Harbour Plots 24/0505/FH: Can you carry on commenting & were we fairly consulted?

So the deadline (16 May) for commenting on the Harbour Plots reserved matters application 24/0505/FH has past. Comments had reached 488 comments, as of 9am, on the 17 May 2024.

This is more comments than the original application Y12/0897/SH and the s73 application, Y17/1099/SH. So well done to all who commented, for or against. Perhaps Sir Roger is enjoying the attention, for as the phrase goes, there’s no such thing as bad publicity.

We’ve been asked if one can still comment, the answer is yes you can. However, that comes with a caveat. To clarify this one has to turn to the Guidance on Consultation and pre-decision matters. Here it asks the following question

Will the local planning authority take into account views received after the formal period for comments has closed?

and the answer is:

Local planning authorities may, at their discretion, take into account comments that are made after the closing date (but have no obligation to do so).

That said, one notes that Folkestone Town Council at their Planning Committee Meeting held on Thursday 25th April 2024 said the following regarding 24/0505/FH (Folkestone Harbour Plots F; G & H):

We expect the District Council will accept the comment of the Town Council, and in doing so, this would mean they would need to allow further comments by others as the legal principles of “fairness” and “legitimate expectation” are more likely than not engaged. So please don’t stop commenting, as it’s clear the Council Planning portal are still accepting comments, which stand at 531 at 10:20am on the 17/05/24.

And the Chair of the Planning Committee, Cllr Jacqui Meade (Lab) has said:

And former Cabinet Member and Cllr of FHDC, Lesley Whybrow has said:

Given their advice, please do keep on commenting even though the deadline has passed as your comments will be taken into account

Moving on, the applicant needed to consult the people as is made clear at section 122 of the Localsim Act  2011. However, one has to ask:

Does the developer have to re-consult on the proposed application for planning permission for the Harbour Plots?

The proposed application as seen by the public during the consultations (Oct 2022 – August 2023) fundamentally changed as it shrunk by 20%.  The proposed application for planning permission 24/0505/FH was NOT the proposed application for planning permission seen and consulted on with the public.  As such, we personally believe the applicant needs to re-consult as the plans have fundamentally changed. That said, it would be for a judge to decide if any Judicial Review were to happen. What we can say though is this.

The general position of the courts is that re-consultation will be necessary only if proposals have been amended so fundamentally as to make them fresh proposals, this was decided in

R (Wandsworth LBC) v Secretary of State for Transport [2005] EWHC 20 (Admin),

among other cases.

The applicant needed to consult the people as is made clear at section 122 of the Localsim Act  2011. This  introduced a requirement upon prospective developers to consult local communities before submitting applications for certain developments of a description
specified in a development order, by inserting new provisions into the Town and Country
Planning Act 1990.

Within s122 of the Localsim Act is, Section 61X which states: 

Duty to take account of responses to consultation

1 –  Subsection (2) applies where a person—

(a) has been required by section 61W(1) to carry out consultation on a proposed application for planning permission, and

(b) proposes to go ahead with making an application for planning permission (whether or not in the same terms as the proposed application)

(2)- The person must, when deciding whether the application that the person is actually to make should be in the same terms as the proposed application, have regard to any responses to the consultation that the person has received.

It’s clear the application made  – 24/0505/FH is not the same as the proposed application we the public saw and engaged with. However, the applicant has had regard to the responses as set out in the statement of community involvement. This is what led to the overall application for 24/0505/FH to shrink by 20%.

Were the public entitled to further consultation on second proposed application as submitted? We honestly believe it was procedurally unfair to introduce the changes [the 20% shrinkage] without warning and without any process of re-consultation, which would have enabled further representations to be made for or against them.

In any consultation the overriding requirement is ‘fairness’. The process must be substantively fair and have the appearance of fairness. The applicant has been minded to proceed in a way which was not part of the public proposed application consulted upon, and as such basic fairness we honestly believe requires the applicant to re-consult or consult afresh on the changed proposed application as submitted.

We believe the Director of Public Health Kent should have been consulted as policy HW2 of the Council’s PPLP says a Health Impact Assessment will be required when building 100 homes or more, or more than 1,000 sqm of commercial space. Now it is possible for someone who was consulted to complain that others who were not should have been. Case law supports this position as is made clear in Wainwright v Richmond on Thames CO/3605/2000 11 April 2001 [23-24, 54]; R v Lambeth ex p N [1996] ELR 299 at 311

It is not necessary for someone to have participated in the consultation in order for them to complain about how it was conducted: they are entitled to stand back and let others represent their interests in the consultation but nonetheless later to challenge the lawfulness of the consultation. Again case law supports this – R (Edwards) v Environment Agency (No. 2) [2006] EWCA Civ 877.

Given the above we ask you to keep on commenting. Also if there is someone with deep enough pockets for a Judicial Review of 24/0505/FH when it is decided (July/August), our argument about the fairness of the consultation by the applicant could be one ground, among others for a JR.

The Shepway Vox Team

Discernibly Different Dissent