Mon, 17 Feb 2020
It is often the case that we post our successes on here, but rarely get a chance to reflect on failure or near misses. This is an appeal which I believed was in the balance to begin with, and came down on the right side for us. Here are some reflections which may be useful.
1) The statistics are against allowed appeals at the moment. Positive decisions from PINS on housing appeals are down. Appeals are failing in particular on heritage related matters. It is therefore critical in my view to neutralise as many issues as early as possible. And to be clear about the real focus from the outset. This appeal had 'a full house' when it came to an array of concerns, and some were heard through a round-table forum, making it hard to test assertions, particularly from members of the public.
2) The timescales, if harnessed well, are in your favour. The Rosewell process has allowed for appeals to come forward, be heard and reach a decision within unprecedented timescales. This has major advantages. It means that parties must work together to agree as many differences as possible, through the statements of common ground and as early as possible. In this case a dedicated interdisciplinary team worked tirelessly to agree *most* matters with the Council/statutory consultees over many months. Again, this was on a whole host of complicated and technical matters. It meant that inquiry time focused on clarifying matters, or resolving residual differences. This is paramount to controlling the controllables.
3) Team work is the best. As Counsel it is crucial to ensure that each discipline in a case does not work in their own silos. The experts teach us new things all the time, and at breakneck speed. But it is our job to be alert to the potential consequence of one team member's analysis on another's. Here we had European Protected Sites overlapping with heritage and highways, noise and disturbance was being assessed against a rural landscape and relatively quiet backdrop; all the while attempting to convince the Inspector the Development Plan leaves us with little choice in where we can go to build housing in the District.
4) It is important to tell a good story. Rother District’s Core Strategy told us that this is a highly constrained area; nearly 90% of it being either in the AONB or some other nationally or internationally designated area for its conservation value. There are SSSI sites and over 15% is covered by Ancient Woodlands. It has been said...'it's Rother, don't bother'. Our site was one of those few bits of land in the District not affected by the aforementioned, with a woeful supply position of 3.73 years. Having set this out in my opening, I posed the fundamental question for the inquiry as – if not housing here, then where? Now this pithy statement needs to of course be tested through the evidence as a whole, but it set the clear direction of travel. It was the 'spine' of the case to which we returned throughout the inquiry. Success is measured when at some point of the Inquiry the Inspector is asking the Council, 'then where should the housing go instead in this District?'
5) Attack the problems head on. There is little point in skirting over the ‘lesser’ harms; including here noise & disturbance, ‘tranquillity’, light pollution, density concerns in outline permissions and much more besides. When focusing the main issues, these 'bits' have the capacity to catch you out. I am strong believer that acknowledging harm, however small, right at the outset allows for more control of the narrative. Deal with the concerns, offer robust solutions, point out that change is inevitable if we are serious about providing housing. That you have done all that could be reasonably required. Mitigation measures could sometimes go beyond mitigating and become a positive contribution.
Each appeal is different of course. Each will have to find its own approach and narrative. Undoubtedly however it is clear that a strong team, a collaborative approach, a coherent narrative and much preparation remains key. What you want to come out is an authoritative and convincingly put case. As one supervisor once told me, 'make it as hard as possible for them to disagree with you.'
I hope that it is helpful, I’d love to know what you think!