Appendix F to the Initial Consultation Report representation received on the Preferred Strategy during the further targeted consultation on that document and other related documents 2022

The single response to the Preferred Strategy consultation and the PCC officer response and recommendation in relation to this is set out in the table below and is taken to constitute an objection to that document:

Stakeholder ID: 4277 on behalf of Stakeholder ID: 34376

Representation full text:

Preferred Strategy – Limited Opportunity to Comment for those Previously Excluded – Site reference 524 land fronting B4586, Jeffreyston, Pembrokeshire, SA68 0RN

On behalf of Stakeholder ID 34376) (hereon referred to as ‘the Objector’) (Stakeholder ID 4277) Has previously prepared and submitted:-

A Candidate Site application in respect of the above area of land
An objection to the non-inclusion of the same area of land within the LDP limits for Jeffreyston
An objection to the inclusion of the allocated site HSG/047/00018 – ‘North of Sunnyside’ within the Deposit LDP.

All of these late submissions were made in respect of the Pembrokeshire Local Development Plan Review / Replacement LDP 2017-2033 (referred to hereon as ‘LDP2’).

They were allowed as part of a ‘further targeted opportunity’ for Candidate Site entries belatedly offered by the LPA to overcome the fact that the Objector and others were excluded from both the Candidate Site process and the formal objection period to the Deposit Draft LDP2.

It is acknowledged that in 2017 the Objector had a legitimate expectation of being notified of future LDP consultations and thus, would have been able to become involved in the LDP process at the important formative stages.

However, due to an ‘unforeseen administrative error in 2017’ (LPA’s letter to the Objector, dated 20 July 2021) the Objector was denied the opportunity to become involved.

It is accepted that public participation and consultation lie at the heart of the statutory planning process. Indeed, a legal requirement for consultation can be found in a number of statutory provisions, across the entire planning regime, including the production of development plans.

The Objector strongly feels that there has been procedural unfairness which materially prejudices his situation in trying to promote the development potential of his land in Jeffreyston.

The concept of natural justice comprises certain legal principles that, taken together, constitute ‘procedural fairness’ in administrative decision-making. It is closely aligned to the notion of public participation, a key element of the UK Town and Country Planning system.

The LPA should have conducted LDP proceedings so that all participants at the Candidate Site submission stage had reasonable opportunity to adduce evidence and make submissions on the material issues affecting their or other third party sites within the respective settlement. All potential Candidate Sites needed to have been identified at the outset or to have emerged prior to formal determination and the publication of a Draft LDP.

The LDP preparatory process quite correctly provides a potential source of legitimate expectations of procedural rights. Indeed, the ground breaking Rio UN Earth Summit in 1992 declared that:-

‘…environmental issues are best handled with the participation of all concerned citizens, at the relevant level…’ and that ‘…each individual shall have … the opportunity to participate in decision-making processes …’ (Principle 10)

In R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168, it was confirmed that:-

‘… It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage …’ (My emphasis)

In Majed v Camden (2010) EWCA Civ 1029, for instance, it was stated:-

‘… Legitimate expectation comes into play when there is a promise or a practice to do more than that which is required by statute. It seems to me that the Statement is a paradigm example of such a promise and a practice … It would be difficult to imagine a more unequivocal statement as to who would, and who would not, be notified … clear breach of the appellant’s legitimate expectation that he would be notified …’.

If there is procedural unfairness which materially prejudices a party in the determination of a planning proposal, that may be a good ground for quashing the decision. LDP preparatory procedural rules have evolved to assist in achieving the objective of procedural fairness / equity, avoiding pitfall and promoting efficiency. Nevertheless, the LDP guidance is not in itself a complete code for achieving procedural fairness and considerable responsibility rests with the LPA, which is under a duty to act fairly.

Indeed, the UK’s Higher Courts have regularly quashed decisions on the basis of procedural unfairness.

In this particular instance, there has been a clear breach of natural justice, as the Objector has had insufficient opportunity to advance and promote the merits of his site within the context of the ‘level playing field’ that existed at the time of Candidate Site submission.

Instead, the Objector has been obliged to enter the process at a relatively late stage, thereby being denied the full opportunity of comprehensive participation.

It is perhaps a truism to state that the strength of the Objector’s case can be determined only upon an understanding of that case, and by testing it with reference to propositions in the opposing case. In other words, the Objector’s site should have been assessed at the formative stages of the LDP, which can be likened to ‘the blank canvas’ stage. Instead, the Objector is now almost facing a fait accompli in the sense that all pertinent decisions have already been made in terms of identifying the precise development limit alignment and housing site allocations for Jeffreyston.

The question of fairness is taken up by LDRA Limited v SSCLG (2016) EWHC 950 (Admin), where the decision maker (in this case an Inspector) dismissed alternative sites on the basis that sites had not been properly identified and thus a breach of natural justice occurred.

Likewise, without being aware of the Objector’s site at the formative ‘blank canvas’ LDP stage, it was not possible for the LPA to exercise proper and robust judgement. Furthermore, the ‘North of Sunnyside’ site was considered solely in the context of it being the only site proposed at that time. A far more appropriate assessment would have involved a standard comparative analysis of the Objector’s site in relation to that of ‘North of Sunnyside’. It is likely that such a comparison would have confirmed that the merits of the Objector’s site exceed those of ‘North of Sunnyside’ with the result that the Objector’s site would have been allocated within the settlement limits boundary. The Annex to this response provides such a comparison and demonstrates the more positive attributes of the Objector’s site over the ‘North of Sunnyside’ land.

The Objector clearly has the option to judicially review 1 any decision of the LPA on a number of specific grounds, including that the LPA has misdirected itself in law, exercised its power wrongly, etc. In addition, it is regularly argued in such cases, that the LPA has not properly observed principles of natural justice in reaching the decision, allowing that decision to be challenged 2. Similarly, if there was a legitimate expectation that the LPA, by its own statements or conduct, would act in a certain way but failed to do so, there can be a legitimate challenge.

Effectively, the Objector is now facing an element of ‘pre-determination’ – where the decision maker (LPA) determines the merits or otherwise of his land with a ‘closed mind’, having already decided the planning framework for Jeffreyston.

The effective and equitable participation of the public in decision-making processes is related to the provision of ‘natural justice’ or procedural fairness and whilst the exclusion of the Objector from the early stages of the LDP process was perhaps unfortunate, the offer to invite the belated submission of a Candidate Site and submit an objection does not secure full equality of participation.

The LDP presents the proposed development framework for Jeffreyston. There is an inevitable assumption that the LPA have had full knowledge and understanding of the Objector’s land, when this is clearly not the case. It also misleadingly implies that there were no possible alternatives to the allocation of the ‘North of Sunnyside’ site. In reality therefore, there was no comparative evaluation of the merits of the two sites. Even a simple exercise, in the manner of the attached table (see the Annex to this response), would have provided the Objector with some comfort that his site had been considered fully in relation to that of ‘North of Sunnyside’.

There is obviously going to be a clear impasse between the Objector and the LPA, and the most pure and righteous means by which to address the anomaly would be to recommence the LDP preparatory process, without any pre-judged views as to site suitability. Such an exercise would however be costly and would add considerable time delay to the LDP process and is also unlikely to be supported by Welsh Government. By way of an alternative however, the LPA may wish to consider a purposeful revisit of the development framework solely for Jeffreyston, on a ‘blank canvas’ basis, and without any pre-conceived views going forward. Your comments on this suggestion are welcomed.

In terms of the Preferred Strategy, the Objector has little comment to make in respect of the spatial allocation of development. The direction of growth towards the larger settlements, with a ‘cascade development approach’ towards the smaller settlements, is a long-established principle of sustainable development plan-making. The Preferred Strategy document, by its very nature, deals with the more abstract development principles, as opposed to site specific considerations, which are more relevant to the Objector’s site.

There is however, one major weakness in the Preferred Strategy, namely that it has been overtaken by national events which are likely to have impacted upon future growth scenarios. In particular, the Covid pandemic has led to a definite increase in migration levels into Wales. You will be aware that the exact level of migration is the most difficult component of population change to accurately determine, bearing in mind that death and birth rates are formally recorded. Information contained within various housing market reports, confirms that demand for property in Wales has rocketed since 2019. The limitations imposed on the economy by Covid has likewise weakened the construction industry’s ability to meet this demand. In addition, the recent concerns for excessive phosphate discharge may lead to greater emphasis on directing growth to those settlements outside the identified river corridors, thus compromising the Preferred Strategy. It is therefore quite realistic to state that the housing figures advocated in the LDP, including those for Jeffreyston, will not satisfy anticipated demand levels for the plan period. It is therefore formally suggested that the Preferred Strategy be re-visited in order to determine more up to date housing growth figures.

In summary, therefore, it is evident that the Objector has been prejudiced in trying to promote the development potential of his land in not being involved in the early formative stages of this process. Missing the ‘blank canvas’ stage means the Objector was disadvantaged in not being able to present his case. Instead, his site will now be considered when the LPA has already reached its conclusion in respect of development limits for Jeffreyston. It is felt that the only way to address this anomaly is to undertake a complete re-evaluation of Jeffreyston’s limits, with each potential site being considered afresh and on equal terms.

Although this practice has not been formally instructed by the two other ‘additional Candidate Site submittors’ in Puncheston (Site reference 523 – Farmland at Llys y Dryw) and Trooper’s Inn (Site reference 525 – SM 098960), in the interests of natural justice, it is considered that the same opportunity for a fresh evaluation be afforded in these instances also.

I trust the contents of this letter will be given due consideration and I look forward to your response.

Part 54 of the Civil Procedure Rules allow the court to review the lawfulness of an enactment, decision, action or failure to act in relation to the exercise of a public function.
Procedural Impropriety – (also referred to as a breach of natural justice), where, in making a decision, basic rules of natural justice were ignored, or where there was a failure to act with procedural fairness towards a person or to observe procedural rules that are expressly laid down by legislative instrument.

Annex (prepared by Stakeholder ID: 34376) – Objection to the inclusion of allocated site HSG/047/00018 – ‘North of Sunnyside’, Jeffreyston (site reference 375), as advanced in the Local Development Plan Review / Replacement (LDP2) 2017-2033

This objection takes the form of a comparison of critical features of the Candidate Site submission ‘North of Sunnyside’ (site reference 375) and the ‘additional’ Candidate Site submission ‘Adjacent to B4586’ (site reference 524)

Topic

Candidate Site reference 375 - North of Sunnyside

Deliverability:

The land has been presented for development utilising a range of configurations for some 15 years; during that period no development has taken place.

As evidence of the site’s failure to secure development please see attached the historic:

Planning permission documents dated 2007;

Sales particulars dated 2015, in which the site is promoted as ‘designated for residential development in the draft L.D.P; and

The seemingly-current sales particulars, dated 2020, in which the site is promoted as ‘Proposed LDP2 Allocation 0.7ha for a minimum of 14 units’.

By any justifiable measure the site has failed to meet any objective of ‘deliverability’. This site’s continued designation as housing in Jeffreyston – indeed, the only site designated as housing in Jeffreyston – is now an obstruction to the service village’s natural development.

Affordable housing:

* as noted in currently-available sales particulars

Impact on Council’s ‘highways’ budget:

Significantly increases traffic movement within the village, creating a perpetual and permanent maintenance obligation.

Public road access:

Carriageway width – restricted.

Horizontal alignment – poor.

Visibility splays without third party landowner agreement – unacceptable.

Enhanced foot / cycle routes – none.

Sustainable development implication:

Mature trees and spinneys – considerable loss.

Visually important tree specimens – considerable loss.

Loss of / Damage to important habitat – yes.

Loss of / Damage to protected species – yes.

Loss of visual amenity – significant.

Topic

Candidate Site reference 524 – Adjacent to B4586

Deliverability:

The land has never before been made available for development. The thorough, costed, Candidate Site submission clearly shows that the owners are committed to helping Pembrokeshire – and particularly Jeffreyston – develop – quickly.

Affordable Housing:

Impact on Council’s ‘highways’ budget:

Adjacent to a main through road; no increased maintenance.

Public road access:

Carriageway width – unrestricted.

Horizontal alignment – good.

Visibility splays without third party landowner agreement – good.

Enhanced foot / cycle routes – extensive.

Sustainable development implication:

Mature trees and spinneys – none.

Visually important tree specimens – none.

Loss of / Damage to important habitat – no.

Loss of / Damage to protected species – no.

Loss of visual amenity – minimal.

The further information submitted in conjunction with this representation comprises:

The decision notice issued by Pembrokeshire County Council for planning application 06/0836/PA, residential development, outline, land adjacent to Sunnyside Farm, Jeffreyston, Kilgetty, residential development, conditionally approved 4th September 2007.
The sales details for the Sunnyside development site, October 2020 (Owen and Owen, Chartered Surveyors).
Further sales details for the Sunnyside development site (also Owen and Owen, Chartered Surveyors).

(To note: Further submissions by Stakeholder ID: 4277 on behalf of Stakeholder ID: 34376 that were received within the targeted Preferred Strategy consultation period are being treated as late objections to the LDP 2 Deposit Plan of 2020. They will be considered informally by PCC’s planning officers, alongside all other representations made in conjunction with the LDP 2 Deposit Plan of 2020 consultation. However, the LDP 2 Deposit 1 Plan is not being taken forward to the later stages of the Plan process – and specifically will not be submitted to Welsh Government or form the basis for the subsequent independent Examination. Hence, the representations on the LDP 2 Deposit 1 Plan are not being reported back to Members through formal processes).

PCC officer response and recommendation:

Stakeholder ID: 34376 contacted PCC by telephone on 17/09/2015 and was added to the LDP 1 database on the same date. PCC commenced review of the LDP in 2017 and contacted those on the LDP database at that time to advise that Plan review had started and to request that they get in touch if they wished to be contacted for LDP 2. However, due to an administrative error, not everyone on the LDP 1 database was notified of the opportunity to register to go onto the LDP 2 database. Stakeholder ID: 34376 was one of 62 affected persons / organisations.

Whilst the issuing of this letter is not a regulatory requirement, the Council accepts that those affected, including Stakeholder ID: 34376, had a reasonable expectation of being contacted at the commencement of LDP review process and that clearly did not happen. This is a matter of regret for which the Council apologises unreservedly. Since the error came to light, various measures have been taken by the Council to try to remedy the problem. As this representation notes, short of restarting the whole LDP process it is impossible to completely rectify the difficulties. However, the Council has taken steps to contact all those affected, to give them an opportunity to a) register on the LDP 2 database, b) submit Candidate Site(s) and c) submit representations on the Preferred Strategy. Stakeholder ID: 34376, in some cases through his agent Stakeholder ID: 4277, has followed up all three opportunities.

Looking at the bigger picture, of the 62 persons affected by the database issue, 38 had managed to register an interest in LDP 2 by the time the error was spotted, several others have now been added to the LDP 2 database, three (including Stakeholder ID: 34376) have submitted a Candidate Site for LDP 2 and one (Stakeholder ID: 34376), primarily through his agent Stakeholder ID: 4277 but also in part in his own right) has submitted a Preferred Strategy representation – the subject of this response.

The various measures that the Council has taken to rectify the issues arising from the database issue do not provide a perfect solution, but represent a genuine attempt at remediation. Stakeholder ID: 4277, responding on Stakeholder ID: 34376's behalf, has noted that recommencing the whole Plan process would be costly and add further delay. He has asked that the situation at Jeffreyston be reconsidered on a ’blank canvas’ basis. PCC is quite prepared to assess Stakeholder's ID: 34376's Candidate Site on the same basis as all other Candidate Sites. It will therefore look at the situation in relation to future development at Jeffreyston village holistically in conjunction with preparation of LDP 2, Deposit Plan 2.

In terms of the comments specifically referencing the Preferred Strategy, it is noted that the representation seems to support, in broad terms, the Settlement Strategy of the Plan and the sustainable development aspirations of the Council. It is suggested by Stakeholder ID: 4277 that the major weakness is that the Preferred Strategy has been overtaken by national events that have affected national growth scenarios. It suggests that migration into Wales has increased and that the LDP 2 housing provision, including in Jeffreyston village, will not satisfy demand levels in the Plan period.

The Council will rely on the latest available population and housing projections in setting housing growth levels and for LDP 2, Deposit 2, will need to reflect the fact that these have moved in the opposite direction to those suggested by the representor and hence the housing provision figures will be likely to be somewhat reduced for Deposit 2, although not to the extent that there would be a major discrepancy with the Preferred Strategy.

It is also worth noting that the Council has prepared a Covid-19 Impact Assessment evidence base paper, looking into the issues that arose from the pandemic. Clearly there were short term impacts and effects and also longer term ones and they were not always the same. The Covid-19 Impact Assessment has been made publically available on the Council’s website.

PCC Officers have discussed a possible return to Preferred Strategy stage with Welsh Government and were advised that the implications of returning to this early stage of the Plan process on the timetable and validity of the evidence base was such that it would not be a good course of action. Welsh Government advised that if PCC felt it needed to do this, it should withdraw the Plan and start again. Clearly, given the time and effort that has already been expended on getting LDP 2 to this stage, that is not an option PCC wishes to follow up.

Recommendation: That Council does not make any amendments to the replacement LDP (LDP 2) Preferred Strategy document in response to the response received to the targeted further consultation on that document that took place in 2022.