Inspector Malcolm Lewis' Decision:
Tunbridge Wells Borough Council has to pay the Costs of the appeal proceedings of Crest Nicholson / BT versus TWBC

The Public Inquiry for the Telephone House Development, Church Road / York Road, Tunbridge Wells, was held at the Town Hall, Tunbridge Wells, in May 2001.



THE PLANNING INSPECTORATE
4/09 Kite Wing Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN
e-mail: enquiries@planning-inspectorate.gsi.gov.uk



COSTS DECISION

Inquiry held on 01-04 May 2001

By Malcolm Lewis DiplArch(Dist) RIBA

An Inspector appointed by the Secretary of State for the Environment, Transport and the Regions

Date 3 July 2001

Costs application in relation to Appeal Ref: APP/M2270/A/00/1054946
Telephone House, Church Road, Tunbridge Wells

Summary of Decision:
The application is allowed in the terms set out below in the Formal Decision and Costs Order.



The Submissions for Crest Homes (South East) Ltd and Southgate Developments Ltd

  1. In making the application for a full award of costs reference was made to Paragraph 7 of Annex 3 to Circular 8/93. This states that Local Planning Authorities should not prevent development which could reasonably be permitted. The refusal of planning permission was unreasonable and has given rise to considerable delay and expense. This is a permission which, acting reasonably, the Council should have granted. In addition, the Circular identifies that reasons for refusal should be complete, precise, specific and relevant. In this case it is argued that there is the clearest evidence that the 2 reasons for refusal do not reflect the real reasons why Members refused the application.

  2. In cross examination the Chairman of the Planning Committee stated that there was a series of issues which had influenced him and the majority of Members to refuse. These related to the impact on neighbouring residential property, overshadowing, access arrangements and the loss of trees, but none of these were cited in the reasons for refusal. However, most of these matters are now addressed in the Statement of Common Ground and have been agreed as not being matters at issue. The Council's witness stated in her proof that the high density of the scheme made a significant contribution to Members' concerns about the development, a fact reiterated in cross examination by Councillor Price. Nevertheless, although thoroughly aired by local residents, density is also not specifically cited as a reason for refusal.

  3. The Council's witness on the historic environment confirmed in cross examination that, despite having concerns about a number of elements of the proposal, he did not and still does not recommend rejection of the proposals. Furthermore, during the consultation process he was intimately involved in the application process and was a strong supporter of the scheme.

  4. The Committee Report makes plain that Members should judge the acceptability or otherwise of the scheme having regard to the existing buildings and use on the site. Yet it would appear from the evidence of Councillor Price that Members did not take this into account. "Where Members disagree with Officers' advice or recommendation they must have reasonable planning grounds for doing so and must be able to produce evidence to support those grounds. That is especially important here given the length of the process of pre-application discussions and post application revisions. No proper grounds for disagreeing have been put-forward. It is not sufficient to claim that these are subjective matters. Furthermore, Planning Policy Guidance Note 15 stresses the need for specialist advice to be deployed when dealing with listed buildings and conservation areas and Members should be slow to disagree.

  5. Local objection is not in itself a reason for withholding permission. In this case it seems clear that Members were persuaded by the volume of objections to the proposal. In the event, the reasons for refusal do not cite many issues relied on by residents but according to the Chairman the residents' concerns did influence the majority of the Members in their decision to refuse.

    The Response by Tunbridge Wells Borough Council

  6. In response, the point was made that the reasons for refusal were clear and precise and that each element of the reasons for refusal had been thoroughly examined in evidence. The Council were not bound to adopt the professional advice of their Officers and although the Civic Society had expressed broad support for the proposal it still had reservations over the treatment of Block A. The advice given in the report to Committee was not unequivocal and the recommendation was made having regard to the balanced view of the Officers.

  7. The refusal of this application had not been based on density grounds and Members had taken into consideration the impact of the existing building which all those concerned agreed significantly harms the character and appearance of the conservation area. The evidence of the Council's historic buildings witness fully addressed the 2 reasons for refusal.

    Conclusions

  8. I have considered this application for costs in the light of Circular 8/93 and all the relevant circumstances. This advises that, irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably and thereby caused another party to incur or waste expense unnecessarily.

  9. Notwithstanding the reasons for refusal there was clear evidence at the inquiry not only from the Council's planning witness but also from Members of the Planning Committee that density considerations had formed an important part in their considerations and the eventual decision to refuse. However, the density of the development does not figure in the reasons for refusal only matters relating to the adjacent listed buildings and the conservation area being cited.

  10. There was no opposition to the demolition of Telephone House, conservation area consent having already been granted. In addition, I note that this proposal had been the subject of extension discussions and appraisals prior to the application being made. During this time it is clear from the evidence presented that all the technical aspects of the scheme had been agreed by Officers and other consultees.

  11. Clearly there had been and still is extensive opposition to this proposal from local residents. However, these must be relevant to planning and capable of being supported by substantial evidence. Concern regarding many aspects of the scheme was expressed by residents but not pursued by the Council in the reasons for refusal. Nevertheless, I consider that the evidence presented in relation to those aspect of the scheme which were contested failed to justify the stance taken by the Council. Although English Heritage has some reservations about the proposed design, the scheme had the broad support of the Civic Society. Furthermore, it was made clear in cross examination that the Council's witness on the historic environment had not recommended rejection of the proposal, but had indicated that his concerns could be overcome by the use of suitable conditions.

  12. In my judgement, the proposal accords with the identified policies of the development plan and makes efficient use of this important town centre site. As a result, I find that unreasonable behaviour resulting in unnecessary expense, as described in Circular 8/93, has been demonstrated. I therefore conclude that an award of costs is justified.

    Formal Decision and Costs Order

  13. In exercise of my powers under section 250(5) of the Local Government Act 1972 and Schedule 6 of the Town and Country Planning Act 1990, and all other powers enabling me in that behalf, I HEREBY ORDER that Tunbridge Wells Borough Council shall pay to Crest Homes (South East) Ltd and Southgate Developments Ltd, the costs of the appeal proceedings, such costs to be assessed in the Supreme Court Costs Office if not agreed. The proceedings concerned an appeal under section 78 of the Town and Country Planning Act 1990 against the refusal of an application for planning permission for the demolition of existing building and the erection of 43 flats with basement level parking on land at Telephone House, Church Road, Tunbridge Wells.

  14. The applicant is now invited to submit to Tunbridge Wells Borough Council, to whom a copy of this decision has been sent, details of those costs with a view to reaching agreement as to the amount. In the event that the parties cannot agree on the amount, a copy of the guidance note on how to apply for a detailed assessment by the Supreme Court Costs Office is enclosed.

MALCOLM LEWIS
Inspector



The Telephone House Neighbours Press Release to the Appeal Decision:
Twice, over a two year period, very similar plans have been rejected by TWBC . . . . But the Government Inspector has allowed this high density development of 140 units per hectare exceeding all comparable developments in Tunbridge Wells.

Could the Inspector's decisions have been challenged ?
Public Inquiry May 2001: Telephone House, Tunbridge Wells

The Telephone House Neighbours Association, Tunbridge Wells
The aims are to heighten peoples' awareness and concern for the controversial planning permission of the high density development of Telephone House site, Church Road / York Road, Tunbridge Wells.