a)    RR/2020/1822/P Land south west of Strand Meadow, Burwash; and

b)    RR/2020/151/P Land south of Pett Level Road, Fairlight Cove.

Following the refusal of planning permissions RR/2020/1822/P Land south west of Strand Meadow, Burwash and RR/2020/151/P Land south of Pett Level Road, Fairlight Cove in February and March 2021 respectively, against officer recommendations, the Applicants had now appealed the decision.  The decision whether the appeals were heard by written representations, hearing or public inquiry would be taken by the Planning Inspectorate (PI), in consultation with the Applicant and Local Planning Authority.  All three formats enabled the Council to robustly defend the appeal, but a Hearing or Public Inquiry would lead to significant costs to the Council for the instruction of consultants and Counsel.

In the case of Burwash, the Applicant had requested to the PI that it be considered by way of Written Representations and in the case of Fairlight, the Applicant’s preferred format was currently unknown.   

It was advised that should the appeals be decided by Written Representations, officers could robustly defend the Council’s reasons for refusal, with expert advice of a consultant. The costs to appoint a consultant were likely to be in the region of £5,000 to £50,000.  An additional contingency of a further £50,000 was also suggested in the unlikely event costs were awarded against the Council.

However, should the appeals be heard at a Hearing or Public Inquiry they would need to be defended by outside consultants with input from Counsel; previous experience showed that funding for up to £75,000 could be required to cover the costs of a planning consultant and Counsel, based on a three-day inquiry.  Whilst costs were a factor, Members were democratically elected to represent the view of residents and Members did not have to always agree with officer recommendations; this was the price to pay for democracy.

In addition, no matter what the outcome, the Appellants could seek to claim their costs for all or part of the appeals.  In advance of the Burwash appeal, the Appellant had submitted a cost claim against the Council to the PI. If successful, the Appellant’s costs (in full) would likely be a similar amount to the Council’s expenditure (cost).  Therefore, a Hearing or Public Inquiry could cost the Council in the region of £150,000 per case.

In both cases there were significant financial risks if Rother District Council was unsuccessful in defending the appeals.  Members were reminded that if the Appellant, in both cases, won the appeals against the decision then no New Homes Bonus Grant would be received.  Based on the number of properties in the applications, it was estimated that £200,520 of grant would be foregone for Burwash and £287,412 for Fairlight.

The Cabinet Portfolio Holder for Planning recommended that the appeal in respect of Burwash was requested to be defended by written representations, as it hinged on a single-issue, with the local Member having input into the Council’s response before it was submitted; and that the appeal in respect of Fairlight be defended by a Hearing as this case was more complex. 

RESOLVED: That the Planning Inspectorate be advised that the Local Planning Authority supports:

1)    the Written Representations format in defending the Council’s case for the appeal and application for full award of costs, in respect of ‘Land south west of Strand Meadow, Burwash,’ and that the submission to the Inspectorate be agreed by Councillor John Barnes prior to submission, and that funding of up to £150,000 be set aside from earmarked reserves, to meet costs of defending the appeal; and

2)    the Hearing format in defending the Council’s case for the appeal and any application for award of costs, in respect of ‘Land south of Pett Level Road, Fairlight,’ and that funding of up to £150,000 be set aside from earmarked reserves, to meet costs of defending the appeal.