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Queensway at Planning Meeting

Queensway at Planning CommitteeThe Queensway Environmental Defenders launch meeting last September highlighted Kensington's 'Queensway' application to build on Lytham Moss. Since then, we have been following and reporting on progress.

It is a huge application, one of the biggest Fylde has ever seen, and we are told it is one of the biggest in the country.

Kensington want to build 1,150 houses which will literally shift the centre of St Annes. Its impact on people, roads and other facilities is very significant.

But even more significant is its potential to wreak a very damaging impact on several protected species of wildlife.

Until early this year, we believe Fylde's planning Officers and Kensington's team were working closely together to make the plans succeed. Certainly the Commissar was very keen to have the scheme go ahead - as we reported from Fylde's 'State of the Borough' event way back in December 2007 (Fylde's State 2007).

And at the Hollywood Nurseries inquiry, Kensington's barrister said as much to one of Fylde's planning officers who quickly retorted that they had come to no view at all on the Queensway application.

We suspect however, there was broad agreement between the developer and the officers. And from what we know, it looks as though the planning officers were trying to help Kensington find ways around (technically to 'mitigate') the objections that various bodies had made during Fylde's consultation period.

Despite the reaction most people will have to this idea, it is not unusual - it can sometimes help to achieve a better overall result if the developer can be steered in a particular direction, but there is a fine line to be walked to stay on the right side of being independent, and it does readily breed conspiracy theories.

We suspect that because of this help, Kensington were quite happy to let the application run way over the time it should have taken Fylde to decide (technically 'determine') whether to approve the application or not.

But in February, all this changed.

What we think happened was that Natural England, (our national guardian of ecological and biodiversity legislation and a statutory consultee, as well as being the Government's official advisor) said it thought the Queensway site on Lytham Moss, and the Ribble and Alt Estuary SSSI's could be "functionally linked".

This is a technical term, which, in effect, means they should be regarded as operating as one entity.

This was crucially important, because the estuary SSSI's (Sites of Special Scientific Interest) and SPA (Special Protection Area), together with their designations within the Ramsar Convention, invoke European and international regulations to protect wild birds - legislation that easily trumps UK law and planning policy.

We remember being told from learned planning people in Bristol when the SSSI was first being created that within such designations, in future, the only things that could receive planning permission are those "which are of demonstrable benefit to the bird population" or which are "essential for human health and safety".

It is a very effective block to almost everything in planning terms.

So if the already designated sites *are* "functionally linked" to Queensway and Lytham Moss - and if it ends up that the Queensway site has to be treated as though it is already a SSSI and SPA in its own right - the chances of planning permission being granted for housing are about a zillion to one against.

As you might understand, Kensington were not best pleased at this turn of events. But worse was to come.

Natural England said they could not be sure whether it was, or was not, 'functionally linked' unless something called an "Appropriate Assessment" was done.

This is another technical term, but in practice it means loads more studies and counts of wild bird movements and so on, on and around various parts of the Queensway application area on Lytham Moss, and maybe in the Ribble and Alt estuaries as well.

It has been alleged to us that at this point Kensington said - in effect - to Fylde's planners Sod this we're not wasting another shedload of money on studies and surveys. Just ignore the loony environmentalists and pass the plans anyway.

The allegation went on to say that, to their credit, Fylde's officers said they couldn't just do that sort of thing now. Times had changed and it wasn't like the old days, so Kensington would have to do the 'due diligence' and come up with more studies to provide the evidence Natural England said it wanted in order to make its decision whether to withdraw their current objection or not.

We understand that news went down like a lead balloon.

And it was at that point that Kensington felt it could no longer rely on Fylde's planners to help them overcome the objections.

The planners were right of course.

In the last 10 years or so a tremendous swathe of environmental protection legislation has come into being.

Some of the most unexpected things are now protected. Water rats and bats being two of them. We even hear that eels are an endangered species and it might soon be illegal to kill or harm them.

Furthermore, the whole topic of protecting 'biodiversity' (as opposed to individual species) has been incorporated into law. We're not sure about all of this ourselves, but it's there in the legislation, so whether you agree or not doesn't really matter. It is the law.

So Kensington seems to have said enough is enough, we're 'breaking off diplomatic relations' with Fylde and we'll ask the Government to appoint an inspector to hear the case because you haven't decided it within the period allowed. (This despite the fact that whilst things were going their way they were happy to let things run on).

So they registered an appeal against Fylde Council for what is called "Non-determination" of their application.

Bad move.

It puts Kensington and Fylde into potentially opposing camps, and aligns the Council with QED.

So in one dumb move, Kensington may well have unified its opposition.

You might wonder why they were this dumb.

We can think of two reasons. First, it's pretty much likely we will have a change of Government soon, and if it is Conservative - as many expect - they have committed to abolishing the regional planning system and letting local people decide how many houses are needed.

So Kensington's argument for 1,000 plus houses will go up the Swanee. Doubklequick.

Secondly, with land prices at their lowest for many years, its quite possible that the value of some of the land held by Kensington is now less than they paid for it. A sort of agricultural negative equity.

In these circumstances, those who provide loans often ask for some or all of them back. We estimate this could be the case with anything up to half the value of Kensington's enormous landholdings, so it could be they are under significant pressure to dispose of anything up to half their landholding to clear loans.

One way around this could be to change the value of the land by gaining planning permission quickly (It might go from around £5,000 an acre to £1m or £2m an acre with such a decision). That sort of decision changes the balance sheet very significantly, and could explain the appeal of their appeal.

That appeal will be heard at an inquiry held in public, probably in St Annes.

It will start on 24th November, and last for a week or more, where (assuming Kensington don't withdraw from the appeal before that date).

An inspector appointed by the Government will hear expert evidence from Kensington (probably via a high powered barrister), and possibly from Fylde Council (if they decide to contest the appeal and appoint a barrister of their own) and by QED who, quite unexpectedly, have been granted what is known as 'Rule 6 Status' which makes them a formal party to the appeal, and able to call their own expert witnesses, introduce their own evidence and cross examine witnesses.

This is quite a move for them and will involve a great deal of work.

We understand that QED are also in the process of offering local people the chance to speak at the Inquiry as part of their team. Although the Inquiry is not until November, there are much earlier deadlines for people who want to speak or send comments to the Planning Inspector via QED, some of which expire this month. More details about this are on QED's website www.queensway.org.uk if any counterbalance readers want to take part or send written comments.

But the first important date is Monday 17th August where Fylde's 'Development Control' (Planning) Committee will receive a report from planning officers on Kensington's proposals and the Committee is expected to decide whether to oppose Kensington's appeal, and if so, on which arguments, and to what extent.

The meeting is likely to hear a mix of views. The Commissar's pals are likely to try and argue we shouldn't be opposing the application.

They will probably say it will cost money we can't afford to pay to get the case and arguments prepared, and say that in any event the Council would probably have passed the plans anyway.

Others (with more sense) will be arguing the opposite.

Furthermore, we don't recall hearing any assurances that the money was immediately available. How would Cllr Henshaw know anyway?. The way the Commissar keeps other Councillors in the dark, its amazing they get to hear anything. Several tell us they hear what's going on in Fylde more through these pages on counterbalance than from their agendas.

But we're hearing allegations of another move by Kensington. Seems that they are incensed at Fylde's idea to put most of the 5,500 houses on the M55 Hub site (which they don't own), and are threatening a Judicial Review of Fylde's decision if it goes ahead. We think this is a con, a try-on to see if a bit of bullying and intimidation will weaken the resolve of some councillors on the Queensway issue.

In that way, it's just like a popular threat about costs for the appeal unless Fylde withdraws (and doesn't contest the appeal)

We say that if a comparatively tiny outfit like QED - with nowhere near the resources of the Council or Kensington - is willing to take them on equal terms and risk having costs awarded against them, then the Council - with its comparatively enormous assets and capital - ought not to be intimidated either.

Councillors who are afraid to stand up to financial bullies should forfeit their right to represent their community.

But going back to the Development Control Committee meeting..... we heard QED are encouraging anyone affected by the plans to turn up for the meeting and listen to the debate at 10am on Monday 17th at Lowther Pavilion.

The Development Control (Planning) Committee is also one of those where local people can register beforehand to speak for three minutes at the meeting to tell the Committee what their views of the plans are.

We wondered if any counterbalance readers might want to do this, and if you do, you can follow this link to Fylde's website where it is all explained, and there is a simple sign-in process where you can register to speak.

At the present moment it's difficult to see how Fylde will jump on this decision. They *ought* to mount a strong opposition - if for no other reason than the requirements of statutory consultees - which show there are at least two significant objections still unresolved. But we've been hearing noises - allegedly from developers - saying it will cost Fylde less if they don't oppose the appeal.

This is all part of a cat and mouse game likely to be going on to try and reduce the extent, or the vigour, of FBC's objection. Such is the way of planning these days, where money rules the roost, and why QED want their supporters to turn out so show solidarity and encourage the Committee to do the right thing.

In some ways. you have to feel sorry for the DC Committee.

On one side they will have Kensington with all its financial muscle adopting a firm, if not threatening approach. On another side they are buffeted by their electorate who pretty much seem to want the development thrown out.

On yet another flank they have Fylde's officers telling them what they ought to do, and at the rear is the ever present threat that - even if they were to chicken out, and give in to Kensington in the hope of a quiet life and minimal financial risk to the Council's funds - it would only take one resident to complain to the European Commission that when the Environmental Impact Assessment was undertaken, the procedures were not followed correctly, or the information in the Environmental Statement was inadequate, (and even we've been able to see at least one EC related hole in the Environmental Statement) and they could be in even deeper water than some of the proposed houses might be.

In connection with the Environmental Impact Assessment for example, the Council has to undertake:

  • "screening" to determine whether a project requires Environmental Impact Assessment
  • "scoping" to advise the applicant of the likely, significant effects on the environment that it wants to see addressed in the Environmental Statement
  • consulting with statutory consultees, members of the public and others who may have views to establish their view on the proposal and the Environmental Statement
  • evaluating the environmental information presented in the Environmental Statement and any representations made before making a decision and
  • publicising the decision

As an example of the complexity, here is one paragraph of advice on this matter from the Department of Communities and Local Government. It is simply about who has responsibility to decide whether it is necessary to have an Environmental Impact Assessment done....

"Normally the officer dealing with the planning application will be responsible for the screening opinion. But the decision is taken on behalf of the local planning authority. If the decision is to be made by officers, it is important to ensure that they have delegated authority to do so before they make the decision. Failure to comply with such basic administrative rules will leave subsequent planning decisions open to successful legal challenge."

This actually happened in a case known as "R v St Edmundsbury Borough Council, ex parte Walton" where a grant of planning permission was overturned because a decision not to require EIA was taken by an officer who had no formal delegation powers.

There are another 23 paragraphs of similar advice - just about deciding whether to have an Environmental Impact Assessment or not. That's before you get to the advice about what needs to be assessed, and how people will be consulted on the Environmental Statement itself, and then evaluating the information presented, and coming to a decision about it before publicising it.

As we said earlier, these days the environmental regulations are labyrinthine. For the most part their requirements are way beyond the skillset of an authority the size of Fylde (unless they subcontract the work out to experts), and slips in this area can lead to formal legal proceedings between the European Commission and the UK which, if substantiated, would be every bit as expensive as taking on Kensington because it is a lengthy and prolonged process.

So there are financial risks for the Development Control Committee whichever way they decide.

And they will get a lot of conflicting advice.

For example there have been some prophets of doom speaking recently about the appeals in the cases of Westgate (where MAR Properties has just won an appeal for 70 homes), and at Hollywood Nurseries on Whitehills (where permission for around 100 homes has been granted on appeal because Fylde could not demonstrate they have identified enough land to provide the 5,500 houses the Government says we should build before 2021). Some folk say these appeal decisions have set a bad precedent for places like Queensway.

However, the Inspector's report from the Hollywood Nurseries appeal also said (at Paragraph 23): "The Council expressed concern that allowing the appeal would establish a precedent for further development in the countryside. Be that as it may, I doubt that any other planning applications would have comparable circumstances and in any event, each application would need to be considered on its own merits"

Furthermore, Kensington's appeal to build 55 apartments at Boundary Road, Lytham has just been rejected by another inspector, chiefly because it was though to be inappropriate development.

What this shows is that there is no precedent being set by these decisions. Each site has differing factors to be weighed. Each inspector has their own approach, and each application is being considered on its merits.

That said, we do think it is possible to see some similarities between Kensington's planning applications for Blackpool (Marton Moss) and Fylde (Queensway).

Neither are compatible with the local plan. Neither council can demonstrate a 5 year supply of land. Both have gone to appeal for non-determination. Queensway is much bigger of course, both actually and in relation to populations. And as we have shown above, Queensway also has a lot of wildlife and environmental matters to be taken into account. It also has the added problem of the airport which has both a protected flight path and noise contour problems extending from the end of the runway, both of which mean there are still objections in place from the statutory bodies that have to be consulted on these matters.

So as we approach one of the key decisions for the future of what is already the most populous part of Fylde, where can we look for guidance?
 
Well, when Blackpool considered Kensington's Marton Moss plan, (in the same way that Fylde is going to consider Queensway), its officers recommended that Blackpool should make its housing decisions in Blackpool's Core Strategy, and not be bounced into a premature by Kensington.

The officers recommendation to refuse the application was supported by their Development Control Committee.

They actually said "Given the deficiencies in the information submitted, the timing of the application and, at the present time, the conflicts with the policies of the RSS and Local Plan, it is suggested that had the members had the opportunity to determine the application at the present time the recommendation would have been to refuse the application. The reasons for that refusal appear at the bottom of this report"

The good news is that Fylde's officers, who have published the agenda report today are saying that "Members are advised that, based on the information currently available, had the local planning authority been in a position to determine the application, planning permission should have been refused...." Like Blackpool, they go on to provide a list of reasons justifying their view.

We hope and expect  Fylde's Development Control Committee will support their officers recommendation in this matter.

That's not the end of the matter though. If it gets to appeal in November, the Inspector will rule, and the Government will finally decide, what happens. Whilst some objections might be resolved before the inquiry, the 'functionally linked' one won't be decided until March at the earliest.

But things could change before then. Kensington could withdraw the whole application, and come back with something much smaller.

Dated:  10 August 2009


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