Vic Inquiry Due Soon

In the prelude to the second Queensway Public Inquiry we mentioned an unusual refusal decision made by Fylde's Development Management Committee regarding McCarthy & Stone's application to replace the Victoria Hotel in St Annes with retirement apartments.

Sadly we were not able to attend that DMC meeting ourselves, but by all accounts there was a lot of public support for refusal.

In the Queensway Mk2 article, we commented that, since the Localism Act, we expected Kensington to produce large numbers of signatures in support of their Queensway scheme, and that the Victoria Pub planning application was refused using similar logic about what local people want or didn't want.

Fylde's Development Management Committee voted overwhelmingly against the Vic scheme (with two abstentions and no votes at all for it).

They had responded to the public mood, and used 'community concern' as their justification for refusing the application that would destroy yet another of St Annes buildings of heritage importance and the streetscene.

In the Queensway Inquiry itself, we found that Kensington had indeed amassed 5,700 letters as evidence of public support for their scheme, and during that inquiry, mention was also made by one member of the public and one expert witness about the decision at the Victoria Hotel being based on community concerns.

The expert witness said that his own view of localism was that all decisions would still be made on local and national planning grounds.

Then in Snippets February 2012,  under the 'VIC TORY US?' subheading, we took a brief look at what was happening with 'The Vic'

We said it was the first planning decision that we've ever seen to use a refusal reason anything like the one that was developed by Fylde's Development Management Committee who had said "The proposed development would result in the loss of an important, accessible community facility which, in the absence of a convenient alternative facility, would be detrimental to the maintenance of a strong, vibrant and healthy community as promoted through PPS3: Housing and the draft National Planning Policy Framework. The retention of this public house would be of such community benefit as to outweigh the provision of additional housing in this location."

That's nothing like the usual 'planning' reasons that are given when applications are refused.

We said that popular opinion (led by the Conservative, and Brigadier-like St Annes Town and Fylde Borough Councillor, Edward Nash) is certainly behind the campaign to keep it as a pub.

But strong popular opinion hadn't saved it when a previous (1980/81) application was made to demolish the stables at the rear, and increase car parking. That opposition benefited from a petition with10,000 signatures and the Duke of Edinburgh writing in support of rejection. Fylde had refused permission. But Boddingtons (as it was then) appealed, and the Planning Inspectorate overturned the refusal, and granted permission to demolish the stables.

But now, the Localism Act, is in place (well parts of it are) and - according to Greg Clark (Minister for Decentralisation and Planning) the first of the three fundamental objectives of the Government's planning reforms was to put power in the hands of communities to shape the places in which they live.

So you'd think it would be a walkover for the Brigadier and his troops.

Just a case of waiting for McCarthy & Stone's white flag to appear.

Sadly, that's not going to be the case.

We've had George Osborne's Growth Agenda using the new "National Planning Policy Framework" since then, and growth is now the number one reason for development.

We'd like to make our position clear at this stage. We're absolutely clear that this building *ought* not to be demolished. It is quintessentially the domestic gothic style of architecture that the Saint Anne's on Sea Land and Building Company restricted housebuilders to in the early days of St Annes, and thus it is part of what gives St Annes its distinct character. Its heritage credentials are impeccable. As a pub, it might not be our first choice, but it does have a distinct following of popular support.

We made our views clear (and in no uncertain terms) to the nice man who (foolishly) asked what we thought of his plans at the exhibition that McCarthy and Stone held a while back. We said they were awful, and if we were 'in charge' they would only get permission to redevelop the interior if they undertook to guarantee the integrity of the exterior. The building which was what gave St Annes its distinct character should remain as it is from the outside. We suspect he wished he hadn't asked.

So we desperately *want* the appeal to be refused.

But we're equally sure that it's not going to be refused, and the Lions who the Brigadier has led to McCarthy & Stone's tanks and mortars are charging them with nothing more than the planning equivalent of bayonets.

Worse, the support they had expected from the Seventh Cavalry has simply evaporated. The Cavalry has fled the field.

It will be another slaughter of the innocents.

Let us explain why....

LOCALISM ACT
Firstly, it's true that the Localism Act has a General Power of Competence that will allow Councils to do anything that is not specifically prevented by the law. But that's not going to be available to refuse this application, and it was never going to be available.

Secondly, the Land or Assets of Community Value provisions, (also known as the Community Right to Bid) place a duty on Councils to maintain a list of assets of community value. But land may only be included on the list where an "appropriate authority" or the community (eg a Parish Council or voluntary body) nominate it, and it goes through a fairly complicated acceptance process. The landowner has a right to have a review of a decision to list their asset, and there is an appeals process for landowners.

Once an asset has been listed, the Localism Act will prohibit the owner from selling it for a moratorium period it unless certain conditions are met. That moratorium period exists to allow community bids to be prepared, and for funding to be assembled, for the community to bid to buy the asset on the open market.

Now, even if the relevant parts of the Localism Act concerning the Right to Bid were in force - which they are not (and will not be until an Order and Regulations (including compensation) are made in October at the earliest) - there is probably something like 12 months or more work to process applications and create the Register that such buildings must be placed onto in order to qualify for *being considered* under the Community Right to Bid provisions.

And in any case, technically, this sale has already been made, because an agreement already exists between the seller and buyer, and the Localism Act treats such an option as a disposal. Section 96(4) of the Localism Act says "If a relevant disposal within subsection (2) or (3) is made in pursuance of a binding agreement to make it, the disposal is entered into when the agreement becomes binding."

The implication is that, so far as the Localism Act is concerned, the disposal is considered to have taken place when an option to purchase is agreed between the parties, not when the actual disposal takes place.

It is simply too soon for the provisions of this part of the Localism Act to be engaged in respect of the Vic.

Thirdly - what reasons have we left in the Localism Act that might help? Well, there's Neighbourhood Planning - but that's a long term thing about saying what is and is not acceptable in general terms. There is a Community Right to Build, but that's not going to get us anywhere on the Vic.

And that's about it.

So we can see nothing under the Localism Act at the present time that will offer succour to those trying to block the appeal.

Perhaps we should also point out that they would also have to raise something in excess of £1m to pay for the building (you don't get them for free!) and that's a lot for a community group to find.

We've said before, we're actually quite worried that the plan to save the Vic is using 'Localism' arguments at this time.

When those augments don't even yet exist in practice, attempting to use that logic will create a damaging precedent for anyone applying the Community Right to Bid in the future, and that the (very understandable) enthusiasm for the process in this instance actually risks damaging support for a process that might well become an important new tool for those that want to keep characterful and important examples of architecture from a previous age.

In fact, as we have said before, it was put to us - rather mischievously we thought - that someone high up in Fylde's planning hierarchy had been happy to provoke the resolution that was passed by Development Management Committee to refuse this application, in order to bring the embryo Localism Act into conflict with traditional planning law - in the hope that it would set a bad precedent for Localism and help maintain the 'supremacy' of planning law.

If that happens, - and it looks to us as though it's exactly what is going to happen in Fylde - it will be a bad thing for Localism, and it's likely to cost us a few bob. Some of our readers are already concerned about the costs of what they see as a futile appeal with no hope of succeeding, with costs being borne by local taxpayers.

So if Localism isn't (yet) a useable argument, what is there in Fylde's planning policy that can be used to stop it?

The answer is diddly squat.

Nothing.

Fylde have already agreed with McCarthy & Stone that:

1. It is within a sustainable location given its proximity to shops, services and public transport opportunities
2. It is a site where national, regional and local planning policies seek the most efficient re-use of land of such sites for housing.
3. It is an urban developed (brownfield) site, on which the Government has placed emphasis for re-use for residential and other purposes in preference to Greenfield sites.
4. There is no objection in principle to the residential use of the appeal site, or to its development for Category II type sheltered housing for the elderly.
5. There are no listed buildings on the site and it is not within a conservation area. (so there are no policies, which prevent the redevelopment of the site for residential use)
6. The conversion and retention of the existing building will not provide a financially viable residential scheme
7. The proposal will not have any detrimental impact upon residential amenities
8. The proposed means of access is acceptable and will not result in worse highway safety.
9. The level of car parking provision is acceptable
10. There is no specific policy requirement that seeks to retain the existing use at this site.
11. A financial contribution for off-site provision of affordable housing will be made
12. The plan is financially viable.

Fylde consulted a barrister about preparing a case to defend the refusal and, well, we can't say they laughed, because we don't know whether they did or not. But what they did say was that Fylde has no case to make and it would be throwing good money after bad to try and defend the refusal.

So Fylde Council is not going to contest the appeal.

That's a bit like pleading guilty at court in the hope of getting a lesser sentence. Fylde hope they will keep the costs against them down if they don't defend the refusal of permission. We did hear that Cllr David Eaves had told a Conservative Group meeting he expected the appeal would probably cost Fylde £50,000.

You can see Fylde running backwards very quickly, in some documents we have acquired. Just follow these links for PDF files to 'Fylde Borough Council's Statement of its Case' and 'McCarthy & Stone's Statement of its Case', and their 'Joint Statement of Common Ground' (ie what they have already agreed on). These documents have already been sent to the Inspector.

If you don't want to bother reading them (they're not that long or difficult to read), the following two paragraphs sum up the position as far as Fylde BC is concerned.

They have agreed with McCarthy & Stone that "It would result in the loss of a public house which the Council consider to be a valuable community asset and that the Council considers that this is a material consideration. However, it is agreed that there is no relevant planning legislation and no relevant policy in the Local Plan which assists with the allocation of weight to this loss."

and

"It is therefore the position of the Council that in the absence of directly relevant policy provision in the Fylde Borough Local Plan and the Regional Spatial Strategy for the North West or on the matter of weight of an asset of community value or current legislation which directly relates to the weight to be afforded to the identification of the Victoria Hotel as a community asset, it will not produce evidence to the Inquiry in support of its reason for refusal."

So Fylde will not even contest the appeal against their own refusal.

(CAVALRY): Exit stage left, at the double.

There is a case to be made (slightly, but not strongly, supported by the new National Planning Policy Framework) that the local community doesn't want it, and no doubt that will be put to the inquiry. However, the planning case for agreeing it is much stronger.

And (unlike the recent Wrea Green decision), no one can say that McCarthy & Stone haven't consulted with and listened to, and tried to work with, the local community (for example, they changed their design based on comments made at their consultation). But that was about detail, and the objectors argument is to the whole principle of the change, not what the development should look like.

So what do we think are the chances for the Lions led by the Brigadier?

We think the following sets out their position most clearly, just rearrange these words into a well known phrase or saying"Rug out the under pulled them from"

They're already abandoned in no-man's-land by the Council, and it will be an unpleasant sight to watch them being shot to pieces by McCarthy & Stone's barrister under cross examination if they give evidence themselves.

We will probably surprise some of our readers when we say we wouldn't mind FBC standing the cost of a stronger defence of its refusal to grant permission in this appeal. (That said, we know other readers that do object to the cost, and very strongly). We'd be prepared to contribute even if it *is* a lost cause, because we'd be happy to make it as difficult as possible for McCarthy & Stone to demolish one of the archetypal buildings of St Annes, and we say shame on them for planning to do so.

We also say shame on Government if it's new planning regime allows this to happen.

But probably the greatest shame is that Fylde did not previously think to designate a Conservation Area that included the Vic within it, and so afford at least some protection to it.

We think that failure is going to cost us the Vic, and it will put egg on the Brigadier's well intentioned, but inexperienced, face.

The only chink of light, as one reader told us, is that the one thing that McCarthy & Stone are sensitive to, is public criticism and adverse publicity. So we agree that the best chance the objectors have is a campaign to show how awful McCarthy & Stone are for damaging a much loved building. If a campaign of sufficient size and intensity could be built quickly, McCarthy & Stone might just decide to walk away rather than face the adverse publicity.

One thing is for certain in our mind - the planning system is not going to stop them.

Sadly we may not be able to attend the hearing and get a report out in time for our readers, but we will bring an analysis of the result once we have something more.

Those with an interest can simply turn up at the Inquiry into the appeal by McCarthy and Stone which will be held at the United Reformed Church, St George’s Road, St Annes, starting on April 24th and sit in the public gallery to watch.

It's designated to last for two days, but it could be over in one.

You can follow this link to visit the Planning Inspectorate website for this appeal. The Case Identifier number is 2168726

Dated:  12 April 2012