Our Planning Barrister’s Conclusions


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