The PROPOSAL of the Sevenoaks Society 

  1. This explanation of the Proposal is arranged as follows: 
    1. Background
    2. Identification of the problem
    3. Possible solutions
    4. Preferred solution
  2. Background
    1. The Farmers site lies within the built-up area of Sevenoaks, at the north-east corner of the junction where Hitchen Hatch Lane meets the north side of London Road, slightly to the north-west of the principal town centre. It comprises a vacant plot of about 0.2 ha with a frontage to Hitchen Hatch Lane of approximately 35m and to London Road of approximately 55m. Abutting the site to the north and east respectively are a 4-storey Premier Inn, opened in 2018, and to the east a single storey parade of late 19th century/early 20th century shops, including a fish and chip shop, a convenience store, and a café. Facing the site across London Road is Sevenoaks railway station and the Railway and Bicycle block of flats; and on the opposite side of Hitchen Hatch Lane is a modern multi-storey office development. It is an important gateway site to the town centre.
    2. On 17 March 2005 planning permission was granted on appeal (“the first permission”) for demolition of Farmers Public House and construction of 18 flats, 5 maisonettes, retail (A1/A2) units, servicing and associated works (APP/G2245/A/04/1158099). The Public House was demolished in 2007, and sufficient (though minimal – a few trenches) works were carried out on site to constitute the beginning of development under the first permission, which therefore remains implementable today, though in practice it has for most purposes become irrelevant.
    3. On 27 February 2015 planning permission was granted on appeal (“the second permission”) for more substantial development, consisting of 39 flats, 4 retail units, carparking, servicing and associated works (APP/G2245/R/14/2222635). The owner contends that sufficient   further works were carried out in time to prevent the second permission expiring in February 2018, and in May 2019 submitted an application to SDC for a lawful development certificate (19/01295/LDCEX) which remains undetermined. Most of the pre-commencement planning conditions have been satisfied. It is therefore uncertain whether the second permission is still implementable today.
    4. The site has changed ownership at various stages since the grant of the first planning permission. The present owners are believed to be Albert and Michael Conneally and Glenman Corporation UK, which is thought to be a construction company with few assets, and of which the Conneallys are both directors. The Land Register shows that the site was purchased in July 2017 (with the benefit of the second planning permission for which the applicant was Glenman Corporation) for £2.45m.
    5. At various times, and particularly immediately prior to the Premier Inn proposal, Sevenoaks District Council (“SDC”), which is also the local planning authority and freehold owner of the Premier Inn site, has sought to encourage development of the Farmers’ site, but its approaches to the owners proved unsuccessful.
    6. The site is surrounded by unsightly hoardings, parts of which are from time to time repaired.
    7. The two appeals both resulted from refusals of planning permission by SDC, supported by local residents and the Sevenoaks Society. However, the bulk and design of the adjoining Premier Inn assumed that in due course a substantial redevelopment would take place on the Farmers site
  3. Identification of the problem 
    1. In its present undeveloped condition the site represents a visually intrusive eye-sore in a prominent location close to the town centre and immediately facing Sevenoaks’ major transport interchange. It also constitutes a troubling under-use of developable land, at a time when housing pressures (including market demand) in both the wider district and in Sevenoaks Town itself are great, and available sites within the built-up area are very limited. In the district, almost all the countryside is protected Green Belt, and the submitted version of the Sevenoaks District Local Plan, 30 April 2019,  (covering the period to 2035), even with the inclusion of two sites currently within the Green Belt, fails by a considerable amount to meet the Local Housing Need figure provided by central government for the district.
    2. In the Local Plan one of the “Place-making” priorities for Sevenoaks Urban Area is to “promote and enhance a vibrant town centre with redevelopment of…vacant and/or undeveloped sites…for retail, high density housing and community uses” (1.4), a priority with which “development proposals will be expected to comply” (Policy ST1).
    3. In the Local Plan in relation to affordable housing, it is stated that “Affordability is a key issue in the District” (2.19) and that the Survey of Employers’ Housing Needs “recommended additional affordable housing for younger people and local essential workers to give the District’s business an edge” (2.25). The target in the Local Plan for “already developed” sites (such as the Farmers site, as opposed to greenfield sites) is 43% affordable housing (2.21), modified in Policy H2 to 30%, with a recommended split of 76% social/affordable rented, and 24% intermediate (ie shared ownership) (2.23). But neither the first nor second permissions contains provision for any affordable housing, which means that neither permission is consistent with the latest planning policies (at both national and local level).
    4. The design of the development in both the first and second planning permissions remains controversial. The owner is unlikely to seek a further planning permission with a changed/enhanced design, not least because he would thereby incur liability to provide an element of affordable housing.
    5. Despite prompting by SDC (at both officer and member level), there is no reason to suppose that development (under either the first or second permission) will be properly commenced, much less completed, within the foreseeable future. No development of any significance (other than the demolition of the Public House) has taken place on site during the 14 years since the first permission was granted. 
    6. This situation is considered by the Sevenoaks Society to be unacceptable, and we believe that that is also the view of SDC and Sevenoaks Town Council (the latter of which included a mention of the need to develop the Farmers site in its draft Neighbourhood Plan in 2017). The Sevenoaks Society considers that the present situation is an affront to the people of Sevenoaks who are being required in the Local Plan to accept intensifying building densities in our towns and villages in order to protect the surrounding Green Belt from development (a point made as long ago as 30 November 2017 in a letter from our Chairman to Sir Michael Fallon MP).

4. Possible solutions 

  1. The simplest way forward would be for the owner, if not prepared itself to develop the site, to place it on the open market and negotiate a sale. Although there appears to have been some advertising for a tenant of the permitted retail on site, so far as is known the whole site has not been marketed; and if it has, presumably any offers received have fallen short of the owner’s expectations. 
  2. Without some positive action by SDC, and for the reasons given above, it is considered that the present planning blight will continue. Further, there is no reason to suppose that mere correspondence with, or meetings with, the owner are likely to achieve development of the site.
  3. There are two ways by which SDC could compel development of the site. The first is by serving on the owner a completion notice under s.94 of the Town and Country Planning Act 1990 (as amended) (“the TCPA”). The second is by making a compulsory purchase order (“CPO”) under s.226 of the TCPA. Revocation of the two planning permissions, by making of a revocation order under s.97 of the TCPA is not appropriate because (a) SDC would face a substantial compensation claim; (b) the site would remain in the same ownership, and thus in all likelihood would continue to remain vacant and undeveloped.
  4. A completion notice could be served in respect of the first planning permission, but could only be served in respect of the second permission if the owner is correct that the second permission has been implemented (which is currently under dispute). Successful service of a completion notice under s.94 would require the owner to complete the development within a defined time-scale. The disadvantage from the point of view of SDC and the Sevenoaks Society would be that (a) the completed development would be of a design which they have both always opposed; (b) there would be no provision of affordable housing. Therefore the Sevenoaks Society does not recommend that course.
  5. The making of a CPO under s.226 of TCPA is to use a power which is tailor-made for the circumstances which here exist, although more often used for larger sites. S.226 has the sub-heading “Compulsory purchase of land for development and other planning purposes”. Its use would be lawful provided (1) SDC “think that the acquisition will facilitate the carrying out of development/re-development or improvement on or in relation to [the Farmers site]” (s.226(1)(a)); (2) SDC “think that the development, re-development or improvement is likely to contribute to the achievement of any one or more of the following objects – (a) the promotion or improvement of the economic well-being of their area; (b) the promotion or improvement of the social well-being of their area; (c) the promotion or improvement of the environmental well-being of their area”. 
  6. In respect of (1) above, if SDC were to acquire the land compulsorily, it would be able by itself or through a third-party to achieve development/re-development and improvement of the Farmers site, whereas without a CPO those things appear most unlikely to happen within the foreseeable future. Therefore this test for the CPO is met.
  7. In respect of (2) above, a vacant site contributes nothing to economic, social or environmental well-being of the district; by contrast development/redevelopment in accordance with a new planning permission, to an improved design and including a substantial amount of affordable housing, would contribute to the promotion of all three types of well-being (although it is strictly only necessary to promote one of the three). Thus this test is also met.
  8. An owner is not lightly to be deprived of his land, not least because of Article 1 of the First Protocol in the Human Rights Act 1998. English law has always required that compulsory acquisition be only made where it is a reasonably necessary and proportionate response, looking at the public interest broadly. It is hard to see how it could be argued that it was not in the public interest to achieve development/re-development of the Farmers site expeditiously, when the owner has failed to use the many years it has had to develop the site., and when SDC aimed to achieve both a better design and the inclusion of a significant amount of affordable housing. Therefore the test of public interest is also satisfied.
  9. This Briefing Note does not consider the alternative use of a CPO under section 17 of the Housing Act 1985, under which most of the relevant considerations are believed to be similar, in particular in relation to the public interest and viability..  

4) Preferred solution 

  1. For the reasons stated above the Sevenoaks Society considers that acquisition of the Farmers site by the making of a CPO under s.226 of the TCPA is the best, and only, way to secure a speedy development of the site in an appropriate way, with an enhanced design and to include a significant element of affordable housing. 
  2. It is necessary also to consider the four matters identified in para 106 of the MHC&LG Circular “Guidance on Compulsory purchase process and the Crichel Down Rules” (last updated 28 February 2018). These are (i) whether the purpose for which the land is being acquired fits in with the adopted or draft Local Plan  for the area, which it does; (ii) whether the proposals will contribute to the well-being tests – a matter already considered above; (iii) the potential viability of the scheme for which the land is being acquired (a matter discussed below); and (iv) whether the purpose for which the acquiring authority is proposing to acquire the land could be achieved by other means…[including] any alternative proposals put forward by the owners of the land…for its re-use”. For the reasons already given, there are no ways of achieving development/re-development other than through the making of a CPO.  
  3. Would redevelopment in accordance with a new planning permission to include an improved design and a significant affordable housing element be viable? Naturally SDC would have to pay compensation to the owner of the Open Market Value (“OMV”) of the site. This would be calculated assuming that the owner was willing to sell at a reasonable price; and would involve either looking at recent prices paid by other developers for comparable sites or by carrying out a residual valuation on the basis of the second planning permission (that being likely to produce a higher OMV than the smaller first permission). If SDC and the owner could not agree the OMV, it would be determined by the Lands Tribunal which has huge experience of such matters (although most cases are settled without recourse to it)
  4. The Sevenoaks Society’s preliminary investigations suggest that the OMV of the site with the existing planning permissions is approximately £2-£3m (using a very rough basis of £75,000 per residential unit gives an OMV for 39 units of £2.925m; other more sophisticated residual valuations show how dependent such estimates are on matters such as “build costs”).  Such an OMV is consistent with the price at which the site was last purchased in July 2017 (£2.45m). Our investigations suggest that a number of housing associations would be interested in acquiring the site from SDC for such a price with a view to undertaking residential redevelopment (with ground floor retail/commercial) to include a significant amount of affordable housing (for which grant is available to them from “Homes England” of £50,000 per unit of affordable housing provided). We understand that with a major element of “shared ownership” it may be viable to achieve 100% affordable housing on site.  
  5. Four arguments have previously been advanced by SDC against making a CPO (most recently the letter of Cllr Fleming to Sir Michael Harrison of 23 Jan 2019).  
  6. The first argument relates to “significant reservations around the Council taking either ownership…or using its CPO powers”. This argument is not understood, since the power under s.226 of the TCPA exists to be used for planning purposes such as arise in the present circumstances, and use of CPOs in appropriate circumstances is encouraged by the government.   
  7. The second argument assumes that a CPO would result in the completion of development under the second planning permission, to the design of which SDC and the Sevenoaks Society have always been opposed (and which excludes desirable affordable housing provision). But, as demonstrated above, the CPO could and should be made on the basis that SDC would then redevelop the site with a building of comparable mass (and content) but to a different, and much improved, design and including a significant element of affordable housing. Ideally, SDC would identify a partner for such a development and obtain a new planning permission prior to the making of the CPO
  8. The third argument assumes that making a CPO would present an unacceptable financial risk to SDC.  We accept that there is an element of uncertainty as to the OMV, and that the current owners have “an unrealistic valuation …for their land”. However, the owners’ expectation of value is irrelevant in the notional OMV under a CPO, and SDC, if properly advised, should receive value for money. Besides, the sums involved are relatively small (about the price of one of the larger properties on the Wildernesse Estate!). We are reasonably confident that SDC should recover the compensation it will have to pay from the proceeds of such new development as it achieves on the site, whether developing on its own, or through a third party, or in partnership with a third party. We accept that SDC may have to bear its own costs of making the CPO and at a public inquiry (if the owners resist the CPO). Moreover, it may be that the third party would agree to underwrite both the costs of making a CPO and the compensation.  
  9. The fourth argument is that “the most appropriate way to achieve the development of this site is through the current owner either continuing with their scheme of finding a partner or successor to complete the scheme, or my preferred option which would be an entirely new scheme”. With the utmost respect to Cllr Fleming, there is no indication that the current owners will complete development under the second permission (if it has indeed been implemented) or within the near future seek an entirely new permission, whereas were SDC to pursue a CPO, as part of the process it could and should seek planning permission for “an entirely new scheme” of its own design and content (including generous affordable housing provision)
  10. Accordingly, the Sevenoaks Society invites SDC to reconsider the case for making a CPO, including (a) instructing  London-based solicitors with experience of compulsory purchase – examples would be Eversheds, Bircham Dyson Bell, Ashursts, Nabarro Nathanson; (b) to instruct a firm of valuers with relevant experience  to advise on the site’s current OMV – examples of such firms would be Knight Frank, Savills, or Gerald Eve. Given SDC’s lack of CPO experience, the taking of high quality professional advice at an early stage is considered essential (and would enable consideration also to be given to the alternative CPO power under s.17 of the Housing Act 1985). 
  11. Sevenoaks Society recognises that notice of intention to make a CPO, along with the making of a further planning application, may stimulate the owners to make a proper start on development pursuant to the second permission. If this is the case, it will be important to seek a legally binding commitment from the owners to complete the development within a defined time-scale, since otherwise a start on development could be used as a ruse to stimy a CPO, with no intention of completing the development at this stage. Possible use of CPO powers should remain until the development is actually completed. 

      21 June 2018