planning I am deeply deeply angry: so I need your advice, please

[ToughButterCup]

Why does my build require an EPS Licence, and the other new-builds either side of me don't?

The problem is simple.

People are building and have built either side of my property. For those three -yes three- properties, the planning process has taken no account of the local population of Great Crested Newts. Yet for my build I have had to have the surveys done, had to apply for the EPS licence, and I'm now in the process of fulfilling its requirements. All four of our properties are exactly the same distance from the ponds containing the newts (Great Crested Newts).

What's so special about the other three properties that they aren't subject to the same law?

I have tried to remedy the situation politely, quietly, diplomatically. But this week a Planning Department straw broke my back. What that straw is doesn't matter.

LPAs have a statutory duty to consult all relevant interested bodies before a decision is made in respect of an application. In the case of the other three planning applications all within 50 meters of my property, no account was taken of the duty to protect GCNs. 

What have I done about it?

I have written to the Head of Planning at the LPA explaining the situation, and giving clear evidence that GCNs are being killed, and pointing out that there is a simple avoidable unfairness in the administration of the four separate applications. Mine was the only on which was required to take account of the EPS issue.

I have taken the advice of a local planner (the excellent, sharp-minded Jane - details? PM me). Her advice is to go nuclear because of the simplicity of my case.

Before I do, I thought I'd run it past you all. Just as a final check before I take to the keyboard in earnest.

I am minded to;

• Inform the Police that there is an ongoing offence against the Countryside and Wildlife Act
• See the Local Parish Councillor whose remit is planning
• See the County Councillor who has responsibility for planning
• Go and see my MP about it (Cat Smith)
• Write to our Council's Chief Exec and explain that I have raised the issue with the Head of the LPA, but that he avoided answering my question

My instinct was at one time to deal with this at as low a level as possible. But not any more. Advice from any of you to back off a bit will be more likely to be listened to than the opposite. 

"Well, lad, can't take a joke? - Shouldn't have joined then should ya!" That Parachute Regiment Sergeant's admonition lovingly hissed into my ear during the 1970s is easily transposed to;

"Can't take a joke? Shouldn't have applied for Planning Permission should I !

[PeterW]

Go nuclear....

make a statement and ask for a reference from your wildlife officer, you don't want it "noted" as its pretty pointless unless it appears on someone's statistics. 

And give the council 14 days to respond to a registered post letter then go via the complaints procedure and threaten legal action to recover costs incurred - always sharpens the mind.

Finally - just check the law hasn't changed ..! It's damned annoying but regs change and what was deemed mandatory when you applied now could be advisory now. Planning consultant could help with that. 

[ProDave]

Talk to your local newspaper.

[Jeremy Harris]

My inclination, given the hassle you've had, is also to "go nuclear".  There's only one thing that would stop me - how are your neighbours going to respond to you bringing the authorities down on them for breaking the law?

There clearly is a case to be made regarding the costs you've had to incur (including the costs caused by the delays) which the other builders have not.  Although it seems that there is a permitted breach of the law by the neighbours, in that the Council haven't fulfilled their legal obligation to ensure that wildlife is protected, is the criminal law the right way to deal with this?

My inclination is to look at using the civil law, and sue the council for the full costs they have made you incur.  You could also go very public with this at the same time, something you couldn't do as easily if you wanted the police to investigate a criminal offence.

There's a case to be made, I'm sure, but it will take some time to pull together the basis for claim and longer for it to go through the courts.  As someone who earns a modest income from collecting, collating and presenting evidence for civil (and very occasionally criminal) cases my professional view is that, if you have the commitment and patience, and can find a good civil claims lawyer, your prospects of recovering all of the additional costs you've incurred from the council may well be reasonably high.  My guess is that they would push you hard for a year or two, then settle out of court.

[Temp]

I would think about it. What happens if some official turns up and stops work on all four plots (including yours) while they "review the situation"?

[Tennentslager]

Is it worth submitting an FOI for all correspondence re your application particular ly emails within the department also anything at all re policy about GCN

It'll take a month but might give you more information you could use in a civil action

 

[Ferdinand]

No win no fee?

[Jeremy Harris]

A carefully worded FoI, or more than one - you might want to consider getting the minutes of any meetings where the current policy was set, as well as correspondence relating to the planning decisions, would be a very good idea.

If I were doing this (but bear in mind this is not my area of expertise) I would start with a review of the sites, taking photos, using aerial imagery, detailed maps etc to establish the facts regarding the absolute positions (in 3D) of every relevant structure or feature. 

The next stage would be to collect and collate all correspondence and pertinent data, in this case planning policy, wildlife law, planning permission correspondence for all the developments and a copy of the full planning file for each. 

I'd then put together an event diary, with dates and times for every key element that impacted on the outcome, and try to weight each one.  My approach is to use causality analysis, and that could be adapted to this, in that some elements will be rated as having a high probability that they were causal (in this case, contributed to you being asked to do things that cost you money and the others not being asked to do the same things) and some will have a low, or no, probability of being causal.

I often draw causality diagrams, with time on the horizontal axis and every single element abbreviated and placed in a circle, with causal links from each to other elements.  For example, on a given date correspondence requested that you undertake a GCN survey.  This is then linked to the survey element and that to other elements, each of which will have a differing degree of causal impact on your additional cost burden.  I weight the strength of these links on the diagram, with dotted lines for weak links and very bold lines for very strong links.

Personally I always find this process very useful at removing much of the emotive, but not particularly relevant, stuff, from the core elements that, in this case, caused you considerable additional expenditure (in my case it's usually either the most probable cause of an event, or the person, company or organisation most probably to blame, but the principle is the same).

[ToughButterCup]

24 minutes ago, Temp said:

I would think about it. What happens if some official turns up and stops work on all four plots (including yours) while they "review the situation"?

That's exactly @MrsRA's argument. And exactly why I have made this post. 

Thank you so much Temp. I really appreciate it.

[Guest Alphonsox]

I would suggest taking a deep breath then deciding what you want to achieve. Do you want to recover the costs you have currently incurred or do you want to ensure your new neighbors incur the same costs as you ? The later doesn't seem to be a good basis for a happy retirement.

 

(Crossed with above post)

[ToughButterCup]

10 minutes ago, JSHarris said:

[...]

Personally I always find this process very useful at removing much of the emotive, but not particularly relevant, stuff, from the core elements that, in this case, caused you considerable additional expenditure

[...]

Thanks for introducing me to this the framework. I will think about it.

[ToughButterCup]

Perhaps at this stage, a little further explanation is required.

I do not begrudge our expenditure. I do not feel traduced by the fact that neighbours appear to have 'got-away-with-it'. But I do care deeply about fairness. I spent years of my professional life encouraging professional people to act fairly - and to point out ways in which they could analyse their own practice and analyse whether they were being fair. And how to put it right if they weren't.

Now, I have to decide whether I can live with myself if I do nothing - and let unfairness win. It's lonely.

[Ferdinand]

What, if any, will be the impact of the legal doctrine that Planning Decisions do not form precedents?

[Jeremy Harris]

21 minutes ago, recoveringacademic said:

Thanks for introducing me to this the framework. I will think about it.

I should say I didn't invent it, an acquaintance, Peter Ladkin (a former professor at Bielefeld University) came up with the idea of using what he terms Why-Because Analysis.  I just found it an extremely powerful way to cut through the crap and determine what was likely to have contributed to an event and what wasn't.

[ToughButterCup]

Hmm, Ferdinand. 

I need to go for a long walk in the rain, get soaked, come back and do a few hours' CSS and JavaScript coding to get myself back into kilter.

And then, while in a good mood,  decide whether to poke the hornets nest with a sharp stick.

[Jeremy Harris]

14 minutes ago, recoveringacademic said:

Perhaps at this stage, a little further explanation is required.

I do not begrudge our expenditure. I do not feel traduced by the fact that neighbours appear to have 'got-away-with-it'. But I do care deeply about fairness. I spent years of my professional life encouraging professional people to act fairly - and to point out ways in which they could analyse their own practice and analyse whether they were being fair. And how to put it right if they weren't.

Now, I have to decide whether I can live with myself if I do nothing - and let unfairness win. It's lonely.

If this is your key concern (and I have to say it would be mine, too, in principle) then you need to have a think about your desired outcome.  What would you like to see done to address the inherent unfairness in the way all of you building adjacent to these ponds have been treated?

I have to say that I've asked several insurance companies this question over the years, when they've asked me to act on their behalf (usually via their in-house legal team) and a fair percentage have decided not to proceed having decided that they couldn't answer that question.

In your case, although you say that the additional expenditure isn't your motive (and I believe you completely) you have to decide on what would be an acceptable way to address the seemingly unprofessional and unfair way that you have been treated.  The obvious course of action is for you to be returned to a position that is the same as those around you that are building, with your additional costs being paid to you by way of compensation.  You may not want the money back, but realistically this is probably the only way that the inherent unfairness could be resolved.

[ToughButterCup]

2 minutes ago, JSHarris said:

[...] extremely powerful way to cut through the crap and determine what was likely to have contributed to an event and what wasn't.

Cutting through nonsense is always welcome. But, I have a strong feeling that, in the end I will feel bad about myself long term if I don't do something to mark the unfairness.

Question is what?

What is appropriately subtle, marks the systematic failure of the local planning system, and yet sharp enough to cause the odd intake of breath? And thus initiate change at system level to prevent disregard for simple fairness.

[TerryE]

Ian, you have often advised me in the past to suck it up or some paraphrasing.  We spent getting on for £2K on our archaeological survey.  This made absolutely no rational sense: the trigger was a Saxon find about ½mile from our house at the opposite end of our village.  I pointed out that there were 4 other applications for planning permission under way that were closer to the find than us that (including an extension to our local primary school) where a survey hadn't been required.  Of the five plots, ours had been a farmyard and outbuilding since the 1700s, whereas the others had been previously untouched farmland whereas.  (Yup, sure enough -- all there found was evidence of farm pen fence post holes and a lot of "made up ground" over the base Oadby member clay.)  I tried to reason with the LPA archaeologist, but her response was that

1. It is the decision of the assigned case officer whether to assign a consultation to the archaeology office and she had no input on applications where she wasn't assigned.
2. She was more happy to have the discussion, but she was heavily overworked and so it would have to be by letter (and her current response time was 6 weeks per letter) so I should allow a minimum of 3 months and possibly 6 moths, but in her experience the LPA would probably not remove the condition once allocated unless we provided compelling evidence to do so.

In other words, just shut up and accept the decision, or we will make your life hell.  And that is what we did: the £2K was a random irrational tax that funded jobs for the boys in the LPA and the archaeology survey companies.   The planning system has processes, and processes sometimes have quotas, and their allocation is often random and unjust (in our case maybe "it was a farmhouse so why not have a survey here").  The last thing that bureaucracies want is for the end users to start disrupting the smooth running of the processes and they will often retaliate out of principle when the opportunity arises. 

Another case for us: our LPA Enforcement Officer decided that our slab was in the wrong place so asked that we put in a minor material amendment to correct the plans.  "A formality".  The thing was that the slab was in the correct place relative to the front road, but one of our neighbours over the back had pinched a bit of our garden.  Our builder said: don't apply because in doing so you admit that the slab is in the wrong place and what do you do if they turn the amendment down? Demolish the slab and house and start again?  So we dug our heels in and refused: the slab was in the correct place with respect to the highway.  The EO gave in and closed this issue, but also insisted that we submit a NMA for our front door which didn't match the submitted detailing, also "don't discuss with your last case officer, since a new one might be assigned".  Yup, and we only learnt the identity of the case officer when we received his rejection of the same application that the EO asked us to submit!

In your case:

• You have now practically passed this hurdle -- albeit at a lot of cost and time.
• By raising this issue you will piss off the planners because you are making waves that will cause further work.
• By raising this issue you will potentially alienate the neighbours.
• You need to maximise the goodwill of both your neighbours and planners -- until they have signed off your build as complete.

So this is just a case of where you need to suck it up.  Making waves will only reflect back at you.  My suggestion is that if you do want to make an issue of this, then wait until your build is complete and signed off.  By this stage the heat of the indignity and emotion will have died, and you can take a far more rationale and analytic view of the issue.  If the underlying issue is there, then this is the right time to try to raise it and resolve it.

 

[Declan52]

Go for the throat. What is the worst that can happen your already stalled build, more delays. 

True the other builds might get stopped but that's not your fault. Either the council has a policy or it doesn't, can't be just for some and not others .

As above letters with warnings about how they have shafted you and you expect a reply in 14 days and then you will be seeking the recovery of all costs that have been accrued.

Take no prisoners. Gd luck.

 

[TerryE]

2 minutes ago, Declan52 said:

Go for the throat. What is the worst that can happen your already stalled build, more delays.  ... Take no prisoners. Gd luck.

No the worst that can happen is that you totally piss off both the neighbours and the planners.  You have to live the neighbours long after the build is complete.  The planners can make your life hell just because.  You then have to do some minor material amendment because the EO catches you out after a neighbour raises an enforcement objection; your application is then turned down, and the whole development turns into a crock of shit.

[ToughButterCup]

Thanks Terry for the calm analysis. But I feel like taking Declan's advice. However,  long ago, I recognised that in business dealings, feelings are dangerous and often irrelevant.

@MrsRA will be the final arbiter. She has a highly developed sense of which battles to pick, and I trust her judgement far more than I do my own - except in stacking dishwashers and navigating microlights or cars.

Thanks everyone for piling in and helping me work this one through. Time for a walk on the fells and a think.

 

[Stones]

I'm a bit late to the party so I'll keep it concise, +1 to Terry's comments and analysis.

[Jeremy Harris]

There is a middle path here.

First off, I wholeheartedly agree with all the views expressed, from the fact that pissing off planners, the council and neighbours may cause long term ill-feeling, as well as more hurdles you have to jump over, to the flip side that this is plain unjust, in your case grossly unjust, to the tune of more than just a couple of £k.  If we don't attempt to address unfairness like this, it will continue, and others will face similar problems.

So, I think I would very politely request that the local authority state their case clearly and unequivocally for requesting that you put in place all the GCN harm mitigation strategies you've had to do whilst the neighbouring builds have not.  Be clear that at this stage all you want from them is a clear, evidence-based, rationale for the difference in the decisions for each PP, and that you require them to provide the evidence that supports each decision.

My guess is that this can go two ways, they can comply with your request and effectively admit that they've applied to different policies to adjacent developments, or they can try and fob you off.  The most probable is that they will try and fob you off with an argument unsupported by any evidence at first.  If you then politely ask for the evidence, they may well realise they are in a difficult position.

What happens after that is anyone's guess, but some things cannot happen.  They cannot rescind the planning permission they have granted to the adjacent developments, neither can they retrospectively apply additional conditions, so you're not at risk of upsetting the neighbours.  If your request is polite and carefully worded they have no cause to get the hump with you, either, and if they do they know that you have recourse to the LGO for redress.

You could decide to just pass all the information you have to the LGO and let him/her decide what to do.  That pretty much takes you out of the loop and lets someone independent look at whether there was a failure of process within the local authority, that failure being that they seem to have not applied law and planning policy fairly and even-handedly.  The LGO has powers to seek redress from local authorities, I believe, so could decide that you should be compensated, but again you would be one step removed from this process, also, it's slow, so in all probability it wouldn't affect your relationship with the planners until you were past caring.

[ProDave]

How about another option:

Make a SMALL change to the design and re submit a new planning application. IF they impose the same conditions, appeal on the basis the other plots did not have those conditions.

[joe90]

I am also late to this debate and affected by delays from my planners totalling two years (appeal not heard yet). Initially I would go nuclear but Jeremy's note above about a halfway move seems more sensible. Go for it but in a reasonable way. Don't take it lying down or they will walk all over you and look smug going it, these planners need a kick up the jacksey. Best of British and keep us informed.