To seek the Cabinet’s decision on making a payment to the applicants for development at St. John’s Nursery, Clacton-on-Sea following an award of costs by the Planning Inspector in deciding to overturn the Council’s decision to refuse planning permission on appeal and finding the Council to have acted unreasonably.

RESOLVED that Cabinet -

(a)    agrees to pay the sum of £101,886.00 to Kelsworth Limited, in respect of its claim for costs, as ordered by the Planning Inspectorate on 22^nd March 2023;

(b)    notes that the above payment will be made from the budget for Planning Appeals Costs; and

(c)    supports the outcome and impact of the Appeal Decision and Costs Award being included within the annual report to Planning Committee on appeal decisions.

Cabinet considered a report of the Housing & Planning Portfolio Holder (A.5), which sought its decision on making a payment to the applicants for development at St. John’s Nursery, Clacton-on-Sea following an award of costs by the Planning Inspector in deciding to overturn the Council’s decision to refuse planning permission on appeal and finding the Council to have acted unreasonably.

Members were informed that planning application Ref 21/01000/FUL, dated 3 June 2021 at 700 and 762 St Johns Road and St Johns Nursery, Clacton-on-Sea, Essex CO16 8BP (demolition of nursery buildings and dwelling house (700 St Johns Road) and erection of 180 residential units (including affordable housing) comprising 10 two bed houses, 83 three bed houses, 24 four bed houses, 15 five bed houses, 16 one-bedroom apartments and 24 two-bedroom apartments and 8 live work units (mixed commercial units totalling 1,064 square metres with flats above), and roads, open space, drainage, landscaping and other associated infrastructure) had been refused planning permission by notice dated 18 May 2022, which followed a resolution by the Council’s Planning Committee made at its meeting held on 10th May 2022. 

Subsequently, that decision had been appealed under Appeal Ref: APP/P1560/W/22/3308647 and, following a hearing held on 7th March 2023, it had been allowed by the Planning Inspectorate on 22nd March 2023. In addition, a full award of costs had been granted by the Planning Inspector against the Council. 

Cabinet was advised that the Inspector had allowed the application for an award of costs against Tendring District Council, on six out of the seven grounds submitted, and based on the Planning Practice Guidance. That Guidance permitted costs to be awarded against a party that had acted unreasonably and had caused the other party to incur unnecessary and wasted expense in the appeal process. 

The Planning Inspectorate’s reasons for a full award were summarised as follows:- 

“The Council's insistence on refusing planning permission based on outdated data for the Transport Assessment (TA), despite the applicant's submission of additional information that demonstrated the validity and robustness of the TA and failure to properly further survey data with the appeal related to traffic and highway safety grounds.

The Council's lack of consistency in decision-making, as evidenced by their previous acceptance of a similar development on the same site in 2020, which utilised the same proposed access.

The Council's failure to provide clear explanation or justification for a change in their approach to assessment, specifically regarding concerns related to light, vibration, and noise compared to the previous scheme and the appeal scheme.

The Council's objections to the proposed development without proper consideration of how these concerns could be addressed through conditions, especially given the background provided by the previous 2020 scheme and the overall suitability of the location for development.”

As a result of those actions, the Inspector had found the Council to have acted unreasonably for its first and second grounds of refusal, and the remaining reasons for refusal could have been addressed prior to the grant of planning permission. The Inspector had therefore ordered the Council to pay the full costs of the appeal proceedings to the applicants (Kelsworth Limited). The Council had been invited to reach an agreement with the applicant regarding the amount of the costs; otherwise, the costs would be assessed in the Senior Courts’ Costs Office.

It was reported that the sum of money being claimed by the applicants, reduced from a higher figure following challenge by Officers, currently stood at £101,886.00.

Recognising that:-

(1)   failure to promptly pay the award of costs would result in Tendring District Council being required to engage with the Senior Courts’ Costs Office that could result in reduced or increased costs and that any reduction of costs or increase in cost award would need to be balanced against the increase in costs to the Council to proceed further and defend any position and noting that Officers were not able to find an adequate robust position for defence likely to reduce the cost claim sufficiently that would justify proceeding to the Senior Courts; 

(2)   it was therefore crucial for the Council to carefully consider the implications of such an action, weighing the possible reduction in costs against the potential expenses incurred in further defending its position; and

(3)   in light of those considerations, it was advisable for the Council to evaluate the cost claim objectively and adhere to the awarded amount to avoid unnecessary complications and potential additional costs. Timely payment of the awarded costs would ensure a smoother resolution of the appeal process, bringing closure to the matter and minimising any further financial burden on the Council.

It was moved by Councillor Baker, seconded by Councillor Placey and:-

RESOLVED that Cabinet -

(a)    agrees to pay the sum of £101,886.00 to Kelsworth Limited, in respect of its claim for costs, as ordered by the Planning Inspectorate on 22^nd March 2023;

(b)    notes that the above payment will be made from the budget for Planning Appeals Costs; and

(c)    supports the outcome and impact of the Appeal Decision and Costs Award being included within the annual report to Planning Committee on appeal decisions.