Ashford Borough Council has lodged a s.288 legal challenge over a planning inspector's decision to allow an appeal of the local authority's refusal of planning permission for a 141-dwelling project.
The developer's appeal was successful after the planning inspector said he was not convinced the local authority could meet its proposed five-year housing land supply (HLS).
However, the local authority said the inspector wrongly omitted sites that contributed to its HLS.
Wates Developments Limited applied for planning permission in May 2021 for the 141-dwelling project. Its plan involved building the homes, half of which were affordable, on undeveloped rural land on the eastern edge of the town of Tenterden.
However, the local authority refused its application citing a number of conflicts with the Ashford Local Plan 2030.
Its refusal stated that the development would undermine the council's spatial strategy adopted in its Local Plan, would hurt the rural character of the land, endanger established trees, and result in loss and harm to biodiversity interests on the site.
The council also refused the application over a lack of evidence of flood risk reduction and concerns over the ability of infrastructure to support an influx of residents.
The developer then appealed to the Planning Inspectorate, calling into question the inclusion of sites at Stodmarsh Lakes in Canterbury in the council's five-year Housing Land Supply (HLS).
The developer contended that the sites may be undeliverable or delayed due to concerns identified by Natural England over achieving nutrient neutrality in respect of both phosphorus and nitrogen.
The developer argued that the council has a HLS position of either 2.75 years or 3.57 years under two scenarios put forward in which it envisaged the sites being either undeliverable or delayed as a result of the nutrient problem.
In a decision dated 30 March 2022, the planning inspector, Martin Whitehead, said he was "not convinced that the evidence presented by the Council is sufficient to clearly demonstrate that all the sites that would be likely to be delayed due to the Stodmarsh nutrients issue would be able to deliver the contributions that it has included within the five-year period".
The local authority then brought a s.288 legal challenge, otherwise known as a statutory planning review, arguing the inspector had:
- Wrongly omitted all contributions to the council's five year housing land supply from sites affected by Stodmarsh, "despite the council presenting the Inspector with evidence on progress made towards a mitigation strategy";
- Wrongly omitted from the council's five year housing land supply 150 houses on a Tenterden site, "despite evidence being presented to the Inspector which confirmed that there was no legal impediment to the site progressing"; and
- Wrongly assessed the contribution the appeal site "could/would" make to the five year housing land supply, "despite evidence being presented to the Inspector which detailed delays to implementation of the site; such as the sale of the school land and mechanisms in the legal agreement between the Council and the developer for the appeal site, which delays housing being built on the site for several years".
Cllr Neil Bell, the Portfolio Holder for Planning, said: "The Council opposed the appeal and was very disappointed by the inspector's decision to allow the development to go ahead.
"We continue to feel strongly that this is not a good development for Tenterden, adversely impacting the landscape and character of this part of the town and as such felt we needed to lodge this legal challenge to overturn the appeal decision."
He added: "Whilst the Inspector himself agreed that the scheme would be contrary to parts of the Local Plan, which was adopted as recently as 2019, it seems as though in arriving at his decision to grant permission he has placed significant weight on the wider housing land supply position in the borough, which as we know, has been affected by the situation at Stodmarsh Lakes in Canterbury and the resultant constraints on the Council being able to grant permissions for new housing development in the eastern half of the borough for the last 18 months.
"Consequently, the Council will be writing to Ministers to seek their support for both a solution to the Stodmarsh issue and an explicit recognition that it should not be used as a reason to allow housing developments that are not sustainable or compliant with the Local Plan to be permitted on appeal. In the meantime, we shall continue to resist fundamentally unacceptable schemes and defend them robustly should appeals be lodged."
The Planning Inspectorate declined to comment.