OFFICER’S RECOMMENDATION That the Secretary of State be advised that had Portsmouth City Council Planning Committee been able to determine the application, it would have resolved to REFUSE planning permission for the following reasons:
1) In the absence of sufficient information being provided for the Habitats Regulations Assessment, as requested by Natural England, there is no certainty around the mitigation strategy which is required to address the likely significant effects in respect of recreational disturbance, as is identified in paragraph 4.1.8 of the Draft Habitats Regulations Assessment (ref. 200127 0991 HRA V1B) dated 18th December 2020 submitted. As such, the proposal should be refused due to the uncertainty regarding unmitigated adverse impact on protected habitats in accordance with the Habitats Regulations. 2) Insufficient viability justification has been provided, noting the uncertainty arising from the cost of mitigation under the Habitat Regulations, to demonstrate that the scheme is unable to provide affordable housing contrary to Policy PCS19 of the Portsmouth Plan 2012.
This application has also now been taken to appeal on grounds of non-determination and the Secretary of State is now the determining authority in this case. The Appellant asked the Planning Inspectorate to request that PCC undertake a further public consultation in light of the number of amended plans submitted with the appeal and the responses to that further consultation are material considerations for the determining authority.
You can see the officers report under https://publicaccess.portsmouth.gov.uk/online-applications
St James’ Hospital was declared surplus by the NHS bodies that held it and offered to market as part of the Government position at the time to dispose of public sector land for housing development. Part of the site was transferred to the then Homes and Community Agency (HCA), now Homes England, part was sold for private development and part retained for the continued operation of health services in the area. Within a similar timetable the University of Portsmouth reduced their occupancy of the adjacent Langstone Campus site, meaning the opportunity on that site could be considered in conjunction with the longstanding development allocation at St James’.
In 2017, encouraged by PCC, the HCA, NHS bodies and University jointly commissioned LDA design to review the opportunity and special qualities of these sites and produce a suite of documents, informed by evidence, to create development principles and a framework document that would be used by the then landowners and, any subsequent landowners of the site, to guide and support subsequent planning applications relating to the site. These documents were submitted to PCC for review and the applications that have been bought forward since that time are demonstrably being guided by the principles considered within them.
Extracted below is an image from that 2017 development principles framework document, and it can be seen that the current Homes England and PJ Livesey schemes are broadly in accordance with it, as in deed is the care home on the southern side of the site. The opportunity for a ‘land swap’ between the previously-developed and greenfield element of the UoP Langstone campus site is also included. That opportunity is now part of the Portsmouth Development Plan through inclusion in the Milton Neighbourhood Plan.
The St James Hospital Site is currently being pursued in two distinct parts, one by Homes England; (outlined in blue below) who have held their proposals in abeyance to allow them to be redesigned to retain two buildings that were determined in March 2021 to benefit from statutory protection as listed buildings, and one by PJ Livesey; (outlined in red below) which involves the conversion of the main hospital building and additional residential development in the surrounding land which is the subject of an appeal for non-determination which is scheduled to be heard by Inquiry in April 2023.
Homes England 107 Dwellings
PJ Livesey 209 Dwellings
Both Schemes have collaborated to produce shared supporting documents such as a cumulative Transport Assessment, but both will currently be frustrated by an objection by Natural England, raised in respect of the PJ Livesey scheme, that the proposed developments will have a Likely Significant Effect on the Solent Wader and Brent Geese (SWBG) Strategy sites on Milton Common, which are considered to be land functionally linked to the Solent Special Protection Areas. An adopted mitigation strategy for these effects is now considered to be out of date by Natural England.
The timetable for the PJ Livesey appeal is dictated by the need to update that strategy and relevant survey work, leading to a new strategy that the Council will need to consider adoption of, is being carried out between October 2022 and February 2023. Further public consultation is currently bein
g carried out on the Appeal scheme and Planning Committee consideration of that response, if necessary, is expected to be in December 2022.
In October 2022, the Milton Neighbourhood Plan was made and now forms part of the development plan for these sites. Due consideration of the policies therein will now need to be given by the LPA and PINS for all relevant developments.
Timelines for redevelopment of St James Hospital
March 2018 Application made by Homes England on land in former St James for 107 dwellings (18/00288/OUT)
February 2019 Application considered by planning committee. Deferred to seek additional legal advice regarding heritage status of effected buildings
January 2020 Application resubmitted and revalidated by Homes England for 107 dwellings
March 2021 Report considered by planning committee in respect of heritage status of effected buildings
April 2021 – to date Homes England confirm their intention to amend the scheme to retain buildings now considered to be protected by virtue of ‘curtilage listing’
February 2020 Applications made by PJ Livesey for 230 dwellings by conversion of Listed Hospital and new buildings within the grounds. PPA agreed to manage determination (20/00204/FUL and 20/00205/LBC)
December 2020 Amend plans received, now 209 dwellings, and update to PPA to aim for determination in April 2021
March – July 2021 Updated submissions made an extensions of determination time up to 16 July 2021 agreed
December – January 2021 Further updates and amendments made to respond to consultee and community concerns. Extension of determination time to 13 January 2022 agreed
January 2022 Committee consideration of application. Application deferred.
February – March 2022 Amendments submitted and consulted on in response to deferral
July 2022 Appeal for non-determination made to PINS by PJ Livesey (non-determination appeals are required to be made within six months of the agreed determination date)
August 2022 Appeal Validated. Inquiry scheduled for 22 November 2022.
14 Sept 2022 Statement of Case submission required
14 Sept 2022 Natural England reconfirms its holding objection associated with impacts to Milton Common
21 Sept 2022 Initial case management conference held
26 Sept 2022 Natural England confirms its objection to the appeal and the necessity to carry out survey work over the winter period making the November Inquiry unfeasible
28 Sept 2022 Second case management conference held.
30 Sept 2022 Case Management Conference Interim Summary provided by PINS. PINS confirms that a further case management conference will be held on 28 Feb 2023, following carrying out the necessary survey work and resultant habitats regulation assessment, with a provision date of 12 April 2023 to open the Inquiry.
October 2022 Ongoing work between the Appellant, the LPA, NE, and HIWWT to scope and arrange survey work at Milton Common.
11 October 2022 Full Council decision to make the Milton Neighbourhood Plan brings that document into full force as part of the development plan and the policies in it will now need to be given weight by all decision makers, including the Inspector on appeal.
Key planning considerations at St James Hospital
Heritage and design – The Homes England scheme is being redesigned to allow the retention of two ‘villas’ considered to be protected by the statutory list. No new plans have yet been submitted for consideration since the March 2021 committee consideration. The impacts on heritage and design from the PJ Livesey scheme were a matter of concern for local people and an issue for deferral for the January 2022 Planning Committee. No objections from relevant statutory consultees or the Council’s experts were however made. Amended designs for the buildings in the grounds of the Listed Hospital building were submitted and consulted on but were not considered to be preferable to the original design. The Appeal proposal is being determined on the original design.
Ecology – Both sites have been scoped in as causing indirect harm to the Solent SPA, through recreational disturbance and eutrophication of water by excess nitrates, and causing direct harm Solent Wader and Brent Geese strategy (SWBGS) sites at Milton Common. While Natural England have amended their guidance regarding the ‘nitrates’ issues, resulting in greater mitigation payments being required, there are in place mitigation strategies to fully manage the adverse indirect impacts by recreational disturbance and eutrophication. Natural England, in respect of the PJ Livesey scheme, after the formal consultation period and reporting to Planning Committee in January 2022 have however confirmed a formal objection to development on this site based on the direct harm to SWBGS sites at Milton Common, as the mitigation strategy that was in place, the Milton Common Local Nature Reserve and Management Framework (‘the Framework’) has now been deemed to be out of date and requires updating following new mapping and winter survey work. That work is now being commissioned and should be completed by February 2023. It is anticipated that an updated Framework will be materially similar to the existing Framework and will provide effective mitigation for development on these sites through a financial contribution to alteration to Milton Common and associated access management strategies.
Highways – An ‘in combination’ transport assessment including the proposed growth from both sites has been submitted with the relevant planning applications and assessed by the LHA. Noting the level of vehicular movement reasonable associated with the current lawful use the increase in movements is relatively small, and will, in officers’ opinion be more than adequately mitigated by two proposed junction improvements to be secured by planning obligation.
Open space provision/retention and trees – No concerns have been raised about open space delivery on the Homes England site, but has been a matter of significant debate on the PJ Livesey site. On that site it is the developer’s contention, and officers’ opinion that the amount of open space is marginally increased following development and the accessibility of that space, secured by planning obligation is materially improved. These matters are disputed by local residents and the Council is currently waiting on updated information from the MNPF (from email from Rod Bailey 28/09/22). The PJ Livesey scheme also involved the loss of a number of mature trees and replanting, with a larger number of less mature trees in the new open spaces. This was a matter of concern for local people and the January 2022 Planning Committee.
Current position for PJ Livesey Appeal
Draft reasons for refusal were sought by the Inspector in advance of the first case management conference held on 21 September 2022. Prior to that case management conference Officer’s discussed with the Leader of the Council, as the senior member of the effected ward, those reasons and the roles parties could play in the appeal Inquiry.
While the January Planning Committee sought clarifications on a number of things through the decision to defer the application, only one matter was felt to be supportable by Officers; the inability to positively conclude that there was no adverse effect on SWBG sites at Milton Common due to the ‘out of date’ Framework as evidenced by the Natural England objection. This uncertainty consequently created a circumstance wherein the overall viability of the development could not be correctly assessed and further to this the viability-based reasoning for the reduction in Affordable Housing provision below the policy expectation could not be evidentially justified.
The other matters raised in the deferral by the Planning Committee; namely ‘…the design of the new build elements, the retention and replacement of protected mature trees and the highway implications of the scheme‘ were not considered to be supportable by Officers and Members were advised that if they wish to suggest that they should be included in the draft reasons for refusal Officers would be unable to give evidence at the Inquiry to that effect. The relevant Members would therefore be asked to provide any such proof of evidence and make that evidence to the Inquiry.
Cllr Vernon-Jackson, representing all three Ward Members, along with a representative of the Milton Neighbourhood Forum attended the Case Management Conference and raised the option of taking on Rule 6 status in the Appeal in order the represent those concerns that do not currently form part of the draft reason for refusal made by PCC. The Inspector has asked them to come to an early decision as to whether they wish formal Rule 6 Status or whether they will instead attend the Inquiry as Interested Parties.
The Homes England application is currently in abeyance as PCC waits for Homes England to resubmit further plans. It is understood from past meetings that they wish to bring on board delivery partners to take the planning application/s forward, a process that may involve splitting the site. We have not yet been informed that a delivery partner has been appointed.
The PJ Livesey site is currently scheduled to be considered by Public Inquiry on 12th April 2023. In advance of that Inquiry there are three key work streams being undertaken.
Survey work at Milton Common will imminently start to gather the necessary winter visitor survey to enable an updated Framework document to be produced. That updated Framework is hoped to be completed by February 2023, whereat it will need to be considered for adoption by PCC Cabinet.
On 28 September 2022 at the appeal’s second Case Management Conference, PJ Livesey suggested that further public consultation could be undertaken on the plans that make up their submission to PINS. This submission included a large number of documents that were marked up ‘not seen by LPA’, albeit these were largely plans and amalgamated elements from previous iterations into a final submission. The Inspector agreed that this should be undertaken and asked the Council to carry out that consultation. Officers have asked for formal confirmation that this consultation, and the associated expense, is required by the Inspector but have nevertheless commenced it and it is currently ongoing. PCC will of course want to review those consultation responses and consider whether they justify any change in its current positon. This may warrant presenting a report on the matter to the PCC Planning Committee, preliminarily suggested to be December 2022. If the Planning Committee, having considered those consultation responses, determine that additional reasons for refusal should be promoted by the LPA it is considered that this could then be done with a minimal risk of costs being sought against the Council as this course of action is a result of the request of the Appellant and the decision of the Inspector to carry out that public consultation and four months’ notice will be able to be given before the April opening of the Inquiry.
The Appellant and PCC will continue to liaise in the preparation of the necessary supporting documents for the April Inquiry, including a Statement of Common Ground, draft s106 Agreement and the exchange of other technical evidence.