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Appeal regarding the Proposal for Drive Through restaurant at Corner of The Grove and Barrack Road – Ref: APP/V1260/W/23/3333238
On Tuesday 14th May 2024 a Government Inspector heard the appeal brought by Fortitudo Limited for this planning application. The Appeal was granted. For information costs have now been awarded against the Council. You can find the Decision Notice HERE and the Costs Notice HERE.
Margaret attended the appeal hearing and spoke against the proposal. Many residents also attended and spoke eloquently to the Inspector in opposition. Fortitudo had employed a Barrister and a team of other experts to represent them. BCP had four officers in attendance to oppose the application. We would say that those of us who attended did not feel that BCP was well prepared for what faced them. Because of that Margaret wrote to the Director of Planning making certain points and asked for her response which we could share with residents. Apologies for the length of this but there has been so much interest from residents we thought you should have all of the information.
This is a summary of Margaret’s comments to the Director of Planning:
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The officers appeared to be somewhat unprepared and one of them commenced by saying that she was new to the case and was not familiar with it. This was a negative start.
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I appreciate that BCP was faced with a barrister and his team employed by Fortitudo. But – we had no legal representation at all, why was that? Surely the planning solicitor could at least have attended.
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I think this is disappointing, especially because Fortitudo introduced late evidence and our officers had not really had a chance to look at it properly. Surely there was an opportunity here for our legal department it intervene and ask for the appeal to be deferred, or at least complain about the lateness of the extra evidence. But BCP did nothing and didn’t even offer any comments on that as far as I can tell.
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This was a very controversial application with a lot of public interest and strong public opposition. The whole saga has been dealt with poorly by BCP in my opinion.
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First BCP did not determine the application in time – why? I realise that we would have refused it, but to not determine it is just poor management.
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Then, at the appeal our stance was very weak, and basically BCP officers whilst doing their very best, were eclipsed by the Fortitudo team. I am not personally criticising officers who made a good effort, but it was absolutely clear from anyone who witnessed this appeal hearing, that they were out of their depth.
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BCP pretty much had no chance of winning this appeal from the start and I and very many of my residents feel let down by BCP planning department.
This is the reply from The Director of Planning:
Dear Cllr Phipps,
Thanks for sharing your, and your constituents, concerns about the recently allowed appeal (8/23/0294/OUT) for drive-thru restaurant, selling food and drink for consumption on and off the premises (sui generis) at Advertising Corner, The Grove and Barrack Road, Christchurch BH23 2EX. I will endeavour to consider the concerns in turn:
Non-determination appeal
This application (8/23/0294/OUT) followed a previous application for two drive throughs (8/23/0074/OUT) which was submitted in February 2023 but later withdrawn.
This outline application (8/23/0294/OUT) was validated in May 2023. The Council then worked proactively with the applicant with activity taking place every month including in October 2023 when additional information, including the flooding sequential test, were uploaded to website and further consultation was undertaken through to early November. The decision by the applicant to appeal on the basis of non-determination was therefore unexpected.
The appeal
The initial procedure for the appeal was by Written Representations and the case officer wrote the Council’s statement of case before leaving BCP.
However, following her submission, which included several technical reasons for refusal, the Planning Inspectorate (PINS) changed the procedures from Written Representations to a Hearing. This is unusual but not a reason for challenge in itself. With the case officer having left, an officer had to be identified for the Hearing and kindly an officer volunteered. She read the Council’s statement of case and agreed with the recommendation.
The hearing
Unlike a public inquiry, there is no expectation that there will be legal representation at an Informal Hearing and the procedure guidance from the Planning Inspectorate only advises for Inquiries that “Parties may be formally represented by advocates”.
In terms of this appeal, officers were only advised by the appellant on the day before the Hearing that the appellant was instructing a barrister. Therefore the Council did not have time to consider this and even if we had requested our solicitor to be present, they would not have had enough time to read through all documents and support our case.
In respect to the Council’s Statement of Case, as highlighted above, was primarily based on it being for the Written Representations procedure. Therefore, whilst it had several technical reasons for refusal, but they were not all elaborated / explained in detail. Our Officers attempted to address aspects of this, but it was difficult to argue during the Hearing as the appellant’s barrister would then object to that on ‘new evidence’ grounds. An example was the Flood Risk Assessment. When the Council raised the response it had received from the EA in April 2024, the appellant objected when officers presented that to the inspector.
The new evidence issue is a nuanced one. Although there is no general rule that a party to an appeal may not introduce further material at the appeal, this should not be new evidence. This is because there is a distinction between bringing (new) evidence of relevant matters which had not been considered by the inspector and bringing additional evidence of matters which had been considered by the inspector.
Concerns were expressed to the inspector that the indicative landscape plan that was submitted on the day before the hearing did not match the outline layout plan and this should not be considered. However, the inspector ignored officer concerns. Similarly, when our Officer recommended that a S106 agreement should be used to secure highways works, the inspector overruled officers but this was not surprising because, as part of the council’s statement of case, we had sought the works under a condition.
It is for planning inspectors to make findings of fact and exercise planning judgment
In regard to the removal of the delivery and servicing refusal reason, this was addressed by the use of a condition, with the wording subsequentially amended by the Inspector at the Hearing. The walking and cycling issue was also addressed via a condition to secure the physical infrastructure proposed by the appellant eg. changes to Jumpers Roundabout, bus stop, controlled crossings etc. It was also more broadly covered in the site context as part of the statement of common ground recognising the site is located on a prime transport corridor.
Conclusion
We note that whilst the decision was issued in less than a week (20/05/24) from the Hearing date (14/05/24), the cost award was not issued at that time. This does add weight to the presumption that it was substantially written up before the Hearing, however, this is not a reason for challenging the decision. Officers do not consider that a legal challenge of the Planning Inspector’s decision will be successful, and no action has been initiated. This view from the Council does not preclude Interested Parties from pursuing a challenge if they consider the points raised were not sufficiently addressed in the Inspector’s decision notice
In respect to the next steps, the application was for outline planning permission with access and layout applied for in full and all other matters reserved. This means that there will be some opportunities but not the principle of the development or those components for which full permission had been sought.
Regards
Wendy Lane
Director of Planning & Transport
Planning in General
We continue to be increasingly concerned at the standard of decision making which, from what we are seeing recently with some decisions, appears to take little or no account of statutory consultee Parish or Town Council representations, nor the opinions of residents. We will be looking very closely at new applications and in future if we have concerns, we will be calling them to committee.
Queensmead - Update
With regard to the future of the Queensmead site, it is subject to a detailed feasibility study which is being commissioned, and is expected to report back to BCP Childrens Services at the beginning of August. So we should know whether the site is suitable for children with Special Educational Needs and Disabilities (SEND) use at that time. No other options are being pursued for the site whilst the SEND feasibility work is taking place. We will continue to liaise with residents when we know more.
Cllr. Margaret Phipps – margaret.phipps@bcpcouncil.gov.uk
- Tel: 01202 478266
Cllr. Vanessa Ricketts – vanessa.ricketts@bcpcouncil.gov.uk
– Tel: 07760 391467
As always, feel free to contact us on any issue
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