Summary of current Legal Advice
as to why Planning Application NP/15/0194/FUL
– ought to be refused by the PCNPA
• The two respective provisions of the PCNPA-Local Development Plan (2010), setting out the number of “units” associated with the residential development on Housing Allocation “HA825” – “Land north of Feidr Eglwys” in Newport, Pembrokeshire are completely internally inconsistent and irreconcilable.
• Whereas, the mere numerical data appearing in Table 7 “Allocations of Housing Sites” (p.76), as against the entry for this Allocation, states it to be for “20 units” : the following sentence appears in the full expository reasoned justification, at the equivalent entry, in the table at Appendix 2 “Allocations” (p.122) namely “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”
• This conflict has come about as the result of a grave oversight and serious lapse by the Planning Inspector concerned, (albeit compounded by the PCNPA staff) who simply failed to make adequate Recommendations, when he found that the original site, as proposed in the 2009 Deposit Plan, could in his view be “expanded” to the north, so as to include two further proposed additional so-called “alternative” sites.
• Notwithstanding this, the said Plan as approved by the Welsh Assembly Government and adopted by the PCNPA in 2010, now sets out a simple unconditional factual statement with respect to the limit of “12 dwellings” acceptable for inclusion within the Allocation site so identified. As a matter of law the general public is now entitled to rely upon that statement and to expect it to be honoured and implemented by the NPA, whatever the earlier failings of the Planning inspector, or indeed its own staff.
• The fact of the internal inconsistency, and the history of the Planning inspector’s oversight, are not legitimate further “material planning considerations” which the Development Management Committee of the NPA may take into consideration in their determination of the present planning application for 35 units on the site instead.
• Such is the gravity and substantive significance of the oversight or lapse here involved, that the PCNPA is most certainly not at liberty to treat it as if it were a mere minor administrative error instead (i.e. equivalent of a typo); and 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.
• The established lawful statutory mechanism for making any such rectification, as it may be deemed in future it is appropriate to make, lies instead under the LDP “review and revision” procedure, per ss.69 & 70 of the 2004 Act.
• Any person who can show that, in the course of the past 5 yrs since its adoption, they have indeed enquired of this Plan and so became aware of this “12 dwellings” limitation, has thereby gained a substantive “legitimate expectation” that the NPA will honour and respect this commitment, when considering a planning application, such as the present, to develop on the site. They may thus have grounds to launch a subsequent challenge on a judicial review, were the Authority to simply ignore it instead.
• The figure of only a 40% proportional commitment to “affordable housing” associated with this allocation, as now appears in the 2014 “supplementary planning guidance” document ; is not 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. Such inconsistency is expressly contrary to 2005 WAG planning guidance. Furthermore, it seeks to “delegate the criteria for decisions on planning applications” to supplementary planning guidance ,which again is contrary to WAG guidance.
• Finally, whilst the current contemporary advice of PCC Highways regarding the changed proposal for principal vehicle access off Feidr Bentinck rather than Feidr Eglwys instead, must naturally bear greatest weight, as a material planning consideration. Nonetheless, their 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 the “expansion” of this Housing allocation site, are nonetheless also a further such material planning consideration.