PRIORY GARDENS RESIDENTS ASSOCIATION PIPE GATE, SHROPSHIRE

Transcription

1 Ian Kilby Planning Services Manager Shirehall Abbey Foregate Shrewsbury SY2 6ND PRIORY GARDENS RESIDENTS ASSOCIATION PIPE GATE, SHROPSHIRE c/o Secretary 8 Phoenix Rise Pipe Gate Market Drayton TF9 4HQ 20 February 2017 Dear Mr Kilby, Section 106 Agreement Pipe Gate, Woore, N/06/25/WO/39/OUT We write as the combined committee of the Priory Gardens Residents Association. For your information, more than two thirds of the residents of the Priory Gardens estate are members of the Residents Association. We have consulted with all residents of the Priory Gardens estate regardless of membership about the following response. Also, for the avoidance of confusion, one of our committee members - Michael Moore - is in addition the Chair of Woore Parish Council, but chooses to take no part in the Parish Council s decision making about their separate pursuit of clarification from Shropshire Council Planning regarding the discharge of the 2007 Section 106 Agreement, and has not done so since May You recently wrote a letter ( your letter, attached document SC Explanatory Letter ) to the residents of the Priory Gardens estate ( the estate ). We have attached a previous statement on the same subject ( planning statement, attached document SC Statement ) released by Shropshire Council Planning ( SC Planning ) on the planning portal 22 June 2016 which states it could be possible for the Council to enforce some of the obligations in the agreement if it chose to do so. the deed of discharge agreement was not signed by all parties who had an interest in the land Therefore the deed of discharge by agreement could not stand as it was not entered into by all of the successors in title to the land.

2 In addition, we have attached a letter written by Michael Moore to SC Planning as a private individual in November 2013 (document Open Space Status ) that requested clarification about the status of the LAA, and also attached is the subsequent response received from SC Planning in February 2014 ( LAA Confirmation ) in which it is clearly stated that the LAA is designated as a public open space for use by the general public. Finally, we refer you to a response dated 2 December 2015 from Shropshire Council to a formal complaint (reference ) made by Michael Moore, acting for the Residents Association, in which it is clearly stated by Shropshire Council that the granting of the [Section 106] discharge was not valid and the [planning] obligations remain in place. For ease of reference we have numbered our main points below. 1. Your letter, dated 9 February 2017, discusses the 2007 section 106 agreement ( s106 agreement ) that is in fact still extant on the land behind the estate. We note that despite the s106 agreement being of interest to all members of the public surrounding the Local Amenity Area ( LAA ), you have chosen to distribute your letter directly only to individual residents of the estate. Your letter does not adequately explain why you have done this. Your letter also does not explain whether you already have or will communicate with Woore Parish Council ( WPC ) and Loggerheads Parish Council ( LPC ), whose residents also use the LAA, although we note that you subsequently sent a copy of your letter to WPC on 16 February When we compare your letter with the planning statement we note that you have omitted some important points from your letter that are contained in the planning statement; in particular The s106 agreement has not been discharged; the land is in fact legally designated as a LAA, albeit one that SC Planning is choosing not to enforce (for reasons that are unclear to the local community and which WPC have been attempting to clarify with SC Planning for the better part of two years). The s106 may not be discharged without the agreement of the residents of the estate. 3. We note that you personally wrote a response to a formal complaint made by another local resident (reference ) dated 16 September You have personal knowledge that the s106 agreement is not discharged and may not be discharged without the agreement of the residents of the estate. You have personal knowledge of an ongoing legal dispute between residents of the estate and Mr and Mrs Lightfoot, who own the LAA. You are personally aware that this legal dispute concerns a private covenant that acts 2

3 to restrict usage of the land for any purpose other than as a LAA. Your letter does not mention this legal dispute and the fact that this might separately designate the land as a LAA. 4. We note that in your letter you unequivocally state the land has not been designated as amenity land [the residents of the estate] do not benefit from any rights over or have any interest in the [LAA] For the reasons given in paragraphs 1 to 3 above, these statements can be seen to be entirely inaccurate. The s106 agreement that designates the land as a LAA is still in fact extant, and there is in addition a private covenant with the land owner that separately designates the land as a LAA. 5. We also note that your letter follows on the heels of a formal complaint to SC Planning (reference , dated 30 January 2017) concerning past inaction by SC Planning regarding breaches of planning regulations by Mr and Mrs Lightfoot. There are currently three outstanding enforcement actions (all unrelated to the s106 agreement), one of which was reported as far back as March 2015 (15/04559/ENF). We note that no response to this complaint has yet been received. 6. The combination of the contents of your letter, your restricted distribution of it, your personal knowledge of the private legal dispute, and your department s inaction concerning the landowners breaches of planning regulations, gives the definite impression that you, acting as a representative of SC Planning, are actively intervening on one side of a private legal dispute. 7. If this is your intention, then you will wish to become a party to the legal action currently before the First-Tier Tribunal (Property Chamber). The case number is REF/2016/0879 and the solicitor acting on behalf of the residents involved is Esther Richards of Hatchers, Welsh Bridge, 1 Frankwell, Shrewsbury SY3 8JY. You may find the reasoning behind the case, updates concerning the progress of the case, and the statements of case of both parties as well as copies of the supporting documentation at 8. If, on the other hand, it was not your intention to intervene in this private legal dispute, then it is imperative that you take the following actions: Respond to this communication immediately confirming o that it was not your intention to intervene in a private legal dispute. 3

4 o any statement you make on behalf of SC Planning concerns only the s106 agreement. o any statement you make on behalf of SC Planning is not intended to and cannot in any case affect how the private covenant should be interpreted. Within the next 14 days, and preferably sooner, distribute a further letter to the residents of the estate, the WPC and the LPC, restating the points above and clarifying that o the s106 agreement is not in fact discharged. o the s106 may not be discharged without the agreement of all the residents of the estate. o While the s106 agreement is not discharged, the land is in fact a legally designated LAA. o SC Planning has in any event decided not to enforce the s106 agreement for the time being even though they could, should they choose to do so. We look forward to receiving your immediate response to the above points. Overall, it seems to us that SC Planning has acted, and is acting, under a great deal of misinformation regarding this issue. We would therefore like to take this opportunity to provide a short history of the site so that you may better understand the matter (for the avoidance of doubt, there is significantly more detail and documentary evidence that could be provided than is warranted for this response). The 2007 planning application was made by Phoenix Rubber ( Phoenix ) and the s106 agreement entered into in September 2007 that is associated with that application affected the entirety of the land in their ownership. The s106 agreement, amongst other things, designated a LAA, a Play Area ( PA ) and a Local Area for Play ( LAP ). When Phoenix sold half of the land to Taylor Wimpey ( Wimpey ) in early October 2007, the land that was designated as a LAA remained with Phoenix ( the retained land ), and the land on which the PA and LAP were to be implemented passed to Wimpey ( the development site ). It is in the nature of a s106 agreement that any such transfer of part of the land results in all parties to the transfer (and their successors in title) having a legal interest in the entire agreement. 4

5 The transfer of the land additionally contained terms where each party, and their successors in title, privately covenanted directly with the other as regards the parts of the s106 agreement which they now individually had responsibility for. When Wimpey subsequently applied in 2010 for a 40% increase in the number of houses to be implemented on the development site, Wimpey entered into a separate s106 agreement that, as regards the PA and LAP which was now their responsibility, was substantively the same as the 2007 s106 agreement although slightly reduced in size to accommodate the additional dwellings. The principle change in the new s106 agreement, which affects only the development site, was a modified provision for affordable housing that reduced the number of affordable units to be built. In entering into this new s106 agreement, it was not the intention of Wimpey nor of Phoenix to release either party from the original commitment to provide a LAA on the retained land. Wimpey in fact had no authority to unilaterally alter the entire 2007 s106 agreement and would have required the agreement of Phoenix to do so, certainly insofar as any changes would have affected the LAA. In fact, Taylor Wimpey provided written information to potential property purchasers throughout 2011 to 2013 stating As a condition for granting the planning permission in respect of the site, the land to the east of the site is to be used as a Local Amenity Area [LAA]. In addition the Council required a Play Area [PA] and play equipment [LAP] to be installed on site. (bold indicates abbreviations added for clarity of explanation). The original s106 agreement was quite deliberately drafted so that the requirement for the LAA, PA and LAP became enforceable immediately upon signature of the deed and grant of outline consent. It is notable that all other parts of the s106 agreement except Part II: Open Spaces contained conditionality clauses; e.g. o Part I: Provision of a contribution towards improvement of the footpath was conditional on the occupation of the 20 th dwelling; o Part III: Affordable housing was conditional on the occupation of the 12 th dwelling. In fact, Phoenix had written to North Shropshire District Council ( NSDC ) as far back as April 2002 expressing a desire to voluntarily enter into an agreement to provide a LAA on what would become the retained land (see attached document Phoenix Letter to Cllr Brassington ); and this eventually led to the provision of the LAA on this land becoming a 5

6 formal requirement in the NSDC Local Plan (Policy H4) should the site be released for residential development. Wimpey relied on the existence of the LAA in their 2010 application and the NSDC Local Plan Policy H4 still had effect at that time. Policy H4 was noted by the relevant Planning Officers as a material consideration when planning consent was decided for both the 2007 and the 2010 planning applications. The LAA was laid out by Phoenix in 2009, and Phoenix maintained the retained land as a LAA and the public used the land as a LAA until the land was sold to Mr and Mrs Lightfoot in October The public continued to use the LAA until barbed wire fencing was erected around the entire field in May/June The PA and the LAP, as defined in both the 2007 and the 2010 s106 agreements, were laid out by Wimpey during Mr and Mrs Lightfoot purchased the LAA in October 2013 knowing that it was a designated LAA and was being used as a LAA. They paid 6000 for a 6-acre plot and a competent conveyancer will certainly have informed Mr and Mrs Lightfoot of the existence of the s106 agreement and the duties and obligations arising under the terms of that agreement. Since the purchase, Mr and Mrs Lightfoot have pursued every strategy possible to take this community asset out of public usage. To date, actions by SC Planning have the appearance of giving active assistance to Mr and Mrs Lightfoot in achieving their aims, and such assistance has been, and is being, given without first consulting with the local community or the surrounding parish councils. We also note that this permissive attitude to Mr and Mrs Lightfoot is in fact systemic within Shropshire Council: SC Planning mistakenly discharged the s106 agreement and thus benefitted this landowner at the expense of the local community. This mistake could have easily been avoided had SC Planning consulted the local community prior to making the decision. upon realising that SC Planning had made a mistake, instead of correcting the mistake SC Planning decided that they would not enforce the s106 agreement, again to the benefit of this landowner. 6

7 had to be forced by the Information Commissioner s Office ( ICO ) following a referral by WPC to make public an explanation as to why this decision not to enforce had been made, and the explanation as it stands (the attached planning statement) is a mangled nonsense that is wholly unsatisfactory to the local community. has entirely ignored two breaches of planning regulations by this landowner, 15/04559/ENF and 16/05127/ENF. has asked for retrospective planning (16/03317/FUL) for a further breach of planning regulations (16/04906/ENF) but the planning application was entirely unsatisfactory and instead of refusing the application and enforcing planning control, SC Planning has simply allowed the application to remain undecided. In addition, SC Highways has decided not to take any enforcement action concerning land owned by SC Highways that this landowner has fenced in for their own exclusive use. Further, SC Paths and Recreation has decided not to take enforcement action against the landowner for installing posts into the surface of a Public Right of Way ( PRoW ) where the purpose of the posts is solely to impede the use of that path by members of the public. has entered into an agreement that permits this landowner to close a permissive path multiple times a week for two hours at a time without notice, so that the landowner may exercise their Husky dog sled team. No consultation with the local community was conducted in coming to this agreement with the landowner, even though the land is adjacent to a quiet residential estate. refused to take any action about the installation of barbed wire fencing within a few metres of the PA and LAP despite there being no legitimate agricultural need for the use of barbed wire near to a residential development and children s play area. This entire situation was initially created in early 2015 by SC Planning s failure to consult the local community before taking a decision to discharge a s106 agreement on land that was known by SC Planning to be a well-used LAA. You have again failed to consult with the local community before distributing your letter. This demonstrates that SC Planning has not learned anything from the original mistake. 7

8 SC Planning has now further compounded the problem in your letter by distributing inaccurate and incomplete information to a select group of people, the only people that in fact are legally capable of protecting the LAA from being removed from public use, aside from Shropshire Council who have abdicated their responsibility to do so. This distribution of misleading information has the appearance of an attempt to harass and bully that group solely because they have revealed flaws in the decision-making process at SC Planning and are willing to persist in protecting the status of the LAA on behalf of the residents of two parishes. We therefore request, in addition to the actions detailed in point 8 above, an apology from Shropshire Council and a public commitment that SC Planning will in future consult with the local community before taking these types of decisions and actions. We additionally note that this request for a commitment to future consultation to avoid such mistakes is one of the points that WPC have been attempting to agree with your department since May We would finally note that we have been requested by some of our members to refer this matter directly to the press. However, the Residents Association committee are of the belief that you will understand that our requests are reasonable and proportionate and that you will be able to comply with them in the timescales outlined. Yours Faithfully Gillian Evans Michael Moore Debbie Amos Chair Secretary Treasurer 8