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Ore mansion scores hat-trick of planning refusals

Retrospective planning application HS/FA/20/00884 was refused by the Planning Committee in April, against officers’ advice. Seven months on it came back, rebadged as HS/FA/21/00712. The differences were truly trivial. As before, the officers recommended approval. How did the Committee respond? Bernard McGinley reports.

The November Planning Committee agenda of Hastings Borough Council (HBC) was strangely full. In April the members took nearly two hours to decide to reject HS/FA/20/00884. That degree of jawing was unlikely to happen again, though the Committee was largely the same as then. Case HS/FA/21/00712 had the same title, largely the same commentary and the same recommendation for approval. 

Though the issues were the same, some viewpoints were not. In April Cllr Scott was clear about the situation:

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.

That was then. This month Cllr Scott sees it differently:  

We understand this has been round the blocks a few times, and we understand there’s a lot of bad blood between the Borough Council, the applicant and petitioners. I understand all of those concerns that we heard last time, and it’s fair to say, this is and has been and continues to be probably a controversial application.

However, it is a new application, and however small the change, this is a new application, and I think that’s what we’re looking at in terms of how we come to a decision. So I am going to say, although this leaves a bit of a taste in the mouth, and I can see where people coming from (to my right). OK, this is a new application, there is change in terms of the application, and we have to judge it accordingly, and I will be supporting the officers’ recommendation on this occasion.

Pythonesque indeed.  

Permission to build the lower windows and games room at the side of the garage was refused, but the owner built it anyway, after excavations.

Others remained sceptical. Cllr Edwards stated:

I think at stake here is the very integrity of the planning process.  We have a developer here who has been ‘trying it on’ over several years, nibbling away, basically attempting so many different things so many times that the officers are completely worn down.

And I’m just surprised that the officers keep giving the developer their support. Clearly the democratic process of the planning committee has spoken in the past. And it makes no sense for an almost identical application to come forward again, with the addition of little green shrubberies around the lines.

In my view we are at a situation – or we were back in April – that enforcement actually should have commenced and that the developers should be listening to the word of the law which is what we’re talking about there.

Following a proposal to refuse, the vote was carried 6-3. Those in favour of refusal were Cllrs Cox (Vice-Chair), Sinden, Williams, Marlow-Eastwood, Edwards and Foster. Those against refusal were Cllrs Roberts (Chair), Bishop and Scott. Cllr  Bacon abstained.

The retaining wall, also built without permission, should have been notified to East Sussex Building Control, but wasn’t.

Cllr Bishop’s remarks were opposed to the application till she voted in favour of it. (She claimed to have supported it in April, whereas she actually abstained then.) 

There were similar contradictions and confusions over whether a new application was being considered or just the changes from ‘as is’ or ‘what has gone in the past’.

Another discrepancy is that committee report Section (5 a) said, if there is an appeal,

enforcement action will again be put on hold until the appeal is determined

In the meeting however a Principal Planner said:

we will take enforcement action if there is a refusal.

Missing aspects

The retaining wall, subject of coverage here, was not notified to East Sussex Building Control (based in Wealden). The wilful ignoring of an Act of Parliament was a matter of indifference to the HBC case officer, who didn’t explain how Building Control could act on what they had not been notified of. HBC Enforcement procedures need reform: the necessary involvement of HBC Enforcement is clear, the retaining wall being a planning consideration. 

Other aspects, such as the retrospective details of the case were not clarified. The officers’ report and presentation managed to omit overlapping material planning considerations such as:

  • whether the 2017 base permission HS/FA/17/00468, or discharge of condition 3 in  HS/CD/18/00197 remain extant (if permissions have expired then the so-called ‘fallback position’ fails, as there isn’t one);
  • the concealed development and its implications for the planning requirement for truth and accuracy;
  • how the original approval, and the subsequent discharge applications, had been breached;
  • that discharge applications cannot authorise changes to plans — the void, the games room, the windows, the western external steps, &c;  
  • that national guidance allows only one retrospective application. This site has had HS/FA/20/00884, HS/FA/18/00267, and now this;
  • the strength of the legal opinion on HS/CD/18/00197, which seems unpersuasive for such a supposedly strong argument. If shown to the Committee or the Vice-chair it seems less than persuasive. If not then ditto; 
  • that statements submitted lacked evidence of supposed searches on ownership of the road edge of the site.

The committee report’s elusive ‘fallback position’ was based on the notion that application HS/CD/18/00197 was valid and live regarding the hard landscaping.  However the application form did not mention the west steps, or excavations (aka removal of the bank), or the retaining wall, but instead referred on to: 

Condition 3 & 4 

Drawing 1634/LS1 showing details of hard and soft landscaping

But Drawing 1634/LS1 (LANDSCAPE AND EXTERNAL DETAILS) also said nothing about the west steps or hillside excavations or the retaining wall. Where therefore is the permission for them? (If details submitted with HS/CD/18/00197 were supposedly still valid, what of the details that were not submitted with it?) 

A later case on hard landscaping for the same site (HS/CD/20/00214) failed. HBC were unpersuaded, and the Planning Inspector was clear in refusing the appeal that ‘discharge of conditions’ was not a suitable vehicle for changes of this magnitude. 

The developer could have pursued amendment under Section 73 of the Town & Country Planning Act 1990, to vary the conditions attached to an extant previous permission. This would have allowed amendment or removal of conditions but not affected other parts of the permission:  effectively it’s a new permission with the original permission intact. A developer could then choose between them. 

Alternatively, Section 73A could have authorised retrospective development. Instead in this case it was the Council that pursued an informal improvisation of mix and match. Officers invited the Committee to approve the present application with its ‘planting scheme’, or else allow the alleged previous permission to be built, ‘games room’ and all (though the retaining wall remained ignored).  

Whether an appeal will follow the decision to reject is not yet known.

The Hastings Borough Act 1988 stipulates that an eligible retaining wall must be

in accordance with plans, sections and specifications approved by the borough council; 

Pending clarification of other matters, HBC Enforcement could get on with sorting out the relevant approvals.

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Posted 13:38 Monday, Nov 22, 2021 In: Home Ground

3 Comments

Please read our comment guidelines before posting on HOT

  1. Keith Piggott

    Bernard’s citation omits rancour I witnessed on high-tech big-screens during three hours kept in separate anteroom as a petitioner, my initiation into virtual hearings unlike any in my 80 years.

    I had planners’ Report to Committee; denying contrary evidence by objectors’; ignoring counsels’ opinions; fudging statutory certificates; defying Land Registry rulings/letters on title plan boundaries. I expected Members to know difference between lawful and unlawful applications, [T&CP Act1990, Sect.61(1), Sect.65(5)].

    Having watched big-screen plans and elevations in a procession of defeated applications, I was called into the Chamber. I was unprepared to be ambushed and beaten up over a Trojan Horse legally ‘estopped‘ unlawful conservation area application, to replace a cellar floor in violated listed building. Rather than speak and vote, my ‘Two Aces’ withdrew for ‘prejudicial interests’.

    Petition’s only grounds, HBC uphold parties’ March boundary and elevation agreements published on on planning portal, approved in July, opposing unlawful contrary planning application -anyway ‘estopped’ by March agreements. Allowed five minutes, about to open, I asked for Petition and documents I would refer to. None appeared. Why not?

    I was thrown, stumbling into the task, not expecting Vice Chair’s interruptions, apparently ignorant of Petition grounds she kept on, “return to application cellar floor”, eating my time, ignoring my protests cellar floor is a ’Trojan Horse’ for unlawful application. I started to read Land Registry Practice Guide 40, Supp.3. Cl. 5, “legal boundary cannot be pinned down from title plan general boundary….” Interrupted again.

    Time was up, with my ire; I blurted project already stopped by Enforcement for Heritage abuses that Statutes and Planning Regulations all define as “criminal offences”. Immediately, the legal officer told members to disregard.

    One member asked why application not deferred, but Vice Chair got consents.

    Comment by Keith Piggott — Monday, Nov 29, 2021 @ 18:14

  2. Heather Grief

    The whole point of having laws is for people to obey them, and so that everyone knows where they stand.
    It is unacceptable for anyone to knowingly break the law, and enforcement action of some sort should always be taken; maybe HBC could fine developers who ‘bend the rules’ for their own advantage. Then at least the local council tax payers who do obey the rules would have the satisfaction of seeing the ‘benders’ hit in the pocket.
    It would be easier for HBC to stand its ground if it ‘played a straight bat’ with regard to applications for its own properties, like the ‘Roman’ bath.

    Comment by Heather Grief — Friday, Nov 26, 2021 @ 14:51

  3. ken davis

    This, and countless other cases, demonstrate that our national planning system is not working. There are many reasons for this which I have described many times before. Although a national problem there is much that could be done locally to produce better outcomes rather than concentrate on process. One is to have clearer design policies rather than the vague statements we have at the moment. Another is to require professional land surveys with all but the simplest applications the lack of which causes endless knock on problems. A third, and probably the most important, is dialogue which simply does not happen at the moment. The planning approval process, which we really must have, interrupts the design process which leads inevitably to late changes. Furthermore, everyone engaged in ‘the system’ requires more training and understanding than presently exists. Without such change there will be more sad stories such as this.

    Comment by ken davis — Thursday, Nov 25, 2021 @ 08:21

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