Author Archives: Visions of a Creek

Neighbourhood Plan judicial review will go ahead

The owners of Swan Quay have been granted permission for judicial review of the Faversham Creek Neighbourhood Plan. They had applied for permission on three legal grounds, two of which were rejected. But one was allowed to go forward to judicial review: that the examiner and Swale Borough Council acted ultra vires (ie, beyond what they are legally allowed to do) in making the modifications which the examiner said were necessary to meet the basic conditions for neighbourhood plans.

Assuming that Swale Borough Council intends to defend its case, which it has previously said it would do, both sides have up to 35 days in which to prepare their submissions. The judicial review should then take place within 10 weeks. So probably 3-4 months altogether.

The judicial review will not be a re-examination of the plan. A decision will be based purely on the legal process concerning the final submission and examination.

The topic is on the agenda for discussion in private session at the Faversham Town Council meeting on 19 September (7pm, Guildhall).



Neighbourhood Plan referendum delay

Swale Borough Council made the following announcement on its website on 29 July 2016:

“An application for permission to bring a Judicial Review has been received by the Council and the Council is defending the claim. The Council is of the view that a referendum on the Plan should not take place until the outcome of the Judicial Review is known.”

A message from Councillor Cosgrove

Councillor Mike Cosgrove writes in the latest edition of the Faversham Town Council newsletter:

The Good News
After so much hard work by the Vanguard Committee, it was great news to hear that the external examiner had approved The Town Council’s Creek Neighbourhood Plan. This means we can proceed to the next stage that is a whole Town Referendum when residents who are on the electoral roll will be asked the question “Do you approve the Neighbourhood Plan?” Then tick either Yes or No. This is planned to take place in the autumn, most probably in October.

What the report said
He said that he understood a great deal of hard work had gone into the Plan. He found it well written, clear and gave a very good idea of the issues and difficulties involved. He also said that he was impressed with the knowledge of those participated in the hearing. He praised the amount and quality of public consultation undertaken throughout its production, and stated that the town council took public consultation seriously and that clearly a lot of local residents took the trouble to give their views.

He fully supported some of the key issues including the Creekside footpath around the creek that so many residents supported, and the provision of moorings for boats, also for sensitive development of other sites within the Creek area. Inevitably he asked for some changes and we are in the process of including them so that the Plan can be “referendum ready”.

Swale Council, as the local planning authority, had to consider whether to accept the Examiner’s recommendations. These and the draft plan were approved at the Local Development Panel on May 19th, when formal approval also for the referendum was given.

The Referendum
Like the referendum in June, the Swale Returning Officer will be responsible for making the arrangements for the Creek Neighbourhood Plan referendum including voting cards and polling booths across all of Faversham. If more than half of those voting are in favour of the Neighbourhood Plan, Swale BC must bring it into force as soon as reasonably practical. The referendum looks likely to take place in late October. So your vote really does count. Faversham Town Council will send out full details of the Creek Neighbourhood Plan, its benefits for The Creek and Faversham and details of each site before the date of The Referendum, so that all Faversham residents will know exactly what they will be voting for. Of course your town councillors can also give you details and answer any questions. Additional information will also be available.

A big Thank You
We would like to say thank you to everyone who helped make this happen, and special thanks to Anne Salmon, Andrew Osborne and Janet Turner, and of course Natalie Earl Swale’s Senior Policy Planner for helping us through all the hard work.
Cllr Mike Cosgrove

In the same newsletter, ex-Mayor Nigel Kay, reflecting on his term of office, says; “The Town Council will be contributing £175,000 towards the new swing bridge at The Creek and Swale Borough Council will match this with £200,000. This greatly reduced the amount needed to be raised by the public to £125,000, which was achieved in record time thanks to the support of the local community.”

Swale development panel greenlights Neighbourhood Plan

Swale Borough Council’s Local Development Framework panel – the committee that deals with strategic planning – has followed the planning officers’ recommendations to accept the independent examiner’s modifications to the Faversham Creek Neighbourhood Plan, and allow the modified plan to go to referendum.

The provisional date for the referendum is 20 October 2016.

It was reported that counsel for the owners of Swan Quay had submitted a legal opinion that the examiner’s comments on this site were beyond his remit and unlawful. However, counsel for the Council disagreed.

Cllr. Mulhern – the only Faversham member on the panel – said he had “concerns” about Swan Quay, but voted with the others to allow the plan to go forward.

Creek Trust and BCA welcome the Neighbourhood Plan examiner’s report

The Faversham Creek Trust and the Brents Community Association, which made a joint submission to the Neighbourhood Plan examination process, have issued a joint statement on their response to the Independent Examiner’s report:


The Faversham Creek Trust and the Brents Community Association welcome the Independent Examiner’s report on the Faversham Creek Neighbourhood Plan.

The Examiner, Mr Timothy Jones, clearly listened carefully and objectively to all sides, and took time to study the Creekside area at all states of the tide, in order to understand it. While he has not accepted all the changes we had put forward, on the whole we believe he has been fair to everyone. We consider that the changes he has recommended will enable the plan to be seen as a defining document for Faversham’s future, in particular by requiring greater attention to the archaeological importance of the Creek and robust protection of existing important buildings, waterside features and employment opportunities.

Sue Akhurst, Chairman of the Faversham Creek Trust, said: “It was especially useful to have the Neighbourhood Plan set in the context of the strategic policies B1 and AAP2 of the adopted Swale Local Plan 2008, which focus on employment and protection of the maritime character of the Creek – for which we had consistently argued during the development of the plan. And of course we are pleased with the Examiner’s recognition of the work being carried out by the Trust at the Purifier Building.”

For the Brents Community Association, Chairman Mike Palmer said: “Working as we do to improve job opportunities for local unemployed people, we are encouraged by the importance the Examiner placed on employment uses. We also appreciate his comments on the Purifier Building, which we have used on our employment courses and where many local residents have worked as volunteers, and his recommendations for Swan Quay, which will help to protect the character of our local area.“

Our two organisations would like to thank the many people who have contributed to our efforts to present alternative ideas for the potential development of the Faversham Creek area, including Dr Pat Reid, Ray Harrison, the Faversham Society, Historic England – and the many hundreds of people from Faversham and further afield who have contributed to the consultations and the debate, and who have given their time and money towards the new Swing Bridge, which is such a vital part of regenerating Faversham Creek.

We welcome the Examiner’s recommendation that, subject to the incorporation of all his amendments, the plan may go to referendum with the whole of Faversham being given a vote. We trust that Faversham Town Council and Swale Borough Council will agree to incorporate all the required changes so that the Faversham Creek Neighbourhood Plan may be brought to referendum without delay.

Swale councillors to consider Neighbourhood Plan on 19 May

Swale Borough Council’s Local Development Framework Panel – which is where strategic planning decisions are made – will be asked on 19 May to approve the Independent Examiner’s recommendations so that the plan can go to referendum. The planning officers’ report to the panel says:

‘Unless Swale BC amends the draft Plan in order to reflect the Examiner’s recommendations, the Plan would not meet the ‘basic conditions’ and the legal requirements and could not proceed to referendum.

‘Swale BC, as the local planning authority, must now consider whether to accept the Examiner’s recommendations. Officers are content with the modifications suggested, and agree with the Examiner that they make the Neighbourhood Plan acceptable in terms of meeting the basic conditions and the statutory requirements. As set out earlier, if Swale BC do not accept these modifications, the Plan cannot proceed to referendum.’

If the panel accepts the recommendations, the referendum would be held in September/October (on the grounds that it should not clash with the EU referendum, and after that it would run into school holidays, which would be best avoided).

The planning officers’ report can be seen here, starting on page 4.

Where the Local Plan meets the Neighbourhood Plan

The examiner’s report on the Faversham Creek Neighbourhood Plan is still awaited, nearly five months after the close of the examination hearings – the latest word is that it will not appear until at least mid-March 2016.

However, the Inspector of the Swale Local Plan has now completed her interim findings, following the hearings held in November/December 2015. This is what she has to say about the Neighbourhood Plan and its relationship with the Local Plan:

Policy NP1: Faversham Creek Neighbourhood Plan

  1. Faversham Creek Neighbourhood Plan (NP) has been developed concurrently with the [Swale Local] Plan and was subject to examination in late 2015. As the [Swale Local] Plan is not yet adopted it does not form part of the development plan to which the NP should conform. However both documents are based on the same evidence and Plan Policy NP1 reflects agreed strategic objectives. Should the NP be made before adoption of the [Swale Local] Plan the Council proposes to update Policy NP1 if necessary to ensure consistency, through main modifications. Alternatively should the NP stall or fail at the referendum stage the criteria in Policy NP1 will provide a backup framework for considering development proposals at the Creek.
  1. Serious concerns have been raised about the designation of the area as flood zone 3a(i), particularly when it was previously designated as 3B (functional flood plain). It is argued that this change, together with the Plan’s flexible approach to potential residential development, has increased property values and made it less likely that development for employment or more traditional maritime based uses will come forward. It is argued that “hope value” prevents sites from being developed for employment uses because it is hoped that more profitable residential development will eventually be allowed.
  1. The Council has confirmed that the flood zone designation, which effectively removed built up areas from the functional floodplain, has been agreed with the Environment Agency and is compliant with the NPPF. However Policy DM21 of the [Swale Local] Plan requires all planning applications to be accompanied by site specific flood risk assessment, whilst Policy NP1 requires proposals to be acceptable in terms of flood risk. The policy also makes it clear that priority will be given to retaining maritime activities, with residential and other uses cited as “complementary”.
  1. On this basis I am satisfied that the Plan provides a sound and justified strategic background for Faversham Creek, against which the NP will provide a detailed framework for dealing with planning applications.

If Faversham Creek NP is made before adoption of the Plan, main modifications may be needed to ensure that Policy NP1 is consistent with the NP.

Reminder: Neighbourhood Plan hearings

A reminder that the examination hearings on the Faversham Creek Neighbourhood Plan start next Monday (5 October) and the deadline for anyone who wants to apply to speak  is 4pm today (Monday 28 September).

The examiner does not want to hear from lots of people all saying the same thing, but has expressed an interest in hearing from anyone who has something different to add, and in particular from people who own or live in property adjacent to the proposed development sites.

The hearings will not cover the whole of the plan, only those matters which the Examiner wants to explore in more detail. If you want to speak on any of these matters, email your request to

The matters to be considered, and the provisional schedule, are:

5 October, 10am to 1pm
▪ Opening comments and procedural matters.
▪ Does the plan meet the Basic Conditions? If not, has anybody “suffered substantial prejudice” as a result, and is it fixable? The Examiner says “Among other things I shall wish to hear views as to whether the proposed minor modifications [ie, the amendments agreed with Historic England] are in fact minor modifications and the consequences if they are not.”
▪ Three specific Creekwide policies:

Addition of new policy, HE4, proposed by Historic England:
New development will be designed to preserve nationally important archaeological remains in-situ. Archaeological remains of local or regional significance will be either preserved in situ or subject to archaeological investigation so as to advance understanding of the significance of archaeological remains that provide evidence of the development of the creek’s historic maritime and industrial uses. The preservation of evidence of the area’s development during the middle-ages and of the development of the Faversham gunpowder and boat building industries will be given a particularly high priority. Development proposals should be informed by discussion with the Council’s archaeological adviser and, where appropriate, by a programme of pre-determination archaeological evaluation in order to determine the nature, condition and extent of archaeological remains that may be present and the appropriate response to these.

Paragraph on Moorings:
Outside of this neighbourhood plan, Faversham Town Council and Swale Borough Council will develop a policy on moorings, in consultation with the Marine Management Organisation (MMO) and other stakeholders. The policy will include restrictions on long-term mooring used as the occupant’s sole or primary residents and provision to ensure that waste from residential moorings will not be discharged into the Creek.

Amendment to Policy INF5, proposed by Historic England:
Original: Renewable energy proposals will be permitted unless they would result in harm to the character of the buildings and the amenity of residents.
Proposed: Renewable energy proposals will be permitted unless they would result in harm to the character or special historic or architectural interest of the buildings or the character and appearance of the conservation area or other heritage assets and the amenity of residents.

5 October, 2pm to 5pm
Site specific policies: Site 2 Ordnance Wharf and site 3 BMM Weston.

6 October, 9.30 am to 12.45 am
Site specific policies: Site 4 Swan Quay and Site 5 Frank and Whittome

6 October, 1.45 pm to 5pm
Site specific polices: Site 8 Standard Quay and Site 9 Standard House.

7 October, 9.30 am onwards
▪ Overruns from previous sessions and matters that have arisen during the course of the hearing that require further consideration
▪ Site visits
▪ Closing

Neighbourhood Plan: details of the hearing

The Independent Examiner for the Faversham Creek Neighbourhood Plan has issued a second set of detailed Guidance and Directions which includes details of the public hearing.

The provisional schedule for the hearing is for three days, from Monday 5 to Wednesday 7 October. The venue is the Jubilee Room at the Alexander Centre.

The examiner emphasises that his role is not to judge the quality of the plan, but only whether it meets the legal requirements. The hearings will not address the whole of the plan, but only those issues on which the examiner considers he needs more information. He will deal with other aspects of the plan on the basis of written representations and other documents. The issues to be considered at the hearing are general compliance with the basic conditions, a few Creek-wide policies, and selected site-specific policies.

The document includes a list of people/representatives who will be permitted to speak. Anyone else who wishes to speak should notify the examiner by the time specified (though it is not clear when this is). He is particularly interested in hearing from people who live on or own land on or near the sites being considered, or who “expect to have a substantially different point of view from those who have been invited to speak”.

Anyone proposing modifications should indicate the precise wording and exactly where it should go within the plan.

The full text of the document is below:

Guidance and Directions (2)

  1. All communications required or requested below should be made in writing to me c/o Ms Natalie Earl, Senior Planner, Planning Policy, Swale Borough Council, Swale House, East Street, Sittingbourne, Kent, ME10 3HT, no later than 4pm on Monday 28th September. This applies to paragraphs 9 to 15 and 19 below.
  2. In my Guidance and Directions of 15th July 2015 I drew attention to the following:

(1) the principal purpose of the examination is to consider whether the NDP meets the basic conditions. These are:

  • having regard to national policies and advice contained in guidance issued by the Secretary of State, it is appropriate to make the NDP;
  • the making of the NDP contributes to the achievement of sustainable development;
  • the making of the NDP is in general conformity with the strategic policies contained in the development plan for the area of Swale Borough Council (or any part of that area);
  • the making of the NDP does not breach, and is otherwise compatible with, EU obligations; and
  • The making of the NDP is not likely to have a significant effect on a European site (as defined in the Conservation of Habitats and Species Regulations 2010) or a European offshore marine site (as defined in the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (either alone or in combination with other plans or projects).

(2) I am also required to consider: whether the NDP is compatible with Convention rights as defined in the Human Rights Act 1998; whether the NDP complies with the provisions made by or under sections 38A and 38B of the Planning and Compulsory Act 2004; and whether the area for any referendum should extend beyond the neighbourhood area to which the NDP relates,

(3) The normal rule for neighbourhood planning representations is that they are conducted by written representations with any site visit being unaccompanied. A public hearing should be held when the examiner (a) considers that a key issue should be examined in more depth or (b) to ensure a person has a fair chance to put a case. It is up to the examiner to decide who is invited to speak.

(4) An accompanied site visit may be required where it is necessary to access land that is not publicly accessible.

  1. I am concerned that the implications of this may not be fully understood. In particular:

(1) It is not my role to decide what I would have included within the NDP if I had been the qualifying body. It is my role to see if it meets the statutory tests.

(2) Except to the extent necessary to carry out my statutory role, I do not have the duty, or even the power, to consider alleged illegality or alleged maladministration, or to review the past conduct or any person or body. What a person or body may or may not say at the time of a referendum is not within the role of an examiner.

(3) Public hearings are only in respect of key issues and only if I consider either that such an issue should be examined in more depth or to ensure a person has a fair chance to put a case. As such it is it unlikely that an examiner would require a hearing in respect of the whole of a substantial plan. It is not appropriate for concerns to be raised or detailed for the first time at a hearing. Persons with a different point of view have a right to advance notice of the views of others. It is not necessary to speak at a public hearing in order to draw my attention to statutory provisions, legal authorities, policy or practice guidance, or any other document. Public hearings are formal statutory proceedings. They are not public meetings or consultation events.

(4) Since site visits are not occasions to give evidence, while accompanied site visits may be required where it is necessary to access land that is not publicly accessible, they are less likely to be required where land is publicly accessible. They are not an occasion for participation, but are solely for viewing.

  1. My Guidance and Directions of 15th July 2015 remain in force.
  2. I am grateful for the responses to the requests in paragraph 6(3) of those Guidance and Directions and have given careful consideration to them. I am satisfied that there is no need to hold a public hearing to ensure any person has a fair chance to put a case. In particular there is no evidence before me that any participant in the NDP process suffers the disadvantage of illiteracy or of a lack of literacy or written fluency in the English language.
  3. I have concluded that certain key issue should be examined in more depth and the directions below relate to these. Those issues are detailed in the Appendix to these Guidance and Directions. The absence of an issue should not be read an indication that I do not consider it to be important. Rather it means that I am satisfied that I can deal with it on the basis of the written representations and other papers before me.
  4. In respect of the key issues that I have identified in the Appendix, among other things I shall wish to hear views as to whether the proposed minor modifications are in fact minor modifications and the consequences if they are not.
  5. In deciding who is to be permitted to speak, I must bear in mind that the purpose of the public hearing is to inform me in respect of key issues that I consider should be examined in more depth. As such it does not assist me to hear two or more people say the same thing; although one person may make it clear that he is authorised to speak on behalf of other persons The following persons will be permitted to speak at the sessions of the public hearing:

(1) In respect of any session, a single representative of Faversham Town Council;
(2) In respect of any session, a single representative of Swale Borough Council;
(3) In respect of any session, a single representative of Historic England;
(4) In respect of any session, a single representative of the Faversham Creek Trust and the Brents Community Association;
(5) In respect of the session relating to Standard Quay and Standard House, Ms Sue Cooper;
(6) In respect of any session, Ms Anne Salmon;
(7) In respect of any session, Ms Jeanne Taylor; and
(8) In respect of any session, Ms Janet Turner.

  1. If any other person wishes to speak, they should notify me, identifying the session at which they wish to speak and saying why they wish to speak and how their contribution may help me carry out my tasks. The identification of specific persons in the previous paragraph does not mean that I have a predisposition not to permit others to speak provided they notify me by the time specified. I would be particularly interest to hear from persons who live on or immediately next to any land being considered in the session concerned, who own any land on or immediately next to any land being considered in the session concerned, or who expect to have a substantially different point of view from those who have been invited to speak at the session. Applications to speak must be made by the persons concerned or by someone who has express authorisation to make the application on their behalf. It does not help me to have several people saying the same thing.
  2. While I have specified a single representative in paragraph 8 (1) to (4) above, I may look favourably on an application for more than one person to speak, provided each such person only speaks on a discrete topic or topics and there is no substantial overlap between them. So, for example, there might be one speaker on heritage and one on planning.
  3. Anybody who has commitments that prevent them attending on a particular day or particular days should let me know.
  4. Anybody who alleges non-compliance with a statutory provision should identify the provision concerned, and the person, persons or category of persons who have or are likely to have suffered substantial prejudice as a result.
  5. I note that the Faversham Creek Trust and the Brents Community Association want to be certain that their representations have been communicated fully to me. This does not require a hearing. Any person or body that wishes to may submit a list of documents with which they consider I should have seen. This direction only permits submission of a list of documents that have already been submitted in the NDP process. It does not permit further comment or argument.
  6. Any statutory provision, legal authority, examiner’s report and planning appeal decision upon which a party relies shall be supplied to me. Relevant passages should be sidelined on the left. Please do not copy irrelevant material, such as pages containing only information on High Court challenges at the end of an appeal decision, lengthy passages in a judgment dealing with irrelevant issues, or arguments about costs at the end of a court transcript.
  1. The venue for the public hearing is the Jubilee Room, The Alexander Centre, 15 – 17 Preston Street, Faversham, Kent, ME13 8NZ.

If any participant has any special requirements in terms of access or otherwise they should inform me.

  1. The public hearing will commence at 10.00 am on Monday 5th and (unless subsequently directed) at 9.30 am on subsequent days. My practice is to start promptly at the appointed time.
  2. The provisional timetable for the hearing is set out in the table in the Appendix. Times may vary considerably (and probably will vary at least to some extent). There will normally be a mid morning and a mid afternoon break. These and lunch breaks will take place at a convenient point in the proceedings. So, for example lunch breaks will not necessarily be at 1pm or 12.45pm. In each session where I am considering a policy of policies, I shall also consider proposed modifications to it. If a session finishes early, a site visit may be interposed.
  3. It is not as yet clear to me which locations require my site visit to be accompanied. Where one takes place, I hope that participants will agree in advance what they wish me to see. I shall not enter private land (other than on a public right of way) without the consent of the landowner. During any accompanied site visit I should be accompanied by at least one person from each side of any difference as to the future use of the land being visited or viewed. No evidence will be given or argument advanced on the site visit. The place to give evidence is though written representations and, to the extent allowed, at the public hearing.
  4. Any proposed modifications should indicated the precise modification sought, including in the case where additional text is proposed exactly where this is to be inserted.

Timothy Jones, Barrister, FCIArb
No 5 Chambers
15th July 2015

Provisional timetable

Session 1, Monday 5th October 10 am to 1pm

Opening comments and procedural matters

Whether the NDP complies with the provisions made by or under sections 38A and 38B of the Planning and Compulsory Act 2004, together with whether, in the event of a finding that there has been a failure to comply with these provisions, whether anybody has suffered substantial prejudice as a result and whether the matter is capable of rectification.

The following in the section on Creekwide policies: proposed modification to add a policy HE4, the paragraph on moorings on page 36, and policy INF5.

Session 2, Monday 5th October 2pm to 5pm

Site specific policies: Site 2 Ordnance Wharf and site 3 BMM Weston.

Session 3, Tuesday 6th October 9.30 am to 12.45 am

Site specific policies: Site 4 Swan Quay and Site 5 Frank and Whittome

Session 4, Tuesday 6th October 1.45 pm to 5.00 pm

Site specific polices: Site 8 Standard Quay and Site 9 Standard House.

Session 5, Wednesday 7th October 9.30 am onwards

Overruns from previous sessions and matters that have arisen during the course of the hearing that require further consideration

Site visits