Three homes approved. Four homes expected to be approved. But the developer of the Linney House site is determined to press ahead with his appeal against Shropshire Council’s lack of a decision on his scheme for eight homes. His appeal launched in June is proving to be as complex as the planning history of this site.
The developer doesn’t pull any punches during the appeal. He attacks the council for not determining the application and lambasts the council’s tree officer. The council quite rightly refutes these arguments. It bases its case for rejection of the scheme on the impact on ecology, wildlife corridors and trees. However, its case is weakened by an extant planning permission for three perfectly awful homes.
A final decision by the planning inspector is expected in the next few weeks.
This is one of 30 planning appeals currently underway in Shropshire. It began on 15 June and the planning inspectorate has yet to set a date for a decision. One of the difficulties in summarising the appeal is that the public only have access to the council’s documents, not those submitted by the developer. Yet, the council’s records alone show this is proving to be a more complex appeal that usual.
The robust statements by the developer include extensive criticism of the way Shropshire Council had handled the application. At one point, the developer’s architect accuses the council of having a difficult, hostile, irregular and unproductive dialogue. Unsurprisingly, the council rejects this. It says it has spent more time liaising with Hepworth’s agents “than almost any other application dealt with by the Council other the past eighteen months, despite the relatively small scale of the proposal.”
Indeed, one of the complexities is the planning history of this site which has seen multiple, sometimes overlapping, applications by developer. Officers have said that they are expecting the most recent scheme for four homes would be approved when it is considered by the Southern Planning Committee in September. Given that the committee only narrowly agreed to reject the eight home scheme now at appeal, I would not be surprised if the four home scheme got approval.
Developer James Hepworth’s appeal is based on non-determination – the council did not decide within 10 weeks, the deadline set by central government. He has made a claim against the council for the side’s full costs incurred during the appeal. The council has rejected this arguing it was appropriate to delay a decision as a subsequent application had been submitted and many details of the scheme currently at appeal had not been resolved.
The council and developer are arguing over the provision of affordable housing contributions. The developer says the costs of and public benefits of rebuilding the stone wall and associated highways improvements along the Linney removes the need for affordable housing contributions. The council says the developer has not followed procedures and has not submitted the required open book viability assessment – a statement of costs and profits – and a waiver on contributions is not justified. The developer has unilaterally offered an affordable housing contribution of around £108,000 but the council says this should be £138,600.
The council is insisting that work on the passing place and the adjacent section of wall should be completed before construction work on the site is started.
The application for eight homes was discussed by the Southern Planning Committee on 28 July. It was an unusual meeting which at times seemed confused. One councillor even received a phone call from the developer’s agent during the meeting and that seemed to have influenced his actions in the committee. Last minute lobbying documents from the developer which had not been entered into the public record were discussed even though they had not been laid before the committee. These actions breach the planning rulebook big time and is the type of behaviour that can lead to legal action against councils. Another voted against his own motion and the developer claimed that councillor had voted the wrong way. The councillor subsequently submitted that he did not vote the wrong way. And in an extraordinary outburst after the narrow vote in favour of the committee being minded to have rejected the scheme, a councillor, clearly forgetting his mike was turned on, gave a four-letter rant along the lines of so-and-so will effing kill me for that. It is not known if this was related to the planning decision but, as I said, it was an unusual meeting.
Permission for three homes on the site was granted in May 2014. In 2015, a large number of trees were illegally felled. The council argues that much of this work was also in breach of planning permission. It has been insisting 100 trees are replaced. Hepworth alleges that the council’s tree officer was “consumed” by the felling, a claim the council refutes. He says it had been agreed that only 15-20 trees would be replaced, something the council says it has no record of. Anyway, council planners say, this argument is a distraction from the main debate on whether the eight home scheme is better than the approved three home scheme. The council has told the appellant it will look at applications “without being overly concerned about the past history in terms of the exact number of trees that have been felled.” But it tells the inspector “any development on the site should as far as possible retain the integrity of the site as an area of woodland” and the development being appealed does not achieve this.
The site is outside the development boundary for Ludlow and this would ordinarily be grounds for refusal. But officers conceded the extant planning permission for three homes is a significant consideration in determining the appeal. The developer has asserted that the council officers said they would ‘see [the application] through’. Officers say that if any such comments had been made, they would not have meant that they would approve the scheme.
In evidence to the inspector, the developer apparently referred to media reporting by me. I don’t know what this refers to but it is my job to let people know what is happening and the council rightly tells the inspector that I do not write and act on its behalf.
We now await the planning inspector’s decision. This will be a difficult case to determine and it’s hard to judge what conclusion the inspector will come to.
(Planning inspectorate appeal page. Shropshire Council appeal page.)
Is there a legal case for a judicial review of the original decision?
No. A JR must be started within 6 weeks of a planning decision