Loaded dice - planning tales from Carmarthenshire

Back in December (previous post here) the people of Penybanc near Ammanford breathed a sigh of relief when the county council's planning committee went against officers' recommendations and rejected plans to increase the number of houses to be built on the Tirychen Farm site from 141 to 336.

The decision attracted an unusual degree of media attention, and there was near universal opposition to the proposal from Swallow Property Developments Ltd, a company domiciled in the tax haven of Guernsey.

As so often with Carmarthenshire County Council, the celebrations were short-lived. Cneifiwr noted at the time that one of the only other comparable examples of a revolt by planning committee members had occurred over a plan to build executive-style houses in Waungilwen near Drefach Felindre. The Waungilwen refusal was subsequently overturned in very peculiar circumstances, and history is now being repeated at Penybanc.

There were a number of material reasons for rejecting the Penybanc expansion, including the developer's intention to build on land which falls outside the boundaries of the council's new Local Development Plan, but one of the primary objections was the impact the huge development would have on the linguistic make-up of the area.

The relevant planning guidance is contained in Technical Advice Note 20, or TAN20 for short. TAN20 is one of those impressive sounding government policy documents which turns out to be about as much use as a chocolate teapot.

The policy defines a linguistically sensitive area as one in which more than 25% of the population speaks Welsh, and developments are supposed to be accompanied by language impact assessments. In theory TAN20 would cover pretty much the whole of Carmarthenshire, but in practice TAN20 is rarely brought into play, and when it is developers and planning officers often manage to turn reason on its head.

In the case of a 400-home development at Ffos-Las and a 300-home development at Saron, assessments were produced which concluded that the new housing estates would have a positive impact on the language.

The methodology used to draw up assessments was developed for Wales as a whole and is deeply flawed. Assessments are based on a list of 18 questions, with simple one-word answers (positive, neutral, negative).  Quite a few of the questions are vague or ambiguous, and others are simply irrelevant to the planning process.

Where assessments have been produced which conclude that a development would have a negative impact on the surrounding area, the council's planning officers often rubbish them (as was the case in Penybanc) before proposing "mitigation" measures.

The usual mitigation measures are phasing, which involves building a development over a period of years in the mistaken belief that, say, 400 houses built over a period of 5 years will have less of an impact than 400 houses built in one go. In reality, of course, this is what developers would do of their own accord anyway, as they have no desire to flood the local market.

The other standard mitigation measure is to put up bilingual signage in a new development, something which will have next to effect at all.

In its Local Development Plan, Carmarthenshire goes on to say that it will undertake other unspecified measures to safeguard the language in such situations. Bearing in mind that the council has been making deep cuts to its meagre financial support to organisations such as the Mentrau Iaith, that commitment is not worth the paper it is written on.

But back to Penybanc and Waungilwen.

When the Penybanc application was refused, the officers were instructed to present the reasons for refusal for endorsement at the next planning committee meeting a month later. However, two meetings went by before the officers came back bearing "new information" from the developer. The head of planning told the committee members that they could no longer endorse the refusal, but would instead have to consider the new information.

The new information in this case was that the developer had decided to withdraw plans to build on land outside the LDP boundary, and as a result  development would be scaled back from 339 houses to 289.

Because the refusal had not been endorsed, the developer was able to change the application and keep it live rather than begin again from scratch. The committee therefore decided that it would reconsider the application at a later date.

As is invariably the case with decisions that go against officers' recommendations, councillors were told that there could be dire consequences in the form of a planning appeal, with the potential for costs to be awarded against the council.

To reduce the likelihood of a planning appeal which could go against the council, planning officers invite developers for discussions after a rejection, and that appears to have happened in the case of Penybanc. The head of planning told councillors that the developer had taken legal advice (well, they would, wouldn't they) before coming up with an amended plan.

The head of planning added the following for good measure:

There are grounds for the application of costs in considering whether it was reasonable, in the light of available evidence, for the Council to maintain its objection to the grant of the application thereby causing an appeal to be pursued.

In plain language what that means is, "don't even think about rejecting the application for a second time, because the developer could go to appeal". Whatever grounds the developer might have for seeking an appeal will have been boosted by the arguments the planning officers' used when they recommended the application in the first place, despite the fact that the development is out of scale, involved building on land outside the LDP and went against the strong advice of the former Welsh Language Board and other agencies.

So far, the Penybanc story has been a carbon copy of what happened at Waungilwen

In Waungilwen, the planners were faced not by a Guernsey domiciled developer but a couple of sisters who had inherited the land. Their intention was understood to be to obtain planning permission and then sell the land off to a developer.

Despite that, the planning officers played the threat of a legal wrangle. 

The Waungilwen story is complex, but can be summarised as follows:

19 August 2010 - the planning officers present a report to the planning committee recommending acceptance of the two linked applications, despite massive local opposition. The committee decided to defer a decision and visit the site.

23 November 2010 - the site visit takes place, and councillors return to County Hall where they reject the applications. The committee instructs officers to present the reasons for refusal at the next meeting.

12 January 2011 - Two committee meetings later the officers tell councillors that "new information has been received", and that the refusal cannot therefore be endorsed. They will have to reconsider the applications at a later date.

The two reasons for refusal were the language impact assessment and an issue relating to surface water disposal.

The minutes of the meeting are worth quoting directly at this point: 

The two reasons went before Planning Committee on the 12^th January; as further information had been received from the applicant just prior to this meeting the matter was deferred, it was considered prudent to examine these details prior to any decision being issued. As the decision notice had not been issued and only a resolution to refuse in principle was taken by the Planning Committee, the application has not been determined. Members agreed to defer the issuing of a decision until the additional information had been examined.

The words in bold type are significant here, as we shall see.

5 July 2011 - Almost six months go by, and the Waungilwen applications re-appear on the agenda. Surface water disposal is no longer an issue, and the officers have tied the Welsh Language Board in knots. The planning officers went back to the Welsh Language Board and asked it for its opinion again. The Board was clear that the development would have a detrimental effect on the Welsh language. That was obviously the wrong answer, so the planning officers went back yet again and told the Board that the proposed development was within the UDP. The Board said that without further details of the concerns opposing the development and assessment of the Welsh language impact during the UDP process, it was regrettably "not in a position to form an opinion at this time".

Hardly a resounding endorsement, but the planning officers used that to dismiss the language as a reason for rejecting the applications.

The applications were approved by Labour and Independent councillors. The battle was over, and thanks to the planning officers, the developers had once again carried the day against the wishes of the local community.

There is an intriguing postscript to this story which campaigners in Penybanc may want to note.

The planning meeting on 12 January 2011 began at 10 a.m. and ended at 12.p.m., and as we have seen the head of planning told the committee that information had been received from the applicant just prior to the meeting.

It now seems that the sequence of events was not quite like that.

An e-mail from the applicants' agents arrived in the Planning Office at 11.49 on the morning of 12 January, 11 minutes before the committee concluded business for the day. The author, who seems to have had a very powerful crystal ball, wrote "Further to your Planning Committee granting a deferment on the two Planning Applications in Waungilwen, four copies of the Hydrological Report...will be deposited for you at the Planning Office".

In other words, the "new information" which triggered the deferment appears not to have arrived with the planning officers until after the planning meeting.

Carmarthenshire has given the term "retrospective planning" a whole new meaning, and examples such as this will further undermine public confidence in the planning system, where so many people believe that decisions are rigged and that there is no point in exercising their legal right to object.

Update

Mrs Trisha Breckman has been in touch to make the following observation:

"In the case of yet another so-called agricultural shed application for my neighbour, the planning officer recommended refusal on grounds there was little genuine agriculture, and there was already a shed for storage. It was rightly refused by the planning committee. A couple of months later, Head of Planning E. Bowen, did away with the planning committee's decision and approved the same application under G.P.D.O."