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Queensway Appeal Refused

Queensway Appeal RefusedChampagne corks were popping in St Annes on Thursday 01st July 2010 when, at 09:25 am, the Department for Communities and Local Government released its email with the decision on Kensington's Queensway appeal.

Kensington's appeal has been refused.

counterbalance sent out a newsflash at 10:38 to advise all our readers who are signed up for notification of new articles, and promised this more in-depth article later.

The quick explanation of the result is that the Planning Inspector had recommended allowing the appeal and approving the development, but in an echo of the 2005 decision by John Prescott, the current Minister of State for Communities and Local Government, Eric Pickles MP, has, today, overruled the advice from the Inspector, and has decided to refuse the Kensington's appeal.

Regular readers will know we're a rapidly-growing fan of Eric Pickles. He has already featured in several of our articles because, almost single-handedly, he is restoring sanity to Local Government throughout the UK (See 'Eric Pickles for King').

But his remarkable (and we believe precedent-setting) decision today is the first major decision since he announced he was abolishing the regional housing target numbers and intended to abolish the whole Regional Spatial Strategy. Make no mistake, this is an important decision. Developers and planning consultants up and down the country are now wondering what it means for them.

For his services to Fylde, counterbalance has decided he will join the exalted company of Saint Barbara Pagett, and Saint Paul Hayhurst and will henceforth be known on these pages as Saint Eric Pickles MP

So how did all this decision come about, and what does it all mean?

Back in July 2005, Kensington Developments applied for planning permission to build 350 homes at Queensway. Fylde Council failed to make a decision on the plans within the time allowed, and permission was granted to Kensington after they appealed to a Government Inspector. But John Prescott stepped in, overrode his own Inspector's decision, and blocked Kensington's plans to build the development.

At that time, Malcolm Hawe of Kensington told the Gazette "I am disappointed but not surprised by the decision as it shows the shambolic planning legislation we have to live with at the moment. They have taken two years to come to this decision. We own the land so will now sit on it and wait and see if there is a change in Government policy in the area."

in 2008, Kensington enraged St Annes residents and went for 1,150 homes on a bigger piece of land. Once again they appealed on the basis of non-determination by Fylde (although they were happy for the time to overrun whilst things seemed to be going their way). Once again, a planning Inspector has recommended the development should be approved, but the Minister, Saint Eric Pickles MP, has overruled him.

So that's a key Labour minister, and now a key Coalition Conservative Minister, who've both overruled their respective planning inspectors and turned Kensington down. Good day for democracy.

Maybe Kensington will get the message this time, but we doubt it.

So far, Kensington are  - as they say, 'declining to comment' - but we wouldn't be surprised if they didn't want to use the same quote as they used last time. But sadly, they're rapidly running out of political parties to criticise.

They just don't get it. This development is in the wrong place. It's probably the last piece of land in Fylde that should be developed for housing.

The background to the story can be found in

1). QED Launched   14 September 2008
2). Queensway Quandaries  30 October 2008
3). Snippets - Nov 08  23 November 2008
4). Town Council Object to Queensway Plans  10 December 2008
5). Roads to Riches? - or Ruin?  5 May 2009
6). Queensway at Planning 10 August 2009
7). Inquiry Diary   November 2009
8). Queensway Delayed  25 March 2010

For the incurable anoraks amongst our readers, we provide two documents with absolutely all the detail you could want.

The first is the full and lengthy report of  Philip Grainger, the inspector who was unfortunate enough to have his recommendation overturned. This report is detailed (but we think a lot of it is plain wrong), and runs to eighty pages. Please follow this link to Download the Inspector's Report

The second (and shorter) document at just eight pages is the final decision Please follow this link to Download the Minister's Decision.

But for the lesser planning anoraks, we're going to give you our own quick take on what they say, and in some cases why. This is very much a preliminary look, but we think we can convey the feel of them for you.

The Inquiry had a vast array of evidence. Four trestle tables were covered full in written volumes as thick as a lever-arch file. The proofs of evidence themselves needed two or three boxes to be carried in every day for each side. At one point during the Inquiry, the Inspector said he had been obliged to store them in his garage as they were so voluminous.

So, as the Inquiry concluded just before Christmas, we think he will have put the books into the garage and settled down to enjoy his Christmas dinner as he ruminated on what had been said in the Inquiry.

It looks to us as though over the holiday period he gradually settled his mind to the view that the appeal should be allowed, and when he dug out his Inquiry notes, reference books, and evidence, he was actually looking for points that would support the decision he had already come to.

His report is quite detailed, but it gives the impression of dancing round on a pinhead, picking out and recording the points that augured for approval, and carefully tippy-toeing around those that argued for refusal - so as not to disturb or mention most of them.

Thus, (from reading his report and being at the Inquiry for most of the time and hearing the arguments first hand), we think the report has been written to justify a gut feeling.

We believe that some of the points he made are plain wrong, and on other matters he seems to have relied more on tradition and precedent than, for example, European edicts, and we suspect he may be a little out of date.

But that said, he was the man to make the recommendation to the Minister.

The Minister sometimes agrees with the Inspector (in too many places we thought), but crucially, in several areas, he does not.

The first mention in the report is of environmental matters, but we'll return to that in a moment.

The first reason he gives for disagreeing with the Inspector is that he had, on 27 May, told the Planning Inspectorate and Local Councils of his intention to rapidly abolish Regional Strategies (RSS) and return decision-making on housing and planning matters to local people.

As a consequence of this, he puts less weight on the number of houses Fylde is supposed to build in a year according to the RSS, and more weight on the policies in Fylde's local plan than the Inspector did.

However (we believe very astutely) he says this is not the only or even the main reason for refusal. It is astute because there are already moves by big housing developers to challenge the legitimacy of Saint Eric's decision to abolish the RSS because (it is alleged by its detractors) it had been made in advance of legislation to set the RSS aside.

But by doing it this way, St Eric has the best of both worlds. This is the first major decision under this control. It is being picked-over and dissected even as you read this, by developers and lawyers and barristers and planning consultants who will not admit, but will know in their heart of hearts, that the Fylde decision today sets a national precedent.

But because Pickles is relying chiefly on other reasons to refuse this appeal, it won't give anyone the ground to challenge it using his change to the RSS as the basis.

Like the old VAT-man practice of only prosecuting cases in the early days of VAT that you were certain to win, the marker has gone down for developers.

So what were the other reasons for refusal?

Well, he agreed with QED and residents that the huge scale of the development on a Greenfield site would limit the choices available to the Council who might prefer to use other Greenfield sites as it considers where development should go for the future.

But his main reason for refusal is the plan for the Moss Road. Here he again disagrees with the Inspector. The Minister supports the points made by QED at the Inquiry that the Moss Road does not have a current valid planning permission, and it is by no means certain it would get one, and it doesn't even form part of this planning application.

Furthermore, although Kensington agreed to pay for the road, it can't be said to be 'directly related' (technical term) to the development (because the plan for the road pre-dates the development!), and that the functions of the road are not related in 'scale and kind' (another technical term) to the development, so they don't meet the criteria that allow what many would call 'bribes' like this to turn the heads of some folk in cash-strapped local councils.

So he concludes that he can give no weight at all to the road scheme when reaching his decision.

This has very significant potential for the future, and will make it more difficult for anyone to propose development that needs a new road to get permission without including the building of that road within, and as part of, the planning application they submit.

Whilst there are other minor reasons for refusal cited, the last potentially main one is Nature Conservation matters, and here he has been really clever. It's a jargon-loaded reason and complex to simplify, but in essence the previous Minister was not satisfied that the proposal would not damage the populations of some wild bids that enjoy special European protection, and he ordered something called an "Appropriate Assessment" which involve a study of the number and locations of these birds observed over time (maybe years).

The new Minister notes the concern of the former Minister but has decided not to complete the 'Appropriate Assessment' because he felt there were already enough reasons to refuse the appeal.

What this means (and why it's really clever) is that if Kensington were to appeal to the High Court that the Minister's decision was perverse or founded on some other unacceptable reason, and the High Court found in their favour (we think that's unlikely, but there is big money at stake here), the Minister would still have the 'Appropriate Assessment' argument to fall back on to refuse the application second time around.

We think this is likely to put Kensington off from launching an appeal against Saint Eric's decision via the courts.

In this matter we think QED did the same thing, and they had some arguments 'up their sleeve' in case the decision went 'the wrong way' for them.

So there we have it. The decision has been made and, as one of our more experienced readers said (when only slightly misquoting John Maesfield):

"On any view of the facts, this is a remarkable outcome.
I've seen roses grow in stony places
And kind things done by men with ugly faces
And gold cups won by the worse horse at the races
So I believe"

We understand this view. We are entirely convinced the decision was not made on what we would call 'Planning Policy' arguments, (even though the justification for it is couched as planning policy)

We have no doubt at all that if the previous Government's Minster was making this decision it would have been exactly opposite to the one that has been made, and Kensington would, today, be celebrating.

The decision was originally scheduled for 9th April, but a number of people wrote to the Minister after the inquiry had closed. They're listed on Appendix A of the Minister's decision, and included two contacts from QED and at least one from Michael Jack MP. We've no doubt these (and other submissions) would have raised questions that needed to be considered by the Minister.

That process will have further slowed the progress that could be made - and the election was getting closer and closer.

Apart from there being a  tradition that outgoing Ministers leave controversial or important decisions for incoming Ministers, it's likely that the outgoing Minister needed time to get his own re-election campaign organised and was grateful for any chance to leave this decision in the in-tray, and announce a delay in the decision until 30 June.

By that time, 'Saint Eric' had taken up the reins in Whitehall. He first pulled sharply on the reins and juddered the department to a halt. Without drawing breath he wheeled and turned it about face, then cracked a very big whip on the civil service horse he was riding. The result was 'an abolition a day', just like the song by Queen:  "Dum, Dum, Dum, and another one bites the dust"

In this matter, the people of Fylde have cause to be grateful to the unsung heroes in QED, to their outgoing MP Michael Jack for raising the importance of the decision with the outgoing minister, and to our new MP Mark Menzies who, we understand, made sure the incoming Minister  knew what a really important decision the Queensway one was.

Pickles' key drive is for localism - local matters decided by local people and local councils. Sadly for Marton, that meant he would not intervene in Blackpool's decision to approve 600 houses on Marton Moss. But to our benefit, it also means Fylde's Local Plan carried more weight than the Inspector thought it should, and the Regional Strategy carried much less weight.

So, we think the real reason for this decision is not the arguments advanced in the Inquiry.

It is timing.

To badly paraphrase The Sun  (and for the benefit of *our* readers, The Sun is a daily paper with lots of pictures for those who can't yet manage joined-up writing) "It was the timetable wot won it"

You can take it from us. If the previous Government had been returned to power, this would almost certainly have been a decision to approve Kensington's scheme.

And there are still people out there who believe that politics doesn't affect their daily lives, and that voting is a waste of time.

Dated:   1 July 2010


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