Barrister’s Advice (Full)

As respects Local Development Plan provisions
relevant to the determination of
Planning Application NP/15/0194/FUL – received on 30/03/2015
residential development of 35 dwelling units

Advice

Hugo Charlton                                                                                                                    10th April 2015

No.1 Gray’s Inn Square,
Gray’s Inn,
London WC1R 5AA
(Door Tenant)

Contents
————————————————————————-
Heading                                                                            Paragraph Page
————————————————————————-

Introduction                                                                   1                       3
The Site                                                                             4                        4
History of the LDP evolution                               5                        4
The LPA’s technique for                                       21                     12
belatedly dealing with LDP errors

Is the internal inconsistency in the               32                    17
Plan and the Inspector’s apparent
intention itself a further legitimate
material consideration ?

Is there a question of                                           40                       20
“legitimate expectation”

Other “material considerations”                  48                         24
Affordable housing percentage.                   49                        24
Additional vehicle access off                          58                        29
Feidr Bentinck.

Conclusions                                                             60                          31

Appendicies

BDOG 01 – Feidr Eglwys Alternative Sites (Inset) Map

BDOG 02 – Deposit Plan (2009) Appendix 2 “Allocations”

BDOG 03 – Site 825 detailed assessment (09 download)

BDOG 04 – PCNPA LDP – Inspector’s Report (Mr.Juniper)

BDOG 05 – PCNPA LDP 2010 Adopted Version (Table 7)

BDOG 06 – Adopted C22 Newport Inset Map

BDOG 07 – PCNPA LDP 2010 Adopted Version – Appendix 2 (p122)
Introduction
1. I am asked to advise with respect to a detailed planning application that has come forward very recently with respect to development of residential dwelling units on land within the town of Newport, in the County of Pembrokeshire, within the area of the Pembrokeshire Coast National Park in the very south-west part of Wales, and for whom the Local Planning Authority (“LPA”) is the Pembrokeshire Coast National Park Authority (“PCNPA”).

2. The detail revealed in this application for the proposed development has come as quite a shock to many, if not most, of the local residents in the immediate neighbourhood of the development site. Not so much because the “principle of development” on the site was unknown, it was approved as a housing allocation in the PCNPA Local Development Plan (“LDP”) as recently as September 2010 ; but rather because of, the sheer scale of development now proposed for the site (35 dwellings of which 14 are to be given over to a so-called “affordable housing” commitment), when the public had excellent grounds to believe, as we shall see, that development on this site was to be limited instead to no more than 12 dwellings, at a maximum.

3. Accordingly, many of those local residents have now loosely formed into a group, calling itself the Bentinck Development Opposition Group (“BDOG”), from whom I have received my instructions and for whom I am now asked to prepare this Advice. In the first instance, and because local residents and neighbours are being given such a short period of time (approximately three weeks at best over the Easter period), in which to organise and present their opposition, I am asked to prepare this ‘provisional’ view in short order, but in hopes of being able to bolster their opposition case, to be presented to a forthcoming Development Management Committee (“DMC”) of the PCNPA, in June or even possibly May who are expected to be asked to determine this application.

The Site

4. The development site in question forms very approximately a rectangular shape, in the very south-eastern part of the town, where the land slopes up very markedly from a lower northern perspective, toward a very significantly higher southern perspective, in the direction of the ‘mountain’ at the rear of the town called “Carn Ingli”. The overall area view can, perhaps, be best gained by looking at the inset plan map for so-called ‘Alternative Sites’ which I have added as an appendix here-to . It is bounded as follows :-

to its northern (lower) side by the rear gardens and domestic curtilages of residential properties located on the south side of Goat Street, a very small and narrow street in the south-eastern part of the town-

to its southern (higher) side by an almost equally narrow country lane by the name of Feidr Eglwys, which translates in English as “Church Lane”. It is understood, according to my instructions that at least one vehicle access to the development site will be achieved by a junction off this lane, and to that end that a part of the development proposal is to uproot and set back the historic Pembrokeshire hedge-bank on the north side of this lane, facing onto the development site, by at least a metre and a half in order to widen this road, in the area of this junction –

to its eastern side by a further very small country lane, by the name of Feidr Bentinck, and whose name reflects the name of the former farm, on the edge of the town, that formerly occupied predominantly all of the site. This lane is in fact so narrow at its southern end, toward its junction with Feidr Eglwys, that for much of its length in this area there is insufficient room for two vehicles to safely pass side-by-side at all-

Finally, to its western side the site is mostly bounded by a local stream galloping down the slopes, and going by the delightful name of Afon Ysgolheigion, which loosely translates as the “School Brook”, reflecting the historical location of an early 19th-century peripatetic college, at the nearby College Square.

History of the LDP evolution

5. It is basic black letter planning law that when determining a planning application before it, an LPA is not only bound to give full consideration to the provisions of the Development Plan, relevant to the area in which the development is sought, including most especially those of its own LDP ; but moreover, that the determination in question must be made “in accordance with” those provisions, unless there are exceptional and relevant further “material considerations” which indicate otherwise.

6. In this instance the provisions of the LDP, respective to this development allocation, and which is therein identified by the label “HA 825”, are especially relevant to the determination facing the DMC; and in particular, the history of the evolution of these provisions is most especially involved and relevant. Accordingly, it is now necessary that I go into that history in some detail.

7. As a part of my instructions I am shown a document titled “Management Plan (2008-2012) and Local Development Plan (2006-2021) Delivery Agreement” and which is dated January 2007, so far as relates to its approval by the PCNPA, and February 2007 so far as relates to its apparent agreement by the then Welsh National Assembly Government (“WAG”). This document is purportedly produced in compliance with the provisions of regs.7 through 9 of the Town and Country Planning (Local Development Plan) (Wales) Regulations 2005 (hereafter the “2005 Regulations”) , and which set out, among other matters, a timetable for the then intended procedure and process leading to the ultimate “delivery” of an approved and adopted LDP. I do not intend to go through each and every step of this procedure in detail, as it is both unnecessary to do so for the point at issue, and also because it is an inordinately complicated series of steps.

8. However, I believe it is instructive to begin with the stage, prior to the evolution of a Deposit Plan version, termed the “Preferred Strategy” stage, and which is reflected in a document so titled and then subtitled “pre-Deposit Local Development Plan documents”, and which is dated January 2008. It is at Part5 of this document that one finds the results of the PCNPA’s assessments and subsequent public consultations, in the course of the previous year, on the identification of so-called “Potential Sites” as in, at least principally, for housing development. Indeed, much is made at pages 44 – 45 of this Strategy document, as to the very extensive lengths to which the Authority asserts it has gone to source suitable potential sites from a wide range of potential interested parties and stakeholders. I mentioned this in passing only because the full list of “potential sites” so identified is then set out at Appendix 7 to the document, and it is the case that the site here in issue, located to the north of Feidr Eglwys (HA825), is not even listed.

9. According to my instructions, however, by the following summer of that year (July 2008), publication of and consultation on this Preferred Strategy documentation had apparently by then inspired the proposal for the development of the site, now in question, to come forward. I am shown a document entitled “Appendix 7a” to the Preferred Strategy documentation (dated 12 July 2008), on page 12 of which, some brief details are given of the site, and which then conclude with the following statement “Estimated number of housing units 12 Area (hectares) 0.821”

10. Consequently, by the time that the formal Deposit (Version) Plan, as required by r.17 of the 2005 Regulations, came along in the process, that being a year later yet again (in January 2009), when one looks to find the proposed Housing Allocations, which are now to be found set out instead in Appendix 2 to that documentation, one finds the reference to HA825 at the very bottom of the first page of that Appendix (at p.24 in the document) . The allocations are set out in a tabular form, with firstly the “site reference” followed next by a short descriptive expression under the title “location”, followed finally by an amount of expository or explanatory text given under the title “comment”. It is now most important to set out in full that explanatory text, as it applies to this Housing Allocation, as follows:

“Development of this site will need to respect the character and setting of the Conservation Area and church and additional and significant planting within the site area will be required. The density of development will need to limited to 12 dwellings to ensure that it does not harm the character of the area and to meet access constraints. [SiC] It is not known whether there is an archaeological resource on site which would further constrain the development of this site. Geophysical survey and trial trenching are recommended by Dyfed Archaeological Trust prior to submitting an application in order to ascertain the type and extent of the resource.”

(emphasis by way of underlining added)

11. In addition to this exposition, offered at Appendix 2 in the Deposit Plan, shortly thereafter, and certainly by the time that this Plan version came up for “examination in public” before a planning inspector appointed by the relevant Welsh Planning (Environment) Minister, a further Report titled “Potential site analysis for site 825, North of Feidr Eglwys, Newport ” (and dated 27 February 2009) had been prepared. In it as set out, in far greater detail than hitherto, (stretching to 7 pages), a full site analysis and assessment for this proposed allocation, and I think it is useful for giving the full story to reiterate here at least the expository text, appearing against the title “General Notes”, in that document also, as follows:

“Although the site is well-screened the density of development will need to be restricted to ensure that it does not harm the character of the area. Landscaping within the site will be necessary to maintain effective screening. There is demand for one and two- bedroom affordable housing units in the Newport area and the number of units on the site could be increased from 8 under normal circumstances to 12 to accommodate these smaller units.”

(emphasis by way of underlining added)

12. Going back to the Approved Delivery Agreement document again for a moment, one finds there in stated that, pursuant to r.20 & 21 of the 2005 Regulations, in or about July 2009 there was prepared a set of further documentation specifically dealing with proposed “Alternative Sites”, which was then published and opened for a period of further formal public consultation. I am shown an inset map , dealing with the specific south eastern corner of Newport, in which the various “Alternative Sites” proposed in this area are shown therein set out. Of particular note, are the proposed Alternative Sites labelled “Alt 1056” and ”Alt 1057”, and which, according to my instructions, once again came forward from the very same parties as proposed the development previously labelled HA825. Accordingly, that was the state of the proposals and the relevant documentation, as my instructions state them to be, by the time the matter then came before the Planning inspector, one Mr. Barry Juniper BSc, DipTP, MRTPI, in April 2010, duly appointed by the relevant Welsh Minister and, pursuant to the provision of s.64 of the Planning & Compulsory Purchase Act 2004 (“the 2004 Act”) to conduct a so-called “Independent Examination” in public.

13. I am shown a copy of Mr Juniper’s Report, following that examination, which states that it was duly submitted to the PCNPA on 1st September 2010. In it he appears to start dealing with all matters relating to Newport at the bottom of p.13 and carries through to the middle of p.15. The relevant portion that deals with the matters here in issue occurs at paragraphs 3.36 to the end – and, accordingly, I take the opportunity to attach hereto a copy of those two relevant pages . Equally, such is the importance to the considerations here in issue, I also take this opportunity to set out in full below his comments with respect to those matters, as follows:

“ 3.36 I looked carefully, however, at the allocated site on land north of Feidr Eglwys (HA825) and the land immediately to the north, Alternative Sites reference Alt1056 and Alt1057. The western part of Alt1056 as depicted on the relevant Alternative Sites Proposals Map – AltC23 Newport/Trefdraeth – is within the existing churchyard and this has been acknowledged as a drafting error. The rest of this land, with the safeguards set out in the NPA’s analysis of HA825, would be suitable for an expansion of that site. It is reasonably well screened from local viewpoints and in the more distant prospect of the town from the north any built development here would be seen within the context of the surrounding housing and against the background of the steeply rising ground around the Castle. Although the NPA’s site analysis exercise did not specifically include this land, all important aspects are either satisfactorily covered in the investigation into HA825 or could be dealt with during the processing of any subsequent planning application.

3.37 In coming to this view I am conscious that some additional traffic would need to use the somewhat constricted road network in the immediate vicinity. The site is well related to all the facilities in the centre of the town, however, and many trips to access these would be likely to be made by foot, not least because of the parking constraints in the town centre. There was limited evidence about accidents in this part of the road network and that which was available was largely anecdotal, which limits the weight I can give it.

3.38 The highway authority has acknowledged that the hedge-bank along the southern edge of the site would need to be set back to achieve [-p.15] proper safety standards and I am content that the techniques to achieve this successfully are now well established. With improved width and visibility at the junction thus provided, the highway authority considers that a total of about 20 dwellings could be safely accessed on HA825 and a small site, Alt824, to the south of Feidr Eglwys. Since the latter site is only likely to be suitable for one or two dwellings I consider that an expanded HA825 could accommodate up to 20 units. The 8 additional units would still not fully compensate in the assessment of overall provision for the loss of the 15 proposed for HA220 and HA609, but I see no prospect of the whole of the desirable provision being achieved in Newport, given its environmental constraints. I therefore recommend that site HA825 be expanded accordingly.

(emphasis by way of underlining added)

14. Following this last paragraph, Mr Juniper then sets out in a box format, in the middle of p.15, those specific Recommendations for the alteration of the Plan, and which he proposes should be made with respect to Housing Allocations in Newport. The second of these, “Recommendation 7”, deals with the points here in issue, and reads as follows:

“Recommendation 7

Expand Site HA825 on Proposals Map Inset C23 to take in the areas of Sites Alt1056 and Alt1057, except for that part of Alt1056 which falls within the existing churchyard and adjust Table 7 to allow for 20 residential units of which 14 would be affordable housing. The site area in column 4 and the relevant totals will also need to be amended.”

Accordingly, we see from this Recommendation that Mr Juniper, in furtherance to his appraisal that site “HA825” can be “expanded”, to use his word, so as to now include also at least in part the further two Alternative sites (“Alt1056” & “Alt1057”), then recommends that it should follow that both

(a) the Proposals Map Inset C 23 (the Newport Map) should be suitably amended to reflect this expanded site, and secondly that

(b) Table 7 in the Plan , and which sets out “Allocations of Housing Sites”, should be appropriately amended to reflect both that this allocation should now allow for “20 residential units of which 14 would be affordable housing” together with an adjustment to reflect the larger site area (column 4).

In the event, it is now stated in Table 7 in the finally approved and adopted PCNPA-LDP (2010), that the size of the expanded site is actually 1.5 Ha in place of the previous 0.821Ha, resulting in a maintained housing density of approximately 14 units per hectare.

15. All well and good, but what of the necessary additional and further third alteration, now obviously required to Appendix 2 (“Allocations”) to the Plan, in which one will please recall, is set out in full the expository text, and which has now become the full “Reasoned Justification” (‘RJ’) for all the provisions with respect to what this Plan has to say as regards each and every “approved” Housing Allocation in it, including therefore also HA825 ? In which, let us further recall, it specifically said “… the density of development will need to [be] limited to 12 dwellings to ensure that it does not harm the character of the area and to meet access constraints”. How does Inspector Juniper recommend that this text be altered or amended, in light of his findings on the acceptability of the ‘expansion’ of housing allocation HA825 ? As the reader may by now have guessed he doesn’t, the matter appears to have been simply overlooked entirely.

16. Instead, by the time the Plan had gone through to its final stages of Adoption by the PCNPA (29 September 2010) all that had occurred to this RJ text is that a further two matters, of environmental constraints, presumably not in the least unique to this particular Housing allocation, have been added, as follows:

“Site has been identified as having likely significant effect on Natura 2000 sites and should be subject to Habitats Regulations Assessment”

17. Consequently, we arrive at the not so pretty pass that, as of today, at one point in the LDP, namely in Table 7 , which prey note bears the following text in the title “Table7 Allocations of Housing Sites (see Proposals Map and Appendix 2)” and which therefore specifically invites the reader to go to both the “Proposals Map” and “Appendix 2”, for further exposition – it states in the table against “HA825”, nothing more than the bare figures that this is an allocation for “20 residential units” on a site of “1.50” Ha in area. Whilst, in Appendix 2 “Allocations” , an integral part of the Plan, it still says in the RJ exposition under the title “Commentary” (again as against allocation HA825) precisely as it previously did in the Deposit Plan (as above para.10) together now with reference to the further two environmental constraints, and in particular including the all-important statement that, “… the density of development will need to [be] limited to 12 dwellings to ensure that it does not harm the character of the area and to meet access constraints”.

18. In short, the Inspector and the LPA between them have, in respect of this Housing Allocation at least, I’m afraid managed to produce a LDP with an entirely internally inconsistent, conflicted and irreconcilable set of provisions.

19. I am encouraged to include the LPA as having at least to share in some of the responsibility in this respect, when having regard to the provisions of para.4.38 of the WAG’s formal planning advice document titled “Local Development Plans Wales (Welsh Assembly Government) 2005” and wherein it provides as follows:

“4.38 The authority has an opportunity before the Inspector’s report is finalised to request the correction of factual errors. The authority may not question the Inspector’s conclusions, although it may seek clarification on any conclusion considered to be unclear. Authorities should complete the fact check within two weeks of receiving the Inspector’s report. Once the fact check has been completed and the Inspector has responded to any points raised, the final report will be submitted to the authority and to the Assembly Government’s Planning Division in electronic and paper format. ….”

Whilst, I do not see that any specific provision is made within the 2005 Regulations, with respect to such a pre-Adoption “correction of factual errors” procedure, nonetheless given that it appears to have been a fully established administrative procedure within the Welsh Assembly Government’s stated framework for such matters, I have no doubt but that here lay the proper remedy to have pursued, to ensure that Inspector Juniper’s apparent oversight, did not end up becoming petrified in the stonework of the PCNPA- LDP (2010).

20. It is, perhaps, worth noting finally that I have looked specifically also at the Proposals Inset Map (C23 Newport) only to discover that whilst the site area has indeed been enlarged as recommended, unlike the practice as with most Proposal Map Insets with which I am familiar, there is there in to be found no reference whatever, whether in parenthesis or in the map legend or otherwise, shown on the map with respect to the number of units the Housing Allocation thereby identified is intended to accommodate. Accordingly, the Newport Inset Map, whilst accurately reflecting the “expanded” site area recommendation, remains actually entirely consistent with either the “20 unit” statement in Table 7 or the “12 dwellings” limitation which continues to appear in Appendix 2 RJ expository text instead.

The LPA’s technique for belatedly dealing with LDP errors

21. It is not as if, for instance, Inspector Juniper was unaware of the specific need to amend and alter Appendix 2 Allocations, with respect to any substantive alterations he recommended, concerning Housing Allocations in the Deposit Plan. For instance, and of particular relevance here, because it applies also with respect to Newport, is the case of housing allocation HA 220. The location description associated with this proposed allocation was given as “Caravan Park, Parrog Road, Newport”, and therefore I assume was associated with a site that is currently used for the siting of caravans. Indeed, this I can see was a proposed site allocation which came forward even prior to the “Preferred Strategy” stage, as part and parcel of the “potential sites” identified early on (2007) by the PCNPA, in the evolution of the plan process. However, it would appear that a part of this process did not take the trouble to include consultation with the relevant landowner, as to the prospects for the site in question being released for housing development during the plan period ! I say this because, in the course of his Report, Inspector Juniper has this to say about this allocation proposal (@ paragraph 3.34) as follows:

“ It was clear from the proprietors’ stance at the hearings that there is little prospect of this business altering its mode of operation and removing pitches to accommodate the proposed housing. I have come to the view that these allocations are not soundly based and I recommend that they should be deleted.”

Accordingly, and therefore not in the least surprisingly, in the first recommendation which the Inspector then makes regarding the implementation of his recommendations with respect to proposed Newport housing allocations appearing in the Deposit Plan, which you will recall appeared in a box format on page 15 of his Report, he is careful to specifically stipulate, inter alia, “remove the entry for site HA220 from Appendix 2.”

22. Alas, if one now looks at the Approved PCNPA-LDP (2010) even as of today, one still finds an entry, in Appendix 2 against the label “HA220” , despite this very clear Recommendation of the Inspector to remove it. Hence, in this instance, at least, the “error” in failing to make the LDP accurately reflect the Inspector’s Report findings and recommendations, quite clearly lies at the door of the PCNPA alone, and not in any way at that of the Inspector instead.

23. However, at some point in time, presumably quite considerably long after the LDP had been approved and adopted by the Authority in September 2010, somebody at the PCNPA appears to have at last become aware just how candidly riven with errors and mistakes that document was. Accordingly, apparently in or about April 2013, that is some 2 ½ years later, a document is produced, bearing that date, and entitled “Pembrokeshire Coast National Park Local Development Plan – Erratum“, which is downloadable from their website, and in which is set out certainly more than two dozen examples of such errors in the LDP. So, in point of grammar, very much more an “errata” than an “erratum” I fear. It includes though a reference to the deletion of housing allocation HA220 from Appendix 2 . However, it gives no reference to any statutory power, or indeed for that matter even a mere resolution of the Authority itself, under which authority is granted for such “alterations” to the text of the Plan to be so made. Indeed, for that matter please bear in mind that if one downloads the actual Plan from the website, even as of today’s date, none of these proposed “amendments” have indeed, as yet, actually been incorporated in that text.

24. Now it is most important at this point to note firstly, that there is no recognition even within this belated “erratum“ statement of anything amiss, yet alone in error with, the expository RJ text on housing allocation “HA825” in Appendix 2 and so accordingly this has little direct bearing on the specific issue now before me. However, it has been asked of me in my instructions, whether it would be lawful, let alone appropriate, for the Authority as it were, even at this further belated date, almost half-way through the life of the Plan, to now employ – in effect a “quick fix” – by means of taking the expedient, even possibly at the outset of the very same meeting at which they are to determine the planning application here in question, of simply adding a further “addition” to this “erratum”, whereby they merely delete all reference to the limitation for “12 dwellings” as a maximum etc., in the current RJ text to HA825 in Appendix2, before then moving on to consider the application proper ?

25. Of course, I am not suggesting for a moment that such ‘sharp practice’ would ever in fact occur to either the Officers, nor indeed the Members, of this Planning Authority. However, in light of what I am asked I must now reflect, perhaps necessarily briefly, on at least the legality of such ignominious conduct, were it to be practised.

26. In truth, in life as in law, there are errors and then there are errors ! Firstly there are very minor and insignificant mistakes made, typically for example where the wrong letter or number is used in a reference or in a footnote. These as we know are typically referred to as “typographical errors”, or “typos” for short, even though in truth the error almost always lies with the human source and not with the typographical recording and reproduction machinery instead. In addition, to these kind of errors, the law has long recognised a type of error termed “want of form” where the correct information has been supplied, but in the wrong box or perhaps using an unconventional terminology. Indeed, several and many of the “errors” stipulated to in the 2013 “erratum” could, I feel, be fairly categorised as errors of this type. I am entirely satisfied that, so long as the reader/user of the document in which such an error occurs, is not thereby substantively or significantly misled in any material respect, the subsequent correction of such an error appears to be little more than an administrative exercise, not necessarily demanding of specific statutory, or indeed perhaps even specific administrative, authority.

27. Then there are the other kind of errors. Errors which whether they have, or indeed would, cause or lead to, substantively or significantly misleading the reader in any material respect, clearly at least have the potential to do so. Here, naturally, it is most especially important that the maker of the original or erroneous statement in question, is held responsible for (a) ultimately identifying and accepting that an error has been made, and thereafter (b) creating a form of words to correct this error accordingly, and most importantly (c) for correcting any actual act of misleading which this error can be demonstrated to have led to. Such, corrections of errors of substance, clearly then do indeed demand a specific and formal procedure for their implementation, in the interests of good administrative propriety and fairness.

28. By way of obvious example, whilst Part 6 of the 2004 Act deals with provisions relating to the production of Development Plans in Wales, including especially Local Development Plans, the immediately preceding part (Part 5) deals in detail with specific and comprehensive provision with respect to the “correction of errors” in a decision notice etc. generated by the Secretary of State (or Welsh Minister) instead, in relation to a planning appeal and such like. It even goes so far therein as to define a “correctable error” for that purpose, as not including any part of the reason for a decision .

29. I trust that it is hopefully now obvious to the reader, but in any event I shall stipulate it here, that given it is even possible for the sake of argument (though I am not prepared to do so otherwise), to characterise the failure, on the part of the relevant Planning Inspector here (and I would add of the relevant Planning Authority staff concerned to bring it to his attention) – to amend the text of housing allocation HA825 in Appendix 2 to the LDP, in line with his findings on the apparent acceptability of “expansion“ of this site – as an “error” at all ; then very clearly it is an error of the very most serious kind, at the very other end of the spectrum from a mere ‘typo’. Not only likely to, but as I shall come on to show, in the event has indeed so substantively and significantly mislead public users of this Plan, that it manifestly is an example of an error whose correction clearly demands the most careful and authoritative procedural precision and formality.

30. It follows, in my advice, that in this instance the very notion of merely administratively further adding a sentence or two to the existing PCNPA-LDP so-called “erratum”, whose authority is a mystery, as a greatly belated quick-fix solution to the very serious and very substantively misleading expository RJ currently attached to HA825 in Annex 2 to the Plan, would very much be an unlawful and procedurally administratively challengeable conduct.

31. Instead, within the appropriate statutory framework – which of course is Part 6 of the 2004 Act – full provision is made at s.70 thereof, whereby, whether following a formal statutory review of the Plan concerned or otherwise , the Planning Authority involved is then at liberty to cause their Plan to undergo a statutory “Revision”. Which revision, however, requires the Authority concerned to go through the same plan preparation and in particular public consultation procedures, in relation to the ‘revision’ thereby sought, as are required under that Part of that Act, in relation to the preparation and instigation of a new LDP in the first instance . That may seem procedurally cumbersome and harsh to the LPA concerned, but that is the law. It provides a very good reason, I should say, for ensuring that such significant textual inconsistencies and conflicts are avoided in the first place, or at the very least are identified and corrected procedurally, as part and parcel of the formal LDP creation process – and in any event are so identified and corrected at a point in time well before that Plan is formally approved by the Welsh Assembly Government and adopted by the LPA concerned.

Is the internal inconsistency in the Plan and the Inspector’s apparent intention
Itself a further legitimate material consideration ?

32. As the reader will now be aware from the earlier reference, whilst the Planning Authority concerned must determine the planning application “in accordance with” the Development Plan provisions, that is however subject always to the proviso, as set out in s.38(6) of the 2004 Act, that namely “unless material considerations indicate otherwise”. Consequently, a question now becomes does the mere fact of the internal inconsistency in the PCNPA-LDP plan provisions, and/or coupled with what could be alleged to be Inspector Juniper’s apparent intentions regarding allocation HA825, themselves constitute a further “legitimate material consideration” which the DMC can take into account in the determination of the present planning application ?

33. Interestingly my limited opportunity for researches to date have not been able to turn up any specific case law authority on the point, which however I consider is not that surprising given the rarity of such blatant numerical inconsistencies occurring within a document as important and usually as carefully and well constructed as a Local Development Plan. In this regard, I consider it is especially important to bear in mind the very exceptional quantitative and numerical nature of the particular bald conflict or inconsistency here in issue.

34. Clearly there have been many past instances, and doubtless present ones to, where development policies and/or provisions appearing, even as here within the same Plan document, can often be said to “pull in opposite directions“ as the saying goes. A paradigm example would be where plan policies favouring economic development and job creation, are seen to apply in a particular location, but which is also further subject to other policies favouring environmental protection and biodiversity sustainability as well. Naturally, in circumstances of a “conflict” of that nature, the courts have long held that it is primarily for the political discretion of the locally elected members on a planning committee to have the final say on where the sometimes fine balance should be struck, just so long as they apply the plain meaning rule to the natural and ordinary construction of the words of the policies concerned.

35. But here we are concerned with a conflict or inconsistency which is clearly of a very different character indeed, namely a blatant clash regarding the specific number of residential units, which an ordinary member of the public reading the PCNPA-LDP, would say is anticipated by the provisions in that Plan with respect to its association with this particular housing allocation. This is a question which really goes instead to the degree of assurance, if not outright security, which the public are entitled to expect is legally applicable with respect to the specific facts and figures appearing in a public document. One intended to guide the public in understanding and appreciating the exercise of the administrative functions of the planning authority. That is a matter about which there is an abundance of case law authority.

36. I would begin with the words of Lord Reid in the House with respect to the public’s right to take assurance from the plain words of a planning permission, which was the issue in Slough Estates Ltd -v- Slough Borough Council [1971] AC 958 @ 962, as follows:

“Extrinsic evidence may be used to identify a thing or place referred to in a public document. However, that is different from using evidence of facts known to the maker of the document, but which are not common knowledge, to alter or qualify the apparent meaning of words or phrases used in it. Members of the public, entitled to rely on a public document, ought not to be subject to the risk of its apparent meaning being altered by the introduction of extrinsic evidence.”

37. Of somewhat more recent provenance is the judgement of Lord Reed (this time with two ‘ee’ s) in the Supreme Court, in the matter of Tesco Stores Limited v Dundee City Council [2012] UKSC 13 21 March 2012 with whom Lord Brown, Lord Kerr and Lord Dyson agreed, said as follows :

” The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.”

38. This passage was expressly followed in very close order by the judgement of Lewison L.J. in R. (TW Logistics) v Tendring District Council & Anglia Maltings (Holdings) Ltd. [2013] EWCA Civ 9 in the Court of Appeal, as follows:

“The public nature of these documents is of critical importance. The public is in principle entitled to rely on the public document as it stands, without having to investigate its provenance and evolution. That is why the courts have set their face against attempts to interpret planning permissions by reference to officers’ reports and other extrinsic material: see for example Slough Estates Ltd v Slough BC [1971] AC 958; Secretary of State for Communities and Local Government v Bleaklow Industries Ltd [2009] EWCA Civ 206 [2009] 2 P & CR 21. In addition Lord Reed’s statement that a development plan is to be interpreted objectively means that the subjective views of the author of the document about what it means are irrelevant.”

This case concerned an apparent clash as between, on the one hand, the provisions in a district LDP with respect to the wharf area at the small village of Mistley in Essex, in the heart of “Constable Country”, which favoured preservation of the warehouses for purposes connected with maritime and stevedore activities; as against, on the other, the provisions in a more recent Conservation Area Management Plan, and which was in favour of more mixed uses – and which therefore is directly concerned with conflicts in opposing development plan policies.

39. Given then this weighty line of authority, with regards to the importance to the general public of applying the objective meaning of the words of a development plan policy or provision, without their having to also investigate its provenance, evolution or indeed, I should say, consistency and congruence with all other Plan policies and provisions – then it strikes me as clear beyond question but that, were such an ordinary member of the public, in the course of the past five years, to have enquired of the PCNPA-LDP regarding the context and reasoned justification for the housing allocation HA825, and having discovered in Appendix 2 the all important words “…the density of development will need to [be] limited to 12 dwellings to ensure that it does not harm the character of the area and to meet access constraints” – then that member of the public would indeed be entitled to assume that said specific numerical provision was valid, and will be applied. Such that, if in the course of its future determination of the current application the PCNPA-DMC were to make it clear, whether because they consider it to be a mere oversight, or administrative error, or otherwise, that they propose instead to ignore, or otherwise not consider those all important words and in effect simply dis-apply that provision; then indeed I would be happy to advise said member of the public, with a sufficient interest, that he, having candidly been simply thereby deceived by the public document, was fully entitled to challenge any such planning determination, on a judicial review, as having been unlawfully made contrary to s.38(6) of the 2004 Act.

Is there a question of “legitimate expectation”

40. I should like to begin by making it abundantly clear that, in my view, this is not really a case which lends itself readily in the first instance to a claim based in such administrative law principles. I take the view that, at least in the first instance, a putative failure on the part of the LPA here involved , to take into full consideration and account, and in effect honour the natural and ordinary meaning of the plain words as still currently set out against housing allocation HA825, in Appendix 2 to the PCNPA-LDP (2010), would amount to nothing less than a clear-cut breach of its statutory duty unders.38(6) of the 2004 Act, to have full regard to and indeed to determine the application “in accordance with” that LDP provision. For the reasons above given, I do not regard the extrinsic background knowledge, which for instance I have now garnered, as to the relevant history of the manner in which those words have now come to be inconsistent, and indeed in conflict, with the figures appearing in Table 7 instead, as a legitimate “further material consideration” ; when it is clear that instead the law holds that the general public is entitled to fully rely on the absolute truth and accuracy of such plain plan provisions, without their having to ”investigate its provenance and evolution” per Lewinson L.J. above in TW Logistics. That said it is obviously important to advise on any further ground of challenge in the interests of completeness.

41. Although, it is now clear that, with but a few minor exceptions, the civil law doctrine of ‘estoppel’ strictly meant is now no longer considered applicable in the public law realm to planning law matters; it is equally clear, that the administrative law principle of “reasonable or legitimate expectation”, is very much applicable to the general scope of planning law issues instead. Perhaps the modern paradigm for the definition of a so-called ‘substantive legitimate expectation’, as opposed to one arising merely procedurally, is to be found in the judgement of Laws L.J. in the Court of Appeal in the matter of R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, where he says at paragraph 32, as follows:

“ Substantive Legitimate Expectation

32. A substantive legitimate expectation arises where the court allows a claim to enforce the continued enjoyment of the content – the substance – of an existing practice or policy, in the face of the decision-maker’s ambition to change or abolish it. Thus it is to be distinguished from a merely procedural right. It is expressed by Simon Brown LJ as he then was in Ex p Baker [1995] 1 AER 73, as category 1:

“1. Sometimes the phrase [sc. legitimate expectation] is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him… [Various] authorities show that the claimant’s right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it. The doctrine employed in this sense is akin to an estoppel.”

And it formed category (c) in the judgment of the court delivered by Lord Woolf in Ex p Coughlan [2001] QB 213, Lord Woolf MR, at paragraph 57 (242C):

“(c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

42. Accordingly, I consider it quite clear that, my putative member of the general public who has enquired of the PCN PA – LDP in the course of the past five years, and who has accepted the “12 dwellings limitation” on housing allocation HA825 as presently set out in Appendix 2 on its face, has indeed thereby assumed a lawful legitimate expectation, that such said provision is valid and will be given full force. The fact that, in so doing, he is aware that statute law provides (a) that the Planning Authority concerned must determine any application “in accordance with” the said provision, and (b) that subsequent deletion of any such substantive provision can only be achieved by means of a statutory ‘revision’ procedure (per s.70 of the 2004 Act as above) including with full public consultation – can only be seen as lending enormous added weight to the force of his administrative “legitimate expectation”.

43. Finally, there is then the consideration of the element of “reliance”. Clearly, in its application to the civil law doctrine of “estoppel”, reliance, as in evidence of the plaintiff’s claim based on estoppel was such that they had also actually relied upon the policy or statement in question to their detriment, was typically an integral element. However, with respect to the public administrative law doctrine of “legitimate expectation” instead it is now clear that there is no such equivalent strict requirement for reliance, it is rather a matter which may be a material consideration, dependent on the subject matter in issue, as to the degree to which it becomes “unfair” or “unjust” for the public authority concerned to simply change its previous position.

44. Take for instance the following from the judgement in the Court of Appeal of Schiemann L.J. in R (Bibi) v Newham London Borough Council; R (Al-Nashed) v Newham London Borough Council [2001] EWCA Civ 607; [2002] 1 WLR 237 at [28], as follows:

“28. As indicated in R v Secretary of State for Education and Employment, ex parte Begbie 2000 1 W.L.R. 1115 reliance, though potentially relevant in most cases, is not essential. In that case a letter sent to the parents of one child affected by legislative and policy changes concerning assisted school places came to the knowledge of another child’s parent, who relied on it in judicial review proceedings. Peter Gibson LJ, giving the leading judgment, said at page 1123H:

“Mr. Beloff submits … (v) it is not necessary for a person to have changed his position as a result of such representations for an obligation to fulfil a legitimate expectation to subsist; the principle of good administration prima facie requires adherence by public authorities to their promises. He cites authority in support of all these submissions and for my part I am prepared to accept them as correct, so far as they go. I would however add a few words by way of comment on his fifth proposition, as in my judgment it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation”.

….

31. In our judgment the significance of reliance and of consequent detriment is factual, not legal. In Begbie both aspects were in the event critical: there had been no true reliance on the misrepresentation of policy and therefore no detriment suffered specifically in consequence of it. In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation. “

45. Also very much in a similar vein was the more recent exposition on the subject by Lord Hoffmann in Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No2)[2009] 1 A.C. 453 @ para.60, as follows :

“60. …. It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is “clear, unambiguous and devoid of relevant qualification”: see Bingham LJ in R v Inland Revenue Commissioners, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called “the macro-political field”: see R v Secretary of State for Education and Employment, Ex p Begbie [2000] 1 WLR 1115, 1131.”

46. Accordingly, I am content to here conclude that, most especially in this particular instance where any such ‘legitimate expectation’ as a member of the public may well be said to possess, namely that the LPA involved will honour the language used in its approved LDP, is nonetheless very much magnified by reference to the well-known statutory duties and obligations placed upon the Planning Authority concerned effectively to the same end. Such that, whilst proof of a reliance to their detriment upon the Plan provisions in question, will undoubtedly enhance any subsequent claim for damages which might be made by such a person as a putative subsequent Plaintiff, in an action against said Planning Authority ; contrariwise, strictly as a question of administrative law propriety, such as would be germane say to a judicial review challenge to any planning permission instead, proof of such reliance would not be a requisite element.

47. In any event, I am advised by those currently instructing me that in due course BDOG will be in a position to include instructions with respect to neighbours, and possibly others, who in the course of the last five years have indeed taken action, typically by way of purchasing property or having declined to accept what they considered an inadequate offer in the circumstances to sell property, based at least in significant part upon their legitimate expectation that the stated provisions of the PCNPA-LDP will be honoured by the DMC. Accordingly, it will be more appropriate to revisit this issue in any subsequent follow-up advice, as and when I have that evidence in hand.

Other “material considerations”

48. Finally, I am asked to deal with a couple of other matters, of a perhaps more traditional material planning nature and to advise regarding the weight that can be accorded them as pertinent and appropriate “material planning considerations” mitigating against the scale of development now revealed in the present recent planning application.

Affordable housing percentage.

49. Firstly, there is the matter of the percentage of housing development on the site which should be given over to so-called “affordable housing”. As set out in Policy 45 Affordable Housing (Strategy Policy) in PCNPA-LDP a specific quota with respect to the percentage of a housing development which should be given over to “affordable” housing in Newport is therein set out, as follows:

“To deliver affordable housing the National Park Authority will as part of the
overall housing provision:

a) Seek to negotiate 50% affordable housing to meet the identified need in developments of 2 or more units in housing developments in all Centres identified in the plan area with the following exceptions where a higher percentage will be negotiated: … Newport (70%),”

50. However, of course, the current planning application has come forward with a very significantly lower proposal for the percentage of the 35 dwellings sought to be given over to so-called “affordable” housing. That proposal is for only 14 such dwellings to satisfy the “affordability” criteria – or the equivalent of just 40% of the overall housing development for which permission is now sought , in place of the 70% stipulated to in the LDP policy.

51. The explanation for this dramatic difference is not , however, in this instance just a typical example of a commercial developer seeking to “push the envelope” in his economic interest as far as possible, but rather as a result of a document produced by the PCNPA, as recently as 2014, and under the title “Affordable Housing: Supplementary Planning Guidance” . It says that it was “adopted” by the PCNPA as recently as November 2014. Appendix 4 to this document bears the title “Provision of affordable housing and affordable housing contributions” and Part 2 thereof the further title “Local Development Plan Allocations”. At paragraph 2 the following explanation is given for the table that immediately follows:

“The table below provides a comparison between the affordable housing percentages for housing and mixed use site allocations set out in the Local Development Plan under Policy 42 and Policy 45 and those percentage provisions found to be viable after new viability assessments were carried out to inform the guidance.”

And as I imagine the reader has now accurately already predicted, within that table, as against the “Site ID” label for housing allocation “HA825” the following figures are given under the two principal columns as follows:

“‘Old’ percentage affordable housing provision (LDP Policies 42 and 45 )
= 70%

New percentage assuming 55% ACG Updated for Sprinklers and 20% profit and 5% intervals viability testing
= 40% “

52. Accordingly, it is undoubtedly a reliance upon the figures as now appear in this most recent table, which the current planning applicant will now seek to invoke in support of his current application in which only 14 dwelling units, out of a total of 35 (ie 40%), are allocated for so-called “affordable” housing purposes. The question then becomes (a) to what extent is this so-called “supplementary” planning guidance (“SPG”), though in truth a “substitute” planning guidance, a legitimate “material planning consideration” for the purposes of s.38 (6) of the 2004 Act; and (b) to what extent is there specific statutory provision or further guidance as to how the Planning Authority should deal with any “conflict” as is found to occur as between the provisions set out in its LDP, and those we now find are set out in its “SPG” instead ?

53. Although, it is naturally true to observe that the “weight” which an LPA chooses to give to a legitimate “material planning consideration”, even to the point as against putting it in the balance with the policies and provisions in the relevant development plan, will generally be regarded by the courts as a matter entirely within its discretion ; nonetheless, that is only true where, as with say the economic versus environmental “conflict” example previously given, the policy provisions are seen to merely “pull in opposite directions”. In such instances, greater weight will often, indeed usually, be afforded to the more recently approved and adopted up-to-date policy provision .

54. However, here there is the added further issue, as to the so-called ‘development plan hierarchy’ principle, which is to say that greater weight, at the very least, must always be granted to those parts of the development plan which have undergone the greater examination and scrutiny in public, before coming into existence. And this principle will apply with vastly greater further force where the SPG provision, not even a part of the development plan proper, even though perhaps of a more recent evolution, has gone through little or no equivalent public examination and scrutiny, as compared with those in the pre-existing LDP. This was, for example, the very underlying issue in R. (RWE Npower Renewables Limited) v Milton Keynes Borough Council [2013] EWHC 751 (Admin), in which HHJ John Howard QC, at para.208 et seq. held that, because the requisite minimum separation distance policies, with respect to the siting of wind turbines, in a ‘Emerging Policy’ set out in a “Supplementary Planning document” were directly at odds, and indeed in conflict with, the less restrictive equivalent policy provisions as previously set out in the applicable LDP, the former SPG policy was unlawful and void.

55. In so doing, he was undoubtedly greatly assisted by the fact that, in England, specific statutory provision has been made with respect to determining the outcome of any such conflict, namely here reg.8(3) of the The Town and Country Planning (Local Planning) (England) Regulations (2012) specifically provides that “Any policies contained in a supplementary planning document must not conflict with the adopted development plan”. Somewhat extraordinarily, alas, I can find no such exact equivalent provision within the 2005 (Wales) Regulations. However, I do not suggest that this puts Welsh LPAs in a Celtic void without benefit of guidance. Far from it. If we go back to the official WAG guidance document titled “Local Development Plans Wales (Welsh Assembly Government) 2005” , already mentioned at para.18 above, we find that Mr.C.Jones AM, then Minister for Environment, Planning and Countryside, was keen to offer Welsh LPAs the following sage guidance :

” 5.1 LDPs should contain sufficient policies and proposals to provide the basis for deciding planning applications, and for determining conditions to be attached to planning permissions, but they should avoid excessive detail. Selective use of supplementary planning guidance (SPG) is a means of setting out more detailed thematic or site specific guidance on the way in which the policies of an LDP will be applied in particular circumstances or areas.

5.2 SPG does not form a part of the development plan but must be consistent with it.

5.3 While only the policies in the development plan have special status under section 38(6) of the 2004 Act in deciding planning applications, SPG may be taken into account as a material consideration.

In making decisions on matters that come before it, the Assembly Government and the Planning Inspectorate will give substantial weight to approved SPG which derives out of and is consistent with the development plan, and has been prepared consistent with the above advice.

5.4 SPG can play a useful role in supplementing plan policies and proposals. However, SPG should not be used to avoid subjecting plan policies and proposals to public scrutiny in accordance with statutory procedures. Plan policies should not attempt to delegate the criteria for decisions on planning applications to SPG.”

(emphasis by way of underlining added)

56. Accordingly, we see from all of this that, whilst it remains undoubtedly true to say that the provisions of an SPG may indeed form a useful legitimate “material consideration” for the added “supplemental” guidance of an LPA in the course of making a determination on a planning application ; nonetheless, that is only valid so long as said SPG provisions in question are themselves entirely “consistent with the development plan”, most especially of course the LDP. Where, as here, there is a straightforward numerical substitution conflict (40% vs. 70%), it cannot be considered otherwise but that the relevant SPG provision is simply completely inconsistent with the prior LDP provision, indeed intentionally so, and thus is not a valid consideration at all.

57. Finally, on this topic, I should say that it is especially worth noting, whilst the PCNPA-SPG on Affordable Housing (2014) takes the opportunity to quote from several parts of Wales Technical Advice Note (TAN) #2 (Planning and Affordable Housing), it is quite interesting that it fails to quote from the following provisions, starting on p.15, as follows:

“ 14.0 Monitoring and review of affordable housing policies
(Policy Map Step 6)

14.1 Local planning authorities must monitor the housing evidence base and the provision of affordable housing compared with the affordable housing target. This should be undertaken in conjunction with monitoring the local housing market assessment.

14.2 Joint Housing Land Availability (JHLA) studies are the principal source of information on housing completions and the supply of land. Other sources of information on affordable housing include s.106 agreements, which are included on the planning register held by each local planning authority. The conclusions of the JHLA 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.

(emphasis by way of underlining added)

Thus, we see, with respect, what should have been the PCNPAs correct response to any recent (by 2014) appreciation of a dramatic change in the market viability of the “affordable housing” percentage provisions in the LDP (2010) – namely a serious consideration given to a statutory review of those LDP provisions, including requisite statutory public participation and examination, followed by a statutory revision (per.s70 of the 2004 Act) as appropriate. As ever, taking shortcuts will have its consequences.

 

Additional vehicle access off Feidr Bentinck.

58. Secondly and finally, I am asked to advise with respect to the detail on vehicle access to the site, as it is now very recently emerged in the detail attached to the planning application itself. The reader will recall that, in the course of his consideration of the then proposed housing allocation, Planning Inspector Juniper in his Report on the then Deposit Plan, said as follows:

“ 3.38 The highway authority has acknowledged that the hedge-bank along the southern edge of the site would need to be set back to achieve [-p.15] proper safety standards and I am content that the techniques to achieve this successfully are now well established. With improved width and visibility at the junction thus provided, the highway authority considers that a total of about 20 dwellings could be safely accessed on HA825 and a small site, Alt824, to the south of Feidr Eglwys. …”

As presently instructed I do not have information as to the current view taken by the relevant highway authority (presumably Pembrokeshire County Council) with respect to the traffic issues concerned with this greatly altered proposal, and whereby the principal vehicle access to the site would now come off Feidr Bentinck to the east instead, rather than Feidr Eglwys to the south (although access to the proposed small separate “affordable housing complex” will still be achieved in that manner). I am informed by locals, that whatever is the restrictive nature of the highway visibility considerations etc., as they were previously found with respect to access off Feidr Eglwys, those matters are an order of magnitude greater, with respect to, the proposal for access of Feidr Bentinck instead, which is very significantly narrower again.

59. That said, I should have thought that the current view of the relevant highways authority, with respect to this new access proposal, will be the predominant other “material consideration”, which will now have to be taken most especially into account by the DMC, with respect to this aspect of the current application. However, the view previously taken by the highway authority, and in particular the professional observations upon it as made by Inspector Juniper, are in my view certainly further additional legitimate material plan considerations. In so saying, I am not trying to have my cake and eat it, in the sense that I’m willing to accept Inspector Juniper’s comments in this respect, as a material consideration, but not in respect to his perceived intentions with respect to the increased capacity of the “expanded “housing allocation site instead. The reason being that there is nothing within the current text of the PCNPA-LDP (2010) which stipulates to any preference as to where vehicle access should be made to this site. Accordingly, therefore, it appears entirely legitimate to me – in that circumstance – to look to wider background material as a potential aid to interpretation, where there is no conflict with the stated position, as set out in plain terms in the current text of the Plan itself.

Conclusion.

60. My conclusions, in relation to this matter can be stated reasonably briefly, as follows:

a) The primary responsibility for the oversight or lapse, and which has now resulted in a local development plan – which has been in existence now for some 5 years since being both approved and adopted – containing entirely inconsistent and conflicting provisions, with respect to the number of residential dwelling units associated with the particular housing allocation here in issue, must be borne by the Planning Inspector who failed to make the requisite further Recommendation(s). (§15 above).

b) Nonetheless, given the establishment of an approved administrative mechanism for the post Report “correction” of such “errors” (if that indeed be the correct term), it follows that at least some further responsibility in part rests also with the relevant staff of the LPA concerned, who apparently simply failed to bring said oversight or lapse to the attention of the Welsh Planning Inspectorate, or for that matter otherwise to the Welsh Assembly Government, within time to make necessary adjustments prior to the subsequent eventual formal statutory approval and adoption of the said Plan. (§19 above).

c) The general public, who have consulted the said Plan in the course of the past five years, however, are now entitled as a matter of law to fully rely upon the simple unconditional factual statement with respect to the “12 dwellings” maximum limitation, associated with this allocation, appearing in the relevant reasoned justification expository text in the Plan. Furthermore, they may do so even though they may not have taken the trouble to further investigate its provenance and evolution, nor for that matter identified or otherwise be aware of any explanation for its incongruence or inconsistency with the figure appearing in Table 7 instead. (§39 above).

d) It, therefore, follows that, in my view, the mere existence of such inconsistency, together with the provenance and evolution of the Planning Inspector’s oversight or “mistake”, are not in themselves legitimate further “material planning considerations” per se, which the LPA are now at liberty to take into further account under s.38(6) of the 2004 Act, and with respect to their forthcoming determination of the current planning application now before them. . (§39 above).

e) Equally, such is the gravity and substantive significance of the oversight or lapse here involved, that the LPA concerned is most certainly not at liberty to treat it as if it were a mere administrative minor error instead (i.e. equivalent of a typo); and thus attempt a quick fix solution by the simple expedient of adding it to its existing “erratum” document, which in any event is without stated authority. . (§30 above).

f) Instead, the established lawful mechanism for making any such rectification, as it may be deemed in future it is appropriate to make, lies by way of pursuit of the statutory LDP “review and revision” procedure, as set out in ss.69 & 70 of the 2004 Act. . (§31 above).

g) Furthermore, there is an additional consideration, in that any member of the general public who can now show that, in the course of the past 5 years, they have so enquired of this Plan, and so have become aware of the said “12 dwellings” limitation has, in my view, thereby gained a substantive “legitimate expectation” that this LPA will now honour and respect that stated Plan commitment. Such that, any future failure of the part of the LPA to do so would, in my view, be at least potentially open to administrative law challenge on this basis, and indeed whether any such claimant is or is not able to further establish facts of a substantive reliance to their detriment.. (§42 & §46 above).

h) The radically reduced figure of commitment to only a 40% proportion of “affordable housing” associated with this Housing allocation, as now appears in the 2014 so-called “supplementary planning guidance”; is not a figure consistent with, but rather clearly and deliberately intended to be in conflict with, the previous commitment to a 70% proportion instead, as stated at Policy 45 in the LDP. Although, unlike the position in England, this conflict is not specifically unlawful under statute, it is nonetheless entirely contrary to and incompatible with relevant 2005 WAG planning guidance. Furthermore, it expressly seeks to “delegate the criteria for decisions on planning applications” to supplementary planning guidance instead, which is equally expressly contrary to WAG guidance. (§55 above).

i) Finally, whilst the current contemporary advice of the relevant highway authority, with respect to the changed proposal for principal vehicle access from Feidr Eglwys to Feidr Bentinck instead, must naturally bear greatest weight, as a material planning consideration; nonetheless, I believe that this authority’s former advice, at the time of the Planning Inspector’s public examination of the Deposit Plan, and his professional views upon it as an integral aspect of his approval for “expansion” of this Housing allocation site, is nonetheless in my view a further such material planning consideration. (§59 above).

61. It follows that, in my final conclusion, I find that the lawful steps which the PCNPA – DMC ought now to take with respect to the determination of the planning application NP/15/0194/FUL now before it, should be to refuse the application as being utterly inconsistent with (nearly 3 times greater than) the extant 2010 LDP provisions. Whilst, further urgent consideration might well then be given to the need to review, and as needs be revise, that said 2010 LDP, both in light of the issues pertaining to this particular housing allocation, and perhaps more especially the general issue regarding the need to update the Plan in light of new perspectives on the viability of achieving the percentage of “affordable housing” commitments as currently therein set out.

Hugo Charlton                                                                                                       10th April 2015

No.1 Gray’s Inn Square,
Gray’s Inn,
London WC1R 5AA

 

Stop the largest development in Newport for decades