Complaints to Planning Inspectorate & Welsh First Minister by The Rossett Focus Group (RFG)

    1. Introduction
    2. Timeline of Events
    3. Grounds of Complaint
      1. Inspector Complaint
      2. Welsh Minister Complaint
    4. Summary
    5. Footnote

1. Introduction

The background to the Complaint starts in 2017 when the Community of Rossett at public meetings rejected plans to build 132 houses on fields (Bellis Sites) adjacent to Lane Farm. The objection levels were increased further when Wrexham Council announced that they were including the site in the Local Development Plan (LDP). The Bellis Site’s inclusion in the LDP, was again rejected unanimously at a public meeting. Immediately after the conclusion of the public consultation on the LDP Bellis made a Planning Application to develop the site. The Planning Application was refused in January 2019 by the Planning Committee supporting objectors including RFG against the Planning Officers advice. RFG since 2018 have opposed the inclusion of the site in the LDP and the way the plan had been put together to take down the Green Barrier, The Special Landscape Area status and to build on Best and Most Versatile Land which should be protected for future generations. 

Proposed site
Proposed site in foreground

Members of RFG have been present at all the LDP Hearings during 2019 and 2020 and have voiced objections or made significant representations on behalf of the Rossett Community and even the whole County Borough to try to achieve a sound and equitable Development Plan in Wrexham for the next 8 years. During the LDP, Bellis appealed the Council decision and the Welsh Minister allowed the appeal on the 14th February 2020 to give go ahead to the proposed development. The following timeline illustrates how the saga progressed and the RFG increasing number of objections and representations made on behalf of the Community.

It is essential to understand that for a substantial period of time there have been four issues running concurrently namely, 1) the Bellis Planning application, 2) its resubmission, 3) the Local Development Plan, and finally 4) the Bellis Planning Appeal.

2. Timeline of Events

June 2018  – Objections to WCBC lodged regarding the LDP outlining the damage to Rossett Community by the plan including an overall objection to the taking of 407 acres of best quality greenfield land throughout the Borough of which Bellis site has been included in the total. 

August 2018 – Objections to WCBC regarding Bellis Site Planning Application

January 2019 – Bellis Planning Application refused by Planning Committee supporting RFG and other objections.

March 2019 – Council Planning Officers agree with Speculator a proposal called Statement of Common Ground in an attempt to overcome the Highway Safety aspect of the planning refusal.

June 2019 – The LDP Hearings in Public open and set out timetable for Hearings before Independent Planning Inspectors.

June 2019 – Bellis resubmits Planning Application for 132 Houses on the same site and Appeals the January 2019 Outline Planning refusal. 

August 2019 – Formal objections to the Bellis Appeal summing to some 300 pages of evidence submitted to the Planning Inspectorate.

September 2019 – Formal objection lodged to the inclusion of Bellis Site at the Housing Allocations Hearing when issues of housing need, flood risk, road safety and infrastructure including doctors were discussed. RFG members lodge further objections on the LDP soundness on the issues of Green Barrier, Special Landscape Area Review 

October 2019 – More objections lodged by RFG on the housing need in the Borough prompted by the falling population trends in Wrexham. The housing allocations then postponed until March 2020.

November 2019 – Inspector completes report on the appeal. Submits to Minister who withholds announcement of decision until February 2020.

February 2020 – Welsh Minister announces the decision that Bellis Site refusal overturned on appeal. RFG start to consider the content of the perverse decision to allow development.

February 2020 – RFG send all their evidence submitted to the Inspector and Welsh Minister decision to seek Counsels Opinion on the value of a Judicial Review of the approval. RFG decide against a Judicial Review as any success meant procedurally the matter being sent back to the Welsh Minister to make the same decision. The cost of a Judicial Review was estimated at £18K and would be a waste of money to achieve a pyrrhic victory. 

March 2020 – The LDP Housing Allocation Hearings resume and the total housing needs in Wrexham again RFG challenges the housing need on this site and elsewhere in Wrexham because the Welsh Government Population Plan period estimates had fallen further.

April 2020 – The LDP is still ongoing with the Inspectors who held the Examination in Public. We make a further comment thereon in the Footnote but wish to say here that these 2 Inspectors have handled the Hearing matters fairly and very well to date.

April 2020 – RFG decide to complain to the Planning Inspectorate regarding the Inspectors Report on the Rossett Appeal and also to initiate a complaint about the Welsh Minister and her interference in the Wrexham LDP prior to making her decision and thereby breaching the Ministerial Code.

3.1 Grounds of Complaint Against Planning Inspector

The complaint against the Inspector is primarily that we believe he started from a position of wishing to grant the planning consent and therefore ignored the evidence from objectors or adjusted his findings to suit his position. Where appropriate the relevant Inspector Report Paragraph (IR) is quoted. In examining his report, the following issues were discovered:

Our Group enclosed copies of correspondence asking for RFG to be raised to the same level as the Appellant and WCBC as with the full endorsement of the Community Council and the Ward Councillor we represented the whole village, (over 2500 people). This request was not acceded to and RFG did not even receive a response to this request.

We were advised by the Welsh Planning Inspectorate (PINs) that the LDP and the Planning Appeal were two separate matters, but the opposite has been the case as the Planning Appeal decision has been clearly influenced by an unsound LDP that has yet to be concluded under public examination by the 2 separate Planning Inspectors.

A key complaint is that we cannot establish what the obvious Planning Grounds were under which this Planning Appeal was submitted and validated by PINs bearing in mind that a similar application by the same speculator’s agent for 44 houses in Vicarage Lane Gresford was refused, on the 24th April 2020 by a different Inspector. The grounds of appeal were that the Council’s Planning Officers had led the Appellant to believe that permission would be granted and then the Members of the Planning Committee (RFG say these are the decision makers) went against the advice of their Officers and unreasonably refused the same.

The Inspector Report (IR62) lists 20 mainly one line bullet points relating to the general objections received and clearly overlooks the 300 page volume of the objections detailed in RFG evidence throughout the report. 

Planning History (IR18) under LPA Ref: ROS 17649 the report states. No further information has been disclosed. Had the Inspector actually read RFG Evidence Appendix 3 the whole planning history of that application was given.

Footway Safety (IR27) The Planning Case Officer and Bellis Consultants put forward, after refusal by the Planning Committee, a footway scheme that was stated to satisfy the Highways Authority earlier concerns on road safety. This scheme was never approved by Members and RFG evidence challenged the scheme in the form agreed by the Inspector that it contravened Local Planning Policy GDP1(d), TAN18 and the Manual for Streets in approving a footway less than 2.0m wide and at its narrowest point only 710mm. It was apparent that no contrary evidence was mentioned in the report.

The Inspector attempted to justify the granting of Approval (IR77) by stating “not least because it represents a concession from the LPA that the site ultimately represents a suitable and sequentially preferable housing site despite the inevitable impact that such a development would have on the landscape character and openness of the site.  The LPA Statement, that the Inspector extracted from the Planning Case Officers Report, was discredited on its claims that WG Rural Affairs ALC Department had approved the taking of best quality greenfield land, thus overruling National and local planning policies on the topic. This conclusion was totally wrong, no sequential testing on the quality of Best and Most Versatile agricultural land has ever been carried out in Wrexham and it was proven by RFG members to be totally untrue at the LDP Hearings that ALC had never approved taking of BMV land. Confirmation on this topic was surprisingly provided by Bellis Agent when acting as for yet another client at the LDP and categorically stated that no sequential testing had been undertaken anywhere in Wrexham while trying to get that Client’s brownfield site into the LDP.  This confirms the perverseness of the decision. The hollowness of the LPA claim is illustrated by the fact that Bellis Site was the only Rossett Site in the LDP so that a sequential test if ever undertaken was meaningless but a comment on which the Inspector went on to justify his actions. The RFG members submitted evidence to the Appeal Inspector showing the failings of this BMV Land contention but this was clearly ignored. 

The Inspector endorses the Wrexham Planning Committee for the grounds on which the Council refused the application (IR 96) and then goes on to find reasons why the appeal should be granted. He uses the technicality of a Planning Guidance Note TAN1 which was in the process of being revoked to grant approval on the grounds Wrexham has no LDP (yet) and therefore is deemed not to have a 5-year land bank. Again, RFG evidence showed that WCBC actually disclosed they had a 5-year landbank on the 4th September 2019 but this was again ignored. Tan 1 was finally revoked on the 26th March 2020 by the Minister after rubber stamping the Inspectors report.

The refusal of costs in this matter which clearly shows that the Members of the Planning Committee made the correct decision in refusing the Application for Planning Permission on the 7th January 2019 shows the Inspector was therefore totally unreasonable in making the decision that he made to recommend this grant approval.

The impact of the lack of Primary Health Care (AFD Doctors) gets scant consideration (IR88) as the Betsi Cadwaladr University Health Board (BCUHB) did not object to the principle of development and no detailed assessment has been submitted to provide evidence of the specific healthcare infrastructure that would be needed to mitigate the effects of the development. RFG submitted a statement on behalf of AFD including a statement from BCUHB on the serious effects the development pressure would have on the doctor’s practice and the fact that no planning financial policy contribution towards healthcare is payable by a developer in Wrexham under the extant Development Plan or under National Planning Policy.

On the topic of Flood Risk & Flood Insurance (IR89) the Inspector reiterates that the site is outside Zones C1 & C2  so the development is therefore policy compliant in this respect but fails to remark on the fact that the southern boundary is level with the C2 flood plain and that it has a history of flooding and run-off and totally ignores climate change. Substantial evidence was submitted by RFG having taken witness statements, carried out topography checks and detailed errors in the Flood Consequence Assessment submitted by the Appellant. The aspect of Flood Insurance which is a very relevant Planning Issue was totally ignored. 

The Inspector, on the 14th November 2019, came to the conclusion that the Local Development Plan (LDP) currently under public examination was sufficiently sound to endorse the need for houses in Wrexham  as it recognises that Green Barrier ought to be amended to exclude the area comprising the application site given that it would not materially lessen the gap between Rossett and Trevalyn. This he said concurs with the findings of the appellant’s Landscape Visual Impact Assessment (LVIA). This view on the LVIA and the Green Barrier was seriously challenged by another Town Planning Expert and RFG as the gap between Rossett and Trevalyn would be reduced by 50% to 150 m. Surprisingly on the 18th November 2019, 2 working days later on a development Appeal in Gwersyllt the same Inspector finds that he had not seen anything to indicate that the submitted LDP is to be found sound or indeed that it will be adopted in the immediate future. He therefore considered that the weight to be attributed to such emerging policy should be limited. The complaint arises that 2 working days after this Rossett decision he does not find the LDP sound on the site in Gwersyllt, totally contrary to his earlier endorsement of the plan for Rossett

The Inspector makes many references to the LDP but he did not attend any of the Hearing Sessions and therefore was not privy to evidence given by many parties including members of RFG, so that any conclusions relating to the outcome of the LDP in making any comments thereon were ill advised (bearing in mind his background in having been earlier an LDP EiP Inspector for Cardiff, South Wales). It was demonstrated to the LDP EiP Inspectors that a considerable number of planned provisions were not substantiated at the LDP Hearings and may result in the Local Development Plan being substantially altered or the plan found unsound. A similar point on LDP soundness the Appeal Inspector made 2 working days after recommending the grant of appeal on Rossett. 

Indeed, there are so many areas of the Inspectors Report that show that RFG evidence was not properly or adequately considered that prompted the complaint to the Planning Inspectorate. In making the complaint against the Inspector it must be noted that even if the Planning Inspectorate Review of the Case agrees with RFG complaint the decision to approve the development was granted by the Minister and the Planning Inspectorate cannot overturn the Minister’s decision. 

3.2 Grounds of Complaint Against Welsh Minister

The complaint against the Welsh Minister is somewhat simpler in that she has breached her own Ministerial Code of Conduct and Planning Policies and making a decision on a matter for which she did not have before her all the necessary evidence as required by the Planning Decisions Protocol for a Minister.

During 2019 members of RFG wrote to the Minister of Housing and Local Government on several issues surrounding Building on Greenfield Land and procedural matters relating to the Local Development Plan. The Minister gave details of Welsh Government building policy and statements that as the LDP was under separate Planning Inspection she was not allowed to make any further comment on its content.

Against this background of not being able to comment on the LDP the Minister actually stood up in the Welsh Assembly on the 29th January 2020 to endorse the Wrexham LDP and indicated she had sent officers to support the Council to get the plan through, these some 2 weeks before making the Bellis Site decision. This statement in the Welsh Assembly was therefore in contravention of the Ministers stated code of conduct,

Members of the RFG checked what evidence was supposed to have accompanied the Decision Recommendation to be placed in front of the Minister. It has been established that only the Inspector Report together with a draft copy of a refusal letter was placed before the Minister, this clearly was much less that all the evidence the Inspector considered in making his decision and supposedly required to send onto the Minister.

From the details obtained from the Welsh Government Planning Directorate it appeared the refusal letter was drafted by a  Planning Officer of that department and a copy of this letter was signed unchecked by the Minister in the absence of any evidence, bearing in mind that two errors RFG members found in the draft letter were similarly reproduced in the letter sent by the Minister.

The Deputy of the Planning Directorate confirmed that he was satisfied that the recommended decision or action, if agreed, would be lawful, affordable and comply with all relevant statutory obligations. Welsh Government policy priorities and cross portfolio implications have been fully considered in line with delivery of the government objectives. This statement on Welsh Government Policy totally contradicts that stated by the Welsh Minister in a letter dated 26th April 2019 in response to questions from RFG members that “Welsh Government Policy states that brownfield land should wherever possible be used in preference to greenfield land where it is suitable for development. This has been the policy position in Wales since Planning Policy Wales was first issued in 2002”. The WG Planning Officers made it clear that the development was on Best and Most Versatile agricultural land (Greenfield) but the Wrexham LDP needed houses so the Minister should sign the Decision letter to permit development, clearly breaching the policy she espouses.

The Minister stated in the Welsh Assembly 29/01/2020 that her Officers had been sent to Wrexham to support the LDP clearly against the guidance for participation in the Appeal Hearings that  “only those who consider the LDP to be unsound and who seek changes to make it sound are entitled to participate in the hearing sessions. There is no need for those supporting or merely making comments on the LDP to participate”. It is clear that the feedback to the Minister from her Officers that had been supporting the Wrexham LDP that she knew of the importance of the Rossett Site a site key to the LDP that she left herself no option but to grant the Appeal to cover her actions in the Assembly 2 weeks earlier improperly speaking out and supporting the LDP otherwise the LDP would be compromised.

The Minister having spoken out on the LDP contrary to her own advice should have disqualified herself from making the decision and should have passed the matter to the First Minister as is the usual situation when a Minister has been compromised on a particular matter thus making an inappropriate political decision on a Planning Appeal to cover her interference in the Assembly.

The Welsh Planning Officers deliberately held back the matter from the Minister for a period of nearly 3 months until the 5th February 2020 knowing that the 14th February was the latest date on which any additional evidence could be submitted to the  Wrexham LDP and she was told to issue the decision by the 14th February 2020. This late unexplained delay to issue a decision frustrated RFG from entering any rebuttal evidence to the LDP.

The Minister decision clearly contradicts the WG Policies Climate Emergency (March 2019) and the Well-being of Future Generations (Wales) Act 2015 in releasing Greenfield land for building and acquiescing to unsafe footways and worsening of primary health care and impact on the local schools.

Planning Policy Wales

4. Summary

In summary on this whole matter RFG contend that the Appeal Inspector made a perverse recommendation to allow the appeal based on the Deposit LDP which he found unsound 2 days after his decision, blatantly ignoring cogent evidence in the process whilst endorsing the Planning Committee Refusal. In addition, he did not send or was not requested to send all the evidence up to the Minister. From thereon, the Minister was not provided with any evidence from the Appeal, she was advised that her decision would not conflict with any WG Policies but the lack of evidence being put in front of her breached  Appeal Decision protocol and it is contended that she breached Ministerial code by sending Officers to help Wrexham Council with the LDP, she further breached Ministerial Code by endorsing the Wrexham LDP in the Assembly and blatantly allowed an Appeal on Greenfield land contravening her stated preferred Welsh Planning Policy in place since 2002.

By the actions of the Appeal Inspector and the Minister this approval has allowed the precedence to be established that building can now take place anywhere at any time by an applicant stating there is a need somewhere but not necessarily in that place totally contrary to Welsh National & Local Planning policy.

RFG members have submitted a formal complaint to the Planning Inspectorate regarding the Appeal Inspector, the results of that complaint have now been received. The. RFG are not totally satisfied with the response and intend to seek clarification on a number of issues before referring the matter formally as a complaint to the Ombudsman. 

On the 30 April 2020 a formal complaint about Julie James the Minister for Housing & Local Government was sent to Mark Drakeford the Welsh First Minister, this has been acknowledged but we have yet to receive a date for a reasoned response.

5. Footnote

Reference has been made throughout the above commentary to the LDP. The RFG wish to record that they have placed a considerable volume of evidence before the Examination in Public (EiP) Inspectors over the last 12 months. RFG members attending the public hearings have been impressed by the Inspectors and the way in which they have conducted the plan examination in a very fair, rigorous and professional manner. RFG are confident that the Inspectors will ultimately produce a reasoned and fair report assuming that they find the Deposit LDP sound. RFG are hoping that these Inspectors actually conclude on the strength of the evidence presented that the Bellis Site should never have been included in the Plan in the first place. This would not overturn the decision but may help when Bellis Site comes up for further detailed Planning Consent at the Reserved Matters stage which we intend to vigorously contest.

Actions speak louder than words
Pity the actions don’t match the good words!
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