APPEAL REF: APP/N4720/W/20/3250249‌

The Planning Inspector has confirmed at the preliminary part of Day 1 of this appeal inquiry that no objections have been raised with regards to us ("Judicial Domicide") live tweeting the Planning Inspectorate Appeal Inquiry. We, ("Judicial Domicide") must state that this is not intended to be an official, accurate, nor verbatim transcript, but it is recorded here by us to serve the purpose as a true record of the inquiry hearing(s) as we observed and recorded. We have compiled the below from live tweets and our fast notes taken during the observation of the hearing. There are also areas where we did not observe and/or we had connection issues which resulted in the loss of being able to observe.    ‌
‌This is Day 7 of the Appeal inquiry of Pemberstone v. @SaveOurHomeLS26.

(Missing a few minutes from the start)

Inspector: It is something I would really like to avoid at this stage.

Mr White: Mr Wells did, It puts down on paper he gave oral evidence in roundtable and asked him questons and it just confirms the position of exactly what he gives in evidence but gives references to source what he says. I will get it sent to my learned friends and get them to read it and update you by close of play today.

Mr White: Is it your intention, obviously you wont have had time to cast your eye over the 106.

Inspector: Not the new one yet.

Mr White: At some stage we do need to go back to ti. The headline figure is Leeds do not want to have a local lettings policy in the 106.

Inspector: I skimmed it and noticed it hadn't been added.

Mr White: I wanted you to have the context that as Mr Sheppard may make reference to it. It is formal position of Leeds they do not want a local lettings policy. The whole things is being drafted as a bilateral. We have to reach agreement with the LPA. You can take what you have seen that it is agreed between us and Leeds. If at end of today we get there which we should after completion of Mr Sheppard evidence and your content both myself and Ms Bell will get the necessary engrossments to meet your 2 week limit.

Ms Bell: That is the position of my client. They dont want to pursure the local lettings policy as part of the 106.

Inspector: Is there anything more you can tell me about that? Any reason for that stance?

Ms Bell: If it assists to deal now or wait for dedicated session. My instructing solicitor has been leading the negotiations on behalf of Leeds.  May be better able to speak to those.

Inspector: Thats fine.

Mr White: I am just flag up we are going to talk a lot about the effect on the local community. We are content for a local lettings policy which would assist 11 AST residents being in the redeveloped site. I think it would assist if Ms Bell can put on the record what Leeds position was so Mr Sheppard has that. It will inform his evidence.

Inspector: I think its the case of to what extent Ms Bell can do that. Do you need a conversation with Mr Hills first Ms Bell.

Ms Bell: I might have to ask Mr Hills to assist as the information I have is from Mr Sheppard. I do not wish to mis-speak. Can I either have a few minutes, or if he is on the call can we check with him on the call.  

Mr White: I'm content to have 10 minutes so Mr Hills and Ms Bell want to take 10 minutes as it is important to all 3 parties. All I want is Ms Bell to be in a position to tell you why we went in some detail and officers recommendation was a local lettings policy and clearly goes to the weight of harm and I know Ms Wigley is as interested as I am on the issue. To give you comfort on the day we are comfortable to take ten minutes. Anything else Ms Bell.

Inspector: Before we do that. There are some points that may assist in the break as well.

Ms Wigley: Sir, no. I would like clarity as to Leeds position as to why they cannot provide a local lettings policy before we go to Mr Sheppard, so thank you for that.

Mr White: 1. Mr Sheppard proof. Core Strategy, The NPPF, the two statements of common ground with Leeds and SaveOurHomes , CD7.10 Letter to Mrs Readman, finally planning report 0702, which has both reports, May reports and appendices.

Inspector: Points to raise concerning the evidence. I'm afraid I am going to perhaps disturb your best arranged plans for evidence in chief Mr White. A few points I have queries about. One may not directly concern Mr Sheppards to the extent of the others. I thought rather than waiting until heard questions from everyone else I thought be right to give notice up front as it may be explored in chief and I think that might assist everybody.

Mr White: I am very happy for you to ask your questions first you will obviously go again. Im happy to do it like that.  

Inspector: Notice of areas im interested in now, first point, he may not be able to respond on, its something he touches on but he may not be able to go wider than that. Reflecting on Dr Buroni evidence and the answers he gave yesterday. In particular the table he got from Mr Teasdale. That composite table 5-31 the household information is that provided by Dr Buroni. He was quiet clear and I'm following through from his evidence it doesn't cover with all households it doesnt deal with two groups core parties are agreed are most vulnerable as it doesn't include age. Therefore it doesnt pick up those over 65 and those under 16.

If information of that nature is elsewhere I just need a clear direction. Im not sure it is. What I find would be of assistance is an extended table relating to households of protected characteristics identify by those same tenure groups the number of households of occupants who are 65 or over; The number of occupants under 16;. Number of people with disabiities which we have. grouping together for sake of completeness, Two more columns Number of households where there are both disabled, elderly and children. One given total of protected characteristics, its fine that they might not sum, because you may have households that have more than one protected characteristics.

(Connection issue)

Mr White: Can I park that in regard to Mr Sheppard. Dr Buroni is the only one who has access to the material. I would like him to check that with Mr Teasdale and if it could be shown to someone from SaveOurHomes. Of course Ms Wigley should see it. I don't think Dr Buroni or Mr Teasdale are on the call. If Ms Bell could contact Mr Teasdale and we will attempt to get hold of Dr Buroni.

Inpector: This is just point of clarification Mr Sheppard evidence 2.23 he is referring to revision. Mentions the documents that I have in front of me. I want to be clear about this I dont think I have the overlay comparing the garden sizes. I want to make it quite clear that I dont need it. I'm quite content with what I've got but I didnt want an impression of what is said in 2.2.3 that I have a certain document that I don't. But I don't want anyone to go to any trouble about that I am quite content about the revised plan.

Mr White: Ok, Thank you.

Inspector: 3.2.8 Phasing Intentions: There are references to those. Mr Sheppard said there is limited information that the appellant has provided. Some detail given in the panel report october in October report at 4.9 and what i would like to know is what is set out their is that the Appellants intention?

Mr White: Mr Sheppard can deal with that sir absolutely.

Inspector: In relation to that there are aspects of the appeal proposal that have been touched on the last few days I have heard reference to a period of an extension notice. I heard two years mentioned and some reservations expressed about that but I would like to know the position of that as far as the Appellant is concerned.

Inspector: Then I think 3.20 rehousing what we have been calling the protected tenants. Mr Sheppard makes point the need to rehouse in properties of equivalent quality. What I would like to know is whether there is also an obligation on terms of the location of where they would be re-housed.  

Inspector: Finally on what the proposal would comprise. Question in terms of the makeup of tenure of new development. From planning application we see the intention of; 4 intermediate affordable dwellings, 7 social rented affordable dwellings and the question is what the other 59 would be there was reference yesterday to open market sale and open market rented. I dont think its actually specified anywhere but I would like assistance on that.

Inspector: Finally, Clarification on the s.21 notice period. Two references are normal minimum notice period would be two months. Because of current situation with covid19 it has been extended to 6 months. But the refence I have from Mr Sheppard refers to 3 months. Sorry for the shopping list at the start.

Mr White: Some of them points are point of law rather than planning.

Inspector: My main concern is that information gets to me.

(Inquiry adjourned until 10:10)

(connection issue)

Ms Bell: Sir further to the conversation with you and the council gave sufficient thought to providing the local lettings policy. The difficulty is it is the housing team not the planning team that have ownership of lettings policies. Its the housing team that feel this would be difficult and there are several reasons why. First, There is no registered provider at present indicated that they want to take on the units. My understanding is once a registered provider is on board there would then be consultation with the provider to define criteria for accepting or rejecting nominees or applicants for that housing. In this scenario the LA would have to approach providers with a local lettings policy in place. Its open to a provider to say we dont want to work to that criteria thats not the usual approach we cant do that.  Difficulty also is that the housing team would have their own process on adopting any lettings policy. You heard about on the Emergency Lettings Policy that is currently in place that would be him and his team that would progress. In absence of any registered provider on board for these properties or any consensus on what the local lettings policy would entail and how it would operate it is not possible for the housing team to progress that to a formal policy that can be attached to 106.

Ms Bell: Difficulty, Mr Tinsdale speak about Council operate a needs based approach recall the banding criteria and how it sits in parrallel with the similar needs based assessment under emergency lettings policy. The council's approach is a needs based approach concern on housing department binding themselves to a Local Lettings Policy would cut across and be at odds with their usual approach which is a needs based approach. That is a further difficulty.

Ms Bell: Reference has been made to committee reports and minutes. In so far as it can assist you I can take you to October 7.02 important paragraphs are 4.3 and 4.4
4.3 reads seperate to the planning process the council has considered the potential for a local lettings policy etc. and the local lettings policy in order to mitigate identified detriment and give preference to these tenants. 4.4 local lettings policy would be taken forward by the councils housing team and is not something that can be dictated by planning legislation however it is recommended that an obligation is inserted in section 106 which seeks to ensure that the developer and the council work together to use reasonable endeavours to prevent discrimination in this manner. Local lettings policy was distinct from the planning team. Obligation best endeavours to work together to prevent discriminations.

Ms Bell: Captured in the minutes at 5.4.1 on 3rd October at page 2 mid way down: 6 bullets point up from the bottom of page 2 . Bullet reads: The council (seperate from the LPA) is considering a local lettings policy which would support existing residents to be rehoused. The council in the capacity as the housing department was considering the possibility. Its right the possibility was put before members. It wasn't suggested it should necesarily be dealt with by 106. The suggestion of 106 was broader obligation to work together and for the reasons I've explained the housing department have given careful consideration whether it was something that could be done for the reasons I've explained but there are real practical differences with progressing that idea further forward.

Inspector: Thank you Ms Bell for the explanation. Mr White do you want to comment?

Mr White: Yes I do, it would show too much restraint to not. I dont on behalf of the appellant accept the position of my learned friend. I don't blame her she is just taking instruction. The simple nub is that because of the needs based approach Leeds want to reserve their position because there might be those with greater need than the tenants on this estate. Thats the simple nub of it. They want to hold fire on that decision. I dont accept the real practical difficulties. Leeds are saying that when the time comes if they do need to house these residents they want them to form part of the criteria that forms across the city and they need to make a judgement of where they sit on that scale so to speak. I want to make submissions on that. I want to record that my client would have been very content to seek to overcome such difficulties and tried to have a local lettings policy in place so the 11 affordable houses so that priority was given to 11 AST tenants currently. Please record that and I will make submissions tomorrow along those lines.  We dont accept anything Ms Bell has articulated. All of those are surmountable. Where there is a will there is a way and my client has a will and believes there is a way. The impediment is firmly at Leed's door because they are not willing to give priority to the tenants of the estate. Thats what I say on that. I do want to come back on the other point when Ms Wigley has spoken.

Ms Wigley: In this way, I haven't had opportunity to take instruction in relation to this issue. I suspect, my clients will be disappointed that there will not be any preference given to them on the estate to have opportunity of residing in the affordable housing but to be fair to Leeds, to be fair, I haven't looked at it in much detail yet but there would be a legal difficulty in providing any guarantees to residents on the estate because Leeds will of course have statutory duties in relation to homelessness and I suspect its not as simple as and whilst we would all like it to and my clients would I am sure would like it to be. The effect of the development is such that a number of people will be displaced and I suspect it may be outside of Leeds' power's to give guarantees to be given absolute priority to be rehoused in the affordable housing that is being provided. Thats the only comment I would like to make at this stage.

Mr White: I'm going to come back on that. Absolutely not, you can set criteria within the law and we have heard nothing from Leeds or Ms Wigley in law. A local lettings policy is a mechanism that is often utilised. A local lettings policy can have all sorts of criteria. Clearly one criteria is the distirbution and allocation of housing is subject to legal requirements but obviously there would be a consideration of how the existing tenants are dealt with. We will see what Ms Wigley says in closing about that or Ms Bell but I havent seen anything in law that supports. Ms Wigley has supported until just now a local lettings policy.

Ms Wigley: I'm not suggesting that a local lettings policy in itself is unlawful or that it wouldnt be welcome. All I am saying is that it wouldn't solve all the problems in any event because it wouldn't be any guarantee that the existing tenants wouldnt be rehoused because of course any legal duties of the council has in relation to homlessness and other matters.

Ms Bell: The note is clear. The matter still rests with the housing department. If permission is granted and affordable houses were there it would be open to the housing department at that point in time to have negotiations as they would ordinarily do with registered providers that were interested. Part of that would be to see if local lettings policy might be appropriate but I couldnt bind local housing providers to what they would or wouldn't do at that stage. It is to note sir the fact that it isnt a 106 agreement is not a once and forever decision because there will be a conversation between housing and a registered provider as to criteria in relation to them properties at some point in the relevant future.

Mr White: I want to deal with your points. Dr Buroni is on board. We have got in hand the first point in relation to amendments to the table. Can I ask for your agreement that we want clarity on that table you want the green to be amended that Dr Buroni and Mr Teasdale to use the Leeds survey, for all the reasons that Dr Buroni articulated yesterday and for all the reasons I put to Mr Teasdale. If you want it we will do it.  In relation to the orange Dr Buroni he is happy to provide the information clearly debased talking to Mr Teasdale about the survey results to Leeds.

Mr White: In the green box of Mr Teasdale, I dont even know, you dont even know if Mr Teasdale has the necessary information with Ms Wigley's client in the green. We would be very nervous about doing the excercise on the green which applies to Mrs Readman survey. Are you happy then for it to apply just to the orange for the survey data that Leeds had from last year?

Inspector: What I want it to relate to is on a household basis. I think that only appears in the orange. You have attempted to do it in relation to individuals. What I am interested in is households that are moving as an entity.

Mr White: Perfect, that is clear then. Dr Buroni is now listening and Dr Buroni will make contact. I dont know if Ms Bell was able to make contact with Mr Teasdale over the adjournment.

Ms Bell: I was in conference with my solicitor. I have asked someone else in my team. I dont think they have been succesful yet but they will keep trying to make Mr Teasdale aware. I appreciate the nature of what you are asking for is household basis information and understand you are keen to Dr Buroni and Mr Teasdale agreeing matters and I see the debate around the Mrs Readman survey data is well ventilated but in terms of trying to reach an agreement to put before you the orange Leeds data is the less controversial data certainly. From my part we will do our best to contact Mr Teasdale and to engage with Dr Buroni about it.

Inspector: Mr Alford is sending an email to all parties setting out the categories I listed so that hoperfully there is no misunderstanding of what I was asking for.

Ms Bell: Thats very helpful sir thank you.

Mr White: Thats really helpful, there were 5 matters you asked Mr Sheppard.

  1. Phasing Intention
  2. The extended notice point
  3. Intention of my clients to do is.
  4. In relation to the assisted or regulated tenancies the test for the court in law is whether what is proposed is a suitable alternative accomodation.  There is a degree of subjectivity for the court to be satisfied about. If we proposed 11 houses in Truro you might have difficulty persuading a court that is suitable alternative accomodation. There are parameters. The court would need to be satisfied that it made the test of suitable alternative accomodation.  There is a gateway quantitative test suitable house to replace that which is lost and qualitative element as well which goes into the suitability question.

Inspector: Yes

Mr White: In relation to s.21 notice.

Inspector: Yes

Mr White: 5. The S.21 notice: the normal period is 2 months in law. The reference in Mr Sheppard's proof was to 3 months was accurate then. The first covid regulation had a period of  3 months there was then a subsequent coivd regulation which changed it to 6 months. There was two changes, then they changed to 6 months. Currently it is 6 months.

Inspector: Thank you.

Mr White: How do you want Mr Sheppard to deal with phasing intention, the extended notice and also the point about my clients intentions are if they got consent. Would you like to incorporate that in my examination-in-chief or deal with it right now?

Inspector: Im quite happy with that. If I feel I have queries I will ask them at appropriate time.

Mr White: Can I call Mr Sheppard.

Mr Sheppard: Would you want to answer them questions now Mr White or through the course. Unless that disturbs your equillibrium Mr Sheppard. Can we take up your proof please. There is one other plan you will need Sir, could you take up the location plan of P11451901 should be in A34.

Mr White: My estimate that we would be about an hour. Are you content for me to finish examination-in-chief and then break.

Inspector: That is fine we have already had a short break.

Mr White: You are Matthew Sheppard, you are director of Sheppard Planning which you founded in 2020.

Mr Sheppard:Thats correct.

Mr White: You have a bachelor science degree in Environmental Science and Geography also a Masters degree in urban and regional planning.

Mr Sheppard: correct

Mr White: You have been a member of RTPI for 20 years .

Mr Sheppard: That right

Mr White: Before starting Sheppard Planning. You were lead director in Yorkshire for Turleys which were a national planning consultancy. Whilst in their employment you setup and ran their environmental impact assessment team for a number of years.

Mr Sheppard: Thats correct.

Mr White: You have a broad experience in promoting land and development and securing planning permission for major planning proposals and as you set out in your proof you have secured a number of high profile developments across yorkshire and North across a range of sectors.

Mr Sheppard: Thats correct.

Mr White: I also think its fair to say when you were Director for Turleys, you worked out of their Leeds office.

Mr Sheppard: Thats right yeah.

Mr White: Have you spent your whole professional career working out of Leeds?

Mr Sheppard: I have yes.

Mr White: Are you a resident of Leeds.

Mr Sheppard: I am yes.

Mr Sheppard: I think there is a degree of familiarity with locality.

Mr White: You were instructed to represent the appellant following refusal of aplication in October 2019.

Mr Sheppard: Thats right.

Mr White: You also say in relation to what approach you have taken to your discussion negotiations and conduct with both the council and the rule 6 party.

Mr Sheppard: I have had a number of conversations with them. My general approach, I hope Mr Brooks and Mr Lynch would agree with this is I have generally been open and fair with both the parties. Main reason to take that approach is to try reach agreement on as many matters as we could to assist the examination of the case during this inquiry.

Mr White: As a result you got two Signed statements of common grounds.

Mr White: To be fair to Mr Lynch and Mr Brooks they took same approach as you did.

Mr Sheppard: I think thats fair yes.

Mr White: We will spend the majority of the examination in chief on matters in dispute but can I ask you to summarise where on day 7 where we are on agreement on matters.

Mr Sheppard: Same as the common ground. I'm sure everyone has read them. They set out fairly wide range of agreement on a number of matters particularly sir with the councils common ground. One factor that comes from focussing on the issues at hand. I thought it would be useful to draw some of that out.

Mr Sheppard: What we have agreed:

Mr Sheppard: The Principle of the development is acceptable, the housing use is appropriate for the future. There is so different views around the form that housing use should take. The principle of the housing use on this site is I think an agreed matter.

Mr Sheppard: Agreed that for the Appeal development scheme that the housing mix is appropriate.

Mr Sheppard: I think we are agreed that the development will accord with the policies on providing affordable housing. There has been some debate about topic of affordable housing. I think we have heard acceptance from all of the planning witnesses that the 11 affordable homes are the only homes that will meet the defintition in the NPPF.

Mr Sheppard: Both the Council and SaveOurHomes during the discussions in putting in the statement of common ground together they didnt have any big concerns in the proposed development. There was some discussion about garden sizes and that resulted in a few changes which resulted in that reason of refusal being withdrawn.

Mr Sheppard: Wide range of agreement on a number of detailed matters things like; Design Quality, Layout, Meeting Internal space standards, garden sizes, landscaping, ecology, Accessibility, highway safety, flood risk, contamination, coal mining legacy issues. There is an awful lot of agreement on whole topic areas where we havent touched on in this inquiry.

Mr Sheppard: There is some common ground on a number of the key issues which is recorded in the Statement of Common Ground.

Mr Sheppard: On the PSED which is the central part of the refusal, I think we now all accept that Landlord and Tenant law governs the rights of the tenants. Which is important for discussing the fallback position which I will no doubt come back to when we discuss more during examination in chief.

Mr Sheppard: I think the Council also accepted that for PSED that counterveiling factors can be taken into account.

Mr Sheppard: We also touched on climate change and I think we all accept that the proposed development will perform better than the current houses in terms of carbon savings. The debate has been focussed on the associated waste streams and the embodied carbon that comes from that demolition. Those are matters in debate.

Mr White: Can I ask you to slightly slow down please. I was always told to watch the inspectors pen but I can't quite do that.

Mr White: Just before you went onto Carbon.

Mr Sheppard: Was PSED was the first one I talked about. Countervailing factors can be taken into account.

Mr Sheppard: On heritage I think we are all agreed that the houses were non designated assets they have some significance resulting from their history.

Mr Sheppard: I think we all agreed that the refurbishment would alter the physical appearance of those houses as well as the structure. Both of which are important in understanding their significance as airey houses. The remaining  issue is still there around historical and social associations. I hope thats a fair summary.

Mr Sheppard: On the development plan the planning witnesses have all agreed that there is compliance with a large number of policies in development plan. The issues we have left to debate are around the weighting and the approach adopted on those policies. Significant level of agreement. The effects on the community are the key things put forward to outweight the list I have just been through.

Mr White: In light of agreement. The fallback.

Mr White: Can we deal with the fallback. Every party to this inquiry accepts that there is a fallback the big debate to be had is the weight that all three planning witnesses give to it in development plan balance and the overall planning balance and that is a matter for the inspector.

Mr White: What you say and what weighting you give that exists in relation to the occupants of this community.

Mr Sheppard: It seems clear to me that the rights are wholly governed by the nature of the contractual relationship that exists. They are the real world issue that is being faced on that. To think about the weight we should give that is, that factors to consider are

Mr Sheppard: Firstly whether the fallback could actually be implemented and then Secondly how likely the fallback would be implemented if appeal is refused. That governs the weighting to it. 'Mr Tinsdale' I think he accepted that S.21 no fault eviction notices. Mr Tinsdale accepted that. I dont think it is being challenged by any of the other witnesses.

Mr Sheppard: The ability to serve a notice which results in an eviction at the moment in 6 months time clearly exists. How likely it is that the Appellant is to use those rights as attracted comment. Mr Brooks commented that notice hasnt been served yet. Mr Lynch wasnt that keen on the principle that the right existed but he did accept it was a reality.

Mr Sheppard: The appellant hasn't serve notice as yet as really there has been no need to do that. The residents are very welcome to stay in their houses whilst it is safe for them to do so. The appellants position on that has been that benefits the residents they get to keep their homes and the connections that they value. Being more commerical about it, it also benefits the appellant as it can collect rent during that period. There is a mutual benefit in leaving things as they are for as long as it is safe to do so.

Mr Sheppard:The issue we have got however is given the timescales we have got in the Dyson Report the need to serve notice on the tenants in the red houses is becoming more and more pressing and is becoming more pressing as time goes by and the amber tenants will be next on the list if you like. After receiving that advice from Dyson and having some timescales put to Pemberstone on how long that might take. I dont think any responsible landlord could ignore that advice. Its clear that those properties need strucutural intervention and the landlord has to do something.

Mr Sheppard:The appellant simply cannot allow the tenants to stay in the property if they have become structurally unsafe. It can definately happen and its very likely to happen in the short term particularly in light of the advice we have from the structural engineers. Really that is fundamentally important to understanding the harm that arises directly from this appeal. I think it should be given considerable weight in planning balance so its a significant material consideration which at the moment I dont think the other planning witnesses are giving a great deal of weight to.

Mr White: What do you say to the contention that is: Come on Mr Sheppard, your clients could have activated the notices and used their s21 powers for many months or even 2 or 3 years and they haven't and that can be mirrored into the future and they will take the same approach into the future.

Mr Sheppard: I have spoken with Pemberstone about this many times, I only got involved in this job when the application got refused. One of the first discussions we had was what do we do about this issue. The considered view that we came to was that there really wasnt any need, having being more into the planning side. They have significant advice from a well respected structural engineer in this field that says I'm sorry you have 12 months, 18 months or 2 years. They simply have to act on that advice. They then secured a second opinon of Mr Askew. Its incumbent on Pemberstone to not carry on I think we got to the option of not doing anything has been discounted by Pemberstone and everyone has accepted that that option does not work anymore purely because of this structural advice.

(Further updates from this session will be updated here in due course)