A commercial development at Woodcut Farm, close to Leeds Castle and the AONB, has been thrown out twice, yet Maidstone Borough Council seem intent on bringing it back.
The decision has now been referred to the Planning Referrals Committee, after the Planning Committee rejected the application.
Junction 8 is the wrong place for development, and If I am re-elected on June 8, I will continue to oppose this proposal at every level
I wrote to Alison Broom, head of MBC, to express my concerns at the process. I wrote: "I have received letters, emails and telephone calls from residents who are concerned that the Council is seeking to rush a decision to develop this land before the Local Plan has been approved, and despite agreement from the majority of the Planning Committee on 27 April and at previous meetings to protect it."
Her response was resolute: MBC is pressing ahead and the decision will not be referred back to the planning committee.
Full text of Alison Broom's reply to me email questioning the rushed planning process
Thank you for your e-mail received this morning – concerning the Planning Referrals Committee which will be meeting this evening. We are of course aware that there is significant interest in this and welcome any assistance you can provide in ensuring that the public have accurate information.
Firstly on the point about the council defending this area from development. You raised this with me in advance of the Planning Committee meeting on 27th April and I replied to you at the time.
Just to reiterate the site is included as a site allocation for employment purposes in the Local Plan which has been the subject of extensive consultation and consideration at the Public Examination (we are currently consulting on modifications and expect to invite a decision on adoption in September) – and hence considerable weight is given to this. The decision to include it was a difficult one and included very careful consideration of a wide range of factors and the balance between them. The detail of the planning status of the site is contained in the original report concerning proposals to develop the site and the latest consideration of the Council’s position concerning appeal. The fact that the Local Plan process is not complete does not mean that decision making concerning the current proposals should not take place – as the planning authority we must deal with proposals submitted to us in a timely way.
Please find set out below the context for the Planning Referral Committee and the way in which it fits into our governance arrangements
The Planning Referrals Committee was originally set up to cover those situations where a planning decision had potentially serious cost implications for the Council – following an event where substantial costs had been awarded.
The procedure which is set out in the Constitution is the usual procedure for referrals in a situation where the Planning Committee is dealing with a recommendation on a planning application. In these circumstances it would be usual for there to be a deferment to a second committee meeting in order for the officers to obtain and/or clarify further advice on the costs issue. At that meeting, it is possible for the committee to move into part 2 private session in order to discuss the legal advice further, following which the Head of Planning and Development has the authority to refer the matter to the Planning Referrals Committee.
Woodcut Farm is a slightly unusual case in that the Planning Committee had already decided the application but the applicant had appealed. This in effect takes the decision away from our committee and into the hands of the Planning Inspector. However it is still relevant for the Council to consider costs implications and, indeed, the Planning Inspectorate would expect the Council to consider costs at all stages of the appeal, so as to demonstrate that we have not acted unreasonably.
Since the appeal, we have had the Inquiry into the Local Plan and the Inspector has accepted the allocation of Woodcut Farm for Employment land – albeit subject to his recommended amendments to the relevant policy – which the Council has accepted (through decision making of the Strategic Planning, Sustainability and Transport Committee). In any appeal, it is usual for officers to review the reasons for refusal, usually with Counsel’s advice. We commissioned a specialist planning barrister to provide legal advice in order to understand the prospects of success on the reasons given for the original refusal by the committee, but also any additional implications arising out of the Inspector’s report.
The Inspector’s findings were, in effect, a change of circumstances which the Council must take account of. At appeal, the Inspector will expect MBC to present its case in light of all the up to date information including the Inspector’s findings. Our Counsel’s advice, is that the committee’s reasons for refusal are not sustainable at the Appeal and therefore we should mitigate our potential losses by agreeing not to defend the appeal and adopting a neutral position. This would shorten the appeal, reduce the need for evidence, cross examination etc. and significantly reduce our exposure to costs. An extract from the committee report explains this process further:
“It is usual practice that the Council and its appointed Counsel review the reasons for refusal before submitting the Council’s Full Statement of Case and, thereafter, continually monitor the main issues as part of the Council's preparation for the inquiry.
The Planning Inspector must determine this appeal, having regard to all material planning considerations, as they exist when making the decision. For that reason, the Council's Full Statement of Case must address any material changes in planning circumstances relevant to the appeal, which post-date the Council's refusal decision. That process requires the Council to assess whether, as a result of those changes, its reasons for refusing the application, or any part thereof, can no longer be defended. As stated above, practice guidance requires the main parties to an appeal to inform the Planning Inspectorate as soon as possible of any material changes in planning circumstances relevant to the determination of an appeal. It is also necessary to minimise the risk of an adverse costs award being made against the Council, on the grounds of unreasonable behaviour, which may include failing to produce substantial evidence to defend every aspect of its reason for refusal. “
The only way for the committee to consider Counsel’s advice and the recommendation not to defend was for officers to present the legal advice to the Planning Committee with a covering report outlining the recommendations. This was the purpose of the meeting on 27th April 2017.
Because we had circulated the legal advice some days before the meeting, the first part of the deferral procedure was unnecessary.
After the vote, the Head of Planning and Development referred the decision to the Planning Referrals Committee under the Constitution, as he was entitled to do.
I am in no doubt that it was absolutely correct to take the Woodcut Farm matter back to Planning Committee to inform the committee of the changed circumstances following the Local Plan Inspector’s report and the implications of costs at Appeal. It was also appropriate to refer the decision of the Planning Committee to the Planning Referrals Committee for further consideration, as is allowed under the Constitution. I am quite clear that this process is entirely correct and it is not ultra vires as has been alleged by Geraldine Brown on behalf of KALC, the Joint Parishes Group (including John Horne), CPRE (including Gareth Thomas), the Bearsted and Thurnham Society (including Roger Vidler) and Leeds Castle (including Bill Lash).
Any decision made by the Planning Referrals Committee will not be referred back to the Planning Committee.
I hope this is of assistance and would be happy to provide any further information that you need.
Best regards
Alison
