Lead Image: The view from Old Oswestry Hillfort towards the town of Oswestry. The development site is top centre. [thePipeLine]
Years of applied expertise and a decade of dedicated campaigning to protect the setting of the nationally important Old Oswestry Hillfort in Shropshire, seem to have come down to a three minute presentation in a one sided discussion of a planning proposal which had, to all intents and purposes, been decided beforehand, by council officers who either did not understand the critical issues of harm and setting relating to a heritage site of the highest importance, or worse did not care.
thePipeLine looks at the decision by Shropshire Council to grant planning consent to a local housing development in the near setting of the nationally important hillfort and fears that by raising the bar on what constitutes “harm” to the setting of a heritage site, the decision puts every such site in England at risk from insensitive developers.
There is something about the abbreviated, professionally neutral, language of planning which can make even the most controversial project seem simple.
Think of the National Highways “A303 Amesbury to Berwick Down Project”.
That is actually the hugely contentious tunnel and dual carriageways across the Stonehenge and Avebury World Heritage Site which might again be heading for the courts.
On Friday [28 July 2023], with no World Heritage Site to complicate matters, just the presence of one of the UK’s most important pre-historic monuments, the Northern Planning Committee of Shropshire Council met to discuss application 23/00225/FUL, described simply as,
“Proposed residential development of 83 dwellings with associated access, public open space, electricity sub-station, drainage and landscaping (re-submission).”
It was the one word “re-submission” which told the abbreviated tale of ten years of attempts to build on farmland on the edge of the Shropshire market town of Oswestry, between town and the looming mass of a hillfort which has been described by some as being so important nationally as to be the “Stonehenge of the Iron Age”.
Now, after successive planning applications for first 117 houses, subsequently reduced to 83, opposed all the way by expert and heritage bodies led by the locally based Hands Off Old Oswestry Hillfort campaign [HOOOH], it would all come down to the second item of three on the afternoon’s agenda.
For a matter of such potentially far reaching consequence for the system of heritage protection in England the venue was as memorable as a university seminar room, or a hedge funder’s PowerPoint presentation in any City of London Tower.
Far reaching, but not in a good way.
Two lines of tables, one accommodating Shropshire Council’s senior planning officers and other officials, and the other the ten councillors of the council’s Northern Planning Committee faced each other on the long axis of the high ceilinged modern room decorated blandly and discretely in the corporate blue and white colours of Shropshire Council. While facing down the room was the fixed eye of the single camera streaming the meeting for the public.
This meant there would be no close ups enabling the viewer to read body language, no legible name cards or subtitles identifying speakers left confused by the casual way councillors and officers were using first names. But then, as the chair of the committee reminded the audience, both in the room and online, this was a meeting held in public not a public meeting. We were eavesdropping on what was, to all intents and purposes, a private discussion between colleagues.
Of course, this was the final public face of a process which was largely decided before hand via the collected reports, impact statements, computer generated graphics and individual and corporate opinions, all collated, interpreted, and measured against local and national policy by the council’s planners.
At least that is how planning decisions are supposed to work.
The reality is that on decision day for any planning application the matter is really about elected councillors from the local planning authority signing off a democratic consent.
With procedures on the day designed to limit outside participation, least of all participation which might seek to question what had been decided and signed off already behind closed doors in the planning department, and for all we the pubic knows, elsewhere, only two outsiders would be allowed to participate in this afternoon’s discussion. One would speak for the proposed development and one against, each being allowed to speak for just three minutes.
But thankfully, in the light of what was decided eventually, this was a discussion every word of which was recorded.
As the meeting got underway the audience discovered that most members of the committee had been able to visit the development site and the hillfort overlooking it that morning [28 July 2023]. In a process which had been going on for over a decade that might seem somewhat last minute, but the site would be familiar to most people in Shropshire, a largely rural county close to the English border with Wales. Indeed, one member commented that he walked his dog on the hillfort.
It is also far to say that a site visit is a routine procedure in planning applications, especially where there is any controversy regarding significant features, relationships with neighbours, or the use of space, but it is important to point out also that, supposedly to avoid lobbying [and also to save on costs?], there is no independent expert advice to assist members of the committee in interpreting the issues they must adjudicate upon, either on a site visit, or when the committee is in session. By the time a decision reaches a planning committee the interaction is almost entirely between the committee members and the council’s own officers.
As is also normal procedure, discussion of the planning application began with the council’s senior planning officers offering a summary briefing to the ten committee members, addressing first a late submission from the Hands Off Old Oswestry Hillfort [HOOOH] campaign.
This might have seemed at first sight to be a deal breaker.
HOOOH argued that the proposed development stretched well beyond the “building line”, which HOOOH stated correctly had been agreed in a so called “Statement of Common Ground” between Shropshire Council and Historic England, which supposedly enshrined a northern limit to acceptable development on the allocated site.
In place since October 2014 and with its terms clarified and reaffirmed by Historic England as recently as 2020, in terms the Statement of Common Ground required that,
“The layout [of any development] should ensure that new development does not protrude to the north of the existing built development, to the west of the allocation.”
However, the council planning officers explained they had chosen to disregard this apparent publicly acknowledged agreement, at best reinterpreting what HOOOH, and presumably Historic England, thought was settled council policy.
While it might be ground for a future Judicial Review because the Council was allegedly not following its own agreed policy, this was not a good start for the campaigners. The council officers seemed to be operating in the manner of comedian Al Murray’s bombastic Pub Landlord and had adopted a policy of,
“My gaff, my rules.”
Objections to the proposal were then described to the members of the committee, again summarised in the words of the council officers for councillors who may, or may not, have read the expert submissions and other technical documents in original themselves.
With Green issues and the climate emergency moving up the news agenda another issue late to the table was sustainability, but overall, in spite of the developer making what was acknowledged to be a late submission, the officers were confident that the application was compliant with a sustainability checklist.
Introducing the planning application itself, slides of the site location were shown by the planning team and it was noticeable that three of the first four plans shown were limited to the boundaries of the development site itself, in the context of the built up areas on the edge of the town, but not including the rural setting of the hillfort.
That in spite of the infilling of a large green field space between the hillfort and the town being the principle cause of the objections over the last decade.
Was that a deliberate attempt to develop a narrative which downplayed that concern by not providing too many visual cues as to the most contentious issue?
At least the council’s officers accepted that their report was long and detailed, but again the detail would not be interrogated this afternoon. It would be assumed the councillors voting on the matter would be across the information and issues clearly having read the reports and checked the references themselves, [or failing that they would take the steer from officers].
As the planning officers continue their briefing to the committee the nuanced phrases and sometimes almost subliminal steers towards a vote to approve stacked up, all building the narrative that the committee should ignore the opposition to the proposal in making their decision.
For example, the committee is was told there has been no specific petition against the current proposal, although the officer speaking did allow there was previous opposition.
The fact that the earlier petition attracted more than 12,000 signatures was not mentioned, a fact that the recently elected local MP Helen Morgan placed great store by in a letter to the planning committee, opposing also the development.
The subtext of the officer’s on the face of it irrelevant comment seems to have been that nobody could be bothered to organise another petition so the political risk represented by the controversy was subsiding.
It may, or may not, be relevant too that Ms Morgan is a Liberal Democrat, winning the seat of North Shropshire following the resignation in disgrace of the previous Conservative MP Owen Patterson, who had been found guilty of breaking Parliamentary rules on lobbying and Shropshire Council is controlled by the Conservatives.
Critically, the supposed failure of Historic England to object specifically to the renewed proposal would also be given great weight in the officers briefing.
A similar failure to object on the part of the council’s own conservation team was also pointed out.
The implication was that the old legal concept of “Qui tacet consentit“, “Silence gives consent”, was in play.
However, Historic England’s position was far more nuanced and arguably much more considered and critical, than how it was presented to the committee members by the Shropshire council’s officers.
The advisory letter to the council from Historic England states,
“In NPPF terms we assess that the impact of the development within the setting of Old Oswestry Hillfort, would be to cause less than substantial harm to its significance.”
Fundamentally that means Historic England believe “harm” will be caused by the development.
However, this statement was qualified by the organisation citing the following specific paragraphs in the National Planning Policy Framework, which the Government expects to be applied to development proposals [our italics],
“In coming to its decision, the Council should fully consider NPPF paragraphs 199 and 200
and apply the tests of NPPF paragraph 202.”
Essentially these paragraphs require that in considering a development,
“…great weight should be given to the asset’s conservation
(and the more important the asset, the greater the weight should be). This is
irrespective of whether any potential harm amounts to substantial harm, total loss
or less than substantial harm to its significance.”
[Remember, Old Oswestry hillfort is considered nationally important and the harm which would be caused by the proposal is acknowledged by everybody.]
“Any harm to, or loss of, the significance of a designated heritage asset (from its
alteration or destruction, or from development within its setting), should require
clear and convincing justification.”
The question here, which arguably was never addressed directly by Shropshire Council , is whether 83 Houses to meet a LOCAL target [when alternative sites are available], could ever be a “clear and convincing justification” for doing harm to a NATIONALLY IMPORTANT heritage asset?
Finally Historic England pointed to paragraph 202 of the NPPF which states,
“Where a development proposal will lead to less than substantial harm to the
significance of a designated heritage asset, this harm should be weighed against
the public benefits of the proposal including, where appropriate, securing its
optimum viable use.“
This clause could almost be written for the situation at Old Oswestry, as it asks, even if the “Harm” done to a heritage site is less than substantial, which can still be considerable, does the public benefit of just 83 houses justify that harm?
With regard to the proposal under discussion the definition of “less than substantial harm” is critical, as is the nationally important status of Old Oswestry hillfort, yet, as was about to be pointed out, there was no attempt to explain to the committee how this definition interacted with the status of the site, let alone address the proposal in the context of the paragraphs of the NPPF cited by Historic England.
Essentially the planning officers went straight form the question to their answer without showing the evidenced working the NPPF requires.
Meanwhile, in what was presented somewhat in the manner of a heritage rabbit being pulled from a hat, it was announced that a Section 106 Agreement, whereby the developer delivers additional public benefits, which would be attached to any planning consent, would include the developer adding a viewing platform on the development site, facing the hillfort, so visitors to the housing estate could at least enjoy the kind of unencumbered view of the hillfort from below which visitors to the hillfort were to be denied if they looked towards the town.
The briefing now reached its intended destination, with the planners recommending approval subject to some standard conditions.
As the proposal was opened for discussion members were at least reminded by the planning officers that Old Oswestry is a heritage asset of the highest significance, but even that observation was quickly undercut by the planning officer repeating as a fact, without explanation, that any harm caused by the proposal is outweighed by public benefit.
That public benefit being just 83 houses and now also a viewing platform.
Dr Rachel Pope, Vice President of the Prehistoric Society, was the first of two witnesses called to address the committee.
Opposite the camera at the far end of the room and lost against the background of a small audience of interested parties, the eminent prehistorian confirmed that she was speaking also on behalf of the Council for British Archaeology which had opposed the scheme, reaffirming its stance on Twitter as recently as 27 July, the day before the meeting.
Dr Pope had just three minutes to explain the attempts of the archaeological sector to communicate the significance of the setting and the nature of the harm as set out in the National Planning Policy Framework for a decade, and the associated case law as it affected the Old Oswestry decision, none of which had been addressed in the officer’s briefing to the meeting.
Listing the roll call of expert archaeological bodies and senior archaeologists and prehistorians who have warned about the development since 2014, including Sir Barry Cunliffe and, she added, pointedly stating his party affiliation, “Conservative” peer Lord Renfrew, she argued that this was the “necessary expertise” which the NPPF section 195 requires a local planning authority to take into account when considering
the impact of a proposal on a heritage asset.
Crucially section 195 includes also a stipulation to,
“…avoid or minimise any conflict between the heritage asset’s conservation and any aspect of the proposal.”
In failing to avoid such a conflict by vetoing the application, and by failing also to minimise the conflict between the application and the heritage status of the hillfort by observing the letter of the Statement of Common Ground, the North Shropshire Council planners appear to have been ignoring that necessary expertise which was unanimously against the granting of planning consent for the application.
Dr Pope commented too that, in what she regarded as an “unusual” move, the expert archaeological opinion had been excluded from a constructive process as the proposal was developed, and their contributions had been “relegated instead to letters”.
This seems to be a hint at a process which, if not rigged outright, was arranged to avoid, officers, and perhaps particularly councillors, being contaminated by direct contact with that independent “necessary expertise”.
She pointed out next that Historic England wanted the the red building line, as set out in the Statement of Common Ground, respected, but, she alleged, the council’s response as recently as the day before the meeting [27 July 2023] had been to suggest that the council now sees that agreement as “unhelpful”.
Dr Pope argued with emphasis that as a statutory consultant the organisation’s view should be respected.
She concluded by saying those eighty three houses could be built somewhere else in Shropshire, in fact it is argued there are other less contentious sites in Old Oswestry itself where the 83 homes could be built, and that the CBA and the Prehistoric Society would happily help find a mutually acceptable location for the houses elsewhere.
[Adding to the stress of trying to convey these complex issues in just three minutes Dr Pope continued in the face of a serious computer issue which caused her notes to disappear.]
The agent for developer Cameron Homes, Stuart Wells, used his three minutes simply to emphasise that the previous application was not refused on heritage grounds, and went out of his way to repeat the views of the planning officers, which characterises the development as modest and landscape led.
Indeed, so effusive were his compliments towards the council planners a cynic might have recalled the relationship between Mandy Rice Davies and politician Lord Astor during the Profumo affair. Told in court that his Lordship had denied any carnal relationship with her Mandy Rice Davies responded,
“Well he would wouldn’t he.”
As the meeting continued Historic England’s failure to raise an objection was again emphasised to the committee members, with the committee being reminded that many of the objections regarding allocation of the development site for housing were made at the SAMDev [site allocation] stage of the planning process and were rejected by the planning inspectorate.
The first member speak, who unlike the other members of the committee actually represented a ward in Oswestry itself, sought to go one better than even the planning officers and suggested he would move the agreed red line of the Statement of Common Ground to the boundary of the development site.
It rounds off the town he commented and the then added that he had expected mobs and placards at the site visit, their absence suggesting to him that anger was subsiding and pragmatism was taking over.
Another member talked about archaeology and commented that if “they” the archaeologists undertaking developer funded work on the site ahead of construction, find a Roman fort or other significant archaeology, everything will grind to a halt.
[With the system of developer funded archaeology within the planning system now more than thirty years old, it was not clear if this was a joke or not. However, if it was meant seriously, the comment would seem to indicate there is scope for an education programme for local councillors to explain how developer funded archaeology works and that it is designed specifically to avoid such a situation.]
The next member to speak seemed at least to possess more awareness of the technical and legal risks which the council faces.
In a comment which may yet prove prescient he raised the the possibility of the applicant appealing in the even of a refusal and of the objectors seeking a judicial review of the granting of planning consent.
He asked also whether the council has a five year land supply, and was told the planning policy team team think the council does indeed have such a pipeline of development land.
It was also clarified that an archaeological condition can be applied to the proposal requiring excavations.
[The site is associated with war poet Wilfred Owen who came from Oswestry and trained there as a soldier, which adds weight to a study by Archaeology Warwickshire describing WW1 practice trenches on the site which will be subject to investigation.]
The next comment asked what guarantee existed that the development will even go ahead? Was there a risk that this is simply a case of land banking by a developer?
The answer was that the council does not have a lot of control over such matters, while Oswestry is underachieving on housing building numbers. However, this was a site allocated for housing and any potential risk was deemed acceptable.
Another member said they wished to see archaeology and history preserved, while suggesting the long established farm to the north of the site had already damaged the vista. However, in a hint of a growing awareness that current planning rules are being left behind by events, he raised climate change considerations with regard to the development.
He also referred to “active transport”, that is people walking and cycling, and asked if the public will be enabled to access the hillfort from the development?
Officers responded that environmental issues cannot be a block on the development as the planning team have assessed the proposal as compliant with current regulations.
On transport, existing footpaths may be used the committee was told, but a historic railway line, also present in the landscape, cannot be used to access the hillfort.
The next speaker actually quoted the SAMDev strategy document which had controversially allocated the site for housing, and reminded the committee, if they ever knew, that the document demands [our italics],
‘wherever possible, proposals avoid harm or loss of significance to designated or non-designated heritage assets, including their settings’.
Although not made directly, the clear suggestion was that the committee was in danger of not carrying out the council’s own policy. A factor which could be ground for a Judicial Review of any decision. However, nobody, councillor or officer, picked up the issue.
He argued also that the word “Substantial” had been used a lot during the meeting and that the term is open to interpretation, adding as an aside that with just 8 houses out of 83 in the development defined as affordable, that was “a derisory amount”.
Of the site as a whole it he observed that the proposal will do harm and drove home the point by saying,
“Once built on we have lost it.”
The committee was told that officers consider the design of the houses represents an acceptable balance between housing and green issues.
The question was then asked what powers the council held to prevent further development, perhaps up to the one hundred and seventeen houses the developer had asked for initially?
After all, it was said, there is still half a field left?
The officers had an answer for that too. The allocated space is filled the committee was told, which did not exactly answer the question.
As the discussion wound up, the committee was again reminded by officers of the definitions of harm and substantial harm as operated by the planning department, not that of the necessary experts referred to by Dr Pope.
The final formality was to put the planning application to a vote.
This took the form of a roll call where each member of the committee gives their decision in turn.
It was soon clear which way the committee was leaning.
In the end nine members, representing the three main parties on North Shropshire council, the ruling Conservatives, Labour and the Liberal Democrats, plus one independent, voted for the development proposal [one “reluctantly”].
There was just one vote against from Liberal Democrat councillor Roger Evans, who was only on the committee as a substitute for a Conservative councillor.
The one Green Party member of the committee did not take part in the discussion because of a potential conflict of interest.
As a result of the vote the development in the near setting of #OldOswestry Hillfort now has permission to go ahead, pending a formal Section 106 agreement [and possible future legal review].
And that was it.
A decision of critical importance to the application of the heritage provisions of the National Planning Policy Framework nationally was decided in under an hour by ten people, undoubtedly well meaning, but in some cases showing little understanding of the issues they were dealing with, who were being steered, and arguably in some instances misdirected, by council officers who had framed the arguments and engineered the decision, long before the members of the North Shropshire Northern Planning Committee even sat down on Friday afternoon.
It is not disputed that the National Planning Policy Framework does allow for harm to be done to even internationally important heritage assets if the public benefits can be shown to outweigh that harm.
However, it is surely true that the hard won principle that, as well as the heritage asset itself, the setting of a heritage asset is of critical importance to its continued significance should not be sold for eighty three houses, only eight of which are affordable, and a viewing platform.
As Dr Rachel Pope put it in her letter of objection to the proposal, published on the North Shropshire planning portal,
“If Shropshire chooses to move against the heritage protection principle of “setting” in this way, then this important UK planning principal, written into NPPG16 [the predecessor to the NPPF] specifically to protect sites and situation like that at Old Oswestry, will be lost. We really must proceed very carefully here.”
However, far from proceeding carefully, to its critics, the North Shropshire planners have proceeded to bulldoze through some thirty years of guidance, precedent and practice with the finesse of former Prime Minister Boris Johnson’s JCB backhoe loader crashing though a polystyrene wall with his vow to “Get Brexit Done”, and we all know how that has ended.
Worse, throughout the meeting to decide the fate of the setting of Old Oswestry hillfort members of the planning committee were told repeatedly by council officers that Historic England had “not objected” to the application and that statement clearly carried great, possibly even decisive, weight when the committee came to vote.
However, while it can be argued that the position of Historic England was at best misunderstood, at worst, misrepresented to the members of the planning committee, it can be suggested too that plain English might be a better way to express “harm” in a heritage context, than limit a submission to heritage sector jargon which requires interpretation for lay committee members. Particularly when the interpretation may not be neutral.
And “Lay” is a definition which would include most councillors on planning committees anywhere in the country and, unlike a court of law, there is no provision in procedure for them to be helped in real time in committee by the neutral voice of a judge, or independent expert witnesses.
The only independent expert interpreter present on the heritage side, Dr Pope, was limited to one three minutes statement to explain a series of complex issues to committee members, possibly for their first time of hearing, while the applicant, also limited to a three minute statement, was assisted by the framing of the discussion and by every interpretation and intervention of the planning officers over the course of almost an hour.
Neither is it to down play or disrespect the professionalism and expertise contained within Historic England to argue that the statutory body’s opinion is not the Gold Standard and the “necessary expertise” called for by the NPPF and referred to by Dr Pope, should be presented as at least as important.
A point Dr Pope also tried to make in her letter to Shropshire’s senior planning officer.
It is also critical to acknowledge that in the British legal system case law is all important and, as Dr Pope again argued in front of the planning committee, the decision made by planners at Shropshire Council appears not to conform to accepted policy, practice and precedent and thus it can be argued to be perverse.
That perversity would seem to demand an urgent Judicial Review of the decision made by Shropshire Council in order to clarify the application of the National Planning Policy Framework.
This would at least be a situation where the case is argued by experts and where there would be no three minute limit on the discussion of critically important concepts, which might have consequences nationally.
But that demands someone steps up to seek such a review, and take on a local authority and a developer, with deeper pockets than most archaeological bodies.
Nonetheless, it is a critical decision because, if the heritage sector does not seek to have the decision made by the North Shropshire planning committee impacting on the setting of Old Oswestry hillfort tested in the courts, and hopefully conservationists would argue, reversed, then next time any listed or scheduled historic site, let alone a nationally important site, is threatened by insensitive development down the hill or just across the road, committed professionals like Dr Pope might as well not bother to even write a letter, let alone turn up at the planning meeting.
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