ADDENDUM TO PLANNING STATEMENT
21 January 2025
1. This document is lodged in support of the applicant. It focuses predominantly on topics of legal interest which affect the application.
2. There is currently an application for permission in principle (PiP) before BCP Council (BCP) for a 9-dwelling development falling within owned by Brentland Ltd (Brentland). The wider area ofBrentland’sownership will be referred to herein as the Jesmond Avenue site or, as the context permits, the site, and the proposed 9-dwelling development will be referred to as the application land
3. There are four areas of interest which will be addressed herein:
• A PiP application – the basics
• The emerging BCP development plan & the adopted Highcliffe and Walkford Neighbourhood Plan
• The tilted balance
• Material considerations
4 A PiP application – the basics
4.1 The basics of PiP (which was introduced in 2018) is that it applies primarily to housing schemes of 9 or less units and is aimed at one-off projects in the small to medium builder market. It is a two-step process consisting of Stage 1, which establishes whether a site is suitable, in principle, for some form of housing development, and Stage 2, which follows on and is known as the technical details phase. Approval of both Stages 1 and 2 amounts to gaining detailed planning permission.
4.2 Unlike an outline planning application, the matters to be considered within a Stage 1 application are limited to location, land use and the amount of development. The scope of these matters is not defined in any detail in the legislation or guidance. In the result, a PiP application provides a relatively inexpensive route to determining what the LPA’s attitude will be to the development of the application land. What is clear is that the
matters to be considered at Stage 1 are limited to matters of principle (when looked at in the round) and would not involve, for instance, the likely impact of new residential development on neighbour amenity or the impact of the character of the immediate area or the steps necessary to mitigate environmental harms. The LPA should therefore caution itself against taking into account a wider range of considerations than they are entitled to for a Stage 1 PiP.
5. The emerging BCP development plan & the Highcliffe and Walkford Neighbouring Plan
5.1 BCP’s draft Local Plan (2024-2039 – the first since the merger of the three authorities in 2019) has been submitted for examination.
5.2 It would be fair to say that Strategic Policy P16 (in its approach to the Jesmond Avenue site) is ambiguous. If, as is understood to be the case, the draft plan is promoting the Jesmond Avenue site as open space then this would be unlawful.
5.3 This is because the Jesmond Avenue site cannot be open space as (pursuant to the definition given to the term “open space” in the TCPA 1990, s.336(1)), the Jesmond Avenue site is neither laid out as a public garden nor used for the purposes of public recreation (the term also extends to a disused burial ground which does not apply here). It would be inappropriate (and unsound) for such a designation to be promoted by BCP as open space when the land is privately owned and fenced and to which the public has no lawful right of access.
5.4 The proposed Strategic Policy 16 is not helped by the outcome of the approval by an examiner of the Highcliffe and Walkford Neighbouring Plan (the examiner’s report is dated 12 July 2022). The examiner was not persuaded to approve the designation of what the promoters of the plan described as “The Jesmond Avenue Woodland” (under reference of LGS12 (part)) as a Local Green Space despite the efforts of the plan’s promoters to ascribe this designation to a number of green spaces in the locality (no matter how big or small) which would, of course, have ruined the immediate prospect of any residential development taking place on such land (although the application land is currently affected by an area TPO whose importance will need to be judged at Stage 2 if the application gets that far). It was the view of the examiner (see 4.24 in his report) that LGS12 was already covered by saved policy ENV15. He also noted that BCP appears to have concluded that the site LGS12 (and one other site) “ would help the delivery of
much needed housing in sustainable urban locations, in accordance with Core Strategy Policy KS4 [and] Secondly, the SoCG confirms that Christchurch currently (i.e. at the time when the examiner considered the neighbourhood plan) has a 2.7 year housing land supply and therefore there is a need to identify more land for housing in order to deliver the housing requirements for the area”.
5.5 It is considered thatBCP’s emerging plan is unsound as it does not address the Standard Method housing requirement of 40,695 dwellings (which may only be departed from exceptionally) and the deficiency is enormous. The true unmet need over the plan period is suggested to be nearly 17,000 dwellings or about 60% of the homes required under the Standard Method. It is even worse than this as BCP has not even consulted any of its neighbours about helping it to meet its unmet housing need (re its duty to cooperate) as it considers that it has no unmet housing need. Ergo, BCP’s draft plan is demonstrably unsound. The result of all this is that any argument against Brentland’s proposal based on emerging policies and its prematurity should be rejected.
6. The tilted balance
6.1 It is the duty of the LPA to apply national policy which is a material consideration in planning decisions (NPPF/2 – re revision dated December 2024).
6.2 The NPPF/11 presumption (the so-called tilted balance) continues to apply in the December 2024revision,namelythatplanningpermissionshouldbegrantedforsustainabledevelopment unless the application of NPPF policies to protect assets or areas of particular importance provide a strong reason for refusing the development (it used to be a clear reason which now arguably lends itself to the promotion of schemes via the tilted balance) or where the adverse impactssignificantlyanddemonstrablyoutweighthebenefits.Therecentrevisionalsocontains changes to NPPF/11(d)(ii) where decision makers applying the tilted balance are required to have regard to key policies for directing development to sustainable locations,making effective use of land, securing well-designed places and providing affordable homes (individually or in combination)
6.3 By virtue of footnote 8 the expression in NPPF/(d) “out-of-date”, in its reference to the presumption arising where the policies which are most important for determining the application, is taken to include where provision is to be made for housing where the LPA cannot demonstrate a 5-year housing land supply (HLS) (along with the appropriate buffer as set out in NPPF/78) or where the Housing Delivery Test indicates that the
delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.
6.4 BCP’s HLS figure is currently believed to be 1.6 years. Its record is a very poor one. As it is not thought to be in dispute that, in view of its urban setting, the Jesmond Avenue site is a sustainably developable site, it is hard to see why the PiP application should not be allowed. Matters such as ecological/landscape qualities, including the site’s visual and aesthetic quality, and any impacts on mature trees are Stage 2 matters. None of this is surprising as the Jesmond Avenue site had for many years been destined to be the location of a bypass and is located close to a very busy main road and to significant urban development on both sides of the road.
7. Material considerations
7.1 Any decision maker must have regard to material considerations (TCPA 1990, s.70(2)). Further, any proposal must be determined in accordance with the development plan unless material considerations indicate otherwise (PCPA 2004, s.38(6)).
7.2 It is axiomatic that for a consideration to be material it must relate to the character or use of the land. It must also fairly and reasonably relate to the permitted development In other words, there must be a real connection with the development.
7.3 Reference is made on this application to the history of the Jesmond Avenue site and to the fact that it was always intended to be land which would be available for residential development
7.4 Put shortly, it is contended that the history of compulsory purchase and the potential obligations that arise from reorganisation in 2019 fall within the ambit of material considerations to which regard should be had in the decision-making process
Compulsory purchase history
7.5 The Jesmond Avenue site was, in 1965, subject to a compulsory purchase from Boyland and Son Ltd (Boyland) by Hampshire County Council (Hampshire) as the former highway authority for the area. The site came into public ownership for the purposes of a highway scheme (bypassing Highcliffe) which was only formally abandoned in (as I am instructed) 2002. By this stage, the supervening development to the north of the A337 was such that the site was suitable only for infill.
7.6 The site is unmanaged, overgrown, and only partly fenced except for two informal cuttings for pedestrian use linking Jesmond Avenue to the A337. The site is unkempt and comprises mainly of self-seeded trees and impenetrable scrub with ugly HERAS fencing prominent on the street scene. The ecological/landscape impacts arising from a comprehensive development of the land will, it is suggested, be low-level and any important trees will have to be accommodated within the eventual development layout. The site is not used as a place for recreation by locals, nor is it demonstrably special to the community. It is very much as one might expect in the case of a narrow strip of unmanaged and undeveloped land (land that had historically been identified for a bypass) located close to a busy main road in an urban setting which was always likely to be developed at some point. This is by no means verdant woodland.
7.7 Against the backcloth of the Crichel Down Rules the land re-vested in Boyland under a simultaneous exchange/transfer involving Dorset County Council (DCC) (the then highway authority, to whom the land had devolved following local government reorganization in 1974) and Boyland on 21 December 2015 (the contract plan discloses a narrow land corridor in two parts running up to Chewton Common).
7.8 DCC has never been the local planning authority (LPA) for Highcliffe. Its involvement with the land since reorganisation would have been in its capacity as the highway authority for the area at the relevant time. The 1964 correspondence that exists shows that Rebbecks (Boyland’s advisers) were dealing with Hampshire’s County Roads and Bridges Committee and that the pricepaidtoBoylandwaslinkedtotheland’sCAADvalue.Inthis instance, the potential development value in a no scheme world was linked to a housing density of 5 to the acre and the District Valuer valued the land on this basis.
7.9 In 2001 the Borough of Christchurch Local Plan was adopted which set out policies and specific proposals for the development and use of land in the Borough to 2011. Although the Borough of Christchurch continued to be the responsible LPA for Highcliffe until the 2019 BCP merger, planning policy for the area changed with the adoption of the Christchurch and East Dorset Local Plan Part 1 in 2014 which set out development strategy for these councils until 2028 (now of course subject to the emerging BCP Local Plan). The Borough of Christchurch, as the responsible LPA for the Highcliffe area, did not participate in the arrangements made between DCC/Boyland in 2015.
7.10 The purchase price paid by Boyland under the 2015 buy-back was £300,000 and there was additional overage of (a fixed) £300,000 payable, irrespective of the extent of any development occurring on the whole or on any part of the site (a sum that would now have to be paid to BCP and is a benefit accruing from any development to which significant weight must be attached in the planning balance). Boyland sub-sold the land to Brentland to whom the obligations and benefits arising under the arrangements made in 2015 passed on the same date. Brentland entered into a direct covenant with DCC to secure payment of the overage which is not a time-limited obligation.
7.11 The overage trigger covered any development by Boyland (and thereafter Brentland), or a third party, requiring planning permission from the LPA (which, as indicated, would have been the Borough Council of Christchurch before the BCP merger in 2019 and the creation of a new unitary authority).
7.12 It is suggested that it is obvious (a) that DCC/Boyland shared an assumption that the land would be developed in some form; (b) that substantial cost and effort would have been incurred by Boyland in getting its repurchase for £300,000 over the line in 2015, including the arrangements for overage which stood to cost Boyland, or any successor of theirs, an additional £300,000; and (c) that although the scope of any planning permission was never specifically defined it must have been a legitimate expectation of Boyland and DCC that Boyland (or any successor) would obtain planning permission and that nothing would be done by DCC (or any successor authority) which would operate to preclude or weaken the possibility of a grant of planning permission for residential development being obtained on the Jesmond Avenue site, or any part of such site. This must surely have been implicit in the transaction between these parties.
7.13 There followed four planning applications which either failed or which, in one case, had to be withdrawn. No planning refusal has been tested on appeal.
The assumption by BCP of the liabilities of DCC on reorganisation
7.14 You may ask how it is BCP owes any duty to Brentland as the CPO and repurchase involved, respectively, Hampshire and DCC. In other words, you may ask (a) why should BCP not be free to promote a policy in which the Jesmond Avenue site is to be allocated as open space, and (b) why should the planning process even take account (as a material consideration) of the expectations of DCC and Boyland in 2015? The reason is simple in
that BCP now stands in the shoes of DCC following the merger of the three authorities in 2019.
7.15 The first key issue is whether BCP stands in the shoes of DCC (acting in its capacity as the highway authority for the Highcliffe area) following reorganisation with effect from 1 April 2019, or whether the overage and the other rights or liabilities accruing under the DCC/Boyland TR1 (2015) were subject to special arrangements which passed by Deed. It seems clear that although Christchurch BC was the district council for Highcliffe in 2015, it was not the highway authority as Christchurch was not a unitary authority.
7.16 The scheme of things underlying reorganisation involved the Local Government and Public Involvement in Health Act 2007 and the Cities and Local Government Devolution Act 2016.
7.17 The 2007 Act allowed the Secretary of State (SoS) to invite any authority to propose a unitary model. The 2016 Act provides a fast-track mechanism for delivering the structural changes necessary to create unitary authorities. The 2016 Act sets out a mechanism whereby local authorities can work together on a reorganisation proposal and submit this to the SoS without being specifically invited to do so. This is what happened here. The result was The Bournemouth, Dorset and Poole (Structural Changes) Order 2018 wherein a single tier of local government was introduced in Bournemouth, Christchurch and Poole which became BCP. This order also swept away the district councils within Dorset and of course DCC itself which were all dissolved and subsumed within Dorset Council.
7.18 One turns next to how the above structural changes impacted on the transfer of functions, property, rights and liabilities. This is dealt with in the Local Government (Structural Changes) (Transfer of Functions, Property, Rights and Liabilities) Regulations 2008 in which, at reg.7, it is provided that where an order has been made by the SoS under s.7 of the 2007 Act (i.e. an order implementing the reorganisation proposal by winding up and dissolving two or more predecessor councils and the establishment of a single tier of local government for the area) “all property, rights and liabilities of the predecessor councils shall on the reorganisation date vest in, and transfer to, the successor council”. This outcome is subject to an agreement made under s.16 of the 2007 Act which stipulates that those bodies subject to an order under s.7 of the 2007 Act can enter into agreements detailing what is to occur in relation to any particular assets. These agreements can cover a broad range of issues. The explanatory note to the 2008
Regulations makes it clear that in most instances the vast majority of assets will be subject to agreements made under s.16 of the 2007 Act which may make provision for the transfer or retention of any property, rights and liabilities or for the joint use of any property. These arrangements imply that a significant amount of work would have to be done in re-organisation to identify assets belonging to those councils which would be dissolved. Nothing of the kind arises here and no special agreement has been alleged in correspondence between BCP and Brentland.
7.19 It therefore follows (as Helen Garratt of BCP appears to acknowledge in her email to Brentland dated 16 November 2020) that the normal consequence of reorganisation applied such that BCP now stands in the shoes of DCC, acting in its capacity as highway authority for the area and, of course, in its capacity as transferor of the Jesmond Avenue site in 2015, and in its assumption of all the liabilities which bound DCC under the transfer.
How might BCP be answerable for loss to Brentland?
7.20 A question arises as to whether BCP has broken an express or implied covenant in the contract of sale or TR1 or else one which can be imputed into the 2015 transaction (such as might be justified by notions of reasonableness and fairness) as a response to the conduct of BCP’s planning authority in its promotion of their open space proposal in the emerging local plan which, if successful, will or is likely to preclude development of the Jesmond Avenue site and generally subvert what was contemplated by the overage obligation.
7.21 Although private law concepts of estoppel admittedly have no place in planning law, it is certainly feasible in cases where a statutory body has acted in such a way as to induce a legitimate expectation of substantive benefit, that to frustrate that expectation could be so unfair that it would amount to an abuse of power. In such a case a court would have to determine whether there was a sufficient overriding interest to justify a departure from what had previously been promised. In view of the importance and value, in this instance, of Boyland’s (and their successors) expectation that the Jesmond Avenue site (or part of it) would be developable in some form (thereby justifying the price paid for the land and Boyland’s commitment to pay overage) and Boyland’s belief that DCC (or their successors) would not take steps which would preclude or hinder the land’s development (unless that is, there was an overarching justification for doing so), BCP’s
promotion of the land as open space might very arguably be viewed as an unjustified breach of the shared expectation that arose in 2015 which arguably constitutes unfairness amounting to an abuse of power
7.22 If either the promotion of the Jesmond Avenue site as open space and/or a refusal of planning permission which cannot be overcome on appeal, then, in such a case, Brentland will suffer significant loss as the site was not acquired by Boyland as land which was without any meaningful potential for development and Brentland would not have incurred the wasted costs of multiple unsuccessful applications for development.
7.23 If the court was unwilling to undo transactions or to reverse decisions which have been made in accordance with the exercise of statutory functions, it would still be open to the court, on a judicial review, to award damages although the court has no jurisdiction to entertain a claim for damages alone. It is, of course, accepted that there is no general right to damages for loss suffered through invalid administrative action unless linked to a claim for damages. Such a claim might arise under this head if it fitted within established categories of causes of action such as those involving negligence, where a duty of care is found to be owed (perhaps involving a new situation), breaches of contract (based on express or implied contractual obligations as to, say, reasonableness and fairness), breach of statutory duty or claims in tort etc., although there is admittedly judicial unease over the inability of public law to afford a remedy matching the wrong.
7.24 If, ultimately, as a result of BCP’s determination not to allow development on the Jesmond Avenue site, it is obvious that Brentland is saddled with land which has limited or even no potential development value, then loss of chance damages could be claimed which would be linked to the assessed loss of profit arising from the optimal development which might reasonably have been expected if development had been carried out in accordance with the expectations of the parties in 2015 (as already explained).
7.25 It is respectfully suggested that the foregoing factors may, in the particular circumstances of this case, be regarded as material considerations to which significant weight should be given
William Webster
3 Paper Buildings TEMPLE
London
EC4Y 7EU
21 January 2025