Richard Phillips QC representing CREST NICHOLSON PLC and BRITISH TELECOM'S SOUTHGATE DEVELOPMENTS LTD

01.05.-04.05.2001 - Public Inquiry - Telephone House, Church Road / York Road, Tunbridge Wells



APPELLANTS' CLOSING SUBMISSIONS, Friday 4 May 2001


RICHARD PHILLIPS Q.C.
- Public Law, Planning & Environment Chambers
Chambers of Gerald Ryan Q.C.

2 Harcourt Buildings
Temple, London, EC4Y 9DB



APPROACH

  1. Planning permission { P.p. } should be granted unless it would cause harm - PPG1 #36. Even when conflict with Dev. Plan alleged, whether or not it would cause harm is the key consideration #40

  2. The existence of Telephone House and its permitted office use must be taken fully into account. The appeal proposal cannot be considered in a vacuum. Telephone House { TH } forms part of the existing character of the Conservation Area { CA } - it is fully described in Conservation Area Appraisal. Committeee Report W12 makes plain that essential to have regard to TH + its use in considering merits of the proposal. R.C. { Ruth Chambers } agreed unreasonable to disregard Cllr. Price however did ignore it - said it wasn't a planning consideration The members decision was based on a fundamentally flawed approach - Telephone House Neighbours Association { THNA }confirms that this had been the members approach.

  3. Further the 1982 p.p. of TH's extension must be taken into account.
    See SPACKMAN - it is a "vitally material consideration" RC agreed the permission had been implemented by the digging of the trench. TWBC accepted as recently as 1995 that it was still valid (7-8 years after the trench was dug) as shown by the S106 requiring its revocation (which never happened since the S106 did not take effect). The fact that at some time it was filled in is immaterial.
    See HIGH PEAKS - extreme case where trench barkfilled as soon as it had been dug. There the question was had a trench been constructed? It was held yes, Here a trench unquestionably did exist - whether for 7-8 weeks or 7-8 years is immaterial.
    The p.p. was therefore implemented and consequently remains valid unless its impossible to continue the devt. The filling in of the trench has not made it impossible to continue to implement - unlike a situation where a dual carriageway road has been built over the site of approved development.

  4. Thus in assessing merits of proposals vitally important to take full account of existing building, its use and the permitted extension. Good evidence given that if was this appeal fails the Bldg will remain + be used either as offices or converted to flats + that very careful consideration to be given to carrying out the extension.

  5. Both s. 66 + 72 of LB Act require consideration of whether the devt. Would preserve the Character or app of CA or setting of LBs. Preserve means avoiding harm (4.20 PPG 15). There is no requirement to enhance or make a positive contribution to CA / LBs setting. Given that TH forms part of setting of numerous LBs and has powerful effect on Ch + app of sizeable part of CA, it would be enough to the appeal proposals to cause no more harm than TH and its permitted / likely future use. Again comparison with TH is inescapable and a fundamental exercise in carrying out duly under SS 66 + 72.

  6. Of course if - far from causing no greater harm than TH - the proposals represent a significant enhancement compared with TH. There is every good reason to grant pp. What possible logic is then refusing ? There is no reliable evidence that dismissing appeal is likely to lead to a more acceptable scheme. To contrary, firm evidence that dismissal would be likely to lead to TH's retention. In any event J. Thomas' firm evidence in answer to A. Topliss was that he doubted a better design solution could be found.

  7. The site is a highly sustainable location. TWBC is over 1200 dwellings deficient and the town is encircled by GB/AONB - exactly circ. Where Govt's insistence on maximising the number of dwelling should apply with full vigour. There is surely a presumption in favour of using the site to the fullest extent consistent with its environmental capacity.


DEVELOPMENT PLAN

  1. Starting point - # 54 PPG1. But only that height to be attached to provisions of plan on one hand and, on the other hand to OMCS entirely matter of discretion for decision maker.

  2. No site specific policy. General criteria based policies deal with CA/LB issues, but really raise no considerations which wouldn't ordinarily be considered in the absence of those policies if take view that proposals cause no harm to CA/LB and indeed enhance CA/LBs then it follows there will be no conflict with these policies. Indeed full accord with EN1, 3, 5 + 6 of Local Plan.

  3. Both SP + LP adopted before PPG3 and therefore Govt's insistence on higher densities, sequential approach , sustainability etc. This site is at 1st tier of sequence and pres. in favour of its development ahead of any GF { Green Field } release. The LP Review document of Oct '98 contains a suggested policy to encourage higher density - However even the existing Dev Plan contains policies to encourage full and effective use of opportunity sites in built up areas of the larger urban area. Thus in SP of 1996 see esp. Policy S1, p.22 #3.22 and policy 6(a). In the LP p.7 #23 comment full + effective use of land built up area and p.19 #4.3. explains the strategy of minimising GF release and concentrating devt. On larger settlements. On p. 72 it explains the heavy reliance placed on unidentified sites.

  4. The more intense the devt. on the appeal site is the more it will comply with the policy and strategy of the Development Plan and - given the undoubted sustainable location of the site - the devt. should occur at the highest density compatible with its environments' capacity. It should be a point of commendation that 140 DPH has been achieved rather than a criticism. This is of course high - but it certainly does not breach any Govt. guidance, has been demonstrated not to exceed the site's environmental capacity and is significantly lower than the existing density of York Road.


THE DECISION

  1. Not only was the decision fundamentally framed by Members insistence that they should disregard the existence of TH and its likely future use, but they compounded this error by concluding that the density exceeded Govt. recommendations (Cllr Price's written statement) when it does no such thing. Further the decision to refer has, according to Cllr. Price, influenced so fat as the majority of Members were concerned by facts such as residential amenity, overshadowing, access, loss of trees.
    However, density and these other factors are not relied on in the reasons for refusal, no doubt as a result of Mr Eveleigh's urging that they could not be substantiated. Given these circumstances little weight should be attached to the 2 reasons for refusal - the real reasons which led to refusal herewith relied on and instead Members were to rely on the more subjective issues of CA and LBs which, perhaps they reasoned, would be more easy for them to defend on any appeal.

  2. However, the 2 reasons on CA/LB issues were directly contrary to firm advice given by the officers after the lengthy and thorough process of discussion prior to the application and thereafter revision and further revision to arrive at a scheme which received the officers' unequivocal support. Councils are urged to employ specialist staff to give them specialist advice on design issues affecting LB/CA yet TWBC chose to brush this advice aside for no good reason.
    The officers' advice and recommendation is deserving a considerable weight. It represents the corporate view of the entire planning department, a full team of officers had been involved in the assessment and the collaborative exercise with the Applicants had closely followed the advice in PPGs 1 + 15, By Design and Kent Design.

  3. Members are of course able to reach a different view - they after all are the decision makers. However, if they choose to disagree with officers they must have good planning reasons. Which are capable of substantiated. No substantiation of the 2 reasons has been performed. Bizarrely the Council chose to call as its sole witnesses the area planning officers (RC) and the conservation officers (PA) both of whom had been engaged in the application process and were fully supportive of the scheme. Despite his several criticisms - mainly not previously raised - P. C. still did not conclude that his criticism should result in rejection of the appeal.


IMPACT ON CHARACTER + APPEARANCE OF CONSERVATION AREA

  1. Despite the planning history of the site with the Council knowing of the owners desire to redev. The site which all agree is an important opportunity site in the CA, it is strange that no Dev. Brief was published by the Council as PPG 15 and the EH Guidance recommends. That is all the more strange when we know Alan Legg, the Conservation Strategy Officer, superior to Mr Ashby had actually prepared such a document and discussed it in detail with SPA. One can only speculate why it was suppressed - were Members afraid that to publish such a document would limit their ability to reject proposals on any ground of their choosing. However, it is very significant that AL's draft as explained on the telephone was closely following in the preparation of the Feasibility Study and was the foundation for option 4 which was the preferred design solution by both the Applicants and the officers team. PA accepted that the appeal scheme accorded with all the parameters contained in the draft Dev. Brief.

  2. In the absence of any S.71 statement the only other guidance available to inform the design process is the CA Appraisal Document approved after the Council's refusal of p.p. # 9.1.12 p. 54 refers to the "tight townscape" being the town's "binding characteristic". In the Town Centre best subarea # 9.3.1 p. 58 describes Church Rd as the major street in the area and 9.3.8 p.59 draws attention to the importance of trees in this street. It does not pull any punches in its description of TH in that para. York Rd is described in 9.3.6. - 9.3.7 and the key characteristics is said to be the continuity of building line with the rear of TH clearly regarded as an unfortunate gap in that line. The summary of elements contributing to the CA's character in section 9.7 p. 69 refers again in 9.7.1 to continuous devt. frontage, in 9.7.3 to the unified architectural character of the frontage in York Rd - classical terraces and balconies, in 9.7.10 to the importance of views including those from Mt. Ephraim over roofscape and in 9.7.14 to the importance of trees in Church Rd and the importance of reintroducing further trees into that street. The visual analysis Map S13 does not identify the line of this in York Rd as being important, in context to those in Church Rd.

  3. There's nothing in the CA document with which the app proposals conflict. A. Legg was its author and his guidance has been closely followed. There is much about the proposals which accord with the CA document - the bulk of the built from fronting onto the major street in this subarea, respecting the building line in both streets, reinstating the tight grain of York Rd, vastly improving the views over roofscape from Mt. Ephraim and reintroducing trees into York Rd. [ during the reading corrected to: Church Road ]

  4. Other design guidance can be gleaned from the planning history, including the Council's repeated reluctance to allow demolition of the frontage properties in York Rd. to avoid an unsightly gap, the refusal of the residents' request to protect the line of trees and the decision to exclude them from the T.P.O of 21.2.01. In the light of PPG 15 4.40, as PA accepted, this demonstrated that the Council could not regard these trees as important to the CA in visual, historic or amenity terms. In contrast to the previous proposal Members deliberately chose not to include loss of trees as a reason for refusal demonstrating that they accepted officers' advice that more important than their retention was the reinstatement of the building line tight against back of pavement. The trees were only planted as stop gap temporary measure, are not a characteristic of this part of the town's tight urban grain, are not appropriate species and can in any event be replaced by more appropriate species as shown in the illustration landscape drawing.

  5. All agree the TH is a monstrous intrusion - an eyesore blighting the CA - and its removal is greatly to be welcomed. Whatever ones views about the appeal scheme, it is surely a very significant improvement over what exists and it would represent a considerable enhancement to the CA. Speculation about a smaller number of units in a reved. Scheme is surely beside the point: the appeal concerns the suitability of THIS scheme and what has to be asked is whether it preserves OR enhances the CL/app of the CA. It does not have to enhance. It is enough if it has a neutral effect on the CA. Given that any proper assessment of the scheme's 'merits has to include a comparison with the existing TH the only sensible conclusion is that it would, far from causing any harm, represent a very significant enhancement to the CA.

  6. As far as Church Rd is concerned, the bulk and scale of Block A is appropriate to the width of this major thoroughfare and the scale of these buildings in the area. It respect the building line, represents a good fit with the original relationship between 16-22 and the former buildings on the appeal site and, as PA expressly agreed in XX in respect of MVP 4.5.6 + 10, would be seen in the street as 2 distinct blocks. The reintroduction of trees is to be welcomed. The contemporary design has always been encourage by the Council. PA expressly endorsed its massing and form on 2/8/00 (item 25A in TS Appx A). Dr. Whitbourn of Civic Society at the same meeting accepted the massing generally. Significantly the CS do not object to the appeal proposal - significant because the Society represent the opinion of the town as a whole (not just the sectional interests of the residents of one street) and significant because of the eminence and experience of Dr. Whitbourn who to took a close interest in the evolution of the scheme (and who has attended many of the sessions of this inquiry).

  7. In York Rd, Blocks B + D are welcomed by the Civic Society, not objected to by English Heritage and have attracted only fairly minor criticisms from PA. The density of the scheme is substantially below that of York Rd which is in excess of 200 DPH and it is so obviously right that buildings should reoccupy the "missing teeth" in what was previously a continuous street wall. It has been suggested that the inclusion of affordable homes has led to such a high density. That is wrong.
    - First, it is an excellent site for affordable housing (whatever may be the unspoken prejudices about such accommodation) given the proximity to services and facilities in the town centre and wholly understandable the Council has throughout required that its normal policy on affordable homes should be adhered to.
    - Second, there is nothing to indicate that without such accommodation the number of units could fall: on a site such as this the number of units must be maximised.
    - Third, the inclusion of affordable homes has not led to any design compromises and of course quality of design and respect for its setting is no less important for that type of accom. As it is for open market dwellings.

  8. PA's position has been invidious. He was perhaps the lead officer in the lengthy collaborative process with the applicants and involved right from the onset. He attended 6 of the 10 meetings (see schedule in TS p. 17-18) and his views and recommendations were not only carefully minuted but, in nearly every respect, acted upon and incorporated in the design . The process that took place is surely to be commended and accords with guidance designed to achieve best practice. Its objective is to avoid surprise objections to design being raised after an application has been determined. The Applicants team and TS in particular were in no doubt hat PA was fully behind the scheme. He was at on e stage critisised by the Civic Soc. for the level of support he gave to the scheme - There is no letter or reference in any minute raising any major criticism. He knew that his views were taken into account in the officer's report and there is no hint that the Conservation officer was hostile to the scheme. We have not been shown any internal notes he may have written. Despite all this PA is called as the Council's sole witness on design issues. The contents of his proof were utterly surprising to the Appellants - hence TS's rebuttal which in the event was not challenged in XX in any respect. It seemed either the Appellant had grossly misunderstood PA's position or PA had woefully failed to communicate his views to us or that PA had changed his professional opinion. Whatever the answer it seemingly made a nonsense of the collaborative process. In the event PA confirmed he hadn't changes his opinion and it emerged that he was and remains of the view that none of his criticisms - individually or collectively - require rejection of the proposal but were more in the nature of suggestions for further revisions if considered feasible and to be effected perhaps by condition. There can be no criticism of TS's minutes which recorded all points significant to the design evolution, which were always sent to the Council and in a long series of meeting it was never suggested that they misrepresented the Council's position (notwithstanding that the council had prepared its won notes, which have never been revealed)

  9. In addition to the compelling evidence of TS, J. Thomas has given his imprimatur to the scheme. Considerable weight should be accorded to JT's opinion in view of wealth of experience and specialist knowledge that he has been able to bring to this matter, significantly not contracted by Dr. Whitbourn - another architectural heavyweight - who could have been deployed against the scheme by the Civic Soc. had they entertained any major objection. Against these two worthies and whatever boxing class Mr. Ashby falls within, the criticisms of the Council on design matters are lightweight and unconvincing: either totally irreconcilable with PA's documented views, or points that were discussed, resolved and never returned to in the design evolution or wholly new points never raised in 9 months of dialogue.

  10. The scheme accords with the original design brief prepared by Mr. Legg, accord with the CA Appraisal document, is the product of a commendable collaborative process with officers of all relevant disciplines, was unequivocally recommended for approval by those officers, has not attracted objection from the Civic Society and about which the Council's sole design witness does not even suggest should be rejected the only sensible conclusion is that the scheme would represent a significant enhancement to the CA and should be approved. The beneficial effect on the town's skyline is esp. to be welcomed: views from Mt. Ephraim would be very considerably improved.


EFFECT ON SETTING OF LISTED BUILDINGS

  1. Highly significant that, although there is a pair of LBs in York Rd directly opposite appeal site, no objection is raised by TWBC in contrast to their decision on the previous scheme. Since the setting of those LBs is so obviously influenced by the CL + app of the street as part of the wider CA it is strange that objection has been raise in connection with the Conservation Area relating to York Rd.

  2. The setting of the LBs in both Church Rd and York Rd. is grossly harmed by TH. PA had no hesitation in agreeing that its replacement with the appeal scheme would represent a considerable improvement to the setting of the Grade I Listed Church (surely one of the most important buildings in the town). Cllr Wakefield speaking for the Arts Centre accepted this too.

  3. 16-22 Church Rd would not be screened in any way by Block A. MVP10 - the most acute angle - shows clearly that it would be seen forward of Block A in the street scene. J. Thomas was adamant that setting Block A further back would serve no purpose - indeed it would expose a flank frontage which from the original close spacing between these villas was clearly not meant to be revealed. The stepping up in scale and structure as one proceeds E. along Church Rd accord with the original townscape (item 24A in TS A.) and the broadening of the road. The 4th floor parapet of Block A closely accords with the eaves of the Norfolk Hotel and the penthouse is set back largely concealed from close views in the street. JT views Hanover Place as being too diminutive and "dolls housey", clearly nothing like the substantial with villa illustrated in item 24A with 3 1/2 traditional storeys equating to 4 storeys in todays terms.

  4. The fine parade of LBs opposite on the south side of Church Rd will have their outlook improved substantially by the removal of TH.The street generally will gain from the significant reduction on height of TH, the breaking down of an ugly monolithic structure into 2 distinct blocks to resemble a pair of villas and the reintroduction of significant trees.

  5. The setting of LBs all around this site will be very considerably improved.


OTHER ISSUES

  1. Trees - Already dealt with

  2. Res Amenity

    - No objection from TWBC Contrast with previous decision

    - All relevant relationships between now + existing dwellings carefully addressed in evolution of the scheme. In particular the Council is satisfied with the juxtaposition between Block C and Clarence Mews, Block C and No 27 York Rd and between Blocks D (rear) and C ( east elevation)

    - Sunlight / daylight has been addressed by acknowledged experts in that subject and no objection is raised by the Council. Crest offer of compensation to a householder in York Rd related to the previous scheme and has not been repeated in the appeal scheme because no rights are infringed. Whilst clearly properties on the N. side of the road will experience change that is only because of a break in the continuity of frontage caused by BT's delay in further implementing the 1982 pp. The degree of change that will be experienced is not such, the Council rightly concluded, as to represent a natural loss of amenity. Those properties would still - for a tightly grained town centre site - enjoy a good degree of daylight / sunlight.

    - The on-look for residents over the site is very unattractive - the eyesore building and when in use, accompanied by a mass of cars parked in front. The unattractive temporarily shored up flank wall of No. 27 hardly enriches the scene.
    Clarence Mews is dominated, overlooked and overshadowed by T. H. The building of the extension would increase still further the detrimental amenity impact on neighbouring properties.

    - Not been dismissive of local residents. Public presentation taken place. + NB: LPA represents views of local community

  3. Traffic + Parking

    - Despite residents objections, there surely can be no doubt that the bulk of car parking should be accessed from York Rd and not the primary through-traffic route of Church Rd.

    - The proposed parking provision accords with the Council's parking standards. The 46 spaces are sufficient given that this is a town centre site an PPGs 3 + 13 promote in such situations limited or even no parking provision. Parking problems in the street are the result of so few properties having off-street parking provision - the appeal proposal by contrast, would have sufficient off-street provision and would not exacerbate problems in the road.

    - Additional traffic in the street is not welcomed by residents. But is would represent only a very small % increase over existing levels and in any event pales into insignificance when compared with the hugely greater volume of traffic that would be attracted if the offices are reoccupied. A conversion of TH to 35 flats plus additional units on the York Rd frontage would produce at least as many if not more dwellings with a traffic generation comparable to or exceeding that predicted by C.P for the app proposal. If residents are concerned about traffic in their street they should be enthusiastic supporters of the appeal scheme.

  4. Demolition / Construction Traffic

    - This is a matter regulated under other legislation, including the Health + Safety legislation, Env. Protection Act. In view of the principle of non-duplication, this is perhaps a matter that planning control need not involve itself with at all or at any rate not in any prescriptive and inflexible manner.

    - The total prohibition on use of York Rd is not justified. Yes all demolition material can + should be removed by Church Rd but there is no good reason why employees vehicles and some construction traffic should not use York Rd. The prohibition would be costly and increase the construction period by 6 months - hardly in the best interest of residents.

    - The suggested revision to C. 17 is surely to be preferred. The Council still retain absolute control but a welcome measure of flexibility is introduced.


RS - Ruth Chambers, case officer
PA - Peter Ashby, Conservation architect
AL - Alan Legg, Conservation Strategy Officer
TS - Trevor Sutters, Architects
CP - Clive Pattmore, Traffic expert
JT - J. Thomas, Rothermel Thomas Chartered Architects


TH - Telephone House
BT - British Telecom
LB - Listed Buildings
CA - Conservation Area
CS - Civic Society
LPA - Local Planning Authority
TWBC - Tunbridge Wells Borough Council
C 17 - Condition 17 of the case officer's report to WAPC, Western Area Planning Committee (traffic regulation during demolition/construction period)
PPG - Planning Policy Guidance
pp - planning permission
app - appeal





This document SUGGESTED CONDITION 17 was filed at the Western Area Planning Committee Meeting 18 October 2000 and
at the Public Inquiry, May 2001 (Core Document, Statement of Common Ground)

Barton Willmore (agent for Crest Nicholson)
APPLICATION REFERENCE TW/00/01474/A3 - CHURCH ROAD,TUNBRIDGE WELLS
Suggested Condition 17


(17) Before any operations commence on site (including any works of demolition) a Scheme of Works shall be submitted to and approved by the local planning authority. The Scheme of Works shall comprise a method statement detailing how it is proposed that construction shall be managed on site with particular regard to safeguarding the amenities of nearby residents during the construction phase. The Scheme of Works shall show:

All operations carried out on site shall be conducted in strict accordance with the Scheme of Works as submitted and approved, subject to any revisions, which may be agreed between the parties from time to time.

PAUL McCREERY
9896/A3/PMC/JC
17 October 2000



July 2001 - Could the Inspector's Decisions have been challenged ?
THNA brought forward a request to Tunbridge Wells Borough Council to appeal against the Inspector's Decisions for Telephone House, prior to 14 August 2001.