Potato facilities at Bantham Cross - an important planning case

In April of last year South Hams District Council's Development Management Committee authorised officers to grant planning permission for a dwelling and four large buildings for the storage and processing of potatoes on a greenfield site at SX707456, in the South Devon AONB. However the applications and the way in which they were processed were found by lawyers to be seriously deficient, and the permissions were not issued. (SHDC's references are 11/0042 to 0045/14/F.)

In April of this year officers produced a new report, still recommending approval, and referred the applications back to the DMC for reconsideration, only to withdraw them after receiving further expert and legal opinion. They placed them before the DMC again on 1 July and were approved by eight votes to four. Cllrs Cane, Hitchins, Holway, Cuthbert, Vint, Brazil, Steer and Foss voted for approval, Cllrs Rowe, Pearce, Bramble and Hodgson against. (Cllr Foss was chair of the AONB Partnership Committee until last year, Cllr Cane is a current member, and Cllr Rowe is its acting chair). The permissions were issued on 25 August.

This Society, the AONB Unit, Churchstow Parish Council and many individuals strongly objected to them, not because the business need for new facilities was questioned, but principally because the buildings don't have to be in protected land.

SHDC classified the proposal from the outset as a major development. Paragraph 116 of the National Planning Policy Framework deals with major developments in protected landscapes:

Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest.

Consideration of such applications should include an assessment of:

the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;

the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way;

and any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.

Neither the applicant or the council have properly addressed these points. Both have made the case for new premises, but not for them being in the AONB. The circumstances are not exceptional. There is no public interest in the buildings being in the AONB. The business currently operates from multiple sites both inside and outside the AONB. There is no assessment of impact on the local economy of the buildings being in the AONB, or of the many apparently more suitable places outside it in which they could be accommodated. The visual impact assessment submitted with the applications was totally inadequate for a major development in a protected landscape.

The Society commissioned an independent report on the case because it wants to uphold the important principle of protecting the AONB from inappropriate development. It wants SHDC to be much more attentive to its duty to conserve protected landscape.

Local objectors obtained an expert planning report and a QC's Opinion, all expressing the view that it would be unlawful to issue the permissions. These documents were shown to SHDC, which took advice from its own barrister. One important difference of opinion that emerged concerns the force of the word 'should' in NPPF 116 (above). The opinion obtained by the objectors is that the measures in the paragraph are mandatory, but SHDC's barrister maintains that they are not. (Links to all of these documents are listed below.)

The determination that SHDC has shown in pushing this development through in the face of both the spirit and letter of the NPPF undermines its claims of support for the AONB. If it concludes that it doesn't have to comply with paragraph 116 of the NPPF the implications for our AONB are very serious. And it is worrying that there seems to be very little official support for enforcement of the protection that the NPPF ostensibly gives. The AONB Unit submitted a detailed and well-reasoned objection to the applications, but the Partnership Committee considered that to give any support to objectors 'would fall outside its remit'. Natural England flatly refused to get involved. The Secretary of State will not call in the applications, apparently because it's government policy increasingly to leave planning to local authorities - which seems perverse, given the official status of AONBs as national assets with national protection.

Thus those who want to ensure that the AONB is protected for future generations conclude that there is no alternative to seeking judicial review. A fundraising campaign will start shortly, and details will be posted on this page.

Please remember that the objection is to the siting of the buildings. A good case can surely be made for the applicants having new premises, but it has not been made for their being in the AONB and there appear to be alternative solutions. Getting things in the right place is what planning is all about.  

Further reading on the applications:

Robert McCracken QC and Richard Honey Opinion 12/12/14

4DLD comment on application LVIA 12/3/15

Hugh Richards advice to SHDC 3/2/15

Rocke Associates objection to SHDC 13/3/15

Rocke Associates advice to the South Hams Society 13/6/15

SHDC officer report for DMC meeting on 1/7/15

John Graham 7.9.15