Secretary of State says no

Finally, something to write home about on the planning front as Allerdale planners refuse permission for a new retail development on Low Road in Cockermouth. They had been ‘minded to turn down the plans for two retail units on vacant industrial land‘ but were unable to do so because the Secretary of State had received a request to call in the application, effectively taking the decision out of their hands.

Despite the usual spiel that the proposed food store and separate retail unit ‘had the potential to create 50 jobs’, there were fears it could harm the town centre.

It’s the very lack of such high street homogeneity which makes Cockermouth so unique.

The redevelopment of the service station at the other side of Cockermouth, complete with not just a Spar convenience store, but a Subway, a Greggs ‘food-to-go’ and a Starbucks, is already – I hear – ‘sucking business away from the town centre’, without further such outlets orchestrating a pincer movement from the opposite end. It’s the very lack of such high street homogeneity which makes Cockermouth unique.

Having considered the request to call it in, the Secretary of State this week confirmed he wouldn’t do so, handing the responsibility back to councillors – who voted 10 to one in favour of refusal, with one abstention.

I fear we won’t have heard the end of this as the developer has the option to appeal but what interests me here is the involvement of the Secretary of State. Okay this time it fell in the objectors’ favour, but does he always just say no, I wonder? Is it ever worth the effort of appealing to him (or her) or is it just a carefully constructed bureaucratic logjam designed to make you believe you have some degree of power, whilst simply delaying things just long enough to ensure the developers inevitably get their way (although not in this case, perversely)? The law certainly seems increasingly very loaded in favour of development, at any price, irrespective of local need.

Yet, despite the odds being stacked against us, we thought it worth the effort when we appealed to the Secretary of State to revoke planning permission for Story Homes to build 320 homes at Strawberry How…

Blue hydrangea, so far not nibbled by bunnies © Hackette on the How

Revocation, revocation, revocation

Anyone living in Cockermouth is by now well aware that we failed in our appeal. But – with apologies to those who maybe visit here expecting otters, birds and bunnies – in the interests of legacy, of making sure that everything we went through stays recorded in one place, this is how it happened. (The otters, birds and bunnies will doubtless be back. In fact, the bunnies recently took to nibbling our rose bushes – just to keep you completely in the loop – about which I was not entirely happy).

In July, the Times & Star published a heart-felt open letter from Chris Orr venting the frustration we’d all felt at failure.

‘You’re in the paper again!’ said Beryl, outside Sainsbury’s. And sure enough I was, featured alongside the letter. In possibly my most unflattering photo ever, I’m pointing self-consciously into the middle distance (towards the long-deceased hedgerow), as a gaggle of fellow campaigners gaze earnestly in the general direction of my right index finger. Even the dog looks earnest.

Addressed to the Right Honourable Greg Clark MP (the then Secretary of State for Communities and Local Government), the letter refers to his decision not to revoke planning permission. It lists what we all considered ‘overwhelming reasons for rejection and revocation’ – exacerbation of flood risk downstream; the Environment Agency’s non-objection, despite admitting that it had neither flood data for the beck which runs through the site, nor predicted rainfall data; the already struggling infrastructure in town, including a road system built for the 19th century; and wildlife and environmental concerns. It also notes government assurances that brownfield sites must be considered before green belt.

‘I’ve little doubt,’ says Chris, ‘that your decision was based on government statements about the need for more housing. However, this is a blunt instrument, giving wealthy and powerful housing developers a club to batter local councils with – and in this respect Allerdale council is particularly weak and has failed to protect the character of the town’.

Frustration and breakthrough

It was in early January when the whole ‘revocation’ thing began, following another frustrating SUSCO meeting. Frustrating in that, despite all our best efforts – both collectively and individually, many for several months – years even – before I pitched in with my two penn’orth – nothing had changed. Mr Story was still going to build 320 houses in the fields opposite, straddling Tom Rudd Beck and upstream of the town.

Surely, we thought, there must be a window of opportunity to make the ‘flood-case’, the devastation and chaos still so clearly evident in town? But no. The time slot for judicial review had long since passed and ‘once planning permission is granted, it’s illegal to revoke it’. End of.

‘Really?’ I whispered, to the person on my left (none other than Alan Smith, leader of Allerdale council). ‘Surely, there’s no such thing as a legal decision that can’t be contested? Or reversed?’

Half an hour later, alone at home with Pinot Grigio and Mr Google – and a single set of search criteria (the glaringly obvious ‘revocation of planning permission’) – I found it. Standard note SN/SC/9005: Revocation of Planning Permission. Right there. I scan read it. Then read it again, properly this time. Nope, definitely not imagining it. Planning permission can indeed be revoked – by the local authority or, failing that, the Secretary of State – if it is deemed to have been ‘improperly granted’.

Admittedly, instances of this happening for new consents are rare. It is ‘fairly common’ for local planning authorities to revoke planning consent, subject to approval by the Secretary of State, but ‘more often, they relate to old consents that have been started but not completed. There may be some good reason why the proposal that gained planning consent would now never be carried out.’

But, given that at least 870 voices – 10% of the population of Cockermouth – remained firm in the belief that permission was wrongly granted, we took this as a glimmer of hope in very dark days.

And, rare or not, what worried us most at this point wasn’t just our councillors’ apparent ignorance of this ‘fairly common’ piece of legislation but the rudely brief insistence by one or two that revocation was ‘illegal’. Nobody I spoke to appeared to have any knowledge of it. At all.

Evidence found. Now what?

Back in December, in the wake of the floods, the Climbing Gremlin and I had sent an email to every single Allerdale councillor, believing that the floods must surely have raised concerns. We felt sure the council would revisit the decision to build this development, given that the seemingly innocuous beck which runs through it (rendered a boiling torrent once swollen by heavy rainfall), had contributed substantially to the amount of water flowing at speed into the town.

Clearly, we said, ‘the often quoted statistic of one in a hundred years is optimistic to the point of naivety, yet we understand that the council remains firm in its view that this is not a high risk area’, asking that our councillors and the developer ‘give a categorical undertaking that any revised drainage measures would be of sufficient capacity to completely prevent flooding both on the site and along the downstream flow of Tom Rudd Beck’.

Was it not now time, we asked, ‘for the council to swallow some pride and take action to halt this environmental bombshell before it is too late’, sure that in so doing, they ‘would gain the respect and support’ of those they represented?

We received just two responses. Not bad. Out of 56 councillors.

But now we had a piece of evidential ‘gold’. And so it was, on the eve of a skiing holiday (and a very early start the next morning), when we should have been wondering whether we’d packed enough pairs of goggles between us (you can never have enough) and catching a couple of hours sleep, I was still sat at the computer.

During the afternoon, I’d submitted a written question for the following week’s council meeting, to be read in my absence by Councillor Len Davies. Now here I was printing off, signing, popping in envelopes and sticking first class stamps on 56 actual letters to councillors’ home addresses (freely available on the Allerdale website). They weren’t answering my emails, maybe they’d respond to an old-fashioned something tumbling through their doors.

Our letter asked all councillors and the developer to give a categorical undertaking that any revised drainage measures would be sufficient to completely prevent flooding both on the site and along the downstream flow of Tom Rudd Beck, the latter being ‘essential to safeguard person and property not just on the proposed development but for everyone downstream’. We also asked whether councillors would be willing to indemnify both future buyers and residents downstream against any future flooding. Or put pressure on Story Homes to do so.

The question I submitted to Councillor Mark Fryer, the portfolio holder, was: ‘Given the recent flooding events in Cockermouth and the admission by the Environment Agency that modelling used to determine the decision is now flawed and out of date, was Mr Fryer aware that contrary to popular belief, the local authority has the power to revoke planning permission under the Town and Country Planning Act? Would he confirm that this option is indeed being considered and, if not, why not?’

Chris Orr, there in person while I was swanning down the piste, elaborated further. He talked about the floods being a wake-up call for Cumbria, especially Cockermouth, and asked that Mr Fryer – indeed, all councillors – agree that the permission for development of Strawberry How by Story Homes should now be revoked or put on hold until the flood risk data and the Environment Agency’s modelling methods have been fully updated and approved such that councillors can ‘have confidence that this development will not further aggravate flooding in Cockermouth’.

Mr Fryer’s response at the meeting was disappointing. Admitting the possibility of revocation, he was quick to state how complicated a process it was. A couple more councillors, meanwhile, prompted by a written letter, discovered my email at the bottom of their inboxes. Yet, despite now having evidence to the contrary, most remained insistent that once planning permission is granted, it cannot legally be revoked.

Support from Westminster

But we weren’t done yet. Far from it. Because I’d also sent details of my question – and the standard note – to Sue Hayman MP. Back from our ski trip, an answerphone message from Sue awaited me. This was promising.

During a meeting at Westminster with the then Floods Minister Rory Stewart MP, the Environment Secretary, Liz Truss MP, and senior civil servants, Sue was advised that we should take our case to the Secretary of State. That, indeed, we might have a case. With Sue’s support, and the help of fellow campaigner Tim, a briefing note was duly prepared, listing our key concerns – specifically those related to flooding – signed and supported by 80 residents (not a huge number, but time was of the essence and we hoped we were speaking on behalf of the 870 at the very least).

• First, the centre of the proposed development had been reclassified as Flood Risk Level 2 following the floods of 2009. Wasn’t the plan to build 320 homes here in direct conflict with the local authority’s own planning policy due to the very real possibility it would exacerbate flooding downstream, putting homes and businesses at risk? Again.

• Second, the Environment Agency data on which planning permission was granted had been acknowledged to be out of date and incomplete (a point which is still largely unresolved, in respect of Tom Rudd Beck). Both Allerdale and Cumbria county councillors were over-reliant on this data and the developer’s assurances that flooding ‘will not be an issue’. Story Homes was allowed to develop its own hydraulic model for the site, which we believed to be a conflict of interest.

• Third, we believed the process by which permission was granted was badly tainted with impropriety. Our understanding (anecdotal at that stage – albeit widely-reported – but later confirmed in letters to the Times & Star by Bill Finlay, one of the councillors involved), was that councillors had been ‘professionally’ intimidated. Despite identifying a number of valid grounds for refusal and there being ‘clear overwhelming reluctance to approve this application’, they were pressured into withdrawing any motions which might result in a refusal. Remarkably, ‘no motion to refuse on the grounds of an increased risk of flooding was ever put’.

Not something we could include in the appeal to Mr Clark, but the voting itself seemed questionable. Despite the application initially being rejected (four votes for to three against), rather than accept this, two further votes took place. The second, still a ‘no’ (again four to three), was quickly followed by a break ‘in camera’, after which (remarkably), the ‘right’ decision appeared to have been reached. A yes vote (this time three for and four against). Not even ‘best of three’! This time, however, the vote stuck.

A flicker of light

It was 16 March before a response arrived, via Sue’s office, from Brandon Lewis MP, Minister of State for Housing and Planning. And, after what seemed a very long time in darkest limbo, it brought another flicker of hope.

‘Officials inform me’, ran the second of two short paragraphs, ‘that a request to consider revoking the planning permission is under active consideration…’ Wow.

The previous week, Councillor Finlay had written in the Times & Star that the development panel had been ‘misled’.

‘This is not just a case,’ he remarked, ‘of getting to mark your own homework, but also getting to set the questions as well’.

‘No motion to refuse on the grounds of an increased risk of flooding was ever put, despite this being the biggest single concern of objectors. The reason for this was simple: the Environment Agency had already signed off the application as posing no significant or additional threat. As councillors trained on what constituted material planning matters, we already knew a refusal on the grounds of flooding risk was a non-starter’.

He cited the written admission from the Environment Agency, which we had shared with all councillors, that ‘it does not use rainfall data when assessing the risk of flooding’. Nor does it have hydrometric data on Tom Rudd Beck and therefore advised Allerdale planners that the developer should produce their own model. The resulting document was then accepted at face value.

‘This is not just a case,’ he remarked, ‘of getting to mark your own homework, but also getting to set the questions as well’.

He called for those councillors who took part in the development panel in December 2014 to consider, based on what they now knew, how they would have voted on this application ‘regardless of the professional intimidation they were subjected to?’

That same week, Councillor Len Davies called me to say he was prepared to ‘call in’ all 44 conditions for public scrutiny – another of our requests. (He did then do so but, apparently, the window of opportunity had passed). The week after the letter from Brandon Lewis, councillors Len Davis, Bill Finlay and Nicky Cockburn (the latter two both Independent) wrote to the minister supporting our case. All three had been members of the development panel.

Maybe, just maybe, we had gained some traction. Spurred on by these developments, we prepared a second, updated briefing note, forwarded to the minister once again with Sue’s support.

The flame dies

Five weeks later, a second letter arrived from Westminster. The Secretary of State had carefully considered our case ‘against his policy of revocation and modification of planning  applications’ and concluded that it was ‘not expedient for him to revoke the permission’. The rest, as they say, is history.

Diggers at the ready at Gote Bridge © Hackette on the How

Given the amount of water which has fallen through the summer – much of which can be heard from the roadside, rushing underneath the site and on across the path to the beck or seen settled on the stripped-down clay in broad, unshifting puddles – we still believe we were right.

Footage of flooding along the newly-built A591, and images of the roaring becks at Glenridding (and we’re still in August!), demonstrate all to clearly that Nature has a way of laughing in the face of our attempts to conquer it. Down in the town, the Environment Agency had to halt gravel removal last week because – despite the dry weather – so much water is coming down the River Derwent and at such speed that the diggers are unable to work. Quite apart from the safety of the workers, as fast as the buckets fill with gravel, they are washed out again.

Doubtless (and for the sake of those who buy there, I sincerely hope this is the case), Story Homes will build up ground levels at ‘Strawberry Grange’ to such an extent that those properties will never flood – although their own Water Drainage Strategy clearly states that they expect ‘some minor flooding’ on the estate highways.

But, returning to Chris Orr’s heartfelt open letter to Greg Clark, we all appreciate that from the hollowed halls of Westminster we’re just another group of disgruntled locals, moaning about what we see as unnecessary development in our own back yards. Even amongst those in the town who have been flooded – or nearly flooded – over the last six years, there are many who just don’t see the connection between adding 320 homes-worth of concrete and tarmac on a recognised catchment area for the River Cocker (and, therefore subsequently the Derwent) and the flood risk downstream.

So… was it worth the hassle and frustration with the Secretary of State? Every last minute. Yes. Would we do it again? Yes. Would we recommend anyone else in a similar position does it? Yes. It’s always worth a shot. Navigating the system isn’t easy – you need friends in high places along the way – and even if we weren’t successful this time, we might be the next and maybe others can learn from our experience. And, as this week’s decision on the retail outlets proves, even a ‘no’ can be good news if enough councillors are on your side!

References: ‘Standard Note SN/SC/905 Revocation of planning permission’ (now given a much needed facelift and retitled in July 2016 as ‘Briefing note number 00905’); various letters and news cuttings; Surface Water Drainage Strategy Overview, Story Homes, January 2016.





4 Comments Add yours

  1. Jonty says:

    But you may have missed the fact that Allerdale’s planning officers recommended approval of the out of town units . Their reading of the planning policies on which they based their recommendation was of course mistaken – when do they ever get it right. How a developer can show that a particular shop is needed and that there is no alternative location for its provision ( the grounds on which the officers found in favour of the developers ) , when the application is speculative and no prospective tenants have been named , defies all logic. But then this is the Allerdale planning department we are talking about, so the use of logic and the consideration of precedent is probably too much to ask for.

    Liked by 1 person

    1. Spot on Jonty! Yes, I hadn’t picked up that the officers recommended approval – no surprise! The whole system is farcical – completely agree: logic, good sense and any sort of consideration for the particular community they’re looking at never seem to enter into it!


  2. Bob says:

    I think the planning officers subscribe to the version of logic referred to in “Cranford” (Elizabeth Gaskell)……………..”I’ll not listen to reason…..Reason always means what someone else has to say.”

    Liked by 1 person

    1. Certainly seem to!!


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