Agenda item - Clarification and Amplification of Reasons for Refusal Application BH2007/03454, Land at Brighton Marina

-Report of the Director of Environment (copy attached)

Contact Officer: Sue Dubberley          Tel: 29 2322

                          Kevin Goodwin

Ward Affected: Rottingdean Coastal

91.1    The Council’s witness to the inquiry, Mr Kevin Goodwin, gave a presentation to explain the rationale for the clarification and amplification of reasons for refusal on the application, which had been refused at the Planning Committee meeting on 4 December 2008. He noted that a Public Inquiry was due to begin on 3 November 2009 and that a Statement of Case was required from the Council, which was due to be submitted on 4 September 2009. Mr Goodwin explained that the Structure Plan for East Sussex and Brighton & Hove, which had been referred to in the original reasons for refusal, had now been superseded by the Regional Spatial Strategy for the South East Plan, and the Committee Members were being asked to reconsider the policy basis for their reasons in light of this. He further noted that the applicants had contacted the Council to ask whether they wished to reconsider reasons four, five and six of the original refusal, and Committee Members were being presented with the opportunity to either remove those reasons, to modify them or to maintain them. Mr Goodwin added that reason six was recommended to be conditionally withdrawn as subsequent evidence had invalidated the reason.

            Questions/Matters on Which Clarification was Sought

91.2    Councillor Kemble asked for examples of where this approach to a refusal decision had been taken before, as he felt it was quite unusual for reasons to be amended by a third party. Mr Goodwin agreed that it was not common, but noted that there had been previous examples on an application at Kings Cross, London, application and a Welsh wind farm application. He stated that each case was individual but that the policies of the Council had recently changed and the refusal decision would need to reflect this at Public Inquiry to ensure the reasons were robust and relevant.

91.3    Councillor Hamilton understood that the applicant had requested that the Council reconsider reasons 4, 5 and 6, but asked why, in his opinion, major changes had been made to reasons 1, 2 and 3. He felt that several of the reasons had been substantially changed and he was unhappy that many of the Members of the current Committee meeting had not been present when the original decision was made. He was also concerned that changing the reasons for refusal might result in costs being award against the Council at the forthcoming appeal. Mr Goodwin agreed that some of the reasons had been changed to clarify them. In terms of reason 1 this was to include references to the new Regional Spatial Strategy. He noted that the Inquiry Team had taken the opportunity to look at all of the reasons for refusal, and felt it was their professional duty to present the Committee with the most robust case for refusal to take forward to the Public Inquiry stage.

91.4    Councillor Hamilton asked if the sections that were recommended to be withdrawn from the reasons for refusal were likely to result in the incursion of costs against the Council if taken to Public Inquiry stage as they were not robust enough. Mr Goodwin stated that, in his view, these sections did not necessarily add to the case, or were included elsewhere in the decision, and therefore the decision would be more robust without them.

91.5    Councillor Mrs Theobald expressed concern about the removal of a sentence in reason 2 that referred to the nuisance and loss of amenity residents in the area would suffer if the application was approved and asked why this had been removed. Mr Goodwin felt that this aspect was adequately dealt with under reason 1 and therefore had been removed from reason 2. He recognised that the residents had not been referred to specifically in reason 1, but believed that the reason should refer to the harm that would be suffered by the area as a whole, including the Area of Outstanding Natural Beauty and the Conservation Area.

91.6    Councillor Steedman accepted the professional opinion of Officers but expressed concern that reason 6 had been withdrawn as he felt it was inappropriate to build new homes for vulnerable people in an area that was potentially open to a high flood risk. He suggested that we may need to look at our policy framework at a later stage.

91.7    Councillor Caulfield was very concerned that she was being asked to reconsider and possibly alter a decision that had been made by a Committee meeting that she had not sat on. She asked what the implications were if the current Committee did not agree to reconsider the decision. Mr Goodwin stated that the case at the Public Inquiry would be fought on the original reasons for refusal and this could present problems in terms of presenting and substantiating evidence.

91.8    Councillor Smart noted that reason 2 referred to both material nuisance and building quality and asked if this would be better separated into two distinct reasons for refusal. Mr Goodwin acknowledged that reason 2 dealt largely with the poor quality of the accommodation for residents of the new development, but that reason 1 now dealt with issues of harm arising from the scheme.

            Debate and Decision Making Process

91.9    Councillor Cobb also expressed concern about the removal of a sentence in reason 2 that had referred to the local residents of the area, and proposed that this reason be altered to reinstate this sentence. Councillor Mrs Theobald seconded the proposal. Councillor Cobb hoped that Councillor Steedman would bring a similar proposal in relation to reason 6.

91.10  Councillor Hamilton was very concerned that a legal team had been appointed to alter a decision on the Council which they did not feel would be sustainable at Public Inquiry and felt this had been done to avoid costs awarded against the Council being incurred. He was also surprised that amendments to the recommendation were now being proposed and asked the Solicitor to the Committee if making this amendment could further weaken the Council’s case. The Solicitor replied that if the elements of the decision that had been recommended for removal were retained, witnesses would have to be found to substantiate these claims. If they could not be found then there was a risk that costs against the Council could be incurred. Mr Goodwin responded that the recommendation before Councillors was, in his opinion, the most robust case to put before the Public Inquiry. The Development Control Manager addressed the Committee and stated that if the amendment was agreed, Members would need to give reasons as to why this particular aspect was a necessary part of the decision.

91.11  Councillor Davey noted the concerns of residents and also felt that the harm they would suffer as a result of the application was an important aspect of the reason for refusal. However, he recognised that the Council had employed expert legal advice to ensure the decision was a strong a possible and he felt that the Committee should accept their advice in this instance.

91.12  Councillor Steedman agreed with Councillor Davey and although he held outstanding concerns over the flood risk at the site, he felt that the professional advice should be followed and that the Committee should make decisions in line with its own policy framework.

91.13  Councillor Kennedy felt that it would be unwise to overturn professional legal advice which the Council had employed specifically to form a robust case at Public Inquiry stage.

91.14  Councillor Cobb accepted the opinions of the Committee and withdrew the proposed amendment.

91.15  Councillor Hamilton stated that he was very concerned about what the Committee Members were being asked to do and had no knowledge of this process happening elsewhere. He noted that the original decision had been derived after several months of work and negotiation on both sides and a full debate at Committee. He understood that some of the policy references needed to be changed but felt that large parts of the decision were being altered and he was not confident that these additions had been fully discussed at the original meeting. Councillor Hamilton acknowledged that the Council wanted to avoid the risk of costs being awarded against them, but felt that changing the decision in this way could increase the likelihood of this and he did not want to take part in the voting on this decision.

91.16  Councillor Carden agreed with Councillor Hamilton and stated that he was very unhappy with the recommendation. He felt unable to take part in any part of the voting on this application and was concerned there was no input from members of the public, whereas there had been a full democratic debate for the original decision which had met all of the guidelines at the time. He did not want to justify a decision which, in his opinion, had been wrong in the first place.

91.17  A vote was taken and on a vote of 5 for, 1 against and 3 abstentions agreement to clarification and amplification of the reasons for refusal was given. Councillors Hamilton and Carden did not take part in the voting thereof.

91.18  RESOLVED – That the Committee has taken into consideration and agrees with the recommendation set out in the report and resolves to clarify and amplify the reasons for refusal nos. 1, 2, 3 and 4 and conditionally withdraw reason for refusal no. 6.

            Note: Councillors Hamilton and Carden did not take any part in the voting and left the Chamber during the vote taking.