Campaign group to challenge development in protected Kent area

Out-Law News | 23 Jun 2015 | 3:28 pm | 2 min. read

The Kent branch of countryside campaign group the Campaign to Protect Rural England (CPRE Kent) will seek a judicial review of a local authority's decision to grant planning permission for a major development in an Area of Outstanding Natural Beauty (AONB).

Dover District Council resolved in December 2014 to grant planning permission for developer China Gateway International's  proposals for the redevelopment of two sites near Dover. The proposed scheme included the construction of up to 521 new homes, a retirement village and a health facility, and the conversion of existing buildings for use as a pub or restaurant, a shop and a bed and breakfast at Great Farthingloe Farm to the west of Dover in an AONB.

The proposals also included a new hotel, more than 30 homes and a museum or visitor centre at Western Heights, the site of a fortification overlooking the town and port of Dover.

A planning officer's report to the Council's planning committee noted that the sites were not allocated for development in the local development plan and lay outside the urban boundary of Dover. As such, the officer said the application was "contrary to the provisions of the development plan". The report also noted that, in accordance with paragraph 116 of the National Planning Policy Framework (NPPF), "planning permission should be refused for major developments in the AONB except in exceptional circumstances and where it can be demonstrated they are in the public interest".

However, the planning officer recommended that the application be approved by the Council. The report said that the Council was "unable to demonstrate that it has a five year supply of housing land", meaning that "policies for the supply of housing should not be considered up to date". The officer considered that the benefits of the scheme, including its contribution to the provision of housing in the area and a proposed £5 million heritage contribution, outweighed the conflict with the development plan.

CPRE Kent confirmed this month that it had lodged an application at the High Court for a judicial review of the Council's decision to approve the plans. A statement from the campaign group said CPRE Kent believed the Council made "a material omission" in failing to consider a planning inspector's report on its draft land allocations local plan which had "concluded that enough land had been allocated for five years' worth of housing".

The campaign group claimed the proposed £5m heritage contribution towards improvements at Western Heights was "an unlawful inducement that should not have been taken into account" in the decision to approve the development at Great Farthingloe Farm, which it said was an "unrelated" site.

The statement said the Council "acted unlawfully in treating the need for housing as an exceptional circumstance" that could help justify the damage that would be caused to the AONB by the development. 

It said the Council had "unlawfully failed to take into account additional sites which had come forward" and had "failed to properly consider a less harmful form of development".  

Planning expert Ben Arrowsmith of Pinsent Masons, the law firm behind, said: "Of particular interest in this case is the argument made by CPRE Kent that the £5m heritage contribution is not related to the Farthingloe site, as the contribution does not mitigate the effect of the proposed development on the AONB but rather is proposed to be used towards improvements two kilometres away." 

"This raises an interesting point: does such a contribution need to mitigate the loss of something, in this case a heritage consideration, on the part of the site affected or can such a contribution be viewed as something akin to biodiversity offsetting where a development might damage the biodiversity in a certain area but this is 'mitigated' against by the developer paying for the setting up or rehousing of an ecologically significant site in the environs to the development?" Arrowsmith said.