104 High Street, Rainham, GILLINGHAM, ME8 8AD

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision Site visit made on 7 November 2023 by M Cryan BA(Hons) DipTP MSc MRTPI an Inspector appointed by the Secretary of State Decision date: 9th May 2024 Costs application in relation to Appeal Ref: APP/A2280/W/23/3314655 The Green Lion, 104 High Street, Rainham, Gillingham ME8 8AD • The application is made under the Town and Country Planning Act 1990, sections 78, 322 and Schedule 6, and the Local Government Act 1972, section 250(5). • The application is made by Messrs Plumbly and Bueno of Totteridge Developments Ltd for a full award of costs against Medway Council. • The appeal was against the refusal of planning permission for the construction of a terrace of six two-storey three-bedroom dwellings with associated parking. Decision 1. The application for an award of costs is refused. Reasons 2. Parties in planning appeals normally meet their own expenses. However, the Planning Practice Guidance (“the PPG”) advises that costs may be awarded against a party who has behaved unreasonably and thereby caused the party applying for costs to incur unnecessary or wasted expense in the appeal process. 3.

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision Paragraph 047 of the PPG gives examples of unreasonable behaviour which may give rise to a procedural award of costs against a local planning authority, including “lack of co-operation with the other party or parties”, and “delay in providing information or other failure to adhere to deadlines”. Paragraph 049 gives examples of unreasonable behaviour which may give rise to a substantive award of costs, including “preventing or delaying development which should clearly be permitted, having regard to its accordance with the development plan, national policy and any other material considerations”, and “failure to produce evidence to substantiate each reason for refusal on appeal”. 4. There are three separate elements to the applicants’ claim1, based on what they describe as the Council’s “unreasonable behaviour in failing to provide convincing justifications for its reasons for refusal, give appropriate thought to other material considerations and for causing avoidable delay”. The grounds thus fall broadly, if not entirely precisely, into the examples in the preceding paragraph. 5. The first element of the claim relates to the implications of the Council’s lack of a five-year housing land supply.

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision The applicants’ appeal statement referred to a then-recent appeal decision2 which granted outline permission for a large mixed-use development at a site in Chatham, in which the shortfall in housing land supply was considered. In determining the planning application for this 1 A fourth putative reason, relating to the processing and review of a draft Unilateral Undertaking, was initially put forward by the applicants but withdrawn at “final comments” stage. 2 PINS Ref: APP/A2280/W/21/3280915 https://www.gov.uk/planning-inspectorate

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision The applicants’ appeal statement referred to a then-recent appeal decision2 which granted outline permission for a large mixed-use development at a site in Chatham, in which the shortfall in housing land supply was considered. In determining the planning application for this 1 A fourth putative reason, relating to the processing and review of a draft Unilateral Undertaking, was initially put forward by the applicants but withdrawn at “final comments” stage. 2 PINS Ref: APP/A2280/W/21/3280915 https://www.gov.uk/planning-inspectorate

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision Appeal Decision APP/A2280/W/23/3314655 appeal scheme, the Council acknowledged the housing land supply position, but concluded that the various harms it found would significantly and demonstrably outweigh the benefits of the provision of six new flats, when assessed against the policies of the National Planning Policy Framework as a whole. 6. The parallels between this appeal scheme and the Chatham scheme, which would provide up to 600 new homes, are not obvious. While the applicants’ appeal statement emphasised the housing shortfall with reference to the Chatham appeal, to my mind it included little other substantive evidence to show how or why the two situations were at all analogous. That the Council reiterated its initial view in its statement for this appeal is not therefore in itself demonstrative of it behaving unreasonably. 7. The second element of the claim relates to the tree report submitted with the planning application, and the Council’s interpretation of the information it contained relating to overshadowing of rear gardens within the appeal scheme by protected trees outside the appeal site. This formed the basis of the first reason for the refusal of planning permission. 8.

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision In my experience, it is unusual for an applicant to suggest that a local planning authority has acted unreasonably in “that it relied uncritically on the tree report submitted with the application” and that it “did not review the unconventional and wrong analysis in that report”. For the reasons which are set out in my main decision, I disagreed with the Council’s conclusions in respect of the overshadowing arising from trees, and the related potential impact on protected trees. However, the Council was entitled to rely on the evidence which the applicants initially put before it and, while I ultimately did not agree with its reasoning is not in itself an indication that their reason for refusal was unsubstantiated. 9. The third element of the claim relates to the parking and highways issue, which formed the basis of the second reason for the refusal of planning permission. The applicants argue that “there is no local plan policy that precludes loss of public houses”, and that the Council had “failed to produce any substantive evidence to suggest that [the Green Lion] will ever reopen as a pub”. However, this strikes me as being somewhat wide of the mark.

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision The appeal proposal was not for the loss or change of use of the Green Lion public house. The Council was considering a proposal which would lead to the loss of the car parking and service space which had served the Green Lion, in circumstances where the pub use could – in theory at least – be resumed at any time. 10. I note that the Council did not put forward further arguments on this matter during the appeal; in response to the costs claim it stated that this is because it has a consultant providing highway comments, but none were provided in response to the appeal documents; it therefore relied on its officer report on this matter. 11. For the reasons which are again set out in my main decision, I disagreed with the Council’s overall analysis of the parking and highways issues, although once more I reiterate this is not in itself demonstrative of unreasonable behaviour. However, in failing to provide further evidence in respect of the traffic and highways matters, and to address the points put forward in the applicants’ appeal statement, it can be said not to have substantiated that reason for refusal.

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision To that limited extent, therefore, the Council may be considered to have acted unreasonably in the terms set out in the PPG. https://www.gov.uk/planning-inspectorate 2

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision To that limited extent, therefore, the Council may be considered to have acted unreasonably in the terms set out in the PPG. https://www.gov.uk/planning-inspectorate 2

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision Appeal Decision APP/A2280/W/23/3314655 However, in order to make an award of costs I need to be satisfied that this resulted in unnecessary or wasted expense. 12. Overall, the Council’s determination of the planning application seems, on the evidence before me, to have been carried out in a broadly acceptable manner. Its two principal reasons for refusing planning permission were largely substantiated in its evidence, albeit in terms which I ultimately did not find persuasive. Matters relating to the mitigation of the potential impacts of development on nearby Special Protection Areas and Ramsars were dealt with by a Unilateral Undertaking submitted only after the planning application had been determined. 13. On this basis, it seems likely that the planning application would still have been refused, and the appeal would have gone ahead in any event. Notwithstanding my finding in respect of the Council’s dealing with the response to the traffic and highways reason for refusal, its concerns about the impact of the development were reasonable. The applicants would therefore in any case have been likely to appoint a consultant to fight the appeal. Conclusion 14.

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — Costs Decision I therefore find that unreasonable behaviour resulting in unnecessary or wasted expense, as described in the PPG, has not been demonstrated.

104 High Street, Rainham, GILLINGHAM, ME8 8AD — Medway Council — M Cryan Inspector https://www.gov.uk/planning-inspectorate 3