Otterpool Park Update: Fundamental errors in updated Otterpool Park planning application

After seven years and more than £55m spent, the updated Otterpool Park Planning Application – Y19/0257/FH – has been submitted and is out to consultation now. Comments close on the 24 June 2022.

The revised application was submitted in mid April 2022, by Otterpool Park LLP’s agent – Quod – to Folkestone & Hythe District Council. The first application was submitted in March 2019.

Otterpool Park LLP, the master developer, has one sole shareholder, Folkestone & Hythe District Council. The LLP is intent on building up to 10,000 home across 750 hectares (1853 acres), and create a new ‘community’, a new  ‘Garden Town’. The new ‘community’ will come with new infrastructure and be built out in phases, beginning in 2023/24 and ending in 2042/43, if planning permission is granted. Projects costs were in 2019, £2.9bn, with profit to the council of £193 million, since revised upwards to £240m.

The revised application though has not got off to a good start. When the updated application was first posted online, the link to their planning portal was out of date, and the links to the URL had no security certificate, plus the application number was misquoted. One might be tempted to believe the Council didn’t want residents of the district to comment on the largest planning application the district has seen.

Thankfully, concerned residents drew the Council’s attention to these  fundamental errors, and they were corrected.

The updated Otterpool Park planning application – Y19/0257/FH– has 175 documents [@ 29 April] for the public and Cllrs to read and consider. The number of files on the Otterpool application itself is 236 bringing the total of documents, including comments and other information to 411.

In total the application is about 5.5 million words, and given reading speed for technical language is between 50 – 75 words a minute, it would take Cllrs and the public, if they read for 3 hours each day, about 380 days to read all the documents. A tsunami of information and so little time to read it all and comment on it by the 24 June 2022.

Missing from the documents is the viability assessment and the full unredacted business plan. Yet more fundamental errors. We have reported before, Justice Dove in R (Holborn Studios) v London Borough of Hackney (No 2)  established the public’s right of access to viability assessments [unredacted] in planning applications, yet the Council, the LLP and its agent, Quod, appear to be flouting judicial decisions. Why do we not find this surprising!

Last week (May 4 2022)  in a local newspaper the Council published the s15 notification for the revised Otterpool Park planning application, as can be seen below. At section 2.3 to 2.6  states:

2.3 The proposed development does not accord with the provisions of the development plan in force in the area in which the land in which the application relates to is situated.

2.4 The proposed development to which the application relates is situated within 10 meters of relevant railway land.

2.5 The Council considers that the proposed development would affect the setting of listed buildings.

2.6 The Council considers that the proposed development would affect public rights of way.

With regards to section 2.3 above, The Town and Country Planning (Development Management Procedure) (England) Order 2015 states at section 32:

Development not in accordance with the development plan

32.  A local planning authority may in such cases and subject to such conditions as may be prescribed by directions given by the Secretary of State under this Order, grant permission for development which does not accord with the provisions of the development plan in force in the area in which the land to which the application relates is situated.

So have any ‘conditions’ and directions been issued by the Secretary of State with regards to the revised Otterpool Park planning application, or are they yet to be issued? Clarification by the Council and the responsible planning officer James Farrar would be helpful.

If we understand s32 correctly, this could mean the planning committee could be bypassed altogether by the Secretary of State, who is Michael Gove MP (Con), at this time, and planning permission granted. Potentially very worying if local democracy were to be bypassed.

We are also extremely concerned the site is within 10 metres of relevant railway land to the south of the site. That it would affect the setting of Listed Buildings and public rights of way.  Where are the plans showing the location of the relevant railway land and public rights of way affected?  And let’s not forget their are no details of all Listed Buildings affected – We wouldn’t want a £3m pound heritage listed castle to get damaged – yet more fundamental errors.

Furthermore, the advert makes clear you now need to register to comment.  This is another fundamental error – residents have not needed to do so since the council changed its system from Idox to Salesforce in 2019.  Why are those responsible for the revised application, Otterpool Park LLP, it’s agent Quod, and the Council publishing misleading information?

There is no mention on the Council’s webpage – 2022 Otterpool Park Outline Planning Application (updated) when commenting closes. That can only be discerned from the paper notification  – see below – Comments close on the 24 June 2022.

We also note the application notice above makes it clear:

Members of the public can download an electronic copy of the environmental statement from the Council’s website. However, paper copies [of the application] can be purchased directly from:

Poppy Carmody-Morgan, Quod, ingeni Building, 17 Broadwick Street, London, W1F ODE on payment of £600 for a paper copy, or £7 for a memory stick.

This is another fundamental error. One cannot be charged for environmental information which most of the revised planning application is made up of. This is because both the Information Commissioner’s Office and the Courts have made it clear charging is not permissible. This was also made crystal clear by the ICO after our public face challenged Folkestone & Hythe District Council over charging for environmental information.

As we’ve said, much of the information in the application relates to Environmental Information: land, water, soil, air, atmosphere, biodiversity and on and on and on.  The Environmental Information Regulations 2004, at s2.1, makes it clear what is considered to be environmental information. 

(b)factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements;

(d) reports on the implementation of environmental legislation;

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c);

So we hope the charges being made by the LLP, Quod and the Council will be waived for reasons which are obvious.

There are many more fundamental errors which need to be corrected. Over the coming days, we hope you the residents will highlight them and that Otterpool Park LLP, Quod the Council will correct them. You have until the 24 June to comment.

Finally, If the Council wish to avoid a Judicial Review, which is about process, then amending the fundamental errors highlighted any any others which come to light, would reduce any opportunity for them to be cited in any possible future case. We hope each of those invovled in the revised application Y19/0257/FH, will listen to understand these concerns.

The Shepway Vox Team

Being Voxatious is NOT a Crime