HBC refuses retrospective planning permission for unauthorised building

Despite the recommendation by planning officers to approve the retrospective application (HS/FA/20/00884) for a large house in the Martineau Lane area, Councillors voted to refuse it (8-1, with one abstention). What now for the building known as ‘Son of Bunker’? What next for local planning? Bernard McGinley reports. (References are to the video timings). 

The Planning Committee of Hastings Borough Council (HBC) on 7 April was unusual. It took nearly two hours for a one-home case to be discussed. Observers of the Committee and its ways were amazed, especially about the decision. There’d been nothing like it since June 2012 when Archery Ground proposals were thrown out 8-2, leaving the Chair and his deputy looking out-of-touch and compromised.

The agenda item that occupied the committee for so long was the Mill Lane development at the rear of Martineau Lane, previously discussed here and here, where the developer, ignoring a previous refusal, went ahead and built a larger house than authorised by the planning department, in much the same way as the owners of Rocklands caravan park, overlooking the conditions set by a planning inspector, amended the holiday let known popularly as the Bunker and sought to regularise their action by applying for retrospective approval.

Although the applicant’s agent set great store by how much the live application 884 resembled its 2017 predecessor HS/FA/17/00468, it was noticed that it also bore a close resemblance to HS/FA/18/00267 that had been rejected for spoiling the Country Park. Part of the application’s redline site was in the Area of Outstanding Natural Beauty (AONB).

The initial tone of the meeting was that 884 was a mere tweaking of 468, previously approved. The sense of entitlement was shown in the committee report:

. . . the alterations assessed within this application are acceptable and would not, as a result, have a detrimental impact on the character and appearance of the area, nor harm the setting of the High Weald AONB.

Disregard

The case officer’s presentation was as notable for its omissions as for other qualities.

The committee report failed to mention the National Planning Policy Framework (NPPF) paragraph 172 on ‘great weight’ being given to AONBs.

Similarly, the High Weald was ignored: its Management Plan (that includes its setting), its Housing Design Guide and Colour Study, the East Sussex County Council (ESCC) Landscape Character Assessment 12, and the ESCC Landscape and Visual Impact Assessment (LVIA).

In 2018, HBC objected to a nearby development at Bachelor’s Bump (Rother District Council ref: RR/2018/2040/P) because

the development would harm the open, natural and rural character of the High Weald AONB.

Views have changed.

Acceptability?

The Committee discussion ranged over matters. The case officer interpreted the new windows as avoiding bare expanses of brick wall rather than as occupants’ convenience following excavations of the sloping bank previously there.

A local petitioner spoke wide-rangingly against 884 as a second retrospective application (‘two bites of the cherry’), and found the Vehicle Path Analysis to be misleading. The applicant’s agent also spoke, and insisted that the changes were not significant. He also said there was no detrimental impact on the AONB setting.

Parking was so tight that trees were planted inside the fence.

The Planning Services Manager said [at 46:10] the unauthorised removal of the banking was ‘unfortunate’. Asked by Cllr Davies about possibilities of compromise, the case officer said the application was acceptable [1:16:10, :24, :48].

The officers tended to find the details of 884 close to 468, previously approved. The closeness to refused application 267 was not engaged with. The Planning Services Manager [43:42] said:

the changes that we’re talking about are, are not something that I would be comfortable arguing at Appeal if this application were refused, because I think that if it were refused we’d be looking at costs, and I think we would lose.

Later [1:23:25] she said:

it may be important for the Councillors to be aware, that if a decision is made to refuse this application, then the application will come back to us and we will have to consider whether we’re going to pursue enforcement action.

Our planning enforcement policy says that, and national policy guidance, says it’s at our discretion as to whether we take Enforcement action, and in doing so we need to consider the public benefit arising against the work involved with, and the resource required to enforce [. . .] We will discuss it but it may be that we come to a conclusion that we won’t be enforcing on this: in which case you’ll have a refused application that remains refused, and isn’t regularised.

At one point [1:10:30] she also patronised Cllr Patmore, saying ‘I know this is a difficult one to understand’. It wasn’t. The crux of the matter was whether the built changes were significant or not significant.

Eventually, members decided that the application was insufficiently distinct from 267, previously refused. 884 was rejected. Eight members voted Yes, the Chair alone voted No, and Cllr Bishop abstained.

It was an impressive and unexpected outcome. Will it send a message to developers? Will planning standards rise?

Consensus

The councillors’ remarks were frank and sincere:

Cllr Bacon [1:43:03]:

We’re being told that these are only minor amendments. Well, any change arguably is significant, especially when you put in a window or two windows, infringing into the Area of Outstanding Natural Beauty. These aren’t minor in my view, and this would be a message. If we were to approve it tonight [. . . ] is this setting a complete precedent for Hastings: Do what you want: Do what you want with your properties. There will be no Enforcement. You don’t need to put planning applications in until you’ve actually gone ahead with those changes.

Cllr Bishop [39:18]:

It is always disappointing for a Planning Committee to see retrospective applications, especially when there has been discussion with the Council, and with the officers. It’s never good to just go ahead and then come back later.

[1:19:25]: At what point do you say an Area of Outstanding Natural Beauty is more important than my car?

Cllr Cox [1:40:05]:

We’re in a cleft stick. It’s a no-win situation and whatever we do, we’re the losers basically. I think there’s another dimension as well and that is the public perception of this Committee. I am really concerned and sick to death of seeing derogatory comments about how useless we are, how spineless we are, and so on and so forth [. . .] The reasons are here before us: we’ve got this application, and I find it hard not to believe that we’ve not just been cynically played by the person making this application. They know the rules, they know exactly how to get round them. They know that if they build then it’s highly unlikely that anything’s going to be done about it, and that’s exactly what they’ve done.

Are we going to do anything about it? We know that the consequences are. Obviously I respect the officers’ decision [sic]. I know very well where they’re coming from. The problems if we are to refuse, what the problems and consequences will be — but nevertheless I feel really strongly that at some point we have to draw a line in the sand because I’m so fed up with this. This gives a clear signal that people who are not fairminded and who are determined to get their way no matter what, can do it [. . .] and something has to change, something has to improve to make us an effective protector of the built environment in Hastings.

Cllr Davies [33:25]:

There is debate and discussion around how [the building] now fits, and how it’s now at variance to what the Committee agreed, and that seems to be, by definition, counter to ‘should be subject to express authorisation from the [Local Planning Authority]’ and that seems not to be clear. I’d like some clarity around that.

The next point is on the banking and the landscaping. Why have you extended the hard surface at the back, for example, counter to the application? What’s your thinking behind that? Also, how are you reconciling some of these hard surfaces now with the (again) intention? The quote was ‘we shall include all existing trees and hedgerows with the full planting scheme’. I would place that into the spirit of the approval (I think the 2017 approval was fine) with the spirit of making those softer surfaces, those slopes and banks that then complement the Area of Outstanding Natural Beauty.

Cllr Foster [1:21:50]:

This is just a landgrab, unfortunately, a landgrab by the developer to increase their use for the house. They could have moved the gates. They’ve ignored the fact that there was a planning refusal and they’ve just done it anyway.

If we agree to this we’re going to set a standard that’s just not acceptable I don’t think. I can’t agree to this development. We do have to draw the line, and we’ve done that before already in 2018. [. . .] I’m proposing to refuse it.

Cllr Marlow-Eastwood [1:34:34]:

There are things on here that we consider to be wrong in terms of how the planning has been applied for what’s been carried out, and the history of it. Obviously that helps us make judgements but we are making a judgement solely on this. But what I do actually find quite distressing to be made to feel impotent as a committee because we have been told that if it goes to appeal it costs a lot of money: well we are all very well aware of that already. There have been things in the past which have cost the Council vast sums of money. I feel like it’s trying to push us away from a decision we would like to make because of it, and then to add to that as well even if we do say Refuse, that it won’t be enforced by the Council makes us completely impotent as a Planning Committee, and actually I find that quite offensive.

Cllr O’Callaghan [1:44:44]:

I hate retrospective applications anway [. . .] it just feels so underhand unfortunately [ . . .] it feels like we’re pushed into a corner on this one. It just could have been done so much better.

Cllr Patmore [42:20]:

Cutting back that hillside is quite a significant operation.

[1:09:20]: The committee report in the refusal last time said: The proposal will materially and significantly alter the appearance of the dwelling from the approved planning reference 468, increasing the scale as to be inappropriate in this sensitive green location. The proposal would fail to protect and enhance the inherent visual qualities and distinctive character of the AONB landscape and the character of the area — and it was recommended for refusal, and it was refused and it wasn’t appealed.

[1:25:25] . . . the current application that’s before us is very very similar to the application 00267 and that was refused because of [policies] DM1 [local character], and EN7 [landscape], and I don’t think that the applicant has demonstrated that the application that’s before us today is any different to the application 267 that was refused before.

[1:45:45] It’s obviously enraged all of us, I think, this particular proposal [. . .] Nothing that has been proposed by the applicant has altered the reasons that the application 267 was refused. It’s all retrospective [. . .] it’s all about consistency and at that time, the refusal was made, because the scale of the building, the scale of how it looked from the front, and by cutting away that large area and putting those large windows in . . . we said No. The Planning Committee refused the application because it was going to inherently change the visual qualities and distinctive character of the area, and it was refused. [ . . .] There are absolutely no reasons why you can override the refusal that was made for 267.

Chair, Cllr Roberts [1:35:40]:

I think the officer was trying to explain what the probabilities were or the possibilities were if we refuse, what would happen — so I’ll be on the officers’ side on that one.

Cllr Scott[1:36:37]:

The officers are only telling us the facts [. . .] There’s a lot of charge and energy amongst all of the Members here tonight about how this has come forward, how it’s been arrived at. [. . .] I honestly think it’s a farce, I really do [. . .] almost Monty Pythonesque, and it really really galls me to see that maybe this applicant has got one of our arms up around the back of our back. In fact I believe he’s probably got two of our arms up around our back. To say that we feel toothless almost is probably not too far from the truth [. . .]

This planning committee, it’s cross-party. It’s apolitical. We’re all coming from the same hymnsheet, looking at the merits of this application, and we are not content — we are not content with this application.

Appreciation of spirit of place

The 8-1 vote was emphatic, but leads to many questions. Is the decision the sign of a new awareness of not taking the Borough’s assets for granted? Will the officers defend the decision if the applicant appeals? Will they pursue Enforcement regarding the planning breaches? Will members be as bold after the elections? Do planners who found the Martineau Lane development acceptable have the best proposals for (say) White Rock Gardens, the Bathing Pool site, the Bulverhythe Rec? (Some recall that the Bunker at Rocklands was refused before it was accepted.) Too often officers and members are supine in dealing with developers, ignoring means of opposing them.

In recent years there has been concern at the Council’s lack of civic pride — a trite shorthand for something greater, which affects Quality of Life, and the future of the borough as somewhere special.

For instance, Council reports suppress mention of the Pier being the winner of the architectural Oscar, the RIBA Stirling Prize. The future of non-Council assets is treated as being nothing to do with them (Queens Arcade is a recent instance) even as Council meetings have lengthy orations about carbon neutrality or the global south or international policy on ageing. Worthy causes all but the Council could prioritise local matters.

The architectural writer Rowan Moore (of the [national] Observer) wrote that Hastings doesn’t know how lovely it is.

Recently the New York Times discovered how exceptional St Leonards and the local area is. It’s more than can be said for HBC.

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