Report to Dudley Metropolitan Borough

Council
by Vincent Maher MA (Cantab) MCD MBA MRTPI
an Inspector appointed by the Secretary of State for Communities and Local Government

Date 4 March 2011

PLANNING AND COMPULSORY PURCHASE ACT 2004

SECTION 20

REPORT ON THE EXAMINATION INTO BRIERLEY HILL AREA ACTION PLAN

DEVELOPMENT PLAN DOCUMENT

Document submitted for examination on 26 February 2010

Examination hearings held between 7 and 14 December 2010

 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

File Ref: PINS/C4615/429/4

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ABBREVIATIONS USED IN THIS REPORT

A1 Use Class A1 (shop)

A5 Use Class A5 (hot food takeaway)
AA Appropriate Assessment
AAP Area Action Plan
CA Conservation Area
CIL Community Infrastructure Levy
CS Black Country Core Strategy
CPZ Controlled Parking Zone
DPD Development Plan Document
EB Evidence Base – a reference to background information
provided by the Council in support of the AAP
FPC Further Proposed Change
IC Inspector’s Recommended Change
LDS Local Development Scheme
LNR Local Nature Reserve
LSA Local Shopping Area
MSA Mineral Safeguarding Area
PC Proposed Change
PPG Planning Policy Guidance
PPS Planning Policy Statement
PSA Primary Shopping Area
PT Primary Thoroughfare
RS West Midlands Regional Spatial Strategy
SA Sustainability Appraisal
SAC Special Area of Conservation
SCI Statement of Community Involvement
SCS Sustainable Community Strategy
SLINC Site of Local Importance for Nature Conservation
SPD Supplementary Planning Document
sqm Square metre(s)
SWLC Strategic Wildlife Corridor
UDP Dudley Unitary Development Plan 2005
WLC Wildlife Corridor

§ Paragraph
§§ Paragraphs

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

Non-Technical Summary

This report concludes that the Brierley Hill Area Action Plan Development Plan
Document provides an appropriate basis for the planning of the Brierley Hill
area extending from Harts Hill in the north to Merry Hill in the south over the
next 15 years. The Council has sufficient evidence to support the AAP and can
show it has a reasonable chance of being delivered.

A number of changes are required to meet legal and statutory requirements.

These can be summarised as follows:

• Amending the Council’s further proposed changes (FPC) with regard to

the legacy of coal mining in the area to be consistent with Black Country
Core Strategy policy;
• Deleting Policy 68 and references to Wildlife Corridors in other parts of
the AAP, including §5.82 as this AAP designation does not have any clear
policy intent;
• Renaming Strategic Wildlife Corridors as Wildlife Corridors and altering
the Strategic Wildlife Corridor designation on the Proposals Map,
replacing it with a more indicative designation to reduce the level of
uncertainty about their location and extent of site coverage.
• A series of changes promoted by the Council in Appendix A that seek
either to clarify matters or to remove uncertainty about the delivery of
specific projects, such as a rapid transit programme.

The majority of the other changes recommended in this report are based on
proposals put forward by the Council in response to points raised and
suggestions discussed during the public examination. The changes do not alter
the thrust of the Council’s overall strategy.

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

Introduction
1. This report contains my assessment of the Brierley Hill Area Action Plan Development
Plan Document (DPD) in terms of Section 20(5) of the Planning & Compulsory
Purchase Act 2004. It considers whether the DPD is compliant in legal terms and
whether it is sound. Planning Policy Statement (PPS) 12 (§§ 4.51-4.52) makes clear
that to be sound a DPD should be justified, effective and consistent with national
policy.

2. The starting point for the examination is the assumption that the local authority has
submitted what it considers to be a sound plan. The original basis for my examination
was the submitted version of the AAP dated November 2009. A series of changes
were proposed in February 2010 for my consideration, principally around the delivery
of rapid transit public transport (EB3). The Council issued a later version of the plan
in September 2010 (E3) which incorporated EB3, removed references to the West
Midlands Regional Spatial Strategy (RS) and made a number of other minor textual
changes. I have referred to this version as the Proposed Change (PC) version of the
plan in this report. The Council sought views on the PC version for the period 27
October 2010 to 12 November 2010 in a manner consistent with its Statement of
Community Involvement (SCI). I have relied on the September 2010 version of the
AAP as the starting point for my report. As the PCs are embedded in this version I do
not refer to them further.

3. My report deals with the changes to the PC version of the AAP needed to make the
DPD sound. All but three of these changes has been proposed by the Council and are
presented in Appendix A. These are identified in bold in the report (FPCs). The
Council’s FPCs are accompanied by two plans that correct a cartographical error
relating to two development opportunity block boundaries and clarify those parts of
Merry Hill to which CS Policy CEN3 applies. These plans are identified as Appendices
D and E respectively. The three changes that I recommend are set out in Appendix C
and are identified (IC) in this report. None of these changes materially alter the
substance of the plan and its policies or undermine the sustainability appraisal and
participatory processes undertaken.

4. While Appendix A contains a mix of soundness and non-soundness changes, Appendix

B only contains factual updates, corrections of minor errors or other minor
amendments in the interests of clarity. As the changes in Appendix B do not relate to
soundness they are not specifically referred to in this report although I endorse the
Council’s view that they improve the plan. Over and above the Appendix B changes, I
am content for the Council to make any additional minor changes to page, figure,
paragraph numbering and to correct any spelling errors or other stylistic matters prior
to adoption. These might involve consistent use of the term “metres” to measure
distance or removing misleading quotation marks (e.g., §5.47 appears to contain a
quotation from PPG13 but is more accurately a summary of policy only).

5. Implicitly I authorise the Council to adjust the Active Frontages designation on the
Proposals Map to be consistent with the revised boundaries of Blocks C5 and R6
referred to in FPC MC67 which I endorse. The Council is also permitted to make
appropriate changes to the numbering of its various policies as a result of the changes
made to the plan and re-name development blocks on the Proposals Map. These
include deleting references to development opportunity blocks BR15B and BR13C and
identifying these sites as Established Areas where Policy 47 in the PC version of the
AAP would apply.

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

6. I have indicated below that Policy 67 (Strategic Wildlife Corridors) would be unsound
unless the Proposals Map designation is amended to show a more indicative boundary
as the notation on the Map differs noticeably from the text of the AAP. I have
indicated in IC3 how this might be amended but I leave it to the Council to make the
final revision.

7. All of the Council’s proposed changes were subject to public consultation between 16
December 2010 and 14 January 2011. Following the re-issue of PPG13 Transport on
3 January 2011, I invited all parties who had provided submissions into the AAP to
comment on whether the change in national policy related to the soundness of the
AAP. I have taken the responses from both consultation exercises into account as
they relate to soundness only in writing this report.

8. For the sake of brevity throughout the report I have relied heavily on abbreviations to
refer to town planning terminology in the AAP. I have also used the Council’s naming
for the evidence base used to support the plan (e.g., EB23 is the Brierley Hill Area
Action Plan Baseline Report).

Assessment of Soundness
Preamble
9. The AAP was published at a time when the West Midlands Regional Spatial Strategy
(RS) formed part of the development plan for the purposes of section 38(3) of the
Planning and Compulsory Purchase Act 2004. The Secretary of State announced his
intention to revoke the RS in the summer of 2010 prior to the examination of the
Black Country Core Strategy (CS). The changing policy context was of particular
pertinence to the pre-conditions of the expansion of comparison shopping in Merry Hill
set out in RS Policy PA11A. During the CS examination, the Black Country local
authorities suggested that CS Policy CEN3 be amended such that the pre-conditions in
RS Policy PA11A were specifically inserted. The local authorities removed all
references to the RS throughout the CS. These changes were incorporated into the
Inspectors’ report into the CS published in October 2010. The CS will be shortly
adopted.

10. The Council issued a PC version of the AAP in September 2010 that replaced
original references to the RS with equivalent policies in the CS. The Secretary of
State’s revocation of the RS was subsequently cancelled in November 2010 following a
High Court judgment (Cala Homes (South) Limited v Secretary of State for
Communities and Local Government and Winchester City Council (2010)
(CO/8474/2010)). As I have indicated above, the CS specifically acknowledges the
pre-conditions set out in RS Policy PA11A. As the AAP is consistent with both the CS
and the RS it is not necessary to re-instate all the references to the RS in the PC
version of the AAP.

Main Issues
11. Taking account of all the representations, written evidence and the discussions
that took place at the examination hearings I have identified seven main issues upon
which the soundness of the plan depends.

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

Issue 1 – Whether the AAP presents an appropriate vision for the Brierley Hill
area
Does the Brierley Hill AAP provide an appropriate vision for the area?

12. The AAP contains an ambitious and wide-ranging spatial vision, establishing a new
strategic centre over 12 distinct urban quarters. The development of the vision has
been inspired by a desire to mend the physical legacy of a manufacturing past and
address historic planning policies that have resulted in the development of the Merry
Hill shopping centre. The plan acknowledges these issues and other opportunities in
a largely coherent and succinct manner. The vision for the AAP logically follows on
from this.

13. The AAP seeks principally to facilitate an expansion in the comparison retail offer at
Merry Hill and, at the same time, improve connectivity between Merry Hill, an
invigorated Brierley Hill High Street and established office and industrial sectors to the
north (Waterfront) so that other parts of the plan area would capitalise on the initial
investment in public transport associated with Merry Hill’s expansion. The AAP
anticipates more intensive office, residential and other uses on a range of surface car
parks and on industrial land at Harts Hill. A wildlife network would be enhanced
connecting the nature conservation assets at Fens Pool and Saltwells located on either
side of the plan area. All these regeneration activities – together – will create a new
and more coherent “town centre” and one with reductions in local recorded levels of
deprivation to be secured through local job creation and the provision of forms of
housing that will attract and retain households from A/B socio economic groups within
the Black Country.

14. The plan places great emphasis on the importance of good urban design in
delivering the place-making part of the vision. This will involve ensuring that new
development presents active frontages to the canals (e.g., Policy 54) and the street
(e.g., Policies 57 and 62) in a way that much of the Westfield centre at Merry Hill does
not. New primary public places (Policy 58) will be secured and extensive areas of
surface car parking consolidated.

15. There is broad local support for the vision, reflecting the level of outreach and
community consultation carried out over a number of years. The Council has
presented a detailed audit trail to demonstrate how it has reached its preferred option
for the vision (summarised in EB23). Overall, the vision and strategy appears soundly
based.

Addressing physical constraints

16. The AAP addresses the main physical constraints to delivering the vision.
Improved connectivity between the different urban quarters and beyond - including
for pedestrians and cyclists - will be achieved through the establishment of a number
of new primary thoroughfares (PTs) and a dedicated rapid transit route. A limited
amount of land acquisition is required to be secured either during the planning
application process or via agreements with other landowners (e.g., British Waterways
for new canal crossings). There is evidence to show good progress in improving local
connectivity. The completion of Venture Way (PT11) has, in part, helped release
development sites in the Lower Brierley urban quarter. Other potential improvements
were being worked up at the time of the examination (e.g., PT33). Others will remain
long term aspirations as ways of improving connectivity between various edge of
centre sites and the core of Merry Hill.

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

17. The establishment of some of the PTs will be secured through redevelopment of
sites. In this respect the plan identifies a range of development opportunity blocks.
Some are in multiple ownership, requiring joint working to redevelop them (e.g.,
BR2B). Others have been established around single ownerships to facilitate their
regeneration. Nonetheless I endorse FPC MC7 which clarifies that the development
opportunity block boundaries on the AAP Proposals Map are indicative only. This
change is necessary to allow some flexibility in resolving matters such as the final
route of a PT and addressing other aims in the plan such as an enhanced wildlife
network.

18. The eastern part of the plan area is located within an MSA with possible surface
coal deposits. There are probably other coal mine shafts elsewhere in the AAP area.
The Coal Authority advised that these deposits should be exploited prior to the
redevelopment of sites, as has happened in other urban areas undergoing
regeneration activity (e.g., Barnsley). The Council accepted the Coal Authority’s
suggestion that a reference should be made that acknowledges the legacy of coal
including risks to development from mine entries and historic shallow workings (refer
FPC MC45). I cannot accept this FPC in this format.

19. CS Policy MIN1 states that non-mineral development on sites of more than 5ha in
urban areas should be accompanied by information demonstrating that mineral
resources will not be needlessly sterilised. None of the development blocks in the
areas identified by the Coal Authority cross this site area threshold. However, it is
important to note that these block boundaries are indicative only (refer FPC MC7) and
it is conceivable that the exploration of surface mineral workings might be viable on
sites of less than 5ha before they are redeveloped. While the Coal Authority’s
suggestion would assist in identifying an additional challenge for development, I do
not find the whole of the text offered justified as it implies that surface deposits are -
rather than may be - available. Furthermore, it directs developers to carry out
assessments on all sites including those of less than 5ha. As such it is not consistent
with CS Policy MIN1. I have therefore amended this FPC (refer IC1).

Review of policies to support the AAP vision

20. The AAP is somewhat long. The Council accepts some policies (e.g., Policies 9, 15,
27 and 48) should be deleted as they repeat matters covered elsewhere in the AAP or
refer to sites that have been recently redeveloped. Policy 48 essentially repeats the
provisions of Section 38(6) of the Planning and Compulsory Purchase Act 2004. I
therefore endorse FPC MCs 12, 17, 22 and FPC MC30 which either delete these
policies or, in the case of Policy 48, reduce its status to supporting text. I indicate
below why Policy 68 on Wildlife Corridors should be deleted as there is no obvious
policy intent behind it. Policies covering other subjects (e.g., the management of the
Brierley Hill High Street CA and urban design) echo national guidance but have a
sufficiently local twist or reinforce how a national policy will be applied in such a way
that they are not repetitive and cannot therefore be considered unsound. Policy 50
focuses on edge and out of centre development and is appropriate (subject to FPC
MC30 to 34 which I endorse to make the policy more consistent with national policy),
reflecting the importance of this issue in the context of one of the largest shopping
centres in the UK.

21. The AAP contains development management-type policies around the control of
Use Class A1 (Policy 1) and A5 uses (Policy 51). Policies expressed this way can be
appropriate if they help deliver the vision. In this case, it would be appropriate to set
out controls on new A5 uses on Brierley Hill High Street that support the

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

reinvigoration of a secondary frontage with a broader retail offer within the AAP.
However, I endorse FPC MC36 because it clarifies that Policy 51 seeks to discourage
a cluster of adjacent A5 uses rather than restrict such uses to two units only along the
High Street. The restriction of two uses along the length of this road would be
unreasonable and demonstrate an unacceptable level of policy inflexibility.

Issue 2 – Would it be feasible to deliver the new transport and other

infrastructure in the AAP? What are the traffic implications of new development
on the surrounding area?
22. The AAP anticipates new public transport facilities and a car park charging regime
as pre-conditions for the expansion of comparison retail development at Merry Hill.
The detailed measures identified in the AAP are consistent with CS Policy CEN3 and RS
Policy PA11A. The PC version of the AAP has replaced references to Metro with “rapid
transit”. A definition of “rapid transit” is provided in the glossary of the AAP. The
change in terminology does not dilute either CS or RS policy but I endorse FPC MC37
which clarifies that the rapid transit measures implemented will comply with CS Policy
CEN3. I also endorse FPC MC65 and MC66 as these changes remove a level of
uncertainty about the construction of transport infrastructure by asserting that land
will be safeguarded.

23. The AAP also envisages a significant amount of new development too. The broader
implications of development on the strategic highway network could be addressed
during the processing of individual planning applications. The Black Country highways
modelling work (EB81) confirms there are no strategic concerns in this respect.

24. Much of the examination focused on the level of support and possible funding
sources for public transport and other public realm infrastructure needed to deliver
the level of improved internal and external connectivity sought and articulated in
supporting research (most notably, EB40). As well as continued policy support and
some potential funding from public sector partners such as English Heritage, Centro
and the Homes and Communities Agency, other likely funding mechanisms are set out
at §6.28 of the plan and in the Council’s evidence for the examination.

25. Furthermore, the Council and some other developers acknowledged that
contributions towards public transport improvements and other works associated with
major planning proposals outside of the expansion of Merry Hill might be sought
having regard to the Council’s SPD on Planning Obligations (refer EB54) although such
requests from the Council would need to comply with the CIL Regulations 2010. I am
therefore confident there are a range of mechanisms in place to deliver the
infrastructure necessary to help realise the vision for the area. The plan retains a
level of flexibility about the delivery and location of new infrastructure works that
takes account of changing economic conditions although it has not diluted the
requirements of CS Policy CEN3.

26. I have reviewed the AAP proposals for car parking management in the light of the
submissions received at the examination, the January 2011 re-issue of PPG13 and
submissions made by various parties on this change in national policy. In broad
terms, the Council’s approach of both seeking to reduce the maximum parking
standards across the plan area over time and promoting a car parking charging
regime is sound. There are important sub-regional and regional merits in this
approach in promoting competition in the centres across the Black Country and
beyond. The re-issue of PPG13 does not fundamentally undermine the Council’s
approach.

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

27. The Council intends gradually to reduce the maximum parking standard associated
with new development to coincide with improved levels of public transport
accessibility over the lifetime of the AAP. It became apparent at the examination that
the current Parking Standards and Travel Plans SPD (EB52) does not reflect this policy
intent. It is appropriate therefore that more detailed guidance in a revised SPD be
given to confirm how the reduction in maximum parking standards would be achieved
over time, building on the research findings in the Brierley Hill Area Action Plan Car
Parking Study (EB41). I accept, further, that the January 2011 issue of PPG13 should
also be used as the current baseline for reducing the maximum parking standard for
non-residential uses as it broadly reflects the current SPD except in the area of
housing where there is no maximum figure.

28. The Council’s suggestion in FPCs 1, 39 and 43 that it replace a commitment of a

40% reduction in maximum parking standards over the life of the AAP with “up to
40%” does not render the plan unsound. Rather, a level of flexibility in this element
of the AAP is appropriate reflecting the aspirational nature of this target. Clearly, the
level of parking policy to be applied will need to reflect a range of factors in the AAP
area and beyond. As indicated in EB42, it is more appropriate that Brierley Hill should
aim to perform similarly to the other Black Country strategic centres with regard to
public transport choice and usage. As such FPC MCs 1, 39 to 43 and 57 are
necessary to make the plan sound because they introduce measures to make the
introduction of a gradual parking constraint policy in the AAP area and its subsequent
monitoring more effective. Indeed, such changes are consistent with revised
government policy on this matter.

29. A substantial expansion in new retail and office development, along with a car park
charging scheme at Merry Hill and steps to reduce the amount of parking in new
development across Brierley Hill, could potentially increase the likelihood of visitors to
an expanded centre parking in surrounding residential areas not covered by a CPZ. I
observed enforcement measures in place associated with a number of privately-owned
car parks and forecourts in the south of the Brierley Hill AAP area. Parking overspill
onto the Robin Hood Estate and around Coppice Lane would defeat the aim of
reducing car dependency and could also adversely affect the living conditions of
nearby residents.

30. CS Policies DEL1 and TRAN2 allow for the negotiation of measures to mitigate the
traffic impact of new development in the surrounding area during the planning
application process. The Council also has the power to impose traffic orders and new
CPZs. It is therefore not appropriate – indeed, it would be premature - to amend the
AAP to specify if new traffic management measures are necessary, what these should
be and when they should be implemented.

Issue 3 – Whether the AAP provides an appropriate local basis for the planning
of future retail expansion and control

31. The amount of additional comparison and convenience retailing proposed is

consistent with CS Policy CEN3. Merry Hill is an important economic driver within the
AAP area. Its expansion will facilitate the delivery of new public transport
infrastructure which, with time, might provide a catalyst for releasing other sites for
development. There is some merit therefore in supporting Merry Hill’s expansion
early on within the AAP plan period. It is clear that Brierley Hill High Street does not
compete directly with Merry Hill. Moreover, the plan makes provision for a limited
amount of additional convenience and comparison retail floorspace to safeguard and
enhance the High Street’s local shopping function. Therefore, the case for holding

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

back Merry Hill’s expansion until various Brierley Hill High Street sites have been
redeveloped or requiring additional connectivity between the High Street and Merry
Hill over and above PT7 and PT12 appears unjustified.

32. I have used the sequential approach in PPS4 to assess the conflicting views about
where additional comparison retail development in Merry Hill should be directed. The
Council’s view that the expanded retail area covers Blocks C2, C3, C4, C5, R4, R5 and
R6 appears sound. This is principally because these blocks represent a logical
expansion of the main physical concentration of physical activity and footfall and are
closest to the bus centre, two primary public spaces and a proposed Metro station.
While the eastern end of the Merry Hill Retail Park is close to the current retail core, it
is separated by busy roads and changes in topography that serve to inhibit footfall
and connectivity with the core. Merry Hill Retail Park has more of the characteristics
of an edge-of-centre location.

33. Land ownership is not an appropriate consideration when conducting the sequential
approach. Little weight should therefore be attached to the view that the plan would
be made sound if the expansion of the Primary Shopping Area (PSA) covered land in
more than one ownership given the distinctive locational advantages of the blocks
identified in Policy 71. I note, further, that Policy 47 does not preclude comparison
retail development on other sites. I endorse the FPCs Appendices D and E which
correct cartographic changes to Blocks C5 and R6 and indicate the area where CS
Policy CEN3 should be applied respectively.

34. A number of submissions have been received which suggest that the AAP should
outline a comprehensive monitoring framework to ensure compliance with the pre-
conditions in CS Policy CEN3 before any additional comparison retail development is
implemented. It is not necessary to add to pre-conditions set out in Policy CEN3.
Compliance with the three pre-conditions will be self-evident once the AAP has been
adopted, the relevant public transport works completed and the car parking regime
implemented. These measures can be enforced using other controls including
planning conditions and/or a legal agreement. The Council has, further, indicated that
modal share by public transport can easily be monitored because of the surveys that
Centro carries out every other year. Indeed, it would be impractical and unrealistic to
add to the measures outlined in the AAP. No changes are required to Policy 71.

35. Turning to Brierley Hill High Street, the examination considered a number of
submissions concerning Block BR20 and whether there is merit in requiring Block BR1
to be built in advance of Block BR20. Both blocks have the potential to play important
anchor roles at either end of the High Street and it is appropriate that they be
encouraged to fulfil these roles. BR20 will deliver a significant amount of the new
convenience shopping set out in CS Policy CEN3. No substantive case has been
presented to justify restricting the phasing of the expansion of Block BR20. Indeed,
such an approach would run contrary to national policy which seeks to promote
competition between retailers and enhance consumer choice.

36. It would be unreasonable to alter the proposed Local Shopping Area (LSA)
boundaries around Block BR1 to take account of a future development that is not yet
in existence. The LSA boundaries must necessarily reflect existing development as
set out in the UDP Proposals Map designation. They could be adjusted, if appropriate,
when the AAP is reviewed after any future redevelopment of the site. Policy 3
provides sufficient guidance on the range of supported uses for this site. It is not
necessary to amend this.

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

Issue 4 – Whether the AAP makes suitable provision for the planning of new
homes, community facilities and new offices

37. The AAP anticipates 3,200 additional new homes being built across the plan area.
This is more than the figure of 2,939 homes contained in the CS. This discrepancy is
due to the late inclusion of Harts Hill within the final AAP boundaries. The overall
difference in housing yield is not critical and would not undermine the CS. Table 6 of
the CS states that the housing figures for the various regeneration corridors and
strategic centres are indicative only.

38. The planning for community facilities associated with over 3,200 new households
has to be carried out in the context of an audit of existing facilities. The Council’s
baseline report (EB23) and other evidence (EB63) summarises the range of facilities
locally and recent initiatives to support the arts and other cultural facilities. A number
of new community-related activities have been directed to the area including multi use
facilities such as the LIFT centre. Ancillary uses, including community-type uses, have
been identified in each urban quarter. It is not specifically necessary for the AAP to
refer to the provision of affordable community facilities for new residents or the
existing community. The Council cannot control charging policies of other facilities,
such as the privately-run gym in the AAP area. No additional changes are needed to
the AAP in this respect.

39. The Council accepts the proposed target for new office development represents an
ambitious challenge. This is reflected in FPC MC35 which I endorse as it
acknowledges more accurately the longer term, aspirational nature of this target and
is now consistent with the CS. Changes to Policy 47 (FPC MC55) in Established Areas
– which is also endorsed for reasons of effectiveness - do not rule out a change of use
from offices to other uses either. The Council’s policy mechanism of protecting a
minimum amount of office floorspace at any one time will serve to reduce the
possibility of sites in the AAP area being developed for other uses that would not
support the mixed economy that forms a critical part of the AAP vision.

Issue 5 – Whether the measures proposed to establish a wildlife network and

secure “green living” are appropriate

40. The AAP acknowledges the area’s location between Fens Pool Special Area of
Conservation (SAC) and the Saltwells Local Nature Reserve (LNR) as well as the
canals and land connections between the two sites. The canal network within the AAP
area and immediate environs is also designated as a SLINC, a sub-regional nature
conservation classification used across the Black Country. There is no dispute as to
the need to provide for corridors to allow wildlife to move across the AAP area given
the area’s proximity to two ecological assets. This is especially important in the
context of climate change where there will be a greater need to plan for the
anticipated migration of species. In principle, the Council’s approach is therefore
firmly rooted in PPS9 Biodiversity and Geological Conservation. The provision of
improved, wildlife corridors should be supported as this would have the secondary
function of “greening” a highly urbanised setting.

41. The AAP identifies a wildlife network hierarchy comprising the SLINC, Wildlife
Corridors (WLCs) in Policy 68 and Strategic Wildlife Corridors (SWLCs) in Policy 67.
SWLCs are at the top of the hierarchy with WLCs given a similar level of importance in
the hierarchy to the SLINC (refer §5.82). The WLC and SWLC boundaries largely
overlap on the AAP Proposals Map. The Council confirmed in oral evidence that WLCs

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comprise sites in private and public ownership that have either got a recorded wildlife
habitat value (recorded in EB23) or are likely to have the function of wildlife corridors.

42. SWLCs have been established as long term routes for wildlife migration. The
boundaries of the SWLCs shown on the Proposals Map cover some or all of a number
of development blocks as well as Established Areas where no change in land use is
anticipated over the lifetime of the AAP. The Council clarified at the examination that
Policy 67 should not be read as implying that no development would be encouraged
on land covered by this designation. Rather, SWLCs should be interpreted in a
pragmatic way, with developers incorporating nature conservation features on site or
compensating for any loss of corridor elsewhere. This evidence appeared consistent
with §§5.85 and 5.86 of the AAP. The Council has also indicated that corridors would
be a minimum of 12 to 15 metres but wider along the canal. I endorse FPC MC44 as
a measure necessary to make the plan sound by removing uncertainty about the final
extent of the corridors.

43. The Council has plainly adopted a pragmatic approach to the identification of a
wildlife network in the plan in the context of significant amounts of new development.
This is appropriate in this urban setting. The corridors would be of varying width due
to a number of factors including existing physical constraints. Again, this is consistent
with CS Policy ENV1 which acknowledges the use of corridors and, in places, stepping
stone sites as means of promoting nature conservation. On the basis of evidence
from Westfield and the Council at the examination, it is reasonable to conclude that
development need not be set back substantially from the canals that run through the
area nor should it turn its back on the canal for ecological reasons. Matters such as
lighting associated with new development that might impede some species’ movement
along the canal or nocturnal activity could be controlled as a condition pursuant to the
grant of planning permission. No changes to Policy 64 are required in this respect.

44. Nonetheless, the detailed policies to deliver the wildlife network goals are not
precise and therefore ineffective. The designation of a WLC does not represent a
policy in that it does not direct developers or the LPA in a specific way as to how to
handle proposals to redevelop the site. Moreover, the basis for establishing WLCs is
unsatisfactory as their designation does not appear to have been made on the basis of
an ecological assessment of the whole corridor. Therefore, Policy 68 is neither
justified nor effective and should be deleted from the AAP along with the supporting
text and other references to the WLC in Policy 67 (IC2).

45. Turning to the SWLCs, there is a discrepancy between the supporting text to Policy
67 that they be at least 12-15 metres wide (as amended by FPC MC44) and other
documentation supporting the AAP (e.g., E5, which indicates how canalside sites in
Harts Hill could be developed). The widths of the SWLC on the Proposals Map are
significantly more extensive. In the context of a regeneration programme where
economic viability will remain a critical challenge to delivering sites for the foreseeable
future, the Proposals Map designation serves to confuse and potentially constrain
development unreasonably because of the potential for uncertainty as to the
interpretation of the designation in practice. This was apparent from examination of
Block P1 which is already constrained by overhead electricity lines, its relative
isolation from other sites, exposed position and multiple ownership. Finally, it is
unclear how SWLCs will be achieved on substantial swathes of Established Areas over
the lifetime of the plan. The way the SWLCs have been shown on the Proposals Map
is both ineffective and unjustified. Accordingly, Policy 67 is not sound in its current
form unless the Proposals Map is amended to be consistent with the text of this policy.

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

46. I therefore recommend in IC3 that the Proposals Map should be adjusted to reflect
a more indicative designation of the policy. I further recommend in IC3 that the term
SWLC be re-designated as “Wildlife Corridors” both in Policy 67 and across the whole
of the AAP to avoid confusion with other references to “wildlife corridors”.

47. The CS already provides a sound policy basis for securing the goal of “green living”
sought by Natural England. There is no need to add to Policy 69. Further localised
guidance could be provided, if it is needed, in a future urban design SPD covering
Brierley Hill.

Issue 6 – Whether the preferred uses for the various urban quarters and
development opportunity blocks are appropriate

48. The Council has provided a reasoned justification for the types of land uses sought
across the various urban quarters. A number of FPCs would replace the term
“preferred” use with “would be suitable for” on a number of development opportunity
blocks. I endorse these changes (FPC MCs 16, 18, 20, 23, 25, 28 and 29). This
element of flexibility is appropriate given concerns around the economic viability
associated with the redevelopment of individual sites for the foreseeable future.
Other development opportunity blocks still retain an element of flexibility by
identifying a number of preferred uses. This would also be appropriate given the
complexities of developing blocks in multiple ownerships (e.g., Block BR2B) and the
densities of housing development proposed across the AAP area. By contrast, it is
appropriate that office use be promoted on other blocks (e.g., W1 to W4 and much of
W5) given their proximity to the Waterfront development and the merit of establishing
a larger office quarter that extends from Stourbridge Road to Pedmore Road.

49. Harts Hill is the most sensitive of all the urban quarters to regenerate. It contains
a mixed quality industrial stock with a number of active businesses and some large,
vacant and partially cleared former industrial sites. It does not connect easily to the
rest of the AAP area owing to the canal and the Corus depot. Nonetheless, it is
appropriate that the quarter be considered for new development including some
residential use that capitalises on the area’s improved connectivity to rapid transit/
rail connections and many new employment opportunities in other urban quarters
such as the Waterfront West and an expanded Merry Hill to the south. There is
insufficient reason to conclude, solely on the basis of an assertion reviewed at the
examination, that Harts Hill should be considered for use as a rail freight depot or
related uses instead.

50. Housing over parts of Harts Hill (Blocks H1 and H2) would be particularly
appropriate reflecting the predominant land use north of Cochrane Road beyond the
AAP boundaries. The case for an element of residential use is likely to be stronger
with the anticipated closure of other established businesses in the area. Supporting
text in the AAP (refer §4.82) and a specific reference to the Harts Hill Masterplan
which I endorse (FPC MC27) will give further guidance on how sites could be
developed and achieve the balance between the need to reconcile conflicting
industrial, housing and wildlife network goals in the plan.

51. I have indicated above, in endorsing FPC MC52, why it is necessary to make clear
in the plan that the development block boundaries on the plan are indicative only.
This critical change will enable final boundaries of development sites for new
residential and office uses (especially Block H11, but also Blocks H3 and H4) to be
agreed during the processing of individual planning applications.

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

52. The Council confirmed it had consulted the Health and Safety Executive throughout
the development of the AAP and was not aware of any surrounding hazardous land
use in any of the Established Areas in either the Canal Walk North or Harts Hill urban
quarters that would restrict residential development. On this basis, it therefore
appears appropriate to consider development opportunity blocks W7, W8 and the
various blocks in Harts Hill for residential use.

Issue 7 – Consideration of how the AAP will be implemented, whether there is

sufficient flexibility in the delivery of the plan and whether the proposed
monitoring measures are adequate

53. The plan has been prepared at a time of uncertainty about public funding and this
may affect the delivery of some public projects. Nonetheless, other participants at the
examination (e.g., the Homes and Communities Agency and Centro) confirmed that
Brierley Hill will remain a priority for their investment (refer H3 and H4). The Council
has an arms length agency to implement the plan and seek to secure other funds for
projects (e.g., a historic building repair grants scheme for the High Street). On the
basis of the evidence heard at the examination, current economic conditions would
not appear to hold back investment in the expansion of Merry Hill. Overall there do
not appear to be any “show stoppers” that would prevent the implementation of
substantial elements of the plan.

54. This view is supported by the level of flexibility throughout much of the plan in
matters such as preferred use for particular sites, the planning of internal public
transport measures as well as the type of rapid transit to be provided.

55. The monitoring indicators anticipate a range of positive socio-economic outcomes

that will tackle relatively high local levels of deprivation and address other economic,
retail vitality and environmental objectives subject to some changes. They are
broadly acceptable and easy to monitor. The Council has acknowledged the need to
alter its indicator with regard to monitoring how new investment might result in a
change in local unemployment. The revised version states that local unemployment
rates would be monitored relative to the regional average through time as a more
effective indicator of assessing the effectiveness of the AAP. I therefore endorse FPC
MC50 and 51. Likewise, the housing monitoring indicator in the AAP is inconsistent
with the type of housing anticipated in CS Policy HOU2. I therefore endorse its
deletion (FPC MC49).

Legal Requirements
56. My examination of the compliance of the AAP with the legal requirements is
summarised in the table below. I conclude that the AAP meets them all.

LEGAL REQUIREMENTS
Local Development The AAP is identified within the approved LDS
Scheme (LDS) November 2009 which sets out an expected adoption
date of July 2011. The AAP’s content and timing are
compliant with the LDS.
Statement of Community The SCI was adopted in November 2006 and
Involvement (SCI) and consultation has been compliant with the
relevant regulations requirements therein, including the consultation on
the post-submission proposed changes (PC) and
further proposed changes (FPC).

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

LEGAL REQUIREMENTS
Sustainability Appraisal SA has been carried out, independently verified and
(SA) is adequate.
Appropriate Assessment The Habitats Regulations AA Screening Report
(AA) (March 2008) sets out why AA is not necessary.
National and Regional The AAP complies with relevant national and regional
Policy policy except where indicated and changes are
recommended.
Sustainable Community Satisfactory regard has been paid to the SCS.
Strategy (SCS)
2004 Act and Regulations The AAP complies with the Act and the Regulations.
(as amended)

Overall Conclusion and Recommendation

57. I conclude that with the changes proposed by the Council, set out in
Appendices A, D and E, and the changes that I recommend, set out in
Appendix C, the Brierley Hill AAP DPD satisfies the requirements of s20(5) of
the 2004 Act and meets the criteria for soundness in PPS12. Therefore I
recommend that the plan be changed accordingly. And for the avoidance of
doubt, I endorse the Council’s proposed minor textual changes, set out in
Appendix B.

Vincent Maher
INSPECTOR

This report is accompanied by:

Appendix A (separate document) Council’s Further Proposed Changes (containing a mix

of soundness and other changes)

Appendix B (separate document) Council’s Minor Textual Changes

Appendix C (attached) Changes that the Inspector considers are needed to make the plan
sound

Appendix D (separate document) Map showing cartographical amendments to Blocks C5

and R6

Appendix E (separate document) Map showing Merry Hill quarter to which the CEN3
conditions apply

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 Dudley Metropolitan Borough Council Brierley Hill AAP DPD, Inspector’s Report March 2011

Appendix C – Changes that the Inspector considers are

needed to make the plan sound
These changes are required in order to make the Core Strategy sound.

Inspector Policy/ Change

Change Paragraph/
No. Page
IC1 new Minerals
paragraph
5.99 under “The Brierley Hill AAP area has been subject to
new extensive past coal mining activity, which has left a
heading legacy of mine entries (shafts and adits) and shallow
“Minerals” mine workings which can present a risk to new
development. Development proposals in the AAP area
should therefore give consideration to coal mining
information and, where necessary, propose and
implement mitigation measures to ensure the safety
and stability of new development”.

IC2 68 Delete Policy 68 and delete references to the Wildlife

Corridor in the text of Policy 67.

IC3 67 Rename “Strategic Wildlife Corridors” as “Wildlife

Corridors”

Replace the designation on the Proposals Map with a

more indicative arrow as illustrated below.

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