Richard Phillips QC representing CREST NICHOLSON PLC and BRITISH TELECOM'S SOUTHGATE DEVELOPMENTS LTD

01.05.-04.05.2001 - Public Inquiry - Telephone House, Church Road / York Road, Tunbridge Wells

RICHARD PHILLIPS Q.C.
- Public Law, Planning & Environment Chambers
Chambers of Gerald Ryan Q.C.

2 Harcourt Buildings
Temple, London, EC4Y 9DB

COSTS

1. Circular 8/93, Annex 1, #6 - 3 qualifying conditions are met.
   NB: Accept

   1. Costs do not necessarily follow the event (#2 Annex 1). Must demonstrate LPA behaved unreasonably.

   2. Fact that Members rejected officers' advice/recommendation not by itself sufficient.

   3. Seek award of whole of Appellant's costs occasioned by the appeal.

   4. LPA alerted to intention to seek costs on Day 2, but ought to have been clear already from way in which RC was XXd on Day 1.

2. Annex 3 #7 - et seq gives examples of circumstances where costs may be awarded against LPAs. Use as template:-

   1. #7 - LPA shouldn't prevent development which could reasonably be permitted. The refusal of planning permission was unreasonable, giving rise to considerable delay and expense. This is a permission which, acting reasonably, TWBC should have granted.

   2. #8 (1) - Reasons for refusal should be "complete, precise, specific and relevant". Here there is the clearest evidence that the two reasons for refusal (CA & LBs) do not reflect the real reasons why Members refused the application. Thus

      • Cllr Price - The Chairman - states that there was a series of issues, which had influenced him and the majority of Members to refuse, but which are not cited in the decision notice: see his reference to standard reasons for refusal relating to (1) impact on neighbouring residential property; (2) overshadowing; (3) access; and (4) loss of trees. After the decision to refuse Members were evidently persuaded that these matters should not be cited as reasons and they were not -but they clearly had contributed to the decision to refuse. A clear demonstration of how unreasonable the decision was. Most of those matters are now addressed in the Statement of Common Ground - agreed not to be matters in issue.

      • Density - RC stated in her proof that the high density made a "significant contribution" to Members' concerns about the development. Cllr Price stated that Members were unanimous in concluding that the development was over intensive and in excess of Government recommendations. PM explained that Members appeared to conclude that the development conflicted with a PPG3 ceiling of 50 DPH as had been urged by the local residents. Yet density is not specifically cited as a reason for refusal, which, we know, is because Mr Everleigh urged Members not to rely upon it knowing, no doubt, that it would be impossible to win on a density issue per se. Thus although the first reason cites EN1(2), which refers specifically to density amongst other issues, that first reason does not specify density as an issue, although it does specify a whole series of issues (scale, massing, roofscape, form, spatial characteristics, elevational treatment and building lines). If density was to be part of the reason it should have been spelt out. Further EN1(1), which refers to density, is not cited nor is Structure Plan ENV16. Again, therefore, the real reason for refusing planning permission - or at least a major reason for refusing - is not actually specified in the decision. This demonstrates what an unreasonable decision it was.

      #8 (2) - Council must produce evidence to substantiate each reason for refusal - the ground on which costs are most commonly awarded against LPAs.

      • No attempt has been made to justify the "real" but uncited reasons for refusal on density, residential impact, overshadowing, access, loss of trees. Indeed, most of these matters are agreed NOT to be an issue.

      • RC's evidence does not begin to attempt to substantiate the two reasons which are entirely contrary to her advice and recommendation in the Committee Report.

      • PA's evidence: he did not and still does not recommend rejection of the proposals. He apparently still has reservations/concerns but ones which are capable of resolution by agreement or possibly condition. He was intimately involved in the application "process" and was a strong supporter of the scheme.

      • No Cllr has been called to give evidence on behalf of the Council. The Chairman's evidence hardly advanced their case - it demonstrated how unreasonable the decision was. He was sure that the 21m dimension from Kent Design was infringed by Blocks B & D in relation to property on the north side of York Road. Cllr Lynes who sat on the Committee seemed to be primarily concerned about traffic impact - not a reason for refusal.

      • Even local residents in letters/articles to the Press and representations here have criticised the Council's choice of witness and contents of the evidence.

      #8 (3) - The application must be considered in the light of material considerations. The Committee Report makes plain that members should judge the acceptability or otherwise of the scheme having regard to the existing buildings and use on the site. That of course is right. It is a "vitally" material consideration - see SPACKMAN . RC agreed it would be unreasonable not to take this into account. Yet the members did - as the THNA record reveals - do just that and Cllr Price stated unequivocally it was not a planning consideration. The decision to refuse, which ignored any comparison with the existing building and its use, was deeply flawed and wrong in law. Virtually whenever PA criticised the scheme in his proof in XX he had to concede that in comparison with what exists it was a significant improvement. His evidence is deeply flawed in that it does not adopt the proper approach to the appeal proposal - he does not begin to address the "acceptability or otherwise of the scheme having regard to the existing buildings and use" as the officers' report urged.

   3. #9 - Where members disagree with officers' advice and recommendation, they must have reasonable planning grounds for doing so and must be able to produce evidence to support those grounds. That is especially important here given the length of the process of pre application discussions and post application revisions, the team approach adopted by TWBC officers (Everleigh, Prentis, Berry, Ashby, Chambers and landscape officer and highway officer), and the unequivocal recommendation made in the Report which represented the "corporate view" of the entire planning department. No proper grounds for disagreeing have been put forward. It is not sufficient simply to claim that these are subjective matters. They are of course but PPG15 stresses the need for expert/specialist advice to be deployed when dealing with LBs/CAs and Members should be slow to disagree. Local Authorities are urged to prepare development briefs for important opportunity sites in Conservation Areas. Mr Legg did prepare it, we know its contents, it is agreed the appeal scheme complies with its main parameters. Why was it suppressed? Was it because Members didn't want anything which could undermine their own subjective decision influenced by whichever way the weight of local opinion was urging them to go. Cllr Price - The Chairman - had sat in on the meeting when option 4 was agreed, i.e the preferred scheme - very little has changed since in terms of scale, form and layout. Was it reasonable to allow the whole process to continue and months later for Members to reject the scheme? Further, one main reason for Members disagreeing with the expert advice they were given is that they adopted an unreasonable and unlawful approach of refusing to consider the scheme on a comparative basis with the existing building and use. In addition, the real but uncited reasons for refusal - density, residential amenity, access, trees, overshadowing, etc. In any event no evidence has been put forward to substantiate why Members reasonably rejected the officers advice. PA on design issues adopted the wrong approach and anyway does not suggest the appeal scheme criticisms he raised are sufficient to require it to be rejected. RC's evidence has not substantiated any hidden concern about density - she agreed it was important to maximise the yield from this site and it now appears clear that the scheme density is actually well below that of York Road.

   4. #15 - Local objection not in itself a reason for withholding permission. Here it seems clear Members were persuaded by the volume of objectors to refuse. In the event, the reasons for refusal do not cite many issues relied on by residents but they clearly did -according to the Chairman - influence the majority of the Members in their decision to refuse.

3. Conclusion. The application should have been granted. The decision to refuse flies in the face of a clear and compelling recommendation reached after a thorough process wholly in accordance with Government advice on best practice. The real reasons for refusal have not been deployed - to the contrary they are largely agreed or matters not in dispute. The actual reasons cited have not been substantiated in evidence. The Council's decision was based on the rejection of the clearest possible material consideration and was deeply flawed.