On the 18 July 2023, the local press ran the story about the New Folkestone harbour arm designs. This article has caused a storm of comments across social media, but the article itself fails to explain, why this cannot be stopped, or what people can change.
Cast your minds back to Wednesday 31 July 2013, when the Council held a extraordinary meeting to decide on planning permission for the Folkestone Harbour & Seafront, under application number Y12/0897/SH.
All 38 Cllrs present voted for the application
On the 30 Jan 2015, the planning application decision was granted, along with the conditions.
This outline planning permission covered the height and mass of the buildings at the Harbour and along Marine Parade.
On the 04 Sept 2017, Savills for and on behalf of Sir Roger, submits new plans for Folkestone Harbour & Seafront under a s73 application, Y17/1099/SH. The application was linked to the Planning Permission Y12/0897/SH granted in Jan 2015.
The s73 application, Y17/1099/SH took two bites of the cherry to be successful. It is the s73 application which needs explanation, as it so often confuses members of the public.
Sir Roger’s Section 73 application, Y17/1099/FH, was an application for a fresh and independent planning permission (aka Permission B) without complying with one or more conditions from his first planning permission (Permission A, Y12/0897/SH). Before section 73’s was introduced, if anyone – individual or developer – got planning permission and they did not like one of the conditions, they had only one single option: appeal. That brought further costs and delays and brought the real risk the individual, or developer, could lose everything.
The introduction of Section 73 avoided that risk. In a s73 the only thing up for grabs are the conditions. Should the permission be subject to different conditions? No conditions at all? Or the same conditions – if it’s that 3rd option, the section 73 application fails. The conditions in the s73 application were different so planning permission was granted.
As the s73 application was successful, that meant there was no necessity to “amend” Permission A (Y12/0897). As such he ended up with two separate, independent permissions: Permission A (Y12/0897/SH) and Permission B (Y17/1099/SH). And because he had two permissions, Sir Roger could decide which of them he wanted to implement.
The focus is on conditions, when deciding a section 73 application, the Council’s planning committee still had to consider material planning considerations and policies as at the date of Permission B. The Council was not stuck with the world as it was when Permission A (Y12/0897/SH) was granted on 31 July 2013.
Changing the design wouldn’t involve re-writing the description of development (i.e. it’d still involve the “construction of one development” with the height and massing as per Permission A). All Sir Roger was doing then was proposing a fundamentally different design; which under s73 is allowed for.
So in a nutshell
Does a s.73 consent amend / vary / modify the original permission?
No
If you succeed, you end up with 2 permissions. Not a single modified permission. A permission under section 73 takes effect as an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions.
Are s.73 applications limited to “minor material amendments”?
No.
Sir Roger’s Folkestone Harbour & Seafront development design wasn’t a minor amendment. It was a completely different design. But that didn’t take it outside the scope of section 73.
There is nothing in s.73 which limits an application to vary or remove a condition to “minor amendments” or to amendments which do not involve a “substantial” or “fundamental” variation to the original scheme.
Is s.73 excluded for applications which propose a “fundamental or substantial” variation to the original permission?
No.
Again, the key question is whether the new scheme proposed under section 73 is consistent with the operative part of the original permission. If the new scheme fits within the original description of development, that’s what counts. Even if the new scheme is fundamentally different to the old scheme.
Can a s.73 application alter/be inconsistent with the description of the development contained in the operative part of the existing planning permission?
No.
As the Court of Appeal have made clear:
“[s.73’s] purpose is to give the developer “relief” against one or more conditions. On receipt of such an application section 73(2) says that the planning authority must “consider only the question of conditions”. It must not, therefore, consider the description of the development to which the conditions are attached. The natural inference from that imperative is that the planning authority cannot use section 73 to change the description of the development.”
With that little bit of education then, the only thing residents can do at the Folkestone Harbour & Seafront Consultation taking place at the Customs House on Friday 21 July 12pm – 6pm and Saturday 22 July 11am – 5pm, is comment on the design. So what you can comment on is for example, the access, the layout, the scale and appearance, sustainability & biodiversity, public open spaces, the landscaping and play space.
For more detail on this Oldham Council have produced an excellent document setting out what should be considered throughout the design process; which you can read prior to the consultation, digest and add to any comments you may wish to make, on the paper survey/questionnaire on the day, or online at (consultation@folkestoneseafront.com)
Now do remember the council will need to undertake its own consultation before making a decision on the application.
A planning application by Sir Roger’s company is due to be submitted to Folkestone & Hythe District Council in Autumn 2023. This application is about the design. It does not mean the development can be stopped. All that any public comment at the consultation can do is, affect/alter the design; which is what most of the hoo-ha on social media has been about.
So if you don’t want it to look like “piles of poo”, “termite mounds,” or a “wasp nest”, then give it some thought by reading the Oldham good design code. Then pop along to the consultation and make your comments. You never know, they just might be listened to and taken on board.
The Shepway Vox Team
The Velvet Voices of Voxatiousness
