A council criticised for withdrawing from a planning appeal brought by housebuilder Taylor Wimpey over the rejection of a contentious new estate was advised it had a “95 per cent chance” of losing.
A meeting heard the potential of Redcar and Cleveland Council succeeding in the appeal described as “vanishingly small” and it could be landed with up to £500,000 worth of costs.
Residents living in the existing Silverdale Gardens development between Redcar and Marske were angered when it emerged that, regulatory committee members having refused permission for 114 new homes on land off Cat Flatt Lane last December, an appeal lodged by Taylor Wimpey and landowner the Earl of Ronaldshay would not be defended.
The move was variously described by some councillors in the area as “unacceptable” and an “outrage” with local objectors being “let down”, and also “another case that proves officers run Redcar and Cleveland Council”.
A letter by council monitoring officer Steve Newton – acting as its chief legal officer – sent to the Government’s planning inspectorate had confirmed the reasons for refusal were being withdrawn.
Council leader Alec Brown told a meeting the advice from a King’s Counsel (KC) barrister was that there was a “95 per cent chance” of the appeal being upheld, which could lead to costs of up to half-a-million pounds.
He said: “The question for councillors is would you gamble half-a-million pounds on a 95 per cent chance of losing?”
Cllr Brown said he felt residents’ frustration and he had himself voted against similar housing schemes, but he did want to “peddle false hopes, mixed messages and false information” and understood why the monitoring officer had taken the steps he did.
Marske councillor Dr Tristan Learoyd continued to question Mr Newton’s role in the process with the officer stating in correspondence he had delegated authority to deal with legal proceedings as indicated in the council’s constituency and could withdraw from a legal case.
Cllr Learoyd said a planning appeal was not a legal case and referred to examples of case law he said made clear that an officer did not have the power to override a planning committee decision, particularly when it came to cost grounds.
He said: “The actions could be externally regarded as bringing the council into disrepute as the democratic principle of the separation of powers has been breached.
“The council’s decision making has been overturned by an unelected officer.”
Cllr Brown said “serious allegations” had been made by Cllr Learoyd which would be referred to council managing director John Sampson for consideration and a response.
Questions were also asked to what extent regulatory committee members were involved in the decision not to defend the appeal.
Councillor Stuart Smith, the chairman of the regulatory committee, confirmed that no vote was taken by members to overturn the previous planning refusal and they had been briefed of the council’s monitoring officer’s intention at a meeting last week.
This led the committee to enter into a closed session after the agenda business was concluded to discuss the “confidential” matter.
This was challenged at the time by the Local Democracy Reporting Service (LDRS) with Cllr Smith later stating there was no need to move a formal exclusion of the press and public since the meeting had finished and the LDRS asking why the matter had not been included in the agenda as an exempt item.
Cllr Smith said: “The committee did its best to support residents and if an appeal had not been launched then it would have continued to do so.
“However developers have a legal right to submit an appeal and whilst the council would always attempt to defend refusal of permission there was a slim chance of success in this case.”
He said four reasons had originally been given the committee to reject the plans, which were
- Required access through Silverdale Gardens would be detrimental in terms of highway safety and have an adverse impact on residential amenity
- It was overdevelopment of an existing green space
- The council was well in excess of its housing requirements and the development was not needed
- The development would result in a loss of biodiversity.
Cllr Smith shared the advice given by the barrister which went against each reason.
It stated the proposed access accorded with existing council policy and in the absence of expert highways evidence being presented to the appeal, there was a high likelihood of costs being awarded against the council.
The advice said it was “wholly unreasonable” to refuse the development when the land in question had been allocated in the council’s housing plan and it was “nonsensical” to cite housing requirements since these were only a minimum.
Meanwhile, a council officer’s report had said the scheme would in fact result in a net gain of biodiversity and there had been no objections from Natural England.
The advice summed up thus: “The council’s chances of success in the appeal is vanishingly small, it is indefensible and a costs application is very likely to succeed.”
Addressing Cllr Learoyd, Cllr Smith said: “You may want to continue to act recklessly with the finances of this local authority, which are perilous to say the least, and no doubt you will continue to make false and groundless planning promises to your social media followers.
“But I am sure the majority within this chamber do not support your stance.
“To continue with this appeal would waste hundreds of thousands of pounds of council taxpayers’ money.
“Difficult as it may be, it is clearly the only sensible decision.”
Taylor Wimpey has promised an “exciting” new development with a range of two, three and four bedroomed homes, 15% of which would be in the affordable category.
The council having withdrawn from the appeal, it has been agreed the housebuilder will not seek costs from it when the hearing takes place in October.
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