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The retaining wall is in breach of HBC regulations and Parliamentary legislation

Ore mansion retaining wall breaches Council Act

The Ore bloated mansion case (HS/FA/21/00712) still has discrepancies to be resolved. How many are there? How many retrospective applications is too many? What about the wall that breaches a local Parliamentary act and lacks necessary approvals? Bernard McGinley, who also took the photos, takes a look at both sides.

The house lacking planning permission has been reported in HOT quite often, most recently here. The application was also news in April when recommended  by Council officers, and then refused by the Planning Committee, and before that, in February.

As a saga of retrospective applications and refusals and multiple mistakes, the story is far from over. The continuing issues were listed in June 2021 by the Planning Services Manager of Hastings Borough Council (HBC):

a)  engineering operations affecting land level side 
b)  the steps to the west
c)  the habitable room in the basement, and related windows
d)  the enlarged terrace/back patio
e)  the enlarged driveway (turning area), reducing soft landscaping 
f)   increased residential curtilage 
g)  the steps to the east
h)  the additional rooflight on the rear roof. 

The list (at par 1.2.5 of the applicant’s Planning Statement) is incomplete however. 

Behind the wall:  a foot of air above ground level.  The same vertical plane is also shown below

Hastings Borough Council Act

There is a breach of Section 5 the Hastings Borough Council Act 1988, which is an offence. The Act was a local and tidying up measure, including ‘to confer powers in respect of retaining walls’:

5.(1)  In this section “retaining wall” means a wall which

(a)  serves or is intended to serve as a support for earth or other material on one side only so that the top level of that earth or material is at any point not less than 1.5 metres above the level of the ground adjoining the other side; and

(b) does not form part of a permanent building or the revetment of a trench.

              (2)  After the commencement of this Act no retaining wall shall be erected otherwise than in accordance with plans, sections and specifications approved by the borough council; and if any person erects such a wall in contravention of this subsection he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

1.5 metres is 4 feet 11 inches, the height discrepancy that’s permitted without needing permission. The photographs of the two sides of the wall show that the differential is about 6 feet (getting on for 2m). 

An objection comment (by the present contributor) suggesting that the breach was ‘highly likely’ was redacted by Council censors — but eventually allowed, though other fair comments have not been. Their opinion on that opinion was that it was ‘inappropriate’. Now it can be said that the breach is certain, and the redaction more inappropriate than the opinion suggesting a breach.

Were the wall’s plans, sections and specifications approved by HBC? No. The wall does not exist on Drawing 1634/LS1 (October 2017), found in case HS/CD/18/00197 (‘Landscape and External Details’). Now it does, and its western end is in the Area of Outstanding Natural Beauty (AONB), without permission. Council Policy HN9 explains how AONBs will be protected:

Development will only be permitted that is not detrimental to the character, scenic quality or visual benefit of these areas.

Options and possibilities

The committee report on the current application, when it appears, will have lots to discuss before arriving at what to  recommend. Refusal? Acceptance? Enforcement?  (The Council’s famous ‘discretion’ in enforcement is constrained by the formal requirement ‘to maintain public confidence in the planning system’.) Some renegotiation of the Planning Statement’s alleged ‘misunderstandings’? Some elaborate compromise about the building, the patio, the sets of steps, the rooflight, the chimney, the notorious ‘games room’, and the retaining wall?

The Planning Services Manager said about HS/FA/20/00884 at the Planning Committee meeting [at 43m:42] in April:

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.

The same vertical plane is in Photo 2 above.  Roughly, 7 feet minus 1 = 6 feet, comfortably more than 1.5m

As it turned out there were no costs, just as there was no appeal on the rejection of HS/FA/20/00884, and none over HS/FA/18/00267, also refused. (The developer did however appeal to the Planning Inspectorate over Permitted Development Rights in case HS/CD/20/00214 and lost.)

The Planning Services Manager is disinclined to pursue enforcement, and would have difficulty in recommending acceptance. The Planning Committee voted down the last application (HS/FA/20/00884) by 8-1 (with one abstention) and are not likely to treat another retrospective application differently. (But who knows?)   

Something’s got to give.

It seems likely that the committee report will be published on 3 November and the case will be considered a week later.

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Posted 20:04 Sunday, Oct 31, 2021 In: Home Ground

2 Comments

Please read our comment guidelines before posting on HOT

  1. Christopher Hurrell

    This is the second retrospective application for unauthorised works and the third attempt to get these works approved.

    The officer report recommends approval. The application is near identical to the application refused by the planning committee earlier this year.
    Planning have failed to take any enforcement action and yet again state that they will not take enforcement action.
    The report to committee ignores many points raised by objectors such as :
    the 2017 application is no longer extant as it was never built to the approved plans
    the developer has persistently failed to conform to approved plans
    concerns about this being a second retrospective application.
    the fact that the developer concealed unauthorised development
    the fact that the retaining wall is in breach of the HBC 1988 act.

    The report gives great weight to the discharge application and claims that this application gave permission for the changes to the slope profile and the use of the void area as a games room. Discharge applications cannot make significant changes to approved plans. This was confirmed by the appeal refusal which stated the changes were too great to be dealt with as a discharge.

    The report to committee ignores the decision of the planning committee. In doing so the unelected officers yet again undermine the decision of our elected representatives.

    If this application is approved it will undermine the previous decision and will destroy the credibility of the Planning System.

    Approval will send a signal to all rogue developers that they can do whatever they like regardless of regulations and in flagrant breach of their permissions.
    One has to ask what point is there in our Planning System, Planning Committee and Planning Department? We may as well pack our bags and let developers do whatever they want , whenever they want.

    The application must be refused and enforcement action taken. Anything less will fly the white flag of surrender to rogue developments.

    Comment by Christopher Hurrell — Tuesday, Nov 9, 2021 @ 07:16

  2. DAR

    Same old story of reluctance to enforce …

    Comment by DAR — Thursday, Nov 4, 2021 @ 11:49

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