LAND OFF SOUTH EDEN PARK ROAD – BECKENHAM, BROMLEY, KENT – APPROVAL ON APPEAL WITH COSTS TO THE APPELLANT
JFA Environmental Planning's practice principal gave evidence in January 2018 at a Section 78 planning appeal on proposals to develop land at South Eden Park Road. Whilst the local authority’s basis for refusal included both the issue of design appropriateness and policy issues, very late in the day, London Borough of Bromley withdrew the objection on design. The key policy issue was the site’s designation under an adopted (2004) local plan policy as Public Open Space. There were, as ever, objections based on housing need.
Our practice principal was the expert witness concerning the application of an old planning policy, under which the site had been designated Urban Open Space. This inclusion of the site within this category occurred in 2001and post-dated the first inventory and review of Open Spaces in the Borough, which dated from 1997.
At the time of the planning application in 2016, the local authority had failed to undertake an updated review of Open Space, relying on the original inventory. JFA prepared an Open Space audit for the applicant in 2016, which looked at Open Space typologies/methodologies and the provision of open space in the vicinity of the appeal site. This audit was submitted with the planning application.
The LPA did finally get around to conducting two Open Space audits in 2017, which complied with the NPPF. One was under the Local Green Space criteria (NPPF paragraphs 46 &47) and the other audit was under Open Spaces as defined by para 73 of the NPPF. Neither audit evaluated the appeal site, but the local planning authority continued to pray in aid policy protection for the site.
This position was most peculiar, and the local planning authority defended it during the inquiry, arguing that it was somehow protected under the NPPF as acceptable local policy. Our principal pointed out the weaknesses of this argument which seemed obvious on the face of it.
In the planning decision released in March 2018, the Inspector agreed with the appellant’s position entirely and made further comments regarding the LPA’s application of policy which did not stand up to scrutiny.
There were other anomalies, such as the failure of the LPA to request Section 106 funding which were also not agreed at the appeal, so no Section 106 contribution was required of the appellant by the local planning authority. Costs were awarded due to the late withdrawal of the design objection.
We are all aware of the key policy changes codified by Natural England in April 2017, and JFA dedicated two newsletters to the subject during the consultation and adoption period. See our February 2017 article for a discussion of this.
JFA recently attended a seminar that set out how the policy changes are now being applied. In addition, certain Court cases have now clarified the position in relation to what information is necessary at the planning application stage, and these are also summarised below:
Key issue – use preliminary consultation with the Agency as a way to reduce complexity of approach particularly in light of Policies 1 – 4.
WCA versus EPS license. Notwithstanding the presence of an EPSML, it is still possible to commit an offense under the Act. Having a license does not confer immunity from other offenses in relation to wildlife.
For small projects and non-EIA development: 1) do Phase 1 surveys and further surveys where possible; 2) do extra surveys even if conditions are sub-optimal; 3) can mitigation be accommodated? If so, it is acceptable for LPA to assume presence of EPS without full survey data.
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