To inform interested members it will be helpful to give a report and some comment on the Hartnoll Appeal Hearing Inquiry, as much happened which showed the Inspector, the Council and the Appellant and his advisors and probably all other interested parties including the press representative became lost in the patient unstitching of a badly presented planning application which was clearly not properly assessed by District or County Council officers.
On Tuesday 22nd September, the Society (TCS) and Devon Conservation Forum were represented at the Hearing Inquiry into the refused Hartnoll application for retrospective permission for the unlawful use of land in agricultural use specified as static storage for ATCO cabins and a Waste transfer site. The appellant fielded a barrister and a traffic engineer. Three local councillors represented the District Council (Councillor Wilson also represented the Town Council) with a case officer not offering responses probably because the Council were recommended by the District Planning Officer to approve what turned out to be a badly flawed and presumably wrongly registered application. The Halberton Parish Council were ably represented by Councillor Corden and made many good points including the quality of the land. The representative for the CPRE supported by the Devon Conservation Forum also made the case for Grade 1 land. Mrs Bewsey and our Chairman made pertinent points about traffic accidents. Surprisingly few letters of objection were cited and the TCS had to cover for the impact on Blundells School..
The Society’s Vice Chairman (who could give advice as a Fellow of the Royal Institution of Chartered Surveyors and Fellow of the Royal Town Planning Institute in recent practice) found himself to be the only one in the room who could help the Inspector unravel an extraordinary messy planning application. The registered, determined and appealed application gave different statements on the application form and the accompanying plans and supporting documents as to the area for a change of use. Other major difficulties then arose. The difference was between the form statement of 4156 sq m and the red line area stated on the face of plan accompanying the application form as 5117 sq m. All other supporting documents were based on an area of 4156 sq m. The District Council had accepted and worked on the larger area which would have given permission to a 23% larger area than had been sought by the applicant. The applicant was seeking retrospective planning permission to an unlawful use by way of a ‘personal consent’ application. The Council were recommended to approve the application at 5117 sq m not with the personal permission condition sought but with a general condition to allow Use Class B8 for “Warehouse, Storage or as a Distribution Centre.” The appellant’s traffic report used the 4156 figure and relied on the personal consent to restrict traffic generation to that which only arose from the ‘static storage’ run by a Canadian owned company and the District Council Waste transfer site (storing waste). These two specified unlawful activities having been there about 3 years generated hardly any traffic – so the appellant contended and cited support from the Local Highway Authority’s (LHA) engineers.
As soon as practicable, the TCS submitted that personal consents or personal permissions were inappropriate for business users. The Inspector, who was a Chartered Engineer and not a Chartered Town Planner - after adjourning to take planning advice presumably over the telephone, accepted this opening TCS submission. The TCS did not cite from official guidance in Circular 11/95 and which should be known to a qualified planner, ”a permission personal to a company is inappropriate …”. This submission appeared to support the Council’s officers and the appellant’s agents and the Council’s case officer agreed. The Inspector then ruled that he would only consider the application for a change of use from agriculture to B8 Uses and not consider the issue of personal permission consent, as it would be inappropriate. This was an absolutely correct decision. But the consequence was the ruling fatally undermined the appellant’s traffic evidence and the County Council engineer’s response and the whole manner in which the application had been handled. Naturally enough the lay Councillors and all the interested parties and the appellant’s barrister were lost at these technicalities although they had been entered in the TCS 19 page statement and the Council, if they had taken note of these technical issues, could have resolved the proper traffic approach. Then the TCS suggested a waste transfer site would probably not be caught within the B8 Use Class due to stored wastes having noise and ground water pollution issues etc. The Inspector sought further advices during another adjournment and the Inspector ruled he would consider this issue appropriately after the Inquiry. At this point County Councillor Hannon weighed in and pointed out how waste transfer sites may store much recyclable material that had food residues attached; plastic materials were particularly susceptible to food contamination, etc. The first ruling meant that the traffic report from the appellant’s consultant and the response of Local Highway Authority were based on a nullity being the current ‘personal’ business uses, that is static storage and which enabled them to argue that there was a ‘minimal traffic impact’. Now the traffic generation had to be considered for a widespread Use Class B8 permission. So the TCS then fired its second bullet by contending that a total B8 Use class provided a materially different trip generation, which would then be not ‘minimal’ and also not of ‘no concern’ to the LHA. Fortunately Councillor Radford (bless him) had requested what the traffic generation from B8 Uses would be and a 6 line email came hotfoot from a senior County Council engineer and was presented towards the end of the Inquiry to show that 152 trips a day of HGV type would typically arise from a 5117 sq m. B8 Use site or, by scaling down, 142 trips a day from a 4156 sq metre site. Now the appellant could no longer state there was a ‘minimal’ traffic impact.
The fact that the site had been removed from the Preferred Options report badly holed the appellant’s planning argument although they rested their case on the fact that the District Planning Officer supported the site’s inclusion without reservation and it had been accepted at one time by the Planning Committee. The District Councillors were questioned and did not budge from their view that they had done the right thing for Tiverton for a plan up to 2026. However the reasons given by the officers for approving the related application for new buildings indicated that open countryside development at Hartnoll was acceptable which raised the issue: what was now wrong with storage space? There was no answer to this other than the site appeared so large there had to be a traffic impact far greater than was being reported. This was a most prescient point made by Councillor Radford who had moved the motion for refusal and which he candidly admitted after the Inquiry that he had had no idea how right he was. Points were made by Councillors at all levels that so many applications had been made, withdrawn, re-submitted, adjusted or trailed that it had been difficult for them let alone the public to come to terms with the developments at Hartnoll adequately and generally had to rely on officers’ advices.
The appellant’s agent predictably banged on about how important it was to satisfy a great unmet need for employment land in Tiverton and again cited the Planning Officers’ support and that there had been no professional examination of the matter to state otherwise. This was too much for the TCS who drew the Inquiry’s attention to the lengthy professional assessment in its appendix TCS3 statement to Inquiry using Tiverton based chartered surveyors’ professional assessments on the supply and demand for employment land in and about Tiverton and which comprehensively rebutted this point about need - in short there was no immediate need. The appellant’s agent could only (weakly) state that this assessment only related to Hartnoll2 and to which the reply was the assessment would relate to any application citing overwhelming need. The Inspector then asked how many people were employed on the site, to which the answer was 3. This was met by a stunned silence as the Planning Officer had always made much play about the overriding need for employment land to serve Tiverton. This answer clearly did not impress the Inspector. The Inspector did not have any further queries other than to note the TCS evidence was before him.
In the early afternoon the Inspector asked what should he do with mismatched plans, documents and form, to break the painful silence the TCS suggested he had two applications before him and he might wish to decide which one to pursue bearing in mind the ‘Wheatcroft’ principle (which law case dealt with prejudice to any party which might be concerned about the application). Another adjournment followed. This one led the Inspector to offer opting for the lesser figure if the appellant could furnish him with revised plans before the close of the Inquiry. The advice he had received was clearly that the lesser figure would not prejudice other parties while the appellant said the plan(s) was (were) in error and was happy to correct it (them). The TCS did not queer the pitch further by asking sweetly what was the planning fee sought by the Council but stated that the TCS was not prejudiced by this ruling as they had always accepted the lower figure as the most likely outcome in this appeal and had built their case of objection accordingly. The Inspector, who kept his cool remarkably well, thanked the TCS representative and then said candidly this appeal was outside his experience. The three District Councillors who were nobly and desperately trying to defend their side of the argument said they were livid that they had been determining an application on misinformation to which the Inspector replied that if the District Council had done its job properly they would not be in this mess and should have sorted this out at an early stage.
Submissions were made to give the Inspector the understanding that the District Council papers failed to identify all material statutory development plan policies and he would find them given in the TCS evidence.
The Inspector accepted the need for environmental conditions posed by Mrs Bewsey if he were minded to approve the application and the appellant was happy to accept conditions on hours of working etc, these were specified in the TCS statement but the TCS forbore to point out that waste storage or disposal is subject to a very different regime of control and is normally a County Council function as waste planning authority. The TCS had modestly referred the Inspector to PPS10, which deals with waste management. It’s possible the wrong authority determined this application if it was seeking to regularise this unauthorised use but that may explain some of the lengthy adjournments. Suggesting he might go down the road of mixed determination applications would probably have had the Inspector weeping behind closed doors. The regulations may well be changing and when the Inspector gets back to Bristol, he will doubtless be told what the regulations are. The TCS representative had had much experience in waste and incineration site applications but felt disinclined to spell out the potential complications before the Inspector who was getting tired like the rest of us. The site may not be licensed until a planning permission is extant. Finally at the end, the TCS asked that the issue of cumulative development be considered by the Inspector so that a line could be drawn either now or that he could give an indicatory statement in his decision letter whether this would be the last development to be allowed before such things as environmental assessments were to be required and any new application be judged against the whole existing site. He undertook to give most careful consideration to the TCS case. This last point was actually the key matter for all objectors.“
For those who are unfamiliar with the full TCS statement to Inquiry click on to the following
compound-and-bing-final-appeal-08-01853.doc