed at the Committee meeting.

3.2 The proposed mitigation land lies to the east of Winchester between the B3404 and the A31. It consists of former arable land on a prominent chalk ridge, which runs roughly east-west through the site. The ridge is part of the major South Downs ridgeline, which extends west from Cheesefoot Head and beyond the site through to Teg Down and Farley Mount after the break in the Itchen Valley. It is visible over a wide area. Immediately to the south of the County Council's land there is a steep scarp slope which is managed as a butterfly reserve.

3.3 The management plan comprises detailed proposals for both the land proposed as mitigation land, as required by condition No. 5, and the remaining County Council land. The respective areas of land are shown on the large scale Drawing No. 01 to be displayed at the committee meeting.

3.4 The detailed proposals for the mitigation land are to establish a new chalk downland meadow by reducing the levels of topsoil and sowing a selected seed mix which, whilst providing a basic mix of species from similar chalk downland sites, will allow natural colonisation from adjacent land. Once established, a combination of grazing and topping will be used to control the sward, allow desirable species to grow and set seed, and control the spread of undesirable weed species. A small area of land in the south east corner of the site has been identified for small scale excavations to create a series of "mini chalk pits" to encourage specialised chalk loving plants and associated fauna.

3.5 The mitigation land abuts land presently held under long-term lease by Butterfly Conservation and it is proposed that an agreement be entered into with Butterfly Conservation to maintain and manage the site on behalf of the County Council.

3.6 The balance of the land in County Council ownership would be managed compatibly with the management objectives of the mitigation land as permanent grassland and new woodland areas, including the Golden Jubilee Clump planted in early 2002.

3.7 Access to both the mitigation land and the adjoining land would be available to the public from the road, from an adjacent public right of way and from the existing butterfly reserve. The site is accessible by bus and specific access for the disabled is provided by means of dedicated parking. The proposed new ridgeline footpath is designed with the needs of the disabled user in mind.

4. Consultations

4.1 Relevant organisations, both local and national, have been consulted about the proposed management plan and in addition all members of the public who responded to the public consultation in respect of the last submission of details in May 2002 have been informed. A public notice was published in the Hampshire Chronicle on 24 January 2003 and copies were posted adjacent to the Magdalen Down land and also at Bar End. The submitted documents have been on deposit for public inspection in the Environment Department and also at Winchester City Council's offices.

4.2 The responses received are summarised below.

4.3 Comments are awaited from Winchester City Council.

4.4 The Itchen Valley Parish Council objects to the Park and Ride extension in principle and considers that the consultation period for the current proposals is too short. It does however support the Magdalen Hill site as the best of the mitigation sites provided that both the mitigation land and the adjoining land are dedicated to the uses set out in the management plan for a period of 75 rather than 25 years, and that adequate provision is made for car parking for those visiting the area.

4.5 The Local Member, Councillor Mrs Glasspool, supports the proposal but would like to see general car parking available adjacent to the site on that side of the road rather than just disabled parking as indicated on the plans.

4.6 English Nature supports and is generally in agreement with the proposals, but considers that the whole 22 hectares within the County Council's ownership should be restored to chalk grassland, to improve the viability of the chalk grassland unit in this area.

4.7 The Hampshire Wildlife Trust objects on the basis that the proposed mitigation works are not a fair exchange for the land at Bar End as Magdalen Down is less accessible, both in its location and in its surrounding land uses.

4.8 In respect of the relative merits of Magdalen Down and the other mitigation site options, the Trust considers it unnecessary and potentially confusing to include Site 11 (land at Oliver's Battery) as it was considered by the Inspector to be too far from Bar End. The Trust believes that the conclusion reached within the review of mitigation sites is not unreasonable with respect to the ecological interests, although there are ecological advantages in extending the St Catherine's Hill site.

4.9 The Trust identifies that the principal shortfall in the Magdalen Hill Down proposal is the remoteness of the site for pedestrian access from the city centre. Also, the mitigation site falls within a larger site whose future is unclear. The Trust's preferred option is the restoration of the whole area to chalk grassland with an alternative suggestion of the establishment of "conservation arable" on part of the site and such a scheme might meet the Trust's objection.

4.10 Butterfly Conservation, Hampshire Branch welcomes the choice of mitigation land as it borders the Trust's original reserve of 23 acres of old downland and also the 32 acre extension which was created from an ex arable field. 35 species of butterfly and over 470 moth species have been recorded on the reserve and these would benefit from having an expanded habitat.

4.11 The butterfly reserve also supports an extensive range of plants, bird species, small mammals and invertebrates, which will be a rich source of wildlife to colonise the mitigation land.

4.12 The Trust states that Magdalen Hill Down is easily accessible by public footpaths from Highcliffe area of the city and from both the east and west ends of the Alresford Road. It is accessible by regular bus services. The reserve is a favourite venue for many local people and visitors to Winchester as it commands extensive views over the city. The mitigation land will provide easy walking conditions as unlike the existing butterfly reserve it has no steep areas, yet its elevated crest affords stunning views particularly up the Itchen Valley to the north.

4.13 English Heritage has no concerns with the management plan proposals.

4.14 The Countryside Agency has no formal representations to make.

4.15 Age Concern Hampshire has received representation from older people living in the area affected by the Bar End proposals as they claim that the land being offered in exchange is inaccessible to them with inadequate consideration to make it ecologically comparable with Bar End. They query whether it would not be easier to use one of the alternative mitigation sites for the "park and ride".

4.16 The County Ecologist advises that in general, larger sites are more highly valued than smaller ones, and that in that respect Site 7 is preferable as at 9.28 hectares in extent it is the largest of the alternative sites. The County Ecologist also concurs with the consultant's conclusions that Site 7 has advantages over the three other sites. It is adjacent to an existing butterfly reserve and, together with an adjoining area of County Council land which would be managed sympathetically, has the potential for the wholesale enhancement of a prominent chalk ridge on the eastern side of the city, ultimately forming a substantial unit of chalk downland habitat. Whilst Site 8 is immediately adjacent to the important St Catherine's Hill SSSI, the site itself is half the size of Site 7 and the percentage total increase in chalk grassland would be considerably less than at Magdalen Hill Down

Representations

4.17 By the closing date for comments, 58 individual letters of objection and 4 letters of objection on behalf of local organisations (other than those consultees listed above) had been received.

4.18 The main points of objection relate to :

(i) the principle of extending the Park and Ride car park at Bar End, on the basis that the land should remain undeveloped;

(ii) the proposed mitigation land at Magdalen Hill Down should be used for a park and ride car park instead of Bar End;

(iii) access to Magdalen Hill Down is poor; it is too far to walk from the city centre and from Bar End;

(iv) the bus service to Magdalen Hill Down is inadequate and expensive and a free shuttle bus should be provided;

(v) no off-road parking is proposed;

(vi) Magdalen Hill is too windy and exposed and is noisy; more sheltered paths should be proposed along with somewhere to shelter from the rain;

(vii) much of Magdalen Hill faces north, not south as stated in the submitted details. Relief is an issue as the proposed mitigation site is at the same altitude as St Catherine's Hill. The slope makes the site difficult to walk on, especially for the elderly, infirm and disabled;

(viii) the proposed management plan for the mitigation land offers an inadequate range of habitats and biodiversity; there are inadequate species of plants in the seed mix and the proposals are too concerned with butterflies and make no reference to achieving the diversity of fauna present on the Bar End land. The proposals exclude rare or threatened species and do not mitigate for the impact at Bar End on protected species;

(ix) the time-lag for creating the mitigation land is unacceptable and the proposals do not guarantee the long-term future of the land;

(x) the mitigation proposals do not recognize the range of human activities that take place at Bar End;

(xi) Site 11 (Oliver's Battery) should have been considered;

(xii) Site 11 should not have been considered;

(xiii) no evidence has been presented that the owners of Sites 3 and 4 are unwilling to sell their land;

(xiv) no evidence has been presented that Site 8 (St Catherine's Hill) is contaminated.

5. Additional Information

5.1 A review of the information contained in Appendix 1 has been carried out by Atkins, the transport, environment and planning consultants. The review shows that there are some differences in detail over the descriptions of the sites, distances from Bar End and uses. A copy of the review is attached as Appendix 2

5.2 The County Council has made commitments to restoring the redundant operational land associated with the Morestead Waste Water Treatment Works, which comprises Site 8. To this end Blue Sky Project Solutions have produced a report `St. Catherine's Hill - Outline Restoration Plan for Morestead Wastewater Treatment Works' which notes that Site 8 was an old refuse tip and an area of sludge deposition from the wastewater treatment works comprising some 170,000 cubic metres of mixed wastes. The report although describing a vision for the restoration and long term management of this part of St. Catherine's Hill states that restoration of this area raises major unresolved technical issues concerning pollution, land contamination and stability. The report refers to studies already undertaken and the gaps in information including that needed to do a complete restoration design. An indicative estimate of £1.6 million has been made for carrying out full restoration, but this is dependent on conclusions from further site investigations to determine current risks to the environment and the best mitigation measures to address them. A copy of Figure 6 from the report, illustrating the technical issues and the project cost details are attached as Appendix 3.

5.3 Studies carried out on behalf of the County Council by Nicholas Pearson Associates in June 2002 indicated that the Bar End site had developed well in ecological terms since its restoration. The studies recorded 173 different plant species. However, because of the site's previous use as a road and subsequent reseeding, the vegetation communities present do not closely resemble their semi-natural chalk grassland counterparts. The most species rich parts of the site, including colonies of Pyramidal Orchids and the most dense areas of cowslips, will be unaffected by the proposed car park extension and left as open land.

5.4 Further surveys were also undertaken for the County Council by Nicholas Pearson Associates in February, June and November 2002 in order to establish the presence or otherwise of protected species on the Bar End land. No evidence was found of any bat roosts on the site and it was considered highly unlikely that there were any reptiles or amphibians present on the site. No definitive signs were found of use of the site by badgers or by other vertebrates with special protection. In respect of plants, no protected species were found, nor were any species listed as Red Data Book rarities, or included on the JNCC's nationally scarce plants list. No species included on the priority list of the UK Biodiversity Action Plan were found.

5.5 Letters from the owners of Sites 3 and 4 confirming their unwillingness to sell their land to the County Council are attached as Appendix 4.

6. Chief Planning Adviser's Comments

Clarification

6.1 Planning permission was granted following a public local inquiry for the extension of Park and Ride at Bar End, subject to a number of conditions. Condition No.5 relates to the provision of land in mitigation for the loss of the regenerated meadow at Bar End. The issue that the committee needs to consider is the appropriateness of the proposed provision of alternative grassland in mitigation for the loss of land at Bar End in the light of the comments made by the Inspector at the Local Public Inquiry, the Secretary of State in his decision letter and the views of Mr Justice Ouseley on the evaluation procedures the Regulatory Committee should follow. It should be noted that the Judge took issue with the way the County Council dealt with the submission of details i.e. the procedure rather than the merits of the case.

6.2 The Committee's views on the appropriateness of the Bar End site for the proposed development are not germaine to its views on the discharge of the condition. Indeed it would be perverse of the Committee to seek to frustrate the development of the approved scheme by either failing to consider the mitigation scheme or introducing new or novel interpretations to the condition.

Accessibility

6.3 None of the sites are immediately adjacent to the Bar End land. The two main characteristics: separation from Bar End and difference in topography, i.e. meadow land at Bar End and downland for the mitigation sites, were known to the Inspector who nonetheless concluded that sites 4, 8, 3 and 7 all provided suitable mitigation opportunities. Of the four sites, Site 7 is recognised as the most distant. On the other hand it is readily accessible by car (there is a small car park servicing the neighbouring cemetery), has a regular bus service and has links with the public rights of way network. Provision is also being made for disabled parking. Although further from the residential area of St Cross, it is closer to Winnall and easily reached from the Highcliffe area. Accessibility, although important, has to be balanced against the potential of the site in terms of ecological value to Winchester and its setting.

Ecology

6.4 The conclusions of the detailed comparative ecological assessment undertaken by Jonathan Cox Associates are critical to the overall assessment of the alternative grassland sites. It is noted that Jonathan Cox Associates are an independent business and have drawn on their experience, site visits, supplementary surveys commissioned by the County Council and the Blue Sky Project Solutions report. It is also noted the assessment is endorsed by the County Ecologist that Site 7 is preferable as at 9.28 hectares in extent it is the largest of the alternative sites. The County Ecologist also concurs with the consultant's conclusions that site 7 has advantages over Sites 3, 4 and 8.

6.5 It is a matter of fact that all of the possible mitigation sites have a chalk substrate which is essential for providing chalk grassland. However the sites vary in the extent to which the soils have been improved However, there is evidence that Site 8 has been extensively modified throughout years of use as a town refuse tip and a sewage sludge disposal site. Work undertaken by Blue Sky Solutions indicate that the cost of restoring the site is likely to be approximately £1.6 million. Notwithstanding that there is still uncertainty as to when and if the land can be satisfactorily restored as a number of risks have yet to be clarified and until this is done the extent of the works is still an unknown.

6.6 The other sites - Sites 3, 4 and 7 - all comprise agricultural land which has been improved and the detailed management plan which has been submitted in respect of Site 7 makes provision for soil stripping in order to reduce the fertility and encourage traditional chalk grassland flora.

Availability

6.7 Mr Justice Ouseley considered that the cost of acquisition and the timetable of acquisition in relation to the implementation of the Park and Ride scheme as relevant factors, noting that it was not intended that the implementation of condition No.5 should frustrate the underlying development.

6.8 It is noted that the submission confirms that the three sites not currently in the County Council's ownership, Sites 3, 4 and 8 are not available to provide mitigation land within the time frame of the Park and Ride development. With regard to Sites 3 and 4 the owners are unwilling to sell, while there are unresolved issues with Site 8 concerning public safety, contamination and stability which amount to a delay to finalising a restoration scheme.

Proposed Management Scheme

6.9 The management scheme has been prepared with the advice of specialist consultants and by and large it has received favourable comment. However, it has been criticised by objectors for including an insufficient variety of species in the proposed seed mix. It is understood this is deliberate to help encourage natural regeneration, particularly of rare and protected species, rather than to introduce them artificially with seed from outside the area. This is a principle that should be supported. The adjacent butterfly reserve supports an extensive range of plant species, which will be able to colonise the mitigation land. The aspect of the site - the crest of the ridge runs across the middle of the site and a substantial part of it faces south which is the favoured aspect of many chalkland species - will encourage this colonisation.

6.10 The point has been raised about the time lag concerning the implementation of the management scheme. The Management Plan proposes development work this year and outlines the management regime thereafter for both the mitigation land and adjoining land. Consent would be on the basis of what has been submitted and is accordingly put forward in the recommendation.

Conclusion

6.11 It is noted that the Atkins review uncovered minor discrepancies in the information provided in the submission.. These however, are of no significance relating to slight differences in descriptions and measurements of areas or distances. They do not have a bearing on the conclusions below.

6.12 The submission provides a comprehensive analysis of the relative merits of the potential mitigation sites. In summary the situation is this.

6.12.1 Site 3 - Land adjoining Magdalen Down - is unavailable, but not withstanding this it is not the most favoured mitigation land from an ecological view point.

6.12.2 Site 4 - Land south of Morestead Road - is unavailable, has no ready public transport access and not the most favoured mitigation land from an ecological view point.

6.12.3 Site 8 - Land east of St. Catherine's Hill - although the closest site to Bar End and has long term restoration potential, it is highly contaminated and contains unquantified risks so there is considerable uncertainty that the land could be available contemporaneously with the project.

6.12.4 Site 11 - Land at Oliver's Battery - is not considered a serious candidate in the light of the Inspector's conclusions. It is also noted that in the public representations there is dispute as to whether Site 11 should be included in the examination of alternative grassland sites. Accordingly the exclusion from comparative ecological analysis carried out by Jonathan Cox Associates is considered a reasonable decision.

6.12.5 Site 7 - Land adjoining Magdalen Hill Down - is available and from an ecological point of view the most favoured candidate as mitigation land. The land also is readily accessible by public transport.

6.13 On this basis the choice of Site 7 - Magdalen Hill Down - is justified as it is the best mitigation land for that to be lost at Bar End. Furthermore the proposed Management Plan is considered an appropriate compensation measure which will be enhanced by the compatible management on the adjacent County Council land. Accordingly condition No. 5 would be discharged satisfactorily.

Recommendation

That the details pursuant to Condition (5) for the provision of alternative grassland at Magdalen Hill Down in mitigation for the loss of land in connection with the Winchester Bar End Park and Ride Phase II (Permission Nos. W03011/04 and W03011/05) as contained in the Magdalen Hill Down, Winchester Management Plan (January 2003) and the plans included in the submitted documents as Appendices 1, 2, 3 and 4 and further Appendices 5 and 6 be approved.

7845/KT