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Legal action over Spurt Mead looms

(February 28, 2015)

THE unloved and unwanted development at Spurt Mead could be stopped in its tracks by legal action.

Opponents of the scheme have now instructed solicitors to confront Wiltshire Council and its unjust decision.

Town Councillor Steve Dancey, who attended the planning committee meeting last year, said: "It was obvious from the sheepish behaviour of planning officials at the meeting that they knew what they were doing was against natural justice and against the spirit of the planning rules.

"When I was at the County Hall planning meeting I sat in the seat often occupied by Jack Ainslie, a long serving Liberal guardian of the countryside who did so much to protect the River Kennet over many decades.

"The Spurt Mead vote was pushed through by a Liberal Democrat, paid member of a housing association which has been involved in plans for this piece of land. Shame on him - he wouldn't have dared act in such a way if Jack Ainslie was still there!"

 

Details of the legal case are set out below.

 

Our Ref:

irwinmitchell

solicitors

JN/M5B/05167148-00000001

Wiltshire Council Legal Department

County Hall Bythesea Road

Trowbridge

Wiltshire

BA14 8JN

Justin Neal

Litigation Assistants Wood & Melanie Blake

in i

Ter 0870 1500 100

Fax: 0161 839 9804

URGENT FORMAL LETTER BEFORE ACTION UNDER THE PRE ACTION PROTOCOL FOR JUDICIAL REVIEW

23 February 2015

 

 

Dear Sirs

Planning Reference 13/06782/0UT

Mr Jeremy Kelton v Wiltshire Council

We write pursuant to the judicial review pre action protocol to give formal notification of a proposed claim for judicial review.

We are instructed by our client to challenge the decision made by Wiltshire Council (the "L PA") dated 21 January 2015 to grant outline planning permission to the interested parties, HPH Limited & Hab Housing Limited, for the erection of 35 custom built residential dwellings including access under planning reference 13/06782/OUT

Please note that due to the timings in this matter a response to this letter is required by Friday 27 February 2015.

The Parties

Claimant

Mr J Kelton

Mill House

Milt Lane

Bishopstrow

Wiltshire

BA12 9HJ

Defendant

Wiltshire Council Bythesee Road

Trowbridge

Wiltshire

BA14 8JN

For a O'

1500 100

Interested Parties

HPH Limited

6 Kingsmead Square

BAT H

BAI 2AB

Hab Housing Limited

Vallis House

57 Vallis Road

Frome

Somerset

BAII 3EG

The Claimant's standinq

The claimant is Mr Jeremy Kelton, a riparian owner who lives approximately 700 meters downstream of the proposed development on the banks of the River Wylye. He is concerned about the effects of the proposed development on the ecology of the river, increased flood risk and the effect on the local community. He raised objections to the development by way of a letter to the planning committee dated 30 January 2014 and through his membership organisation, Fish Legal.

In his letter of objection he listed concerns including potential damage to the special area of conservation (SAC) and site Of special scientific interest (SSSI) and the species therein including the whorl snail, brook lamprey and atlantic salmon, He also argues that the proposed ecological buffer zone would be ineffective. Other reasons for objection were that the development would exacerbate flooding, increase traffic and set a precedent for future development outside Wiltshire's Core Strategy Area.

Fish Legal wrote several letters on behalf of the Claimant, highlighting the defects in the planning application and process.

Their last letter dated 10 June 2014 summarises the perceived defects of the application just before it went before the planning committee.

The letter is critical of the EIA screening opinion and the perceived excessive reliance on non-standard mitigation measures and/or planning conditions as justification for the avoidance Of an EIA

The Development

The development is for 35 dwellings next to the banks of the river Wylye, part of which falls within the River Avon Special Area of Conservation (SAC) and has been notified as part of the River Avon SSSI. It abuts Boreham Mill - a Grade 2 Listed Building. It is also close to Bishopstrow Conservation Area.

An earlier application was made for the erection of 35 dwellings and under reference 13/02/808/out but was withdrawn. A further application was then submitted dated I I December 2013

Importantly for the purposes of this letter and the grounds to follow, the site was used for the disposal of building material and excavated soil in the 1960s and is a possible source of contamination to water and

the nearby river.

The planning application was screened for EIA on 16 April 2014 by the Senior Planning Officer at Wiltshire Council. The screening opinion was negative

At the planning committee meeting on I | 01 June 2014, the committee decided by a majority of 6:5 to grant planning permission.

After some delay for the section 106 agreement to be finalised, the planning decision notice was published on 21 January 2015.

Ground I

Bias in decision making: the planning committee meeting

The minutes of the westem area Planning Committee meeting dated Il June 2014 record that one member of the committee - Magnus MacDonald - declared "that he had a pecuniary interest on a separate application being decided on that day — 14/02361/ful for a garage site as a result of being a director of SelW00d Housing" and therefore, it was suggested early in the minutes, he would withdraw from committee and not participate in the debate or the vote. However, at page 10 of the minutes it is recorded that

"during the course of the debate there was a discussion on the position of Selwood Housing and

Councillor Magnus MacDonald declared that he was a member of Selwood Board. However, Selwood Housing made a late submission in writing to clarify that it was a prospective partner, not the applicant and there was no formal agreement in place, after which councdlor Magnus MacDonald stated that he would vote on the application.

A motion to refuse the application was put forward with five in favour and five against with a casting vote in favour of the development. Councillor Magnus MacDonald voted against the motion (i.e. in favour of the

development).

It is noteworthy that the officer's report says the following about Selwood and its representations:

Another letter of support has been received from Selwood Housing (the affordable housing provider that has been working with the applicant). They consider: (a) the proposal would deliver much needed affordable homes; (b) the custom build approach is extremely innovative, and; (c) the proposed development is of a high quality.

It is additionally the fact, according to the Officer's Report, that Selwood do have a vested interest in the outcome.

9.8 The applicants are also fully committed to providing on-site affordable housing. Currently, draft Core Policy 43 requires 4096 affordable housing provision of sites of 5 or more dwellings, however, the Core Strategy Planning fnspector considered that the figure of 40% was not adequately justified or evidenced. Consequently, a 30% for certain parts of the county, including Warminster has been levied. For the avoidance of any doubt, the applicant has confirmed their commitment to providing 30% on-site. This is considered to be acceptable and to be a benefit of the scheme. The applicant has already identified Selwood Housing to deliver the affordable housing and they are keen to innovate an affordable housing custom build model.

Bias in the decision making

The test for whether there has been bias in the decision making process is to be assessed by reference to whether a fair minded observer would conclude, having considered all the facts as appear when the Court determines the matter, that there was a real possibility of bias (National Assembly for Wales v, Condron 12006) EWA 1573.

There is a clear distinction betiween a legitimate predisposition towards a particular outcome and an illegitimate predetermination of the outcome.

Given that Mr MacDonald had such an interest as he was a director of Selwood Housing, and that "the applicant (had) already identified Selwood" to deliver the affordable housing, it is difficult to imagine Mr MacDonald would vote any other way than in favour of the development. The outcome (i.e. which way he would vote) was, therefore, for all intents and purposes, predetermined and biased.

He should have recused himself from the vote which he did not do. Given the slim majority, it is likely that had he not voted, the outcome or resolution would have been different,

The committee's final resolution upon which the decision notice rests was therefore unlawful and the decision should be quashed.

Ground Il

Habitats and European Protected Species

The SAC citation for the Avon is as follows:

Qualifying habitats: the site is designated under Article 4(4) of the Directive (92/43/EEC) as it hosts the following habitats listed in Annex I:

o water courses of plain to montane levels with the ranunculion fluitantis and callitricho-batrachion vegetation (rivers with floating vegetation often dominated by water-crowfoot)

Qualifying species: the site is designated under Article 4(4) of the Directive (92/43/EEC) as it hosts the following species listed 1/7 Annex Il:

bullhead cottus gobio brook lamprey lampetra planeri sea lamprey petromyzon marinus atlantic salmon salmo salar

desmoulin's whorl snail vertigo moulinsiana

Natural England's letter to the council dated 20 January 2014 refers to the "resubrmssion of 13/02808/out"

— not the present application. They raise no objections but it is notable that in their letter to the council, there is no discussion of contamination issues and it clearly passes the responsibility for consideration of impact on protected species onto the council and suggests that the council should use the Natural England "decision tree" with regard to consideration of protected species.

The Responsibility of the LPA

Regulation 3(4) Of the Habitats Regulations provides that local planning authorities must "have regard to the requirements of the Habitat's Directive so far as they may be affected by the exercise of those functions."

Article 12(I)of Directive 92/43/EEC establishes a system of "strict protection" of certain animal species — which include certain bat species and dormice — prohibiting, amongst other things, the deliberate destruction or disturbance of breeding or resting places.

Derogations are only permitted from this in strictly limited circumstances (Article 16). In particular:

(a) Where there is "no satisfactory alternative";

(b) The derogation is "not detrimental to the maintenance of the populations of the species concerned of the favourable conservation status in their natural range"; and

(c) Where to do so would be for the purpose of or in the interests of certain overriding factors (e.g.

protecting wild flora and fauna and conserving natural habitats, public health and public safety etc).

In Commission v Finland (C-342Æ5), the ECJ held that member states were to ensure that all action affecting the protected species was authorised only on the basis of decisions containing a clear and sufficient statement of reasons referring to the reasons conditions and requirements of Article 16(1).

In Woolley v Cheshire East BC (2009) EWHC1277 (admin), HHJ Wakeman QC held at the duty under the

Regulation 3(4) acquired more from a planning authority than merely noting the existence (or potential existence) a protected species and a possibility that the licence might be required. Rather an authority has to engage with the provision so as to form a view as to how they apply to the facts of the case and

whether the derogation conditions might be met.

The Defendant therefore did not address its mind to the requirements Of the Habitat's Directive before deciding to grant permission. The committee were not advised by the officer's report to consider the issue of the impact on the species as listed as the designated features within the citation for the SAC, which they were required to do under Article 3(4).

The deciSiOn to grant planning permission was therefore unlawful and should be quashed.

Ground Ill

EIA Screening

The site for the development lies — as described above SAC/ SSSI. The site is also one which is contaminated.

The geo- environmental report cautions as follows•

5.4. I Context

— on the edge of the river Wylye and within an

Water pollution risks arising from possible land contamination at the site are considered solely in the context of the proposed land use. No attempt is made to evaluate water pollution risks

such as might arise as a consequence of activities that take place to facilitate and realise

the redevelopment of the site. These matters should, however, be considered by the

principal contractor who, where necessary, should ensure that appropriate actions are

taken to adequately mitigate such risks (emphasis added).

On the second page of the screening opinion, the officer notes that

The site is reported to be made up Of land following historic (1960s) infilling operations. The associated geo-environmental report which accompanies application 13/06782/out reports that laboratory testing of ten soil samples revealed a level of contamination which could potentially pose as "an unacceptable chronic human health risk".

However, in the next paragraph, the officer suggests the following solution:

"the above investigation report, however, proposes remedial measures to overcome the reported "exposure pathways" which shall be fully considered under application 13/06782/out. Although the council shall make no comment at this stage as to the acceptability of the proposal, the council is satisfied that all relevant environment impacts appear to be reported within the aforesaid survey and no environment statement (sic) is necessary. Al! matters relative to land contamination can be fully considered through the normal planning process and be controlled by an appropriate

planning condition should planning permission be granted".

The planning condition was suggested by the environmental health department which recognised the risk but simply leaves the issues to future determination (see email from Steven Manning dated January 2014)

Furthermore, water contamination and its impact in relation to "the activities that take place to facilitate and realise the redevelopment Of the site" are not examined in the process of considering the planning

application, despite the fact that these issues were raised by objectors including the claimant. EIA - Law

The fundamental objective of the EIA Directive (Directive 85/337) is to ensure that, before permission is granted, projects likely to have significant effects on the environment should be made subject to a mandatory assessment with regard to their effects: C-287!96 Linster 120001 ECR 1-6917 at para, 52.

The Directive has a wide scope and broad purpose: C-72/95 Kraaifeve!d (1996) ECR 1-5403 at para.31. It should be interpreted to include. not exclude developments (see e.g. R (Wadey) v Wealdon DC (20111 EWHC 2083 (Admin) (at paras.42 - 60),

The development here engaged the requirements of the Directive and the Town end Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (the EIA Regs") (F332-339), being an installation for the harnessing of wind power for energy production With a hub height exceeding

15 metres

Once a development falls within Schedule 2, the decision-maker has a duty to determine if the development will likely have significant effects on the environment by virtue Of factors such as its nature, size or location and must produce a screening opinion setting out its deciSion in this regard (regs.2 and

Precautionary approach,' the threshold for Significant effects

A precautionary approach is to be adopted when screening an application: see R (on the application of

Loader) v Secretary Of State for Communities and Local Government 120121 EWCA Civ 869, 120131 Env

LR 7 at para.43. "Likely" therefore should not be understood as meaning "more probable than not". Rather a "serious possibility" or "real risk" will suffice: see R (Bateman) v South Cambridgeshire DC, para 17 per Moore-Bick LJ; Evans v Secretary of State 12014) EWCA Civ 114 per Beatson LJ at para.21. Indeed in R

(an Taisce) v Secretary of State (20141 EWCA Civ I I Il Sullivan LJ suggested that the ECJ might hold that

the threshold is even lower (para.33) 2

The need for a specific evaluation

In reaching deciding whether significant effects are likely, the decision-maker is under a duty to "carry out a specific evaluation as to whether, taking account of the criteria set out in Annex Ill to Directive 85/337, an EIA should be carried out": see R (on the application of Mellor) v Secretary of State for Communities and

Local Government (20101 Env LR 2 (ECJ).

Reliance placed on conditions

It is not permissible for a LPA to conclude that EIA iS not required on the basis that it will be possible to secure remedial measures by condition (or undertaking) that will ensure there will be no residual significant

effects unless those remedial measures are plainly established and plainly uncontroversial: see R (Jones) v Mansfield 120041 Env LR 21 and Gillispie v FSS (2003) Env LR 30

Per Dyson in Jones at para.38:

It is clear that a planning authority cannot rely on conditions and undertakings as a surrogate for the EIA process. It cannot conclude that a development is unlikely to have significant effects on the environment simply because all such effects are likely to be eliminated by measures that will be carried out by the developer pursuant to conditions and/or undertakings. But the question whether a project is likely to have significant effect on the environment is one of degree which

calls for the exercise ofjudgment. Thus, remedial measures contemplated by conditions and/or undertakings can be taken into account to a certain extent (see Gillespie).

Per Laws LJ in Gillespie at para.46:

Prospective remedial measures may have been put before (the decision-maker) whose nature, availability and effectiveness are already plainly established and plainly uncontroversial; though I

should have thought there is little likelihood Of such a state of affairs in relation to a development of any complexity. But if prospective remedial measures are not plainly established and not

plainly uncontroversial, then as it seems to me the case calls for an EIA If then the Secretary of State were to decline to conduct an EIA, as it seems to me he would pre-empt the very form of enquiry contemplated by the Directive and Regulations; and to that extent he would frustrate the

purpose Of the legislation.

Thus, where it is not possible to establish the impact of a development upon protected species without further surveys to ascertain whether or not they are present, but it is apparent that if they are present the development would be likely to have an adverse effect upon them, then it is an "inescapable conclusion" that this would amount to a "significant effect" for the purposes of EIA and the LPA cannot rationally decide that they are in a position to grant consent without those surveys and cannot leave them simply to be carried out via reserved matters or other conditions — even if they have been advised to do so by a body

such as English Nature: R (Hardy) v Cornwall CC pool) Env LR 25

Unlawful screening opinion

The screening opinion is in this case was manifestly defective in the following respects:

(iii)

(iv)

It identified a risk to the environment but simply suggested that such a risk be left to future assessment without applying the proper test — i.e. whether there are likely to be significant

effects.

Furthermore, the screening opinion misleadingly suggested that the contamination risks (including those to the aquatic environment) had been considered in the geo-environmental report — when they had not been.

Furthermore, given that the officer records in the screening opinion that there is a level of contamination which could potentially pose as "an unacceptable chronic human health risk" — but then indicates that an ES is not necessary, the decision on screening is patently

irrational.

Further or alternatively, the reasons given for the negative screening opinion are so inadequately expressed that they at the very least give rise to a substantial doubt that the opinion was legally flawed for one or all of the reasons referred to above (Porter and Mellor applied).

Accordingly, without a valid screening opinion, the grant of permission was unlawful and must be quashed.

Ground IV

Harm to setting of conservation area/ listed building

The Planning Officer records in his report at page Il:

Officers submit that the mill has no significant setting that can be appreciated from the main road.

The mill and its setting are instead best appreciated by looking along the entrance drive to the mill from Bishopstrow Road. From such a position, the site is screened from view by mill house and the line of trees growing on the river. The proposed development would therefore have no

significant effect on such a view point, especially as al/ the healthy trees within the ecological buffer zone would be retained, which would be further enhanced by additional planning being

carned out at the back of the buffer zone. "

The test which is applied here appears to be whether the development will have a "Significant effect". It also concentrates on view and not setting.

In the conclusion section (paragraph 10 of the oficer's report) it is stated that "officers submit that developing the site will not harm the character and appearance of the wider countryside or harm the setting of Bishopstrow Conservation Area or nearby heritage assets. "

This appears to be an unqualified assertion that there will be no harm caused at all

However, what the conservation officer actually says in his response to consultation (Il march 2014) is that

"as the master plan has been concluded, albeit as an indicative plan, I would say that providing that the landscape buffer around the edge of the site remains intact, which has been addressed by additional information from the landscape architect, then I do not consider that this proposal would necessarily have a significant impact on the conservation area of nearby heritage assets. '

"Recommendation: no objections subject to robust landscape scheme and suitable matenals/scale/design of future detailed application. "

English Heritage wrote to the council on 6 January 2015 to indicate that they had no objection, but that was caveated on assurances of the effectiveness of a buffer zone in reducing the harm to the conservation

area and the listed building.

The 1990 Listed Buildings Act The ACt sets out the main legal framework for the protection of nationally listed buildings and locally designated conservation areas.

Section 66(1) requires planning authorities to have special regard to the desirability of preserving the setting of listed buildings when determining planning applications which affect any such building or its setting:

(I) In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

The duty to have "special regard" in s.66 requires decision-makers to give considerable importance and weight to any harm to the setting of such a building and indicates that there is a "strong presumption" against granting permission where such harm would arise, particularly (but not exclusively) where the harm would be "substantial". See Barnwell Manor Wind Energy Ltd v. Northamptonshire DC 12014) EWCA Civ 137 per Sullivan LJ at para.20-29:

29. For these reasons, I agree with Lang J's conclusion that Pafliament's intention in enacting section 66(1) was that decision-makers should give "considerable importance and weight" to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise. I also agree with her conclusion

that the Inspector did not give considerable importance and weight to this factor when carrying out the balancing exercise in this decision. He appears to have treated the less than substantial harm to the setting of the listed buildings, including Lyveden New Bte'd, as a less then substantial objection to the grant of planning permission.

Section 72(1) requires "special attention" to be paid by decision-makers to the desirability Of preserving or enhancing the character or appearance of a conservation area when exercising certain functions (including those under the Planning Acts):

(I) In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.

The objective of preserving in this context can be met if a development would at least cause no harm: South Lakeland District Council v Secretary of State for the Environment (19921 2 AC 141.

However, in this instance, the planning officer in his report:

iii.

Misadvised the committee as to what the conservation officer had said in his report — i.e. by stating that, "developing the site will not harm the character and appearance of the wider countryside or harm the setting of Bishopstrow conservation area or nearby heritage assets, " when, in fact, he

had said that, "providing that the landscape buffer around the edge of the site remains intact, which has been addressed by additional information from the landscape architect, ! do not consider that this proposal would necessarily have a significant impact on the conservation area of nearby heritage assets." In other words, the nature of the harm is entirely contingent on the landscape

buffer.

Advised on view and not "setting";

Applied the wrong test — i.e. significant impact which then becomes the standard for whether there will be "harm" caused.

The decision to grant planning permission on the basis that the development would not cause harm to the setting of the conservation area/ heritage asset was therefore unlawful and the decision should be quashed,

Aarhus Claim

This is an Aarhus Claim for the purposes of rule 45.43 of the Civil Procedure Rules. The Defendant is therefore invited to agree.

Details of legal representative

The details of the legal advisors dealing with this claim Justin Neal, Irwin Mitchell, Manchester, email Justin.neal@irwinmitchell.cpm.

Address for reply and service Of court documents Irwin Mitchell, Bauhaus, Rossetti Place, Quay Street, Manchester, M3 4AW..

Proposed reply date: 27 February 2015

Yours faithfully

IRWIN MITCHELL LLP

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