Hello! And, err... our appeal was dismissed :-(

[bassanclan]

It varies from council to council, but yes effectively it seems your council does not want development in rural areas and set a planning policy accordingly.

 

I would love to build a house in a village, but not a chance in my LA. However 5 miles north in a different borough I could buy a village infill plot and get planning permission no problem!

[MikeSharp01]

2 hours ago, ToughButterCup said:

 

Buildhub could reasonably be renamed Build-Cynics Central.

Cynical moi🙄

 

[saveasteading]

Not cynical:

 

Pragmatic

Cautious realist

 

Knowledge can be such a burden, can't it fellow hubbers? 

 

I'm sure when we say 'dont' or ' be careful' it is usually good advice.

[garrymartin]

Thought it was time for a quick update, especially now the new Government have released their proposed changes to the NPPF.

 

I spoke to one of the most highly regarded planning consultants in my area and they said they couldn't help me. They feel the two refusals and the dismissal at appeal have pretty much killed any opportunity to get permission.

 

I don't agree with that, so I went back to my research and DIY submissions!

 

I'm pretty much 100% convinced that the Planning Inspector made "an error in law and misdirected himself" on three points. The first is that he gave "significant weight" to the policy that restricts development in the "open countryside". This is defined as any land beyond the development boundaries. My research found several case law examples that prove this was an error in law when the 'tilted balance' is engaged. When a LPA can't demonstrate a 5-year supply of housing, then policies relating to housing supply are deemed out of data and the weight they are given in the planning balance is reduced accordingly. However, counterpart policies to those specifying housing allocations, such as the one that restricts development in the open countryside are all housing policies and hence should be afforded much reduced weight in the planning balance. The Inspector should have known this but did not take it into account.

 

Secondly, the Inspector disregarded an appeal I had submitted as a material consideration. He is allowed to do this, but in doing so, case law says he must properly consider the evidence presented and he must give his reasons for departure from the previous decision. He did not do this.

 

The Inspector had also commented that he had "limited details on the quality" of the cycle routes and so appeared to dismiss them as a valid, sustainable transport option. I've since learnt that both the road and the bridleways are the responsible of the local transport authority. Under the Highways Act 1980, the local transport authority are responsible for ensuring the safety, accessibility, quality, and suitability for all users, including cyclists. Therefore the third point is that the Inspector should have known this, and yet used the "unknown" quality of the routes to reduce the apparent availability as a sustainable choice.

 

The Head of Planning got someone to respond to my questions on their behalf, but they chose not to answer any of them and simply repeated that their decision was as documented in the original application and if I disagreed with it I should go to appeal (even though the email clearly stated that I'd already done that).

 

The Local Transport Authority have also not responded to my request for clarification on the word "intensified" when saying that any new or "intensified" access needs to provide visibility splay at 85th percentile speed surveys to justify safe access. I've got case law that demonstrates there are no legal or policy requirements to change an existing access unless use is being intensified, and intensified requires a qualitative change and not just a quantitative one. So I think I have that covered too and shouldn't need to do anything from an access perspective.

 

I've also dedicated a section to the case law surrounding the determination of "significant" and "demonstrable" harm, explicitly detailing the evidential requirements - you can't just say something (like the inspector said he wasn't convinced people wouldn't just prefer to use a car) you must be able to demonstrably prove it. Clearly neither the planning officers or the planning inspector have done this in their refusals or dismissal.

 

So today I've submitted a new Outline Planning Application with Some Matters Reserved, including a 60+ page Planning Statement making my position very clear, and with "guidance" that the detail is so comprehensive because you can't introduce new information at a judicial review, and hence if any decision requires further legal scrutiny, all the required supporting case law and material considerations are already in the Planning Statement.

 

Hopefully, the planning officers will not repeat the same mistakes that I've seen previously from them and from the planning inspector, but if they do, then I am confident that they will have made a further "error in law" and misdirected themselves and I'll then go straight to judicial review rather than to appeal.

 

Not giving up just yet... 😉 

 

Oh, and I added some hard numbers. A Passivhaus Classic dwelling with solar PV and using a zero-emission vehicle delivers over 3,084 Kg/year in CO2 emission savings...

[Pocster]

13 minutes ago, garrymartin said:

I've also dedicated a section to the case law surrounding the determination of "significant" and "demonstrable" harm, explicitly detailing the evidential requirements - you can't just say something (like the inspector said he wasn't convinced people wouldn't just prefer to use a car) you must be able to demonstrably prove it. Clearly neither the planning officers or the planning inspector have done this in their refusals or dismissal.

You keep going ! I know what it is like .

Councils like broad terms to refuse you on with no specifics . You have to push them into a corner to define them .  Good luck .

[Mr Punter]

Well I very much admire your persistence and wish you good luck.

[Pocster]

@garrymartin if I’ve not mentioned it before and you do get a face 2 face - have a recording pen …. Well worth the investment 

[Jilly]

I still think it world be easier to start a community bus route 😜

[garrymartin]

1 minute ago, Jilly said:

I still think it world be easier to start a community bus route 😜

I found out there is one. But one of the conditions for use is that you don't own your own car or have access to one!! 🤣

[Pocster]

My ( now ) world famous expression “ knobbing the donkey “ comes to mind .

[Bramco]

1 hour ago, garrymartin said:

My research found several case law examples that prove this was an error in law when the 'tilted balance' is engaged. When a LPA can't demonstrate a 5-year supply of housing, then policies relating to housing supply are deemed out of data and the weight they are given in the planning balance is reduced accordingly.

 

We referred to this in our appeal - but again if you read the wording it becomes a subjective reduction on planning balance....

They pretend the process is rigorous and clear but the whole shebang is full of weasel words which makes it subjective. It seems that governments want to create laws that appease as many sides as possible and rely on the us the electorate to take cases to court to actually define what certain terms mean.

 

But good luck with everything - really hope you perseverance and research pay off.  It did for us.

 

Simon

 

PS there is a book written by a planning (Q)KC that we bought that lists all the case law.  You've probably already found this.

[garrymartin]

5 minutes ago, Bramco said:

They pretend the process is rigorous and clear but the whole shebang is full of weasel words which makes it subjective

Absolutely. The thing I find really frustrating is that the courts can't really overrule the weighting an inspector applies unless the process they took to determine the weighting was in error.

 

So if the inspector determines, lawfully, that there is a conflict with a particular policy. It's then up to their professional judgement to determine whether they fancy it to be limited weight or significant weight and you can't challenge that. The only thing you can do (as I tried to) is introduce another, similar appeal that reaches a different conclusion as a material consideration and in doing so they should clearly articulate why they have departed from another inspector's view. Mine didn't do that though.

 

I've got this paragraph in my Planning Statement "Although the professional judgement of a decision-maker in choosing the weight to apply is not something legally challengeable, this inconsistency undermines public confidence in the operation of the development control system." Not sure whether it will make much difference to the re-determination but I feel better for having explicitly noted it and if it does end up with a need for further legal scrutiny, I hope the judges will take that into account. 

[garrymartin]

45 minutes ago, Bramco said:

PS there is a book written by a planning (Q)KC that we bought that lists all the case law.  You've probably already found this.

New, 2nd Edition version is due any time soon I understand. The current version is 8 years old now and that's a long time for case law to be updated.

Edited July 31 by garrymartin

[Jilly]

1 hour ago, garrymartin said:

I found out there is one. But one of the conditions for use is that you don't own your own car or have access to one!! 🤣

Just had to self moderate my reply to that one.

Edited July 31 by Jilly

[garrymartin]

1 minute ago, Jilly said:

FFS that is stupid

Yep. 

[joe90]

1 minute ago, garrymartin said:

FFS that is stupid

Too right, how bonkers is that, never mind Labour will  sort it all out (puts tin hat on and runs away)……

[Dave Jones]

you fought the law and the law won.

 

sell the site to pikeys.

[Bramco]

1 hour ago, garrymartin said:

New, 2nd Edition version is due any time soon I understand. The current version is 8 years old now and that's a long time for case law to be updated.

 

So long as the underlying policies haven't changed, then the case law still stands - and sometime the case law influences the changes that have been made.

 

I found the book a great help - although only the few pages that related to our green belt issue...  Don't think we'll be building again, so shouldn't need to shell out for the 2nd edition but I'll bet it will be a great help to some folks in the future.

 

Simon

[garrymartin]

8 minutes ago, Bramco said:

So long as the underlying policies haven't changed, then the case law still stands - and sometime the case law influences the changes that have been made.

Agreed, but I found that I'd come across some old case law that said one thing, and then when you search on that case title, you'd find something later that referenced the ruling and may have clarified some position or other further. It was a lot of work. I started searching case files in date order to save that extra work. Having something more current as a reference would definitely be a good idea.

 

I've seen one site say the 2nd edition is due in August and another saying May 2025 so not sure when it will come out.

[Alan Ambrose]

>>> So today I've submitted a new Outline Planning Application

 

Congrats on your persistence. Does this have different content to the first as I think, if not, it gives them an excuse to dismiss it straight away saying 'that's already been decided'?

 

Worth waiting 'til the Labour amendments come through and/or gaining the attention of your MP? - I'm a big proponent of transparency and calling attention to stuff that isn't right. At some time the head of planning will need to interface with the MP and will probably be a bit embarrassed about this stuff - especially as the 'sustainable transport' policy is just a simple excuse not to build.

[garrymartin]

2 minutes ago, Alan Ambrose said:

Congrats on your persistence. Does this have different content to the first as I think, if not, it gives them an excuse to dismiss it straight away saying 'that's already been decided'?

Yes, extended content. But also specific evidence in rebuttal to the reasons given for refusal and for dismissal at appeal. It's also clear about the law regarding determining "significant and demonstrable harm". It's not enough to just state something, there has to be demonstrable evidence to support it, and therefore the Council must provide that evidence.

[mjc55]

Good luck in your endeavours.  Unfortunately the planning process is such a subjective matter in my experience. 

 

Although all I did in my planning career was to do with relatively small scale stuff, it was always a "hold your breath" moment when I got the email telling me who would be looking at the application.  It really made a difference who that person was.  This was completely the opposite to the BR process which always seemed to be an objective process.

 

Interestingly I did a couple of jobs at the tail end of last year (I had retired but these were friends who asked for a favour) and there seemed to have been a sea-change in the way that the planning department in Wiltshire was working.  Applications were looked at by junior staff and had to be authorised by more senior staff before decision.  Both jobs, I thought, would have issues, both were passed!