Agenda item

On 2^nd October 2023 councillors determined to refuse a planning application, against officer recommendation,as identified in this report.  As part of the recommendation, power was delegated to Head of Planning to sort out final wording. 

The Applicant has now appealed the planning application on the grounds of non-determination before the Local Planning Authority issued the decision notice. This report updates Members on the current position andseeks confirmation from councillors as to how they wish the Council to proceed in relation to the appeal.

NOTE: In relation to this item of business, the Committee may be asked to consider the following resolution in respect of any legal advice provided and discussed at the meeting:

‘That under Section 100(A)(4) of the Local Government Act 1972, the public be excluded from the meeting for the following item of business on the grounds that it involves the likely disclosure of exempt information as defined in Paragraph 5 in Part I of Schedule 12A of the Act and that the public interest in withholding the information outweighs such interest in disclosing the information.’

Paragraph 5 - Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

The Director of Planning and Destination introduced a report a copy of which had been circulated and which appears as Appendix C to the minutes in the Minute Book. An exempt supplement to the report was circulated in the Committee Addendum dated 17 January 2024.

The report provided an update to the Committee on the latest position in respect of an appeal against non determination of the planning application APP/22/01455/F for Land South of Gillett Road, Talbot Village, Poole. The Committee had decided to refuse the application against officer recommendation at its meeting on 2 October 2023 for the reasons set out in paragraph 2 of the report. The Director outlined the sequence of events following the October meeting up until the present time. The report set out the steps now required to prepare for the appeal and the associated timescales. The exempt supplement provided Counsel’s further advice on the Committee’s reasons for refusal, having now considered the views of external experts.

The Committee was asked to determine how it wished the Council to proceed in relation to the appeal. This included a number of options which were set out in paragraph 10 of the report as follows:

10.1 Members maintaining the position as currently appears i.e. that the appeal should be dismissed for the reasons as identified at the October 2023 Planning Committee meeting (albeit possibly with certain clarification relating to the reasons);

10.2 Members identifying different / reducing the number of reasons in respect of which it is considered the appeal should be dismissed; and

10.3 Members revising their position in opposing the application

Having discussed the Monitoring Officer’s advice on options for dealing with public and exempt information, there was a consensus from the Committee at this stage of the meeting to consider as much as possible in public session and avoid disclosing any exempt information.

The Chair invited ward and adjoining ward councillors to address the Committee – Cllrs Broadhead, Gillett, Rampton and Trent in person, Cllrs O Brown and Herrett by written statement. They raised a number of concerns around transparency, public perception and procedural matters, including criticism that a decision notice had not been issued despite due democratic process, that members were being directed to focus on the appeal and the threat of potential costs, that the advice of Counsel had only been issued yesterday, was not available to the public and did not include the reports of the external experts or their briefs. They also put forward a number of suggestions to strengthen or add to the grounds for refusal, including additional factors impacting adversely on the heath including a right of way (Footpath 33) and that the failure to review the Poole Local Plan by 2023 (as detailed in paragraphs 1.16 to 1.20 of the Plan) could add weight to the consideration of the emerging BCP Local Plan at the appeal.

The Chair considered an exchange of views from committee members on whether to permit a request to speak from a member of the public and upheld her previous decision to decline requests on this occasion.

The Committee discussed whether they could consider Options 10.1, 10.2 and 10.3 in public session. A move was put forward and seconded to exclude the press and public for part of the meeting to consider the advice from Counsel which was classed as exempt by virtue of it containing information in respect of which a claim to legal professional privilege could be maintained in legal proceedings. Some Members felt that this would enable more detailed reference to be made to the advice received. Others explained why they did not agree that this was necessary or in the public interest. The Monitoring Officer advised that the Council was now a position of litigation and having regard to legal, financial and reputational considerations, she was satisfied that the public interest in withholding the information outweighed such interest in disclosing the information.

The motion to exclude the press and public was not carried:

Voting: For – 4, Against – 7, Abstain – 1

Cllr B Dove and Cllr L Williams asked to be recorded as voting against the motion.

The Monitoring Officer clarified that the information in Counsel’s advice remained exempt from disclosure for the reasons specified. The Committee proceeded to debate the options available to them, with input from officers on a number of points raised.

There was consensus among members in recognising the professionalism of officers in the conduct of the site visit and presentation of the committee report and the role of members in decision making. Opinions differed on the merits of the decision and how to proceed in light of the information provided since that decision was made. Some members felt that the right decision had been made in the best interests of residents and as a reflection of the concerns raised and that this decision should be defended using the strongest possible terms to support the reasons already provided. Members also asked if any additional points could be considered, whether these be suggestions submitted by members before this meeting or those raised now. In respect of what Counsel looked at, it was confirmed that regard had been had to all information provided by members. Other members explained why they felt the application had been acceptable and not in conflict with the Local Plan. They expressed concern at the consequences of the decision made including the likely award of costs, the difficulties members had in formulating reasons at the time and the need for members to be accountable for their decisions if not accepting the advice of trained professionals.

In terms of the reasons for refusal the Committee was advised that the view of ecological experts was that there would not be an adverse impact on the heath. The Council’s Biodiversity Officer confirmed that the relevant conservation groups were content, based on the proposed future management plan for the site (it was noted that this did not equate to support for the development). There were concerns about the applicant’s ability to manage the Heathland Support Area (HSA) and that inaccurate/conflicting information had influenced responses to the application. The Committee was assured that all submissions had been assessed thoroughly by the Planning team and correct information provided to consultees and external advisors. Members were reminded that the HSA needed to be accessible to be effective and that the management plan was a proactive measure. It was confirmed that consultees were aware of the rights of way issue and that the linkage via the footpath had been recognised. In terms of ‘green infrastructure’ the Biodiversity Officer advised members on the gradual increase in footfall over decades. He confirmed that Natural England was well aware of site and that it was within their remit to address any management issues with the applicant. The Highways Manager explained the rationale for not sustaining an objection on the grounds of over provision of car parking. It was noted that the applicant could likely overcome this reason for refusal through negotiation.

The Director of Planning and Destination referred to the advice provided by Counsel at the November meeting and the further advice provided by Counsel now, having considered the comments of external experts. The development was in accordance with the Local Plan and the information provided was not able to support or strengthen the reasons for refusal These reasons would have to stand up to scrutiny at appeal. The risk of costs against the Council was indeed a material consideration and the Director explained the reasons why costs were awarded and that this could even be at the statement of case stage if the case was deemed unreasonable. While respecting the Committee’s role, the position was now such that officers did not feel able to defend the case at appeal.

During the discussion a move had been put forward and seconded to support Option 10.1. Some members felt that no new material information had been provided to change their decision and that officers could have intervened further at the time. Members had also indicated a willingness since the October meeting to strengthen their reasons. When the position of not defending the appeal was queried it was explained that officers were required to maintain their professional stance and respond according to their professional opinion when questioned at appeal. As there may be no other professionals able to support the case, it would be helpful to identify any committee members willing to attend, to evidence their reasons and respond to questions. Following clarification of what this involved, Cllr K Salmon indicated that she would attend the appeal.

A proposed amendment to the move was put forward and seconded, to add an additional reason for refusal, in that the development was contrary to Policy PP21 2 b of the Poole Local Plan in that the development of a private hospital would not help to support the role and function of the universities. Members were referred to paragraph 7.39 of the Plan which cited a private hospital as an example of a health care facility as one of the mix of uses on site.

The amendment was carried and was therefore included in the substantive motion.

Voting: For – 4, Against – 3, Abstain – 4

Note: Cllr M Tarling did not take part in the vote on this amendment.

Resolved that having considered the options available in relation to the appeal for non-determination, the Committee supports the option set out at 10.1 of the report, to maintain the position as currently appears, i.e. that the appeal should be dismissed for the reasons as identified at the 2 October 2023 Planning Committee meeting, subject to the inclusion of the following additional reason for refusal: 

·     Contrary to Policy PP21 2) (b) of the Poole Local Plan, which states that ‘Growth at Talbot Village will be carefully developed to deliver an innovation quarter (TV2), on land at and around Highmoor Farm, comprising up to 25,000 sq. m gross floor space to help support the role and function of the universities and comprising a mix of B1 uses, health care facilities and other university-related uses’ 

The Committee does not consider that the development of a private hospital will help to support the role and function of the universities. 

Voting: For – 6, Against – 5, Abstain – 0

Note: Cllr M Tarling did not take part in the vote on this resolution.

Note: Cllr M Gillett did not take part in this agenda item as a committee member and therefore did not vote on any of the above resolutions.