Errors, omissions and obfuscations in the Officer’s Report.
Development Management Case Officer
• Officer states that LDP allocation is for 20 dwellings. She fails to so much as even mention limitation of only 12 dwellings on this site, as appears in LDP Appendix 2, even though advised by Park Direction Officer, by memo, that she admitted failure to “correct” this statement of a far lower limit was an ‘error’.
• Legal significance of the Authority’s “failure” to correct this alleged “error”, and the fact of the continuing reference in the LDP to a limit of only 12 dwellings on the site in Appendix 2, has been the subject of a full Counsel’s Legal Opinion provided by BDOG to the Authority as long ago as 22nd April. BDOG statement that failure to take note of and act upon this advice will inevitably lead to court action in response has simply been completely ignored in Report !
Parks Direction Officer
p.20 Head 2
• Officer, as above with Case Officer, refers only to figure of 20 dwellings in Table 7 in the LDP and completely omits to even mention lower figure of 12 dwellings as appearing in Appendix 2 instead. Also fails to mention legal advice sent to Authority on this point as to its significance.
• Officer also now cites figure of 40% as relevant commitment to affordable housing proportion, as recommended in Supplementary Planning Guidance, and omits to even mention the existence of figure of 70% as stated in LDP Policy 45 instead. Once again this issue was made subject of Counsel’s further advice as to whether or not Members were at liberty to regard lower SPG figure as a “material planning consideration”, which he found they were not. Once again even the existence of counsel’s advice has been completely omitted from Officer’s Report.
• Officer obscures and glides over the fact that, notwithstanding this development has been subject of 2-3 years worth of pre-application consultation and a further 6 months delay post application submission – there is as yet still no actual “viability assessment” completed for the exact housing mix currently sought !
Buildings Conservation Officer
p.20 Head 3 §1
Whilst, the Officer stipulates to the fact that :
“The listed buildings of the town are scattered across the settlement, forming part of the “grain” of the streetscape with the exception of the major accents of the castle and church. The latter will both remain as such, albeit with lesser views from the East – the main panoramic views from the south (downhill) and North (from the Parrog with Carningli as the backdrop) will retain both buildings as landmarks.”
• Consequently he clearly therefore accepts that the proposed development would at the least “affect the setting of the listed building(s)” concerned, namely the castle and church – he, nonetheless, fails to mention that he did not then require the application to be publicised in a local paper for that purpose, pursuant to the provisions of s.67 of the Planning (Listed Buildings and Conservation Areas) Act 1990 – thereby bringing the Authority into breach of its statutory duty.
p.20 Head 3 §2
• Officer further states as follows :
“impact on the setting of the adjacent conservation area/its character and appearance. The setting of a CA is not a material consideration (character and appearance only so when considering development within CA boundaries).”
Planning Policy Wales Edition 7 – July 2014 –
Chapter 6 Conserving the Historic Environment
“6.5.17 Should any proposed development conflict with the objective of preserving or enhancing the character or appearance of a conservation area, or its setting, there will be a strong presumption against the grant of planning permission. In exceptional cases the presumption may be overridden in favour of development deemed desirable on the grounds of some other public interest.”
PCC Transport & Environment
p.20 bottom Head 4
• No mention whatever of the prior recommendation by PCC Highways, at the time of the commentary on the LDP pre-Deposit Plan, that the site should be limited to 20 dwellings only, and access achieved off Feidr Eglyws instead, and only after setting entire hedge-bank back by a distance of 1.5m.
• This failure is now subject of a formal complaint to the Welsh Public Services Ombudsman for deliberate misinformation re public enquiry. Again no mention.
Natural Resources Wales
p.22 Head 1
• Officer describes this Consultee as “supporting” , whereas in point of fact having been originally “opposed” they have now been merely persuaded to provisional withdraw their objection, subject to further late promises on amendment to plans (drawing 25) to cater to habitats of EU protected species dormice and horse-shoe bats.
Dwr Cymru Welsh Water
p.22 Head 3 §2
• It is reported that regarding “water supply.:” this consultee “Has no objection to the proposed development”, Whereas, in reality, as recently as 26 July to 2013, Mr.Owain George (Lead Development Control Officer – Dwr Cymru Welsh Water) wrote to the Applicant’s Agent as follows :
“The proposed development is an area where there are water supply problems for which there are no improvements planned within our current Capital Investment Programme AMP S (years 2010 to 2015). In order to establish what would be required to serve the site with an adequate water supply, it will be necessary for the developer to fund the undertaking of a hydraulic modelling assessment on the water supply network.”
We are aware that the Developer chose not to pay the sum of £7,844.66 subsequently set by DC/WW for the said Assessment and that therefore no such Assessment has been performed. When BDOG subsequently wrote to Senior Management at DC/WW to point out this inconsistency, the relevant officer wrote instead to the Authority’s Case Officer (29 July) seeking information as to deadline for consultee submission, as they were investigating the issue which we had raised. We are yet to hear back from DC/WW and, so far as we know, so too is the Authority.
Trunk Road Agency (TRA)
p.23 Head 2
• Officer’s Report states that WG TRA originally required a Transport Statement only to be provided which is incorrect. As later acknowledged (see @ §3 on p.35 of Report under ‘Access & Parking’) a full Transport Assessment was in fact sought by the Welsh Government Transport Division Route Engineer (see his letter of 16 June), which it then states was then provided by the Applicant. This again is incorrect. Instead, the Applicant’s Transport Agent (Acstro Ltd) stated in its Transport Statement (see at §1.6 on p.2) that, having regard to the terms of the Table (at D.4 p.50) in TAN 18, they felt that “a comprehensive TA is unnecessary and cannot be justified.” Hence, their decision to submit just a Transport Statement instead.
However, neither party appears to have recognised nor referred to the fact that TAN18 (see @ §D.3 on p.49) specifically permits and encourages LPAs in their LDP to set their own threshold conditions for requiring TAs in place of TSs to accompany planning applications, and that the PCNPA has indeed done so, as follows :
PCNPA LDP pp.87-88
“Policy 53 Impacts of Traffic
Development will be permitted where appropriate access can be achieved.
Instances where access will be considered to be inappropriate are
a) traffic is likely to generate an unacceptable impact on congested areas
or at times of peak traffic flows; or
, , , ,
c) where there is an unacceptable impact on road safety; or
d) where significant environmental damage would be caused and cannot be mitigated
4.240 This policy follows the National Planning Policy set out in Technical Advice Note 18 but sets the criteria for assessment to levels more relevant to the level of development occurring in the National Park. All applicants will be required to complete a short transport statement detailing the likely number of trips their proposed development would generate and the likely modal share.
4.241 More detail will be required for those developments meeting any of the following:
• Residential developments of 25 units or more: or
. . . .
4.242 A full Transport Assessment will be required for any proposals likely to have significant trip generation or where the National Park Authority has significant concerns about the possible transport impact of the proposed development.”
• Clearly, the scale of this proposed development (35 dwellings) greatly exceeds the threshold as set out at bullet-point 1 in §4.241 (as above) and thus should have, at the very least, required a more detailed submission from the Applicant, if nothing else. Whether or not the Case Officer regards the “trip generation” estimates produced by the Applicant’s Agent (Acsrto) – which was for 160 daily excess Trip Rates to be generated just at peak times (see @ Table 5.1 §5.4 on p.12 of Acstro TS) – as comprising “a significant” figure, as per §4.242 above, and thus demanding a full TA, is unknown as the Officer says nothing about the point whatsoever, and yet again has apparently simply ignored it.
Principle of Development
p.28 Head 2 (Meeting General Housing Need)
• The Officer baldly states that Policy 44
“… advises of a requirement for a minimum density of 30 dwellings per hectare for housing development in Centres. In this instance, the application site is subject of a housing allocation (HA825: North of Feidr Eglwys) which states allocation of 20 dwellings.”
However, she fails to state that a) Policy 44 goes on immediately to state that the ‘30 dwellings per hectare requirement’ is applicable only “… in Centres where this is compatible with the character of the Centre”; and b) that the LDP Inspector must be taken to have been fully aware of this provision when he recommended the limitation of 20 dwellings on this site instead, which limitation was then set out in Table 7 on Housing Allocations in the Plan.
• Instead she goes on to state as follows:
“The most recent planning performance figures for the period July 2014 June 2015 produced by the Welsh Government, demonstrate that the current housing land supply in the National Park is below the Welsh target, the at 2.7 years set against a target of 4 years supply. As such the proposals, seek to provide additional housing, particularly within Centre location such as this proposal, need to be carefully considered.”
However, what she fails to mention is that Welsh Government planning guidance clearly sets out that, where a local planning authority is failing to meet its housing supply targets, possibly through overly restrictive provisions in its Local Development Plan, then the solution is to seek the statutory review of those plan provisions, leading, where needs be proven, to their revision according to law (s.70 of the 2003).
See 7th. Edition of Planning Policy Wales (July 2014)
“2.1.6Local planning authorities are required to make an annual monitoring report on their LDP. The annual monitoring report will identify any policy that is not being implemented, together with the steps the authority intends to take to secure implementation. Annual monitoring and regular review are mandatory .
. . . .
2.7.2 It is for the decision-maker, in the first instance, to determine through review of the development plan (see 2.1.6) whether policies in an adopted development plan are out of date or have been superseded by other material considerations for the purposes of making a decision on an individual planning application”
The Town and Country Planning (Local Development Plan) (Wales) Regulations 2005 require at r.41. that :
“An LPA must commence a full review of its LDP every four years from the date of its initial adoption, in accordance with regulation 3(1).”
The PCNPA LDP was adopted on 29th September 2010 so that the formal statutory review, as required by law, should have commenced on 28 Sept last year 2014. We are only aware of an invitation to attend a preliminary meeting sometime later this month together with the Newport Town Council, to discuss ways forward to a full review next year 2016.Namely, considerably more than a full year late.
Inevitably, it appears that the Authority’s wanton failure to comply with its statutory duties to review its LDP in a timely fashion, is in effect now being used as a disgraceful excuse for recommending approval of this current massive departure proposal, on the premise that the existing provisions are now so out-of-date, and incapable of meeting the current WG targets for housing supply. However, whether a Planning Inspector would concur that this state of affairs justifies now dropping the previous LDP Inspector’s cap on numbers of units on this particular allocation site, is simply unknown. What possible point would there be in our engaging with the LDP Review procedure, and seeking to put our case before such an Inspector next year, if this development proposal is instead now given planning consent today ?
Principle of Development
p.29 §3 (Meeting Affordable Housing Need)
• The Officer states wrt Policy 45
“Policy 45, supported by Supplementary Planning Guidance on Affordable Housing (which updates the affordable housing requirements on allocated sites) seeks a provision of 40% affordable housing. The applicant has designed the development to provide the required percentage of affordable housing, . . . The applicant has provided written confirmation of an offer of interest from Cymdaithas Tai Cantref in providing the affordable housing, but has also indicated that discussions are taking place with a number of Registered Social Landlords.”
As the Officer well knows Policy 45 of the 2010 LDP actually states unequivocally that a 70% proportion of housing to affordable needs, is the policy commitment here in Newport as therein set out. The notion that this is “supported” by the subsequent recommendations, as set out in the so-called Supplementary Planning Guidance, secured through a private-sector Cardiff-based planning consultancy, and never tested by examination-in-public before a Welsh Planning Inspector, is nothing short of risible. That private sector guidance is instead quite simply intended to supplant, the existing policy commitment and that is precisely what it does. In so doing, as fully set out and reasoned in our second Counsel’s legal opinion, again not so much as even mentioned by your Officer, you are being advised to act in clear and manifest breach of well established WG planning policy guidance
Wales Technical Advice Note (TAN) #2
(Planning and Affordable Housing) 2006
“14.2 …. The conclusions of the JHLA (Joint Housing Land Availability) study must be incorporated into the development plan Annual Monitoring Report (AMR).
14.3 Where the AMR indicates that the affordability of housing has changed, or the development plan affordable housing target will not be met, the local planning authority should consider whether to review or revise the plan. Appropriate responses may include amending the mix of affordable housing policies or increasing/reducing the level of affordable housing to be secured on allocated and windfall sites.”
In practice there is precious little enough left in the planning procedure which even attempts to nod toward a democratic accountability and public involvement, however, one essential element is the ‘right’ of the public to have its day before a Planning Inspector and argue what it believes should be in the Local Development Plan. The attitude and process now advocated by your Officers, would seek to remove even this last vestige of democratic accountability and public involvement.
Principle of Development
p.31 §5 (Landscape Preservation)
• The Officer comments that :
“It is considered that the proposed development has taken into account the emphasis placed on the existing landscaping, and seeks to retain and strengthen the existing hedgerow boundaries and mature trees on the site it is demonstrated that the increased density can still be satisfactorily assimilated and whilst emphasis has been placed on the requirement to limit the density in order to reduce the visual and visual impact of development, it is considered from the plan submitted that the development of the site would not result in a cramped layout or a form of development that is incompatible to the Centre.”
The proposed development actually contemplates the complete destruction and removal of more than 80m of ancient Pembrokeshire hedgerow and holloway, in order to create at least three separate site access junctions and visibility splays (one off Feidr Bentinck and two off Feidr Eglwys). Where the LDP Inspector spoke to only a single access off Feidr Eglwys and which would require preserving the hedge bank by moving the whole thing back 1.5m in place of such large visibility splays. The proposed density of layout is at least three times greater, if not more, than the existing density of surrounding dwellings; and has the classic, formal cul-de-sac development best attributed to the cultural influence of Mr Barrett and his back catalogue of the estate building. This part of the Officer’s appraisal is perverse.
p.35 Head 1 (Mature Trees and Hedgerows)
• What the Officer fails to mention in all of her fawning praise of the Applicant’s efforts at mitigation and preservation, is the fact that in his original application, and until compelled to submit a fully revised Site Plan just last month, he had not disclosed in any of the documentation accompanying his application, the true extent of the visibility splays he was required to create by PCC Highways and the extensive loss of hedgerow that will ensue (80m+), nor the further loss of mature trees, such as the stand of ashes opposite Dan-y-Mynydd. To obtain a true and fair appraisal of this Applicant’s arboricidal tendencies, ask your Trees Officer to relate the varied and many complaints he has recently received regarding hedge-bank and tree destruction undertaken at this Applicant’s instruction, just prior to your site-visit in late August, just so as to make the surrounding lanes appear as wide as possible !
Amenity – Physical and visual
p.36 Head 2 (Visual amenity)
•The Officer comments that :
“The proposed development is residential in its entirety, and is compatible with the existing residential setting which borders the site to the North, South and partially to the East. The development is considered to respect the existing landscape characteristics and features as the built forms are positioned amongst the retained field boundaries and mature trees, which retains a semirural appearance, and does not appear cramped and crowded in physical or visual terms. Whilst the development has required the construction of two new access points, necessitating the removal of two sections of existing hedgerow, the remaining hedgerows are strong enough to retain the appearance of the natural site boundaries,”
Compare this assessment of the impact of residential development on the physical and visual amenity of the site, with that offered by the JUDP Planning Inspector in his Report in 2005 (§9.66.7 on p.423 Part II – Settlements) commenting on precisely the same location, albeit the proposal was then for only the southernmost field bounded by Feidr Eglwys and Feidr Bentinck without stretching as far as the rear of Goat Street as well, as follows :
“This site comprises an open field conspicuously located at the main entrance to Newport from the east; while bounded by roads on 2 sides with housing and other built development beyond, this land is best related to the stretch of generally open countryside which extends around this part of the settlement. The development of this site would represent the spread of the built up area into these predominantly rural surroundings with consequent serious environmental impact. Accordingly I am not recommending this series of proposed changes..”
How, you may well imagine, can they possibly be talking about the same site ? The old Pembrokeshire developer’s adage – wait long enough, employ the ‘right’ agent, make enough promises and in time . . . .
Case Officer’s Conclusions
pp. 38 – 39
• The Officer concludes that :
“… whilst greater in density than advised in the housing allocation in the Pembrokeshire Coast National Park Local Development Plan – would provide a previously unforeseen opportunity for the provision of new dwellings within the Centre of Newport, the development of which can still be demonstrated as being appropriate to the site and setting in terms of siting, design, access, landscaping and external appearance.”
“previously unforeseen opportunity” ? For heaven’s sake the site in question is an housing allocation within the LDP (2010) ! Candidly, the only aspect of this debacle that was ‘previously unforeseen’ was the utter contempt and disregard with which this Authority’s senior Planning Officers appear to be willing to treat the terms and condition, restrictions and limitations as set out in clear-cut plain language in its own Local Development Plan.
In turn in our conclusion, and taking into consideration all of the above cited many inaccuracies, falsehoods, defects, deficiencies and obfuscations, in our view this Report , most regrettably, is a bias, partial, incomplete and wholly misleading analysis of the pertinent planning policies, perspectives and legal planning principles which instead ought to be applied to this application.
For and on behalf of the Bentinck Development Opposition Group