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Farthingloe court victory crucial in halting AONB development at Densole
CPRE Kent’s Supreme Court victory over Farthingloe continues to have ramifications far and wide, but this recent story comes from close to home. It has a satisfactory conclusion, but some of the events that unfolded during the planning process are disturbing.
In February last year, Shepway District Council’s planning committee approved plans for 12 holiday lodges, tennis courts and a fishing lake at Little Densole Farm, Densole, in the Kent Downs AONB.
This decision was made despite the council’s own planning officer recommending the scheme be refused, while both CPRE Kent and the Kent Downs AONB Unit had objected to it.
Happily, a businessman who lives close to Little Densole Farm challenged the council’s granting of planning permission and the case went to judicial review at the High Court in January this year.
The judgment was handed down the following month, with Mrs Justice Lang quashing the planning consent on the basis of inadequate reasons for overturning the officer’s recommendation.
In making this judgment, she cited the case of Dover District Council v CPRE Kent, where at the Supreme Court we successfully defended the Appeal Court’s decision to quash a planning permission in the Farthingloe Valley on the outskirts of Dover.
The Supreme Court had agreed with the Appeal Court that Dover District Council’s planning committee had not given legally adequate reasons for granting planning permission for more than 600 homes, which it acknowledged would cause significant harm in a protected landscape.
In the Densole case, the claimant [Tim Steer] based his bid for a judicial review of Shepway’s decision on three grounds.
The first two were:
- “The council failed to consider or apply NPPF [National Planning Policy Framework] when deciding the application.”
- “The council reached an irrational conclusion that the proposed development would not harm the Kent North Downs AONB.”
These were both rejected by the court.
Firstly, there was confusion caused by Shepway’s inadequate minutes of meetings, which meant the judge could not be certain NPPF had not been referred to in the meeting.
However, the further conclusion here is that there needs to be a higher standard of minutes at planning meetings.
The second ground, meanwhile, was rejected because of the difficulty of establishing proof. Mrs Lang said in her judgment: “There is a high threshold to surmount before a finding of irrationality can properly be made. The burden of proof rests upon the claimant, and I consider he has failed to establish irrationality.”
All of which brings us to the third ground, the one that was accepted by the judge:
- “The committee was under a common-law duty to give reasons for its decision, as it was not following the OR’s [officer’s report’s] recommendation, and the application concerned a protected AONB. It failed to provide adequate and intelligible reasons for its decision to grant planning permission.”
It is here that the Farthingloe case is cited. Without that ruling, the challenge to the granting of planning permission at Little Densole Farm would have fallen short.
Despite what was ultimately the right result for the countryside – and a scathing verdict on Shepway planning committee’s failure to provide “adequate and intelligible reasons for its decision” – it is concerning that the challenge had to be brought by a member of the public financially able to do so.
Mr Steer, who reportedly paid some £35,000 to bring his challenge, is quoted in the Folkestone and Hythe Express as saying:
“We hope that in the future the council will take its responsibilities more seriously and carefully and follow planning policy and logic.
“I have had to buy this victory. And I think it is perverse that even though I have won this case on one of three counts I have to pay out.
“This means that if people see a council decision they believe is unlawful they need to find up to £40,000 to legally challenge it.”
The inadequate minuting of planning committee meetings also raises worries about the democratic process at Shepway, a spokesman for whom said the local authority hoped to establish a system of recording and broadcasting meetings from April.
Hopefully, such an approach will avoid the sort of ‘confusion’ that occurred in this case, where – as detailed in the judgment – Shepway planning committee chairman Dick Pascoe, when asked to explain why an application recommended for refusal was in fact being approved, apparently replied that “he wanted to overturn everything that was recommended to be refused”.
Cllr Pascoe ‘clarifies’ this extraordinary statement at a subsequent meeting thus: “To clarify… what I stated was, all the reasons for refusal of the application, were my reasons for approval.
“So all you have to do is to just turn the wording around and that was the words I used and I am seeing nods as well, that’s what I actually asked for. That the reasons for approval, were it to be opposite of my reasons for approval and that is why this is staying as it is because this is exactly what I said and asked for…”
Got that?
Either way, let’s all be grateful for Farthingloe and, in this case, Mr Steer, who fought for the Kent countryside – and an AONB – in a manner his local authority chose not to. We live in worrying times…
Tuesday, March 27, 2018
- A number of important documents have yet to emerge. For example, a rigorous transport plan and a finalised air-quality assessment. The latter is critical given that allocations at Teynham will feed extra traffic into AQMAs.
- There seems to be no coherent plan for infrastructure delivery – a key component of the plan given the allocations being proposed near the already crowded Junction 7.
- There seems to have been little or no cooperation with neighbouring boroughs or even parish councils within Swale itself.
The removal of a second consultation might have been understandable if this final version of the plan were similar to that being talked about at the beginning of the consultation process. It is, however, radically different in the following ways:
- There has been a major shift in the balance of housing allocations, away from the west of the borough over to the east, especially around the historic town of Faversham. This is a move that raises many concerns.
- A new large allocation, with accompanying A2 bypass, has appeared around Teynham and Lynsted, to which we are objecting.
- Housing allocations in the AONB around Neames Forstal that were judged “unsuitable” by the council’s own officers have now appeared as part of the housing numbers.
- Most of the housing allocations being proposed are on greenfield sites, many of them on Grade 1 agricultural land – a point to which we are strongly objecting.
Concerns about the rush to submit the plan
The haste with which the plan is being prepared is especially worrying given the concentration of housing in Faversham. If the town is to take a large amount of new housing, it is imperative that the policies concerning the area are carefully worked out to preserve, as far as possible, the unique nature of the town. The rush to submit the plan is likely to prove detrimental.
As Swale does not have a five-year land housing supply, it is open to speculative development proposals, many of which would run counter to the ideas contained in the current plan. Some are already appearing. This is a common situation, and one that, doubtless, is a reason behind Swale’s haste.
Our overriding fear, however, is that this emphasis on haste is ultimately going to prove counterproductive. This is because it is our view that the plan, in its current form, is unlikely to pass independent examination. We are urging Swale to listen to and act upon the comments being made about the plan and to return the plan to the council with appropriate modifications before submitting it to the Secretary of State.
Essentially, this means treating the current consultation not as the final one but as the ‘lost’ second consultation.
The consultation ends on Friday 30 April and we strongly urge residents to make their opinions known if they have not already done so.
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