Local Plan 2011-2031 Proposed Submission Draft

The proposed Definition of "Brownfield Site/Previously Developed Land(PDL)" in the Glossary to the Submission Draft is defective and leads to absurd, arbitrary and undesirable results

The proposed definition is as follows:

"Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or has been occupied by agricultural or forestry buildings;...."

This contrasts with the long-standing definition in national planning policy guidance, which is as follows:

"Land which is or was occupied by a permanent structure (excluding agricultural or forestry buildings), including the curtilage of the land attached to the permanent structure (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or has been in use for agricultural or forestry purposes;...."

The definition proposed in the Submission Draft leads to absurd and undesirable results.

Imagine a fenced field with a grain store on it, with tarmac laid to and beyond the field gate to the highway. Under the existing definition, no part of the fenced field nor any of the associated fixed surface infrastructure would be a brownfield site (as one would expect). Under the definition proposed in the Submission Draft however, the whole of the field, except for the land on which the grain store actually stands, and all of the associated fixed surface infrastructure outside the curtilage would be a brownfield site. This is an absurd and wholly undesirable result, making the Plan as respects this definition both not legally compliant and unsound.

The Submission Draft is not legally compliant. In relation to Site TH2 in Therfield, NHDC:
- has failed to identify the relevant evidence relating to Site TH2 and has included and left uncorrected in the Evidence Base information which is to its knowledge incorrect and incomplete in material respects, and misleading,
- has failed as a result to consider material evidence, in the context of the relevant procedures, policies and objectives of the Local Plan Process, and
- has excluded Site TH2 from further consideration in the Local Plan Process without giving proper reasons therefor.
NHDC has thereby failed to comply with the basic legal rules of a fair process:
-by preventing (by a combination of misinformation and withholding information) proper public consultation on Site TH2 from taking place,
-by maintaining Site TH2 within the Evidence Base as a "suitable" and "achievable" site long after it became or should have become apparent to NHDC that it failed to satisfy the relevant criteria for inclusion as a Preferred (or Allocated) Site.
It may also be that NHDC has exposed interested persons to the risk that the site owner will seek to have Site TH2 re-introduced to the process after public consultation is finished, on the basis of its being unfair for the site to be excluded without giving him reasons (if, in fact, this is the case).
I have also seen Mr Colin Bogie's representations and fully endorse and support the points which he makes.

The Submission Draft is not sound having regard to:
1.The mis-description of the characteristics and attributes of Site TH2 and the failure by NHDC to apply proper principles of consultation in its Emerging Local Plan Process
There has been a near-total failure to correct in later Local Plan-related documentation, including in particular in the Submission Draft and its supporting Evidence Base, material factual inaccuracies regarding the planning status and lawful uses of Site TH2, and its characteristics and attributes, notwithstanding that such inaccuracies have been clearly demonstrated to NHDC in its consultation processes and otherwise.
2.The mis-evaluation of Site TH2 as "suitable" and "achievable" by reference to an incomplete and inaccurate factual assessment

Even though the suitability and achievability of housing development on Site TH2 have to NHDC's knowledge been assessed using a factual assessment which is materially incorrect and incomplete, NHDC has failed to re-assess such suitability and achievability using accurate information. The site would not in fact meet the stipulated selection criteria if such a re-assessment were to take place.

3.The failure and subsequent refusal by NHDC to disclose its reasons for excluding Site TH2 from the Submission Draft and thus from the final consultation in the Local Plan Process.

I have also seen Mr Colin Bogie's representations and fully endorse and support the points which he makes.

A detailed explanation is set out below:
1. Background
I entirely agree that Site TH2 should be excluded from NHDC's Local Plan, it not being a suitable or deliverable site for housing development.
Site TH2 has however since 2009 been considered positively by NHDC for inclusion as an allocated site in the Emerging Local Plan Process. Although it has been excluded from the Submission Draft, the SHLAA 2016 Update which forms part of the Evidence Base continues to identify this site as both "suitable" and "available" and as "possibly" achievable. NHDC has stated in correspondence that the site could conceivably be reconsidered for inclusion in the Local Plan at the examination stage, perhaps in response to representations made by the site owner in the consultation on the Submission Draft.

2.The mis-description of the characteristics and attributes of Site TH2 and the failure by NHDC to apply proper principles of consultation in its Emerging Local Plan Process.

Site TH2 was described in NHDC's "Land Allocations: Additional Suggested Sites July 2009" paper as a "depot" on a "brownfield site". Neither of these is true - as I pointed out to NHDC in some detail in my representation on that document in 2009 (see Appendix 1).

Nevertheless, this depiction of the site was essentially repeated in subsequent consultations, and in the document entitled Site Selection Matrix, Preferred Options - Consultation (November 2014), the site is described as follows:

"Adjoins conservation area, near listed buildings, protected trees and scheduled ancient monument. Site is used as depot, with good boundaries and accessed off reasonable lane."

My comments in 2009 and subsequently went unacknowledged and appear to have been effectively ignored, contrary to the legal requirements for a proper consultation. NHDC clearly failed to satisfy the fundamental legal criteria that all fair consultations must satisfy (known as the Sedley Principles, established in the case of R v Brent LBC ex.p. Gunning[1985]84 LGR 168 and approved by the Supreme Court in R (Moseley) v LB Haringey [2014] UKSC 56).


By 2016 however NHDC had finally accepted that Site TH2 is not a depot, or indeed a brownfield site. It is described in the SHLAA Update as:

"Broadly rectangular site to the west of Therfield largely covered with hardstanding. Site boundaries relatively well defined by planting though this appears thinner along southern edge. Frontage to Kelshall Road provides opportunity for access. Any development would need to consider relationship with adjoining conservation area and listed building. Currently in area of rural restraint and village boundary would need to be revised."

No statement is however made concerning the planning status and authorised uses of the site and neither in the SHLAA Update or anywhere else in the Evidence Base has any attempt been made to draw to the attention of consultees that the description of the site as "brownfield" and "a depot" which appeared in previous iterations of the Emerging Local Plan Process were in fact inaccurate. Consultees might therefore have assumed, incorrectly, that the 2016 description simply added more "flesh" to the descriptions already put into the public domain for consultation and would be unaware that that those other descriptions were in fact incorrect.

Furthermore it was also nowhere mentioned in the 2009 consultation - and has indeed not been mentioned in any consultation document to date, up to and including the Submission Draft and its supporting Evidence Base - that the site is subject to covenants in a Section 106 Agreement which, among other things, prohibit the building of houses. These planning obligations are well-known to NHDC, which has confirmed in correspondence that the agreement is binding and enforceable against the current site owner.

Consultees have therefore been materially misled by this critical omission. NHDC has given no reason why the Section 106 Agreement has not been mentioned in any of the documentation or consultations in the Emerging Local Plan Process.


3.Mis-evaluation of the site by reference to the incorrect and incomplete factual assessment of the site in the November 2014 Site Selection Matrix

Notwithstanding my comments in 2009 and NHDC's actual knowledge of the position, Site TH2 was evaluated as "suitable" and "achievable" based on the mis-description of the site in the November 2014 Site Selection Matrix (see above).

I suggested to the officer responsible for the Submission Draft (Nigel Smith, Principal Strategic Planning Officer) that it was inappropriate not to reassess the site for suitability having regard to the true facts, that this is greenfield, agricultural land in an area of rural restraint outside the village boundary and is not and never has been a depot.

I also pointed out that the only potential positives in favour of development which had not been disproved and removed from the Evidence Base by the time of preparation of the Submission Draft (see the description in the SHLAA 2016 Update in paragraph 2 above) were that:

(i)(in common with parts of most agricultural holdings) the site is "largely covered with hardstanding" - though this would of course have to be removed to build houses,
(ii)the site has frontage to a road (though it is not possible to construct a pavement from the site to the village, and thus there is no safe pedestrian access), and
(iii)the site has "boundaries relatively well defined by planting though this appears thinner along southern edge".

As to this, it should also be noted that site TH2 cannot reasonably be said to have 'good boundaries'.

As regards the southern boundary, the site is part of a larger area of land (including the adjacent Field OS 318, immediately to the south of the site) in respect of all of which (ie Site TH2 and Field OS318) the site owner has previously sought pre-application advice from NHDC for a larger residential development.

The northern boundary abuts the public highway. The Highways Authority (in the context of a consultation on a now withdrawn planning application to develop this site for housing) stipulated that there would, if development were contemplated, need to be a new and enlarged entrance to the site, requiring the removal of much of the ancient hedgerow.

The banking which forms the western edge of Fields OS 318 and 319 is, as the Council knows, predominantly formed of illegally dumped spoil from cabling works in Royston.

And the eastern boundary is the edge of the Conservation Area, which is a negative.

Using the revised description of the Site in the SHLAA 2016 Update, it is impossible to see how this site could score sufficiently highly against the published criteria to justify inclusion as a Preferred (or Allocated) Site. The site was not however re-evaluated and Site TH2 remains in the Evidence Base as "available" and "suitable" and as "possibly achievable".


4.The failure and subsequent refusal by NHDC to disclose its reasons for excluding Site TH2 from the Submission Draft and thus from the final consultation in the Local Plan Process: Effect on Consultees

Site TH2, despite the above, enjoyed Preferred Site status up until mid-July 2016. It is however not included either as a Preferred Site or as a Non-Preferred Site in the Submission Draft. Instead it is one of a very small number of sites excluded from further consideration. In all other cases, the reasons for exclusion are clear e.g. already developed, designated an SSSI. Only in the case of Site TH2 are the reasons for exclusion unclear.

The Housing and Green Belt Background Paper ("the HGBP") which forms part of the Evidence Base states:
"SHLAA site 118 in Therfield was included in the Preferred Options Local Plan
site TH2 - Land south of Kelshall Road. The 2016 SHLAA identified a possible
constraint regarding this site's achievability owing to a complex legal history.
Following the receipt of further advice, it is considered that there is insufficient
certainty to enable it to proceed as a potential allocation in the Local Plan and it
has been excluded from further consideration."

Although it is claimed that the SHLAA 2016 Update - which also forms part of the Evidence Base - "identified" a possible constraint, no such constraint is in fact identified. The only part of that document suggesting such a constraint is the single word "possible" (changed from "yes" in the earlier SHLAA) against "achievable" in the matrix box for Site TH2 in Appendix 4.

Beyond knowing that NHDC considers there is a "complex legal history", that housing development on the site is only possibly achievable, and that NHDC has taken further advice, it is impossible for consultees to identify:

-The reasons why Site TH2 has been excluded from further consideration
-What makes it "possible" that housing development might be achievable, if indeed that is still NHDC's view after receiving the further advice referred to in the HGBP
-What there is "insufficient certainty" about, or
-Whether the site owner, NHDC or any other person is seeking to resolve that uncertainty or indeed if it can be resolved.
NHDC has been asked in correspondence to clarify each of these points, but its officers have refused to do so. I am therefore - as are others interested - unable to participate on an informed basis in the current consultation.
There can be no proper consultation when it is wholly unclear whether NHDC has considered all relevant factors (e.g. fetters on the permitted uses of the site) and disregarded irrelevant ones (e.g assertions by or on behalf of the owner, seeking to advance his ambition to build houses on this site, which are demonstrably false).



5.Relationship between NHDC and the Site Owner

5.1I made considerable efforts in correspondence, before the Submission Draft was published, to try to get Mr Smith - who is responsible for the way Site TH2 has been dealt with in the Local Plan Process and in particular for its exclusion from the process shortly prior to publication of the Submission Draft - to address the various issues raised in this Representation. He refused however to respond on what he described as a 1-1 basis, insisting:.

"Consultation on the draft plan has yet to commence. It is presently anticipated that, subject to the approval of Cabinet in September, it will begin in October for a period of six weeks. At this point you will have the opportunity along with everyone else to submit comments and, if you are so minded, request the opportunity to subsequently appear in front of a Government-appointed Inspector to pursue these. ..... I... will not enter any further correspondence on this matter."

I specifically pointed out that:

"Consultation is intended to bring to light matters not known or properly understood by the Council before publication of the consultation draft. The document which goes out to final consultation should be as accurate and complete as the Council can make it. If the Council is fortunate enough to uncover, or to have material factual inaccuracies pointed out to it, ahead of finalisation of the Submission Draft, it ought most certainly to take those into account. Consultees will otherwise be misled."

But Mr Smith refused to address himself to the issues, notwithstanding the supporting evidence I placed before him.

5.2For a period of months, both prior to and following publication of the Submission Draft, my husband Colin Bogie tried to find out what underlay NHDC's decision to exclude Site TH2 from the process.

He asked to be told:

" the legal rationale underlying the [above] changes to the Council's position"

Early responses from NHDC were wholly unresponsive to the question., referring only to the statement in the HGBP in paragraph 4 above about a "complicated legal history", "receipt of further advice" and "insufficient certainty", again without stating what the advice concerned or the uncertainty was about.

On 31 October 2016, having been pressed again about the subject of this advice/uncertainty, the response received from NHDC's Head of Development and Building Control (Mr Fullstone) was:

"Legal advice is subject to legal privilege and not released to any party, I am therefore unable to comment further."

This response, and all subsequent correspondence between my husband and Mr Fullstone, was copied to Mr Roche, NHDC's Head of Legal. Mr Fullstone had required that he be involved in any correspondence regarding Site TH2 to ensure my husband received a "consistent and comprehensive service".

My husband and I both took it from this response that we were being told that the owner of Site TH2 was being kept as much in the dark as we (and other consultees).

This appeared to be confirmed by the response to a request in the same letter to provide my husband with:

" the same information as has been provided to the owner of the site, or an explanation as to why NHDC will not provide [my husband] with that information."

The response to this from Mr Fullstone was:

"I would refer you to my answer in Q1 [i.e. the response above], in that any legal advice has not been released to any party"

In answer to a further question in the same letter:
"What correspondence has the Council had with the applicant or his agents regarding the site and the Section 106 Agreement subsequent to its exclusion?"
Mr Fullstone responded on 31 October 2016:
"I have spoken to Mr Ellis [the panning officer dealing with Site TH2] this morning upon his return from leave, he is not aware, nor am I, of any correspondence that the Council has had with the applicant or their agents since the planning application was withdrawn by the applicant, with regard [sic] any planning matter."

Whilst these responses seemed to be answering the question, they did seem deliberately phrased to avoid a direct response. When asking what information had been given to the owner of Site TH2 concerning exclusion of that site, my husband had not asked whether the Council had shared its legal advice with the owner of that site, though this was the question the Mr Fullstone chose to answer.

My husband therefore had one further attempt to elicit an answer to the questions he had actually asked. This time, in answer to the question:

"Are you refusing to supply me with the same information regarding the rationale for the exclusion of the Site as the Council has supplied to the site owner? If so, on what basis do you justify your refusal?"

he received on 18 November 2016 the following answer from Mr Fullstone:

"I refer to my previous response to your question 8, no prior warning or notice was given to the site owner with regard their site, prior to publication of the papers for Full Council in July. "

It was impossible to avoid the conclusion that Mr Fullstone was deliberately refusing to answer the question, whilst seeking to appear responsive.

More than that, in answer to the question:

" ...so we are clear.... Has any officer in the Planning or Legal Departments of the Council had any communications (verbal or written) with the applicant or anyone acting on his behalf in relation to the Site and/or the Section 106 Agreement subsequent to the conversation Mr Ellis had with the agent referred to above?"

my husband received the following extraordinary response from Mr Fullstone:

"Further to my previous answer [i.e.in his e-mail of 31 October] I would confirm that no communication has been had with the applicant or his agents (planning). However, a phone call to Mr Ellis from a solicitor acting on behalf of the applicant was received and the solicitor was advised to contact legal services. Legal Services have confirmed that no verbal communication has taken place with the solicitor. Written communication falls within your current FOI request."

My husband was perturbed by the lack of candour demonstrated by the foregoing exchanges of correspondence. He responded to Mr Fullstone as follows:

"Your previous answer [ i.e. in his e-mail of 31 October 2016] was not of course - as indeed my question was not - limited to "agents (planning)". Whilst you do not say directly that there has been correspondence between the Council's Legal Department and the applicant's agent (his solicitor), I can see no reason to refer to "written communication" at all unless such communication exists or unless raising the possibility of such written communication is another attempt to mislead.
It is unedifying now to discover that:

- Mr Ellis was aware that an agent of the applicant contacted the Council regarding a planning matter, having himself taken the call from the applicant's solicitor

- Mr Ellis was further aware that the planning matter in question was likely to be taken up with the Legal Department of the Council (Mr Roche's Department), to whom he specifically referred the applicant's agent

- Having spoken to Mr Ellis (see your reply to me), you were also presumably aware of this

- It appears there followed correspondence between the Council's Legal Department and the applicant on the planning matter raised with Mr Ellis.

The above notwithstanding, it appears that you, Mr Ellis and Mr Roche were happy with your first misleading response and that you are seeking to frustrate my attempts to ensure that the Council is not once again misled by the site owner and his agents when giving consideration to the various planning-related issues affecting this Site.

You have not supplied me with a copy of the correspondence between the Council and the applicant's solicitor, and I ask you to do so by return..... I remind you again that these issues - first raised over a month ago - have been raised principally to enable me to make informed representations in the consultation on the Council's Submission Draft Local Plan, which closes in just a few days now."

Mr Fullstone did not supply the requested correspondence. Some - but on the face of it not all - of that correspondence was sent to my husband after close of business today, 30 November 2016, the last permitted day for responding to his Freedom of Information Request and the final day for making representations on the Submission Draft.

From that correspondence it is clear that Mr Ellis (and subsequently NHDC's legal department) have been liaising with a solicitor acting for the owner of Site TH2 since at latest 31 August 2016 in connection with a proposed revocation of the Section 106 Agreement. This involved at least one phone call and three letters from Mr Ellis, as well as correspondence from the site owner's solicitor to Mr Ellis, prior to Mr Fullstone's e-mails of 31 October and 18 November 2016, quoted above. My husband has received no apology or explanation for having been misled by Mr Fullstone.

Unfortunately, due to the fact that NHDC has sought to conceal this information until - literally - the final hours, my husband has been unable to respond in the consultation on the Submission Draft as he had hoped.

I have related this information - and the other information in my Representations concerning our attempts to have Site TH2 considered in this process on a fairly-presented basis - because I am very concerned that NHDC cannot be relied upon to present the case for (and against) Site TH2 in a manner which reasonably reflects the factual position. There is more I could say about the "complicated legal history" of Site TH2, but I think that for present purposes the above is sufficiently illustrative.

Therefore, should Site TH2 re-appear in the process after the consultation on the Submission Draft finishes, I (and my husband) would wish to be consulted and to appear before the Inspector (see paragraph 6. below).

6.Right to be consulted and heard

Whilst I appreciate it is unusual to make representations where all mention of a site has been excluded from the Submission Draft, and to request the opportunity to appear in front of the Inspector to pursue my concerns, I wish to place a firm marker that should NHDC - after the consultation closes - consider that there is, after all, "sufficient certainty" to enable this site to proceed as a potential allocation, or should the site for any reason be considered by the Inspector in the course of examination of NHDC's Submission Draft - perhaps, as Mr Smith suggests, at the request of the site owner - not only would I wish to have the opportunity to be consulted on a properly informed basis but I would ask for that consultation opportunity to be extended to all those who might have commented in this process, had the facts been put before them. I would also ask to appear before the Inspector.