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Ballam Road Mk2

Ballam Road Mk2To St Anne's - where teams had assembled to inquire into whether a second and different application by Peter Whitehead should be allowed to build - this time 11 dwellings - on land off Ballam Road just outside the 'settlement boundary'

A previous application (see Ballam Road Appeal Date and Ballam Road Hearing) had sought to put sixty-odd dwellings there, but this one is more like the somewhat lesser density of the houses nearby.

For the Planning Inspectorate, and conducting the inquiry, is their Mr Clive Sproule - not an inspector we have seen in action before. He was smart, and sharp in style, and he was clear and precise in the directions he gave (which is always a good sign).

To be honest, on some mornings the Inspector at the previous Ballam Road inquiry two years ago, looked as though she had slept in late and had to rush to get to the hearing. That may be taken as the sign of a dis-organised mind - and something which may not be the most suitable for a forensic unpicking of the carefully crafted arguments woven by barristers to support the arguments they want to make.

For Mr Whitehead was ace barrister Roger Lancaster whose robust and capable style will be known to our readers from our reports on the Queensway (see Queensway Inquiry Diary) and other appeals.

He was supported by Tony McAteer of McAteer Associates. Again, he is a veteran of other skirmishes we have reported. When we've seen him giving evidence, we've found him to be a good witness. He gave honest answers even where it was to his disadvantage. He usually deals with the planning policy issues.

Next was David Appleton - another former Queensway combatant - He deals with landscape character. At the Queensway inquiry his apparent unwillingness to respond to the Council's barrister's questioning in a positive way (he sometimes gave us the impression of trying to evade the question he's been asked) led to the Council's barrister suggesting he might raise complaint about his impartiality as an expert witness, so we'll see if that situation happens again with a different barrister for Fylde.

The final team member was David Roberts who would deal with highways issues.

For the Council was barrister Alan Evans. We've seen him before and, whilst unassuming in style, and a master of brevity, we've seen him be thorough and very capable. He's not intimidated by Roger Lancaster's robust and flamboyant style and we've seen him score points against Mr Lancaster on occasions.

His witnesses were Fylde's Assistant Director of Planning Mark Evans who is a safe and capable pair of hands. He has a predilection to stand only on ground he is sure of anyway (which is why he had a 'capable' reputation) and Planning Officer Andrew Stell who is one of the more open planning officers we have met.

Two members of the public gave notice of an intention to speak, Stanley Kitt on behalf of local residents, and John Westmoreland for CPRE. The Inspector said he would call them after the Council's evidence and before the Appellant.

After the housekeeping issues of timetable and order of presentations etc, the Inspector summarised the issues of the appeal which were

  • whether the plan complied with the development plan and national policy
  • the affect on the character and appearance of the locality
  • Whether it was sustainable
  • Whether it complies with the local plan for affordable housing, open space and so on
  • The position with public realm improvements and education.

ROGER LANCASTER - (Barrister for Mr Whitehead)
Opened the batting. He said it was a greenfield site with no technical impediment to its development. There were no highway issues. There needed to be 'greenfield release' to meet housing needs. This layout is radically different than the previous one. The basis for the previous decision has changed. It was common ground that Fylde could not demonstrate a 5 year land supply and he estimated that there was only 1.75 to 2.5 years. He said that gave Fylde a shortfall of 865 to 1000 housing units. So, he claimed, Fylde's Strategic Housing Land Assessment shows that we have to go outside the settlement boundary.

He also said only limited weight could be placed on the Government's intention to revoke Regional Strategies and, in any event, each proposed abolition/revocation would have to be subject to a separate Environmental Assessment before revocation could take place.

He argued that Fylde's development plan said there should be a 5 year supply, and FBC hasn't got that. He also said the most recently issued plan has precedence, and thus the requirements of the Regional Strategy 'trump' Fylde's policy that protects its settlement boundary.

Finally, he quoted the latest Ministerial statement about planning and growth (which was the subject of our last article)

ALAN EVANS (Barrister for the Council)
Summarised his position very simply:

  • The site was outside the settlement boundary which was well defined by a woodland
  • The proposal was harmful to the character and appearance of the countryside
  • There would be a loss of some of the best and most versatile agricultural land
  • It provides only 11 houses and is an inefficient use of land
  • There are accessibility problems.

We did say he was a master of brevity.

Mr Evans' first witness was Fylde's Mark Evans. In his evidence he said Fylde's population projection had recently been revised downward and there had been a change in the evidence base informed the Regional Strategy. He said Fylde's aim was to direct development within the settlement boundary.

His evidence covered all the things you would expect, and did so in a professional manner.

Under cross examination from Roger Lancaster he agreed that a more recent analysis of the land had changed its grading from Grade 2 to 3a, but he said that made no difference because it was still within the Best and Most Versatile classification for agricultural land.

He was pushed to agree that Fylde's housing trajectory showed it would go down to 103 dwellings a year over the last four years of the plan period and that was only about a third of the Regional target.

When pressed by Mr Lancaster to agree that they would have to release greenfield land outside settlement boundaries to meet the need for housing, Mr Evans said it could be addressed by one or more of several options - for example they could release some employment land, or some open space for housing as well as using greenfield land.

He said if, (as the appellant proposed), it was held to be OK to waive the requirement to stay within the settlement boundaries, it was equally OK - for example - to waive the restriction on land zoned for employment.

There was a big debate about the weight that should be attached to the Government's intention to abolish or revoke the Regional Strategies.

Mr Lancaster deftly argued that because of the decisions made in the Cala Homes court cases (see Regional Strategy Returns (or not?)  and Snippets February 2011)  and the establishment of a new Parliamentary Committee to investigate the revocation and the fact that a full Environmental Assessment would have to be undertaken on each proposed revocation and no revocation could be made until that had been completed and its findings published, only what he described as "limited weight" could be attributed to the decision to abolish them.

Mr. Evans agreed.

He said the courts had held that abolition would be subject to a strategic Environmental Assessment - although we thought there might be some difference in understanding of how limited 'limited' actually was.

There was also something of a surprise when Mr Lancaster said that the Cala judgement by Lord Justice Sullivan said at para 24 that development plan documents must be in general conformity with the Regional Strategy. "it would be unlawful for a local planning authority preparing, or a Planning Inspector examining, development plan documents to have regard to the proposal to abolish regional strategies. For so long as those regional strategies continue to exist, any development plan documents must be in general conformity with the regional strategy"

That was a bit of a bombshell we thought.

There was another bombshell after an exchange about the quashing of the Queensway decision.

Mr Lancaster was arguing that a quashed decision did not exist, and therefore it could not be relied on by either side. Mr Evans agreed saying it had been withdrawn by the Secretary of State (St Eric Pickles) who had "fallen on his sword". Mr Lancaster replied with an aside "Yes, he did the honourable thing - for once"

We thought it was probably a good job that St Eric wasn't there to hear him say that.

Another interesting aside was that although Fylde's population projection has reduced by 7,000 the numbers for new household formation actually shows an increase of 5,000. This was because future households were projected to be individually smaller.

That of course is the effect of divorce and separation on housing need. Where previously couples only need one home, after separation two homes are needed. This is one of the key national drivers of housing need.

Another was that after the abolition of the Regional Strategy, Fylde introduced an updated version of their Interim Housing Policy to reflect that change. But when the Cala 1 court decision said that only Parliament (not the Minister acting alone) could abolish the Regional Strategies, the Council had to revert to its former version of the Interim Housing Policy.

There followed a prolonged row about the weight that should be attached to 'informal' planning document which the Interim Housing Policy is. Mr Lancaster said it should have no weight attached.

Mr Evans conceded it did not have the weight of a full blown Development Plan Document, but he would not concede that it should have no weight at all. He argued it should have 'some' weight.

The cross examination continued, for the most part with thrust from Mr Lancaster and parry from Mark Evans. We thought Mr Evans was his usual competent self, and his parries were sufficient to deflect the thrusts without being obstructive or evasive.

Is a Senior Planning Officer working in Mark Evans' Planning department. In introducing him, the Council's barrister said there were aspects of his evidence that would no longer be required because the Council and the Developer had reached agreement on something called a 'Unilateral Undertaking'

This represents an unconditional offer by the developer to do (or more usually to pay for) certain things. In this case it is (probably a contribution toward) affordable housing, the provision of play area / open space on the site, and what are called 'public realm improvements' which is a payment to the Council to do something in or on a public area, such as public art or whatever.

So that deal had been done, and there were some things that Mr Stell would not now need to address. His evidence was taken as read and with that, day one closed.

Day two started with Mr Stell's cross examination by Roger Lancaster.

His flamboyant and articulate style is always good to see. He invites you to go along with him on a wonderful walk through the arguments. He takes your hand, and guides you gently through the ever so sensible and logical points, beginning with those where you are likely to readily agree and slowly, gently, he leads you to the edge if the cliff, then simply pushes you over the edge.

The first of these steps was about the character of the area. The big houses on Lilac Avenue etc are not typical of Victorian Lytham are they? "No."

They're inter-war aren't they? "Yes"

And any change from agriculture to residential use is always going to change the character isn't it? "Yes, obviously"

And the landscape character is important isn't it? "Yes"

And we can agree can't we, that the standard way of assessing character is to produce expert evidence, isn't it? (is that a cliff we see in the distance).

And surely, we can agree that the character assessment done for the appellant by Mr Appleton - who *is* a specialist in this matter - is appropriate for the area isn't it. (The cliff has looms into view). "Well, I'm not sure about that"

Well, if you're not sure, why hasn't the council done its own Landscape Character Assessment? Is it that you don't think this site was important enough to do one, or is it that there are not enough arguments to be made for your stance? Reply trails off into the distance as planning officer heads for the foot of the cliff at great speed.

That's perhaps an unfair exaggeration of the actual exchange, and we're not criticising the officer at all, (his job was more difficult than his colleague because he was arguing more specific points). we're simply illustrating the modus-operandi of Mr Lancaster.

Then came the issue of sustainability and accessibility.

The (accepted) method used in planning inquiries is to take a series of issues (walking, cycling, public transport, rail and so on) and to give each a 'score' out of four or five, then to add up the scores and the result is supposed to say whether the site is accessible or not, and give a way of comparing it with other sites.

Its a ridiculous system which is both subjective and arbitrary. But because it converts this subjectivity to numbers, it looks as though it is objective.

We've heard it said at other inquiries, that if there is a bus stop within reasonable walking distance of a development, and that bus eventually goes past a railway station, then the site can score highly on both, and that because a train can take you to Manchester, the site is convenient for the best shopping in the north of England.

We're not going to grace lunacy like this with any further description here.

Under heavy attack by Mr Lancaster, the officer did his best to argue his case, but overall, probably lost slightly on points.

So at the end of the Council's evidence, the state of play was probably a minor advantage to Mr Lancaster.

Next it was the turn of the public to speak.

JOHN WESTMORELAND for Fylde Branch of Lancashire CPRE
Mr Westmoreland has good experience of planning - both in Fylde, and more widely. He read his statement to show that CPRE objected to the proposal. He gave seven reasons why the appeal conflicted with planning policy. He was especially concerned about the loss of countryside. He worried that approval would set a precedent for further ribbon development on Ballam Road. He gave instances of other sites with approval (Ashton's Nurseries, and former GRE site at Ballam Road, in Lytham) and ones with applications in train (Bonds and stocks office, St Anne's). So there were other sites these 11 properties could be developed.

In cross examination by Mr Lancaster, he was invited to agree that the Ballam Road site was classed as "potentially suitable" Mr Westmoreland confirmed it was so described in Fylde's Strategic Housing Land Availability Assessment.

Mr Lancaster also argued that both the Lytham sites he had mentioned were already included in the five year supply and those would not increase, and Heyhouses lane is within the 6 to 10 year period, not deliverable with five years, so that couldn't be counted either

STANLEY KITT For local residents
Mr Kitt is now becoming a veteran of Inquiries on this site. He is articulate and able. He made six observations. He said 11 houses were irrelevant to the claimed need of 306 dwellings a year. He also mentioned another developer who was ready to develop property on the 17th and 18th greens of the golf course opposite this site, but he needed this site to be given permission to set the precedent for his own plans.

Mr Kitt said the play area on the appeal site was only provided at the last minute, and he thought it had been done to give the developer brownie points in the accessibility assessment. It would become a white elephant.

He also said the pavement was inadequate and there were other problems with the highway layout plans.

He asked why the holes for sampling the soil for Agricultural Land Classification were dug by a young boy that he observed doing so. This upset Mr Lancaster who protested vigorously about what he saw as a slur on the professionalism of whoever they had used. Mr Kitt, who lives very close to the site said he had watched the process with binoculars.

Mr Kitt also said the timber-frames farmhouses were not in keeping with those nearby.

MR KING also for the residents
Said he had one point to make. He had been looking at the plan and the 'gateway to Lytham' formed by the existing copse of trees. But this will put a wall of landscaping where there is currently a view across open farmland.

Spoke in support of the proposal. He said he was only on a 'man on the Clapham Omnibus' looking to move to Lytham, and he's been looking for the last year or so. But had been unable to find what he was looking for, and he wanted to support this development that would provide the sort of houses he is looking for within easy reach of Lytham centre.

That ended the public session and the evidence from the Appellant commenced.

First to be called was David Roberts, the highwayman (well actually the highways expert appointed by the appellant).

As might be expected, he said his evidence showed that all was fine and dandy. There would be 360 movements a day with the previous 66 house application, this application for 11 houses would only generate 66 vehicle movements a day, and only seven of them would be in the morning rush hour.

Mr Lancaster said the highway matters had now all been agreed with the Lancashire County Council who were the highway authority, and Fylde now raised no objection on highway grounds.

There had been discussion earlier about the score to be awarded for nearness to facilities, and there was a disagreement about measures.

600m is the magic number that people should be expected to accept, and the score changes from a "1" to a "2" (or whatever) depending on the distance.

In his earlier evidence, Mr Stell had said that the nearest point of the site was something like 580m, but to the centre of the site it was over the 600m (608 if we heard right), so it should score 1 rather than 2 for accessibility. He said he had measured it from the plan and had then taken a measuring wheel out on the site to check it actually.

Mr Lancaster led his witness to say that, in fact, the centre of the site should not be the geographic centre of the site at all, it should be the centre of the 'developed' part of the site, and this was nearer to Lytham because at the far end of the site was a new woodland belt as part of the landscape scheme.

Looking at it this way made 'the site' just inside the 600 m so it should score a 2.

This was typical of the arguments advanced by Mr Lancaster. To us, he sought more to discredit reasons why it should not be allowed than to advance reasons why it should be allowed. By clinging on by the fingernails to the edge of arguments such as those above to support his case he sought to grow his case.

Under cross examination Mr Evans asked the witness about: train frequency; a red hatched area; and the distance of 600m.

He said the previous Inspector had not given the site a 'ringing endorsement' had she? She had drawn attention to the width of the pavement in some places and it was only 1.3m wide and that was going to stay like that wasn't it? and that would discourage some from walking wouldn't it.

On the train frequency, he had the witness agree that the railway line didn't take you to the centre of Blackpool for example did it?  But his main point was that a train that went to South Shore and came back past Lytham wasn't - as claimed - two trains an hour, but one train an hour.

There was quite a bit of debate about this, but the Inspector intervened to ask the witness what proportion of people would have a fixed destination in mind when they caught the train, and how many "would have the luxury of deciding which way to go when they arrived at the station"

He's seen through the 'two trains' deception of course. And that's a good sign for his findings.

Under re-examination Mr Lancaster did his usual trick of trying to show that black was white, or at least a very pale shade of grey.

He asked if the previous inspector accepted that the service produced two trains an hour? The witness said it had not been challenged by the Council at that inquiry. He then asked if the service had changed since that time? No it had not. The implication being that if it was good enough before, it ought to be good enough for this inspector now, irrespective of whether it was right or wrong.

We were then treated to a trip from Lytham to South shore and all stops in between (with a few slips through lack of geographic knowledge), and then the reverse direction to Preston.

Mr Lancaster sought to show how important all the stations and destinations en route were, as though this justified the argument that there were two trains an hour.

All this rubbish - about whether it's one or two trains an hour, and whether to take the centre of the site or the centre of the houses, and whether there is a play area or not - is tommyrot caused by the need to claw your way into the next box of the ridiculous scoring system that in itself will provide justification on the grounds of accessibility.

Hence you get to see the unedifying spectacle of grown and able men who ought to know better scrabbling for accessibility points in this way.

Thankfully, we're pretty sure (based on his behaviour so far) that the inspector is clearly not going to be taken in by this.

By now we're back at deuce as far as the scoring goes.

Was the appellant's expert on landscape. He said Lytham was a mix of building types. South of the railway like was older, but north of the line was inter-war and predominantly 70s housing and numerically, that was probably the predominant style of Lytham. 

(we thought that would go down like a lead balloon with most of the Lythamers we know)

He treated us to a story about how the proposed new woodland belt on the northern boundary had been designed to have small, medium and taller trees in it so it would be an effective screen, and the varieties had been chosen to produce a thick and dense screen.

We can see the Alder would probably survive, but we wondered how the oak and ash and scots pine would get on planted in a flood zone which exists at the northern end of the site.

Under cross examination by the Council's barrister Alan Evans, he parried as best he could, but the slow deliberate, forensic style of Mr Evans began to wear him down, and Mr Appleton's answers began to remind us of his previous style of response at the Queensway Inquiry.

For example, Mr Evans said that the present development on Ballam Road extended as a finger from Lytham and this proposed development would extend that finger it further would it not? "Well, only in plan form" 

But it will extend the Urban Form will it not?. Silence.

Well, it's not infill is it? "No."

It's not rounding off is it? "No"

And it will make the finger longer won't it. Silence followed by a grudging 'Yes."

Under re-examination, Mr Lancaster sought to show (going around the points of the compass like a clock) that you couldn't build on the sea at a quarter-to, you couldn't build on the airport at 12 oclock because it is green belt, people didn't want it at Queensway, and there was green belt beyond that. You couldn't build Fairhaven or Green Drive golf courses because they were protected, as were Lytham Hall grounds and its surrounds. So (in his view) the only place around Lytham St Annes where the urban fringe could be extended was the this site on Ballam Road.

It's a nonsense of course, but all good theatrical stuff. Shame he had to scrape so far down the barrel to dredge such poor logic

We also thought the Council's barrister could have done a stronger job to discredit some of the evidence provided by Mr Appleton, so at this point we still saw the result as evens.

Steady, reliable and measured, he gave his evidence in a convincing and reliable manner. Mr Lancaster re-iterated that the abolition of the Regional Strategy could only be accorded limited weight and asked if Mr McAteer supported that view. He said Yes, that was now the established position.

Under cross examination Mr Alan Evans sought to identify areas of agreement and looked first at the weight that should be attached to abolishing the Regional Strategy. He said Mark Evans had said he attached only limited weight to the intention to abolish the Regional Strategy. Could he assume Mr McAteer was happy to proceed on that basis? "Yes."

And could they further agree that even if only limited weight was attached, the matter might still become significant if it proved crucial in the end - if it tipped the balance? "Yes."

And was it right to say that the Environmental Assessment (to which the abolition of Regional Strategies would be subjected) would not be the only criteria that would decide whether Regional Strategies should be abolished or not was it?  " They would be just one matter. Yes."

Turning to a recent Select Committee press release announcing an inquiry into the abolition of the Regional Strategies, Mr Evans invited Mr McAteer to agree that their recent press release indicated an intention to ensure that, in a non Regional Strategy world, things which had been of benefit under a Regional Strategy were not lost, especially things such as cross border issues? "Yes."

Turning to the weight to be attached to the housing number that was set out in the Regional Strategy, he asked whether Mr McAteer agreed that if there was only limited weight attached to the intention to abolish the strategy, then the policies within the Regional Strategy themselves could only have limited weight, because to some extent there is a carry over. Mr McAteer said he could not agree with this.

Mr Evans the Council's barrister noted the reply and said it would be for the inspector to come to view on their respective positions.

He moved on to the matter of which policy should predominate when there was a policy conflict.

The law says that where two policies are in conflict the more recent policy should prevail.

However he asked Mr McAteer if a proposal did NOT conflict with one part of a development plan, and it DID conflict with another policy, but the policies themselves were not in conflict, this did not invoke the law of predominance did it?

For a long exchange, Mr McAteer defended his view that this was not the case here. He hesitated when asked to agree whether it could ever be the case (because in the abstract you can't deny the principle that Mr Evans had postulated) but he said he couldn't envisage a practical example where that could be applied.

Whilst to most folk this would all be arcane, technical, boring stuff, it was central to the inquiry, because it was all about the issue of whether the Regional strategy number, or the Council's housing policy should have priority.

But it was an argument that was difficult to follow and, in the end, reached a sort of stalemate so far as we could see.

Mr McAteer put up an able and spirited defence - as we would have expected - and for the Council, barrister Mr. Evans was probably less convincing that we had expected, but it was a very technical argument and the inspector may well come to a view that differs from the one we formed.

And there we are. We're not going to be able to hear the closing speeches, but they will only be a rehearsal of the ones outlined at the inquiry which we have reported here.

So what were our conclusions?

We thought it was about 50/50. It could go either way.

The overriding sense is that of the turmoil caused as the former New Labour supertanker of Regionalism was torpedoed by St Eric Pickles when the new Coalition Government took office. It started to sink, but then rescue and salvage craft arrived to pick up the crew and cargo, and they are now sitting in lifeboats and smaller tankers looking around and wondering if there is anywhere for them to go, or whether they too will be sunk.

Until this fog of conflict clears and the future is established and settled, no-one can know where they are going. And, what ought to be sensible, logical planning decisions, are being made with no proper planning basis. They are being determined more on which set of planning policies (local or regional), should be allowed to trump the other.

We'll know which way the inspector has jumped in about six or eight weeks.

Dated:  19 August 2011


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