Agenda item

To note appeals lodged, imminent public inquiries and appeals awaiting decision.

Somerset House – Following the Inspector’s decision to dismiss this appeal on the grounds of amenity of neighbouring properties, officers had now received a letter from the Planning Inspector indicating that the Inspector should have also expressed concern over the setting of listed buildings. Officers indicated that to receive such a letter from the Inspectorate after a formal decision had been given was unusual.

Chocolate Factory – Officers referred to the Inspector’s decision on this issue. He drew members’ attention to the decisions made on 30^th November 2016 and 22^nd February in respect of this application as follows:

30^th November 2016 where a late offer of six affordable housing units had been reported but the £46,000 contribution towards bus stop enhancements had been withdrawn, the Committee’s decision was to defer pending:

(a)               further consultation with local stakeholders about the need for more affordable housing on the site including discussions about,

(i)     the possibility of a trade-off between the need for retaining the existing buildings and provision of further affordable housing on the site

(ii)  further analysis of the viability appraisal reports used in the assessment process as appropriate

(iii)negotiations with the developers about the mix of uses on site and potential flexibility with the site allocation policy

(b)                further discussions with the developers about parking and traffic

and, following an appeal by the applicant against non-determination, a further Committee decision on 22^nd February 2017 as follows:

1. That if the Committee had the power to determine the application it would have

GRANTED planning permission, subject to the obligations (including the delivery of 6

affordable units) set out in the report to committee on 30th November 2016 and the associated Amendment Sheet, to be secured by an agreement or undertaking under s106 of the Town & Country Planning Act 1990, and all of the proposed conditions;

2. That the Head of Development Management be authorised to advise the Planning Inspectorate of this resolution and that the Council does not intend to defend the Appeal.

Officers then confirmed that the decision had been made following written representations via an Inspector’s letter dated 28^th June 2017. He outlined the main points made by the Inspector as follows:

The Appeal was allowed as he felt that there was a consensus between the developer and the Council’s Independent Adviser which had concluded that it would not be commercially viable to provide affordable housing and gave significant weight to this. He had not been provided with any other substantive evidence to demonstrate that the provision of affordable housing would not be economically viable to provide any affordable housing would not render the scheme economically unviable. This led the Inspectorate to conclude that currently it would not be economically viable to provide any affordable housing on this site.

There had been significant concerns expressed regarding the additional traffic generated by the proposal and the issue of the parking availability, with the number of car parking spaces being marginally below the recommended standards. The appeal site lies within an urban residential area and it is highly likely that some of the future occupiers would wish to make use of public transport. As a result, the Inspector attached significant weight to the improvement of public transport facilities in the locality.

Based on the evidence before him the Inspector considered that the bus stop enhancement monies required by BCC were necessary to make the development acceptable in planning terms.

In conclusion, the appeal was allowed with zero affordable housing but with a requirement for a £46,000 contribution towards bus stop enhancements.

In relation to the issue of costs, the National Policy Guidance lists a number of examples of unreasonable behaviour that may give rise to a substantive award of costs against a local planning authority. One of these examples refers to preventing or delaying development which clearly should be permitted, having regard to the development plan, national policy and any other material consideration.

The proposal was deferred by Committee contrary to the advice of the Council’s professional officers who recommended approval. The proposal was allocated in the Development Plan and was supported by Development Plan policy. Authorities are not bound to accept the recommendations of their officers but if their professional advice is not followed then reasonable planning grounds for taking a contrary decision need to be provided supported by relevant evidence.

The first reason for deferral relates to further consultation about the need for more affordable housing and discussions about potential alternatives to the proposal that was before the Council. Viability reviews had been provided by both the appellant and consultants acting for the Council, both of which concluded that an affordable housing contribution would not be viable. Despite this and with no specific alternative evidence provided in this regard, the proposal was deferred.

The scheme was judged by Officers to be acceptable and the Inspector noted from the published Minutes the advice from Officers that Councillors were required to determine the application before them. Therefore by deferring the application in order to investigate a hypothetical alternative scheme in order to potentially achieve better affordable housing provision, Members acted in a manner contrary to established case law in this regard. Furthermore, the reason given is unacceptably vague in that by neither local stakeholders nor details as to who should carry out the consultation and by what mechanism were adequately defined.

The Council’s Transport Development Management Team (TDM) considered that the parking shortfall would only be minimal and considered the development to be acceptable subject to the imposition of planning conditions and obligations. Despite this consultation response from TDM the Committee Members sought further discussions with the developer about “parking and traffic”. . In the Inspector’s mind, these were vague reasons that were not supported by objective analysis.

Therefore, costs were awarded against the Council as the Council had delayed development which ought reasonably to have been permitted, acted contrary to well-established case law and had made vague assertions in regard to affordable housing and parking provision which were not supported by any objective analysis. The Inspector considered that this constituted unreasonable behaviour on the part of the local planning authority. Consequently, the applicant’s costs in mounting the appeal were unnecessarily incurred and the award of costs was therefore justified.

Officers stressed the importance with all applications of Committee members considering the evidence before them and sticking to the core issue. In addition, officers would ensure that contentious issues were brought earlier in the process to Councillors (ie through pre-application briefings) and discussions concerning potential issues arranged with all appropriate parties as early as possible, as had recently happened concerning the Blackberry Hospital site.

Officers responded to Councillor’s questions as follows:

(1)   Whilst due weight needed to be given to the scale and volume of objections, this should not unduly influence Councillors in making their decision. The issues relating to each application needed to be at the forefront of their decision;

(2)   Costs were not yet clear. However, it is possible that the decision by the Committee not to defend the appeal and the use of written representations would keep costs reduced;

(3)   Whilst the developer had originally offered to provide 6 affordable houses as a commercial response to Councillors’ concerns about the application, this did not form part of the evidence that was available to the Inspector in the form of the viability appraisal which was agreed by the Council’s Adviser.

Councillors also made the following comments:

(4)   Whilst officers had clearly explained the reasons behind the decision, it was undemocratic not to take into account the numbers of people objecting to a scheme. Members needed to be made aware with such decisions that they were faced with no choice

(5)   The Committee had not made a good decision in this instance. The Council would be lucky if it was able to keep costs below £30,000. Councillors needed to bear in mind the quasi-judicial nature of their role on the Committee;

(6)   Whilst Councillors should avoid deferring an application wherever possible, there were situations when Councillors had acted contrary to officers’ advice and the Inspector had indicated that their decision was not an unreasonable one to make. It would be helpful if officers could provide a briefing to Councillors on lessons learnt on this issue, particularly in terms of viability;

(7)   There were lessons to be learned in relation to the need to comply with the necessary rules. There were situations where Councillors needed to take decisions that they did not feel comfortable with.