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Ballam Road Hearing

Ballam Road HearingReaders will remember that in 'Ballam Road Appeal Datewe gave notice of the hearing that, if the Planning Inspector from Bristol so decides, will see houses given planning permission on land just outside the Lytham built up area on Ballam Road.

The scheme might also see 'Affordable Housing' or a Homeless Hostel built in St Annes if the Ballam Road site is not deemed appropriate

We hope to be at the hearing for most of the two days

DAY 1 OF THE HEARING
The inspector had said that the format of the Hearing would be a 'Structured Discussion that she would lead"

But before going any further, we ought to say that most members of the public who attended, frequently sat in open-mouthed amazement when, instead of hearing what they thought would be common sense arguments about the site, they heard arcane PPS planning policy arguments and discussions about which of two bus stops was nearest to the site, and whether a train from Preston to Blackpool South constituted a once and hour or a twice an hour service (because it goes in both directions).

But then, planning is all about comparing land use with policy, not about common sense.

So if you'd bear that in mind dear reader, it will help you through the article.

At 9.45 am the room was silent.

There were three or four tables in the middle of the big room with perhaps eight people around them in an atmosphere of silence like an old-fashioned doctor's waiting room only worse. In preparation for the hostilities to come, the sides had been lined up on either side of the table, with the public gallery looking on from the end.

The meeting started spot on 10 am and the room had filled up with about 30 people. The Planning Inspector, Jean Russell, opened the meeting and set out the process. Tony McAteer (of Lambert Smith Hampton - who also works a lot for Kensington) appeared to speak for the appellant - Peter Whitehead - and he had a 'Highway man' to give evidence for them. We'll avoid the obvious comment here.

For the Council, was Planning Officer Andrew Stell, the young man that has been dealing with this matter all along. Whilst he may not be perfect  (you'd be hard pressed to find any planner to fit that description) he is at least honest, and you can see his heart is in the work - he sees it as a vocation and is committed to doing his best. Just the sort of officer Fylde needs.

He also had a 'Highway' man to deal with the technical highway arguments, but this one was from the Lancashire County Council. Again we resist the temptation!

Speaking for most of the residents was Stanley Kitt, a well known local figure and resident of Lytham. Some other members of the public also noted a wish to speak.

Inspector Jean Russell began with an outline of the issues she expected to deal with. She said the appeal was an outline application with all matters reserved, but the application originally received by Fylde BC was for outline permission and access, with all other matters reserved. Confusion!

She said she wanted a clear statement of which she was supposed to be looking at by the end of the mid morning break.

She also said the same confusion existed over the layout.

Whilst not part of the outline application to be determined, the regulations did require the approximate number of houses to be specified. She had seen figures of 12, 40 and 64. Again she banged heads together and said she wanted a clear answer by mid morning.

She also noted that it was not possible to impose conditions that would change the numbers, so she wanted a final number of houses agreeing.

Then she started on the plans.

They have changed so often that it seemed even the planning officers at Fylde didn't have the latest copies.

The way this (and other) appeals are conducted in this regard is a disgrace. An appeal ought to be about reviewing a fixed position not turning into a 'planning committee' of its own that receives plans as a completely new application. She was obviously not impressed with all the changes and by now was almost tetchy about getting an agreed set of plans to work from during the hearing. (As indeed we would have been in her shoes)

This stuff is important. Not only to be clear about what they are all looking at, but to know whether (and which) plans have been subject to public consultation, whether they were the ones considered by Fylde's planning Committee, and so on.

Then she tuned to the documents for the hearing and listed a load that are referred to in the reports and evidence - but had not been supplied to her as copies. Ooops!

She had asked was it in a flood zone and had conflicting answers from the Council and the developer.

Then, when she mentioned a Section 106 (That's a legal agreement to provide certain facilities) Mr McAteer said it was no longer a S106, but was now a 'Unilateral Undertaking'. However nobody had seen that yet - not even the Council so far as we could see - so that was another thing to be copied and passed around.

Readers will recall that the matter of the 106 agreement caused the appellant to remove the affordable housing from his plan, in order not to have to disclose where he was planning to build the eleven-unit homeless hostel. We wondered whether the Hostel was going to make a dramatic reappearance in the Unilateral Undertaking (But it now seems it won't. More later.)

Then the Inspector looked at the process. She gave out an agenda and said she planned to take topics in that order.

Mr McAteer dissented. He wanted the issue of 'Housing Numbers' taken first (as though the Loony Government's numbers were the most important thing - (well, they are his best - maybe his only - argument really). The Council agreed this would be OK. Mr Kitt was reluctant. The Inspector was a bit miffed at her timetable (and presumably her planned line of questioning) being disrupted, but gave ground.

When a member of the public challenged the change she resisted, but she did say that she didn't want any procedural errors in her Hearing. Maybe this view was coloured by the procedural errors that had allowed the applicant to withdraw what were public domain documents from the appeal a little earlier. See Ballam Road Appeal Date

After the mid morning break at 10:20, the parties agreed they would use plans numbered 6991020, 820411a and 8204053 the latter being the 'illustrative' layout for 64 houses.

They also agreed it was an outline application with access to be decided now, and that all other matters would be reserved for a full planning application. They further agreed that the Access would be the more southern of the two alternatives that had been discussed, and that 64 was the proposed number of houses.

It also transpired (right at the end of today's meeting) that the Homeless Hostel had been removed altogether, and the 'Affordable Housing' that will be proposed, will all be on site.

At this point the procedural matters ended, and the hearing began in earnest....

HOUSING NUMBERS
This topic forms part of every reasonably-sized application and almost every appeal these days. We've covered it in detail before so we won't go into it again, but in outline the loony Government says Fylde had to build 5,500 houses up to 2021, and they're not building enough. So developers pile on the pressure to say, this is the Government's overriding priority and it should override all other planning policies.

Those of a certain age will remember the famous Mandy Rice Davis' quote of "He would say that, wouldn't he"

The Inspector began by asking Mr McAteer to confirm that the appeal site was in conflict with FBC Policies SP1 and SP2 (which are about the limits of countryside an built up areas).

He agreed, but began the (expected) story of......but the housing numbers are more important..... only to be cut off sharply by the Inspector, who said, she wanted the question answering, not an explanation as to why.

She challenged on several issues, and was very sharp and on the ball. Clearly not to be messed around with.

She was equally sharp with anyone in the public gallery who even hinted at amusement or derision at something in one of the answers.

Pins could have been heard dropping if any had been dropped.

As a 'for-instance' of her sharpness she challenged the assertion that the site was adjacent to the Lytham settlement boundary.

She said as far as she could see, the boundary was the rear garden fences, then there was a woodland belt, then the appeal site so it wasn't 'adjacent' to the settlement boundary was it?

The "No" in answer from Mr McAteer was accepted, but the would-be explanation was again shortened.

Clearly we were going to go at a brisk pace.

Would 64 dwellings make SUCH a contribution to the housing numbers that they justified overriding the policies? On and on the questions went.

Whilst she was tough on the developer - who answered as best he could, she was almost as tough on FBC's Planning Officer, repeatedly asking him challenging questions. But maybe because he was more ready to accept  'reasonableness' (rather than trying to argue with her to secure his point) their encounters seemed less 'strong' than the ones with Mr. McAteer.

She struck us as someone it would be better not to argue with if you wanted something from her.

CPRE's representative challenged the Council's housing numbers, but their arguments were deflated a bit when she said she would only accept full-year numbers (meaning a limit of March 2009). The part-year numbers available for 09/10 which CPRE had used as part of their argument were thus more or less invalidated.

And in response to their arguments about using the M55 Hub, she asked if that would be started with houses within five years. The "No" that came in reply effectively sidelined that argument as well.

(Government has so fixed the rules on what can and cannot be counted, that its really 'Heads I win Tails you lose').

After the housing numbers session we broke for lunch, and before the re-start, she said she had come across yet another plan referred to in the documents but not copied to her. We couldn't blame her for the comment "I'm being given a new plan, on the day of the hearing, which is VERY unusual, and I need to know if the Local Authority is happy to allow me to consider it"

They were.   We wouldn't have been.   So began the next session.

SUSTAINABLE DEVELOPMENT
She said this would include access, accessibility, proximity to shops and services, agricultural land and so on. In this context, 'Sustainability' is really about whether the Government's other objectives of getting everyone out of their cars and walking, or going on the bus to the supermarket to do a month's shopping, can be achieved.

Anyone with half a brain will see its pure rubbish, and no one is going to go shopping on the bus if they have a car, but pseudo objective scores are created to show how far from the nearest bus stop it is, and where the trains run from and how often the services are and will people willingly walk 2 kilometres and so on.

One of the key questions here (because the site is on the edge of the sticks) was whether there was going to be a special bus service to get folk into town. Mr McAteer said (rather unconvincingly we thought) that they were going to contribute to transport infrastructure by giving money to County Highways.

Now, these days, however much we (and the developers) may dislike it, this is how things work. Its a sort of new stealth tax to fund LCC that no-one sees (well, apart from it pushing up the price of the houses to make them even more unaffordable, so even more money is needed to build more subsidised Affordable Houses, which in turn pushes up the price of the market value houses which in turn..,. you get the picture.... )

But as well as 'contributions' to LCC,  decent sized developments are often required to put on a special bus for our five years until people get used to using it and the bus company may then be able to make it pay.

When pressed by the Inspector it became clear tjhat there would be no special bus (unless it looked as though they wouldn't get the permission without it). Mr McAteer said words to the effect of.... Schemes of this size are not sufficient to fund specific bus schemes, so we contribute to LCC's costs

By now it was 4.00 pm and there followed a 15 minute comfort break

CHARACTER OF THE AREA
This was one of Fylde's stronger arguments. The Inspector said it looked like a rural, agricultural area on the edge of Lytham St Annes, and that the golf course reinforced that view. Mr McAteer agreed.

We then went into a largely hypothetical argument about whether 'x ' number of houses would, or would not, change the character of the area. The Inspector said character might be affected by density, layout, changing a rural area to something more urban, changing on the nature of the highway. All of these were examined and tested.

At one point, we recall the Inspector saying something like this to FBC So are you saying that you cannot conceive of a design solution that could make this development in keeping with the surrounding area - what if, for example, several houses were put together, so they resembled the larger executive homes nearby, but had several families living in them. Would that not maintain the character of the area?

In another instance, Mr McAteer clearly riled a member of the public when he said "Lytham is not so small that it has a unique character worthy of protection"

Now, apart from him wearing another hat,and doing his damndest to ruin Lytham by substantially increasing its size, and contributing to the loss of character with the faux Disneyland scheme that was to have been called Lytham Quays, this statement was provocative - even to folk in St Annes, let alone Lytham.

Most of the Lytham folk there took it on the chin, and didn't respond: but right at the end of the day, one chap said he had been goaded into replying, and he would address the question asked by the Inspector "Why should I conclude that density of housing is harmful to the character of the area"

He said he was not local to the development area and because of that, he was probably best placed to comment. He said the character of an area was not simply its architecture or its space or its form, it was also the perception that people had of it.

He said if you put the best designed and most beautiful bail hostel in the middle of a residential area, it would still change the character of the area.

He went on "Just as the roads around here [St Annes Town Centre] are characterised by a transient population of mostly single people in flats, whose presence supports a large number of take-away and fast-food outlets, the area around the site at Lytham is not about upwardly mobile families in two and three bed semis of the type Mr McAteer was talking about, it is characterised by professionals at their peak, or ready to wind down to retirement." And he asked the Inspector to note that character wasn't simply buildings.

She responded by asking why residents didn't want families to move in? What was wrong with families?

The chap said nothing was wrong with families, they were fine. He wasn't trying to criticise families, simply to say that they would change the character of the area from what it is now.

Then she asked about the scale of the development, asking why scale should be a problem. Surely increasing the size of Lytham wouldn't be a problem would it?

The chap referred her back to Mr McAteer quote "Lytham is not so small that it has a unique character worthy of protection" and added that according to Mr McAteer, expansion in size is EXACTLY what causes the loss of uniqueness and specialness.

And there ended the first day, except that in closing announcements Mr McAteer said that for the avoidance of doubt, the Unilateral Undertaking would show there was no plan for affordable housing off-site. The plan now was to include it on the site. We also understand the homeless hostel has gone, (at least for the moment anyway).

At the start of the day, we thought it was going well for refusal of the appeal. The tenor and tone of proceedings led us to that view.

However, the specificity of 64 houses removed some of the arguments FBC were likely to have made, and more especially, the on-site affordable housing plans have blasted a hole in Fylde's armour and blunted their sword.

So at the end of Day One we'd say it's only 55% - 60% in favour of refusal, but the odds are declining unless Fylde's Mr Stell can pull the rabbit out of the hat

DAY 2 OF THE HEARING
Day 2 began with procedural map and document swapping and so on, then the 'Final' version (Although it subsequently turned out not to be) of what are these days variously called 'Planning Obligations / Section 106 Agreement / Unilateral Undertaking' (to which list of names will soon be added the new name: 'Community Infrastructure Levy')

The start of the meeting saw a bit of discussion about documents being delivered at the last minute. Mr Kitt was aggrieved that residents had not had time to digest them. The Inspector reminded him that although formal submission of documents to the Inspectorate had closed some weeks ago (and some submitted by the appellant after the closing date had been returned), he was at liberty to submit them to the hearing as backup of oral evidence to the hearing, and on that basis, she was accepting documents from people at the hearing.

This was all a bit unfortunate. The residents group had been told they could not submit some evidence they had wanted to send, because the time for documents had passed. But they had not been made aware they could raise it at the Hearing itself, so mostly they had not prepared their own points to raise: they responded to the points of the Council, the Inspector and the Appellant.

She asked if anyone felt they had been prevented from raising any matter at the hearing.   Silence.

In truth, it wasn't so much being prevented, as residents being at a huge disadvantage because they don't know the Planning policy rules as the professionals do. Nor do they know what they can and can't do and say at a Hearing.

Anyway, progress was made, and we started with...

HIGHWAY SAFETY
Lots of debate about how many vehicle movements per house there would be, and whether the TRIPS Database computer was giving accurate modelling of the highway impact of this many houses.

It seems that the existing road has about 7,000 vehicle movements a day, and the appellant claimed that another 350 movements (the TRIPS prediction of how many there would be extra because of the development), was not a significant increase.

There were arguments about the accuracy of the appellants vehicle speed readings. They'd been taken with a hand-held radar gun and for highway safety reasons, the users would have had High Visibility jackets and so on. This was said to encourage motorists to slow down, and give artificially low speed readings. Accident numbers were discussed too.

Since the appeal was made, the appellant has been talking with LCC highways department about their requirements and, as a result, has issued revised plans. The long and short of this was that the Highway Authority withdrew its objection to the development on highway safety grounds, and the ground was cut from under FBC's officer who could not go against his specialist highway advisers. So he, in turn, could no longer sustain that as an objection of the Council.

That's the equivalent of being hit below the water by an Exocet missile. Not in itself fatal, but very debilitating.

Rearguard actions were initiated by residents. In response to a question from the Inspector which asked "Would extending the 30mph zone and providing street lighting and a wider (2m) pavement make the area safer in highway terms". Mr Kitt said a 2m wide pavement would be great. He had reservations about it being mixed use for cycling and pedestrians, but in any case it was only 2m wide along the frontage of the proposed development.

At the end of the development, (by the woodland), it went down to the very narrow path again, and that would make it very dangerous as cyclists and people with prams and children left the safety of a 2 m path and went onto the narrow path or the road. He predicted serious risk of accidents.

But with the County withdrawing its objection because of revisions in the plans, they have, in effect, let down everyone opposed to the scheme quite badly.

After the morning break. Mr Twist from Westby Parish Council spoke about highways problems and the importance of agricultural land. He said his council had formally objected to Fylde's SHLAA process because of this.

Then we moved on to.....

AFFORDABLE HOUSING
It was stated that all off-site affordable housing had been withdrawn, and the appellant will provide 30% affordable housing on the site. (90% of the 30% is expected to be socially subsidised rented housing, and the remainder shared equity or similar).

This proposal met with the Council's Interim Housing Policy, so there could be no objection except access, and the Inspector said that would be decided on the basis of access generally, not specifically for Affordable Housing. This was despite protestations that those who could only afford to rent were less likely to have private transport, and walking from Ballam Road to Booths for the shopping, was impossible.

The Inspector said although LCC had previously used a distance of 400m as the suitable distance someone should be expected to walk, new national guidance said it should be 2km and that reached the shops in Lytham, so the Town Centre was accessible to people on the development.

Not good.

It came out that the appellant  had been talking with the Muir Group, who proposed the Homeless Hostel in Heeley Road, St Annes (Muir are also a  Registered Social Landlord for Affordable Housing). It also transpired that the appellant's previous (withdrawn) plan for the Hostel concerned "Sites within the Town Centre" (in St Annes)

However, when questioned by a chap representing  the Heeley Road Group Chairman, the Inspector said there were no plans before her that included 'Supported Housing': there was none set out as part of the Affordable Housing; so there was nothing to consider on that matter.

It was noted that the Council's Strategic Housing Officer had opposed the use of this site for Affordable Housing on the basis of access.

SECTION 106
Next came a discussion about the horse trading that goes on where emanations of the state try screwing money out of developers (as we alluded to in Day 1).

The Inspector said new powers were in force that meant such payments had to be: Necessary to the development; Directly related to the development; In scale with the development; and 'reasonable'.

Mr McAteer said he had concerns with some of the sums asked for. He said the LCC ones were not based on policy, and were just a wish-list of LCC officers.

The Inspector tore the document she had been given apart. Not literally, you understand, but she said words to the effect of This is a legal document, it should be certified as a true copy,  signatures should not be on a separate page, it should be sealed, securely bound etc etc, and this document was none of these things.

Then she tore into the content. Missing paragraph numbers, missing references and so on, The Council said there were also typographical errors in it and several paragraphs had been repeated.

A member of the public asked the inspector to refuse to accept the document as submitted.

She said it was up to her to decide whether to accept it, and he said he wasn't *telling* her not to, simply *asking* her not to do so, not least because no resident has seen the content and they were thus unprepared to contest or question what might be in it.

The inspector said she had already accepted the document, but she did ask Mr McAteer how much weight she could attach to such a document.

He spluttered that the alterations she sought were only guidance, not a legal requirement, and this was a proper Unilateral Undertaking, but if she would agree he would produce a final corrected version to meet her requirements within seven days.

We thought this was appalling. If Inspectors are going to be prepared to accept documents at, (and now AFTER) a Hearing like this, it both make a mockery of the process, and will allow developers to do the minimum necessary to 'get round' objections. The Inspectorate have brought this position on their own heads by being prepared to accept documentation after the closing date for the hearing. In our view, and especially from professionals, they should simply dismiss the appeal on the grounds of insufficient information being provided.

So what was in it anyway?   Well - at least there were some surprises.

The first was a proposed payment of £25,000 a year for five years to 'Park View 4 U' who are developing the open playing fields in Lytham and now want to put up buildings like a cafe and loos and so on. The payment was described as being for "Maintenance of equipment, facilities and play areas". The Inspector said she had considerable concern with this proposal, she could not identify to whom the money would be paid, whether they owned the land and equipment in question, and what status they had. She said it was more usual for the money to be paid to the Local Authority who own the land and for them to expend it as appropriate.

This was especially so since it came under the heading of Public Realm Improvements and was supposed  to support items in the Town Centre according to Fylde's policy. Fylde Planning officer said he was surprised by the proposal from the appellant and hadn't seen it before.

There were payments planned to LCC for £154,343 toward primary schools, and £166,220 toward secondary schools. (These were later clarified as examples based on 40 houses. The real figures will be based on 64 houses - or however many houses are built on the site).

There was a contribution toward Water Services of £30,720.

There was also a proposed payment to the Churches of St John and St Cuthbert in Lytham for a 'youth worker' as part of the contribution to 'Youth Services' It later transpired that this was not an new or extra post, but support funding for an existing post (although to be fair, it seems that the LCC contribution requested by their Youth Services division was for maintenance work on a youth centre).

And there was an unspecified amount (but a formula for working it out) for transport infrastructure or some similar sounding name.

All these were discussed with for's and against's on each. Mr McAteer said he didn't think they should have to contribute to secondary schools or transport at all, and he proposed removing the transport infrastructure payment because the Highway Authority has agreed that people could walk to the shops and schools and so on, so it was no longer needed.

At this point the LCC highways people suggested they might ask for the road improvements to be extended further along Ballam Road and Mr McAteer said they would pay the transport infrastructure payment.

At least we thought that's what he said, we can't be sure.  It was degenerating into a farce in our view. What should have been completed weeks ago was being decided 'on the hoof' in horse trading like this.

Awful.

To conclude this section Mr McAteer offered to "tidy up and edit" the document and return it to the Inspectorate within seven days. The Inspector agreed and said the Council would have a week to comment on it before it's being passed to her for her to consider as part of her decision.

At this point we broke for lunch at about 1.35. One of the more experienced public attendees of such meetings flopped down in a chair next to is and said simply "Dear oh Dear"

We thought that about summed it up.

After Lunch was ANY OTHER PLANNING MATTERS - of which there were none, then the assembly went through the CONDITIONS which were many, varied and frequently ill-tempered, as brains were getting tired. Lots of nitty gritty decisions (without prejudice) as to what conditions might need to be applied to a permission if one were to be granted by the appeal.

It closed at about 3-30 with a site visit still to be made. We didn't go to that.

So - overall impressions and marks out of 10

Process:  Poor. Too many late documents allowed. 3/10

Inspector: Fair, sharp, open to listening, but probably not making enough allowances for inexperienced local residents  7/10

Appellant Team: McAteer is good. Much better than the previous representative 8/10

Council Team: Poor. Tried hard but took too many body blows without hitting back enough 5/10

Residents: Fair. Good local knowledge, but weakened through lack of procedural knowledge. 6/10

Outcome: We said yesterday if the Council's planning officer could pull something out of a hat today, they could still win the arguments with some comfort. Sadly it went the other way and significant ground was lost. The best odds we'd be prepared to give at the moment are even money.

The inspector will produce her report and decision in due course. We'll bring it you as soon as it comes.

Dated:   28 April 2010


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