Betteshanger and the democratic deficit

by Peter Cutler

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I live in Northbourne, very close to the Betteshanger site, which I have seen rewilding in the years since the mine closure in 1989. Since March 2020, I have been working with Friends of Betteshanger, the campaign group fighting to oppose the application from Quinn Estates to build 210 houses, retail and commercial units on this site.

From my experience, it is well worth challenging destructive local planning applications: the process is straightforward, requires no special skills apart from persistence, the patience to read confusingly written documents full of irrelevant material and specious arguments, the time to do some background research and the will to ask the planners and council officials difficult questions and ask them to follow the rules.

This all can be done now — there is no need to wait for political parties to get their act together.

And don’t expect much from the mainstream media: they tend to marginalise environmental concerns while claiming to reflect “public opinion”. We have had to “internetwork” to build a campaign to protect Betteshanger.

What follows are my personal impressions. We all learn by doing — we learn different things and it’s good to share knowledge.

Rather than a history of our campaign I would like to focus on four issues: (1) the need for transparency and accountability; (2) our experiences of the planning system; (3) questions of strategy; (4) the media and building links and support.

This means leaving out many details and details of help received from others. Please see Sue Sullivan’s account of the site ecology, which is the central issue in seeking to protect Betteshanger.

Transparency, accountability and the democratic deficit

For years Dover District Council (DDC) has carried on ignoring growing local concerns about the local environment and quality of life. Despite this the Conservatives have an unchallenged control of DDC and win election after election.

This may change with environmental issues and campaigns in our area building up and becoming mainstream. There is a growing desire for direct involvement in decision-making by citizens as a matter of right. In our area, the political culture is characterised by habits of deference — but this is now changing.

One aspect of this “democratic deficit” is a lack of transparency, accountability and openness. All background documents, records of meetings and decisions need to be accessible and local authorities should follow the rules and the spirit of the law as well as the letter. We can only know they are doing this if there is a complete paper trail available in the public domain.

Following correct procedures is vital to the proper functioning of government. It can’t be fudged over; transparency means that government is done in public view and accountability means that elected representatives and officers should explain how they decide and carry out policy.

Friends of Betteshanger (FOB) found a number of gaps and puzzles in the way the Betteshanger planning application was presented. Quinn Estates bought a site that was part of a regeneration project for an undisclosed sum from educational administrators. The previous owners, Hadlow College, had paid 1p for the site and received many millions of pounds of public money. Due to reasons that had nothing to do with the Betteshanger scheme, Hadlow got into financial difficulties. Its principal and finance director resigned in February 2019, followed by Hadlow going into administration in May 2019 and the sale of the site on the open market. The site was treated as a simple asset owned by Hadlow.

It was public knowledge that Quinn Estates was negotiating to buy the site. Why didn’t DDC intervene? — was the future of the site discussed in meetings with DDC between March 2019 and April 2020, when Quinn Estates submitted its planning application? A site that had received a very large public investment was now in the private sector.

A further puzzle was that the application seemed contrary to current DDC planning policies set out in the 2010 Local Plan. Relevant policies include DM1: preventing development outside settlement boundaries; DM11: reducing car journeys to cut greenhouse-gas emissions; and, most importantly, saved policy AS1: a policy specific to the Betteshanger site. This states that “in locational terms the site is not sustainable” and goes on to say that housing and retail planning applications would not be acceptable.

None of these conditions had changed and, in fact, traffic problems in the area had got much worse due to a number of large developments around north Deal and Sholden. The regeneration scheme developed by the South East England Development Authority (Seeda) had included extensive tree and bush plantings to encourage a partial rewilding.

There seemed no planning policies that would support building a housing estate (along with retail and commercial units), along with the accompanying destruction of what had become a rewilded and biodiverse amenity loved by local people.

FOB produced a timeline to focus on the information we needed and to make Freedom of Information (FOI) requests if necessary. This needs to be done early because, if the council doesn’t provide the information requested, the process can be lengthy, with requests, reviews and finally a complaint to the Information Commissioner’s Office — a minimum of four to five months.

We asked for details of the land allocations policy (HELAA), which suggested the site should be moved from a red to an amber grading. Currently this is only a proposal and only comes into effect with the adoption of a new Local Plan. Until then the evaluation of the site is unchanged.

We asked for records of any discussions that would indicate that saved policy AS1 was argued to be out of date. We asked for details of pre-application discussions going back to March 2019, before Hadlow went into administration.

Why hasn’t DDC kept to policies set down in its Local Plan 2010? As they have not been discussed in open council, are we to assume they are still valid? What was discussed at the pre-planning meetings which started months before Quinn Estates bought the site? Did DDC tell Quinn Estates that council planning policy was that residential and retail developments would not be acceptable? Surely, stating anything else would require a decision to change DDC policy?

Most of the information we asked for was withheld for reasons we think not consistent with the Freedom of Information Act. We are now complaining to the Information Commissioner’s Office, asking that it will require DDC to provide the information.

DDC did disclose the existence of seven pre-planning application meetings between March 2019 and February 2020 where no notes or minutes were taken.

We think minutes should be taken at pre-planning meetings and made available to the public alongside other application documents. We believe this view is supported by a ruling made by the Local Government & Social Ombudsman (LGSO). DDC’s head of governance has very recently completed a second review of our complaint. According to this, there is no obligation on officers to take notes of meetings which are “informal”.

She did make one interesting statement: that saved policy AS1 was indeed still valid DDC planning policy and would form part of any report to the planning committee. This is the first time DDC has stated this and means DDC can’t now claim saved policy AS1 is out of date. FOB believe transparency and accountability — and good record-keeping — safeguards and benefits local government officers and elected members as well as the public, since they demonstrate that everything has been done within delegated powers. This must also be helpful for reporting back to the council’s cabinet and the other councillors and committees who set policy — and the public that DDC represents.

Local authorities are required to act “reasonably” (defined very widely), provide explanations and act within powers derived from statute or common law. For example, in a case brought by countryside charity CPRE, the Supreme Court overruled a DDC planning consent for a designated Area of Natural Beauty at Farthingloe, Dover, because DDC failed to give reasons for its planning decision. Our then MP Charlie Elphicke thought this a “legal technicality”, but it’s not: it is fundamental to the rule of law that government is open, transparent and accountable.

Process is important — closed systems do not function well. When the same party is in power for decades decision-makers can start to ignore alternate views and group-think can set in. Alternative arguments can be seen as troublesome rather than constructive. After all, good record-keeping, consultation, explanation and interacting with the public has a time cost.

From my experience, political renewal and some fresh air and light would be of great benefit in our corner of Kent. Transparency and accountability mean public involvement and understanding, which removes the conditions that allow populism to thrive. As the ICO website states: “Unnecessary secrecy in government leads to arrogance in governance and defective decision-making.”

Apart from providing documentation, open government means explaining how general principles — planning documents are full of them — and regulations are interpreted. Are these Interpretations consistent and open to public discussion and checks? For example, DDC declared a climate emergency in 2019. Does this mean the destruction of large carbon sinks such as Betteshanger should be prevented?

DDC has a number of Local Plan policies such as DM11, which states that reducing car travel should be a material consideration for planning application: what weight are given to these?

There are various environmental regulations such as Natural England’s standing advice relating to the protection of species such as turtle doves and the grass-poly on the site: what are the implications of these?

There is the Local Plan 2010 saved policy AS1, which rules out retail and housing for the site. To what degree can these policies be considered out of date?

What about the Gladman High Court judgment, which states that the “presumption in favour of sustainable development” needs to be considered along with all other factors and is not decisive? I would say we need an open process where legitimate public concerns can be raised. Planning gives a lot of leeway to interpretation and the public needs to be involved.

At the moment a member of the public opposing an application is allowed three minutes to address the planning committee. Obviously, the public should be able to participate in all stages of an application. There are many ways of interpreting laws and regulations — and it shouldn’t be up to DDC to interpret as they wish without challenge.

Experiences with the UK planning system

A second issue is the planning system in the UK. I know little about the world of high-level policy and the influences coming from the Secretary of State for Housing, Communities & Local Government and various think-tanks such as the Policy Exchange, influential people like our local MP Natalie Elphicke and reports like that of the Building Better, Building Beautiful Commission or ideas from special advisers such as the new planning reforms to allow automatic planning consent. Any reasonable political opposition would be addressing them. Our experience is with the local planning system.

The key documents referred to in local planning decisions are the National Policy Planning Framework (NPPF) and Local Plan. The NPPF is set by central government and provides key guidelines for local planning authorities (LPA). It is here that concepts such as the “tilted balance” or presumption in favour of sustainable development can be found, alongside many policies that support biodiversity, environmental protections, sustainable communities etc.

A striking quality of the language used in planning documents is vagueness and generality, leaving huge scope for interpretation. As described above, many interpretations can be contested and need to be because of their consequences. An example would be the initial judgment by Aspect Ecology on behalf of Quinn Estates that most of the site had low ecological value. As Sue Sullivan has described, challenging this took a lot of work by a lot of people. Having a more open discussion would allow the public to unpick such arguments.

There is no system of precedence in planning decisions, in contrast to the English legal system. Each case is decided on its particular facts. Every factor can receive a different weighting. The current system assumes professionalism and good faith in planning departments. A recent change is that local planners are now expected to be “proactive” and work to help developers come up with acceptable applications through pre-planning meetings. This makes it hard to for the public to question planning decisions — but developers have multiple rights of appeal.

The current system can be described as a result of a process of “regulatory capture” and centralisation over a long period. Originally, the Town & Country Planning Act 1947 effectively nationalised housing development, and all proposed developments had to get planning permission decided ultimately by LPAs. Local Plans were supposed to provide for economic growth, environmental protection and amenity, infrastructure, transport, quality of life etc. Over the years the holistic view has declined in importance, to be replaced by a narrower focus on land allocation for developers — with a few hedges, Sites of Special Scientific Interest (SSSIs), and bat boxes thrown in.

Any development needs to conform to policies and land allocations in the LPA’s Local Plan. They often run for 20 years but are usually renewed after about 10. These are huge cut-and-paste documents, often hard to decipher. The key parts are the land allocation and development management policies such as DM1, DM11 etc, and all applications need to make reference to these.

A problem is that all the DM policies can be given different weightings when an application is considered. It all depends which factors are thought to be most important. At the moment, “build, build, build” seems to outweigh environmental value. DDC has a target for house-building set by central government — currently 596 houses per year, but the “reforms” want this number increased to 1,279. An odd mixture of central planning and free enterprise for a government committed to free markets?

In addition, there are quite a few “windfall developments” not included in areas specified for development. There is pressure to build.

DDC is currently developing a new Local Plan, a long and complex process with very little public discussion (agreed at earliest late 2021). We had a “call for sites” from 2017 to 2019, where landowners and developers provide projected sites to the council, which then weeds though them and categorise them as red, amber or green. Many landowners are interested in development because land values increase something like 10 times when allocated for housing compared with farming. This HELAA exercise is repeated between Local Plans usually every five years, to make sure there is an adequate land supply. This is important for Betteshanger because any application should conform to the DDC Local Plan 2010.

Eventually the Local Plan is written and the public has six to eight weeks to discuss and make comments before a completed draft is sent to an inspector for comments before being passed by cabinet and council. In our area the consultation will start at the end of January and continue until early March 2021. I don’t remember a single article in our local paper covering issues concerning the Local Plan. Starting with proposed sites seems to approach plan-making from the wrong direction: surely you would make a plan suited to the area and then look for sites?

Individual applications are submitted to DDC and then posted on the DDC online planning portal. Comments are made by statutory consultees and members of the public. A case officer from the planning department then writes a report, with a recommendation. This is presented to the council’s planning committee, who make a decision: to accept, reject or delay. If the case officer has been proactive, they will have worked with the developer to make sure the plans are likely to conform to planning policy and get passed. The planning committee is supposed to be quasi-judicial and non-party political and members are supposed to arrive at the planning meeting with an open mind and decide the application there. The case officer’s report is very important. The process is supposed to take 13 weeks but often takes longer, especially if the public raise hard questions — the Quinn Estates application has taken over 35 weeks so far. If the application is rejected, the developer can appeal to an inspector or directly to the Secretary of State. If passed, there is no appeal by objectors.

Within this context any campaign opposing a development needs to submit an objection which should refer to policies in the NPPF and Local Plan. In the case of Betteshanger, the Local Plan had a policy specific to Betteshanger: saved policy AS1 and others such as DM1, rejecting developments far from settlements, and DM11, reduction of car travel. There were many pertinent policies in the NPPF too. The purpose of any detailed objection is to show that these policies should cause the LPA to reject the proposed application.

For Betteshanger this was all pretty clear, and it is curious that DDC, after its pre-planning meetings, actually accepted the Quinn Estates application for consideration.

There is an important High Court judgment brought by the developers Gladman, which ruled that the “presumption in favour of sustainable development” is only one factor in making a decision: it doesn’t outweigh all the others. Getting to grips with planning regulations is a steep learning curve. We were fortunate in having excellent advice from a number of people and organisations who wrote excellent objections. There is a lot of online advice available from the CPRE and other non-governmental organisations (NGOs).

If you have time, you could read one of the weighty tomes on the UK planning system such as Town and Country Planning in the UK, edited by Barry Cullingworth.

Also worth checking are “section 106” payments, which are published on the planning portal as the “developer’s contribution” and bundled up with the planning application and decided at the planning committee meeting along with the application. They are agreed between the developer, local groups and the LPA and are supposed to address some of the infrastructure and other costs of having new houses in the area. They are very specific and often look like chunks taken from the Kent County Council (KCC) budget and include things like new books in the library or building works in a local school. These can be problematic since, obviously, there are winners and losers; local people are encouraged to provide wish lists and the result can be potential conflicts of interest and be divisive of communities.

Another system for managing the “developer’s contribution” is the Community Infrastructure Levy (CIL). This has not been adopted by DDC. Here there is a fixed levy on developers which is spent on a published list of projects. There are problems here too, but it is much better than section 106.

There are many potential conflicts of interests in the planning system. Donations are commonplace, declared and not considered a concern. Quinn Estates is known as a generous donor. DDC’s Covid-19 Community Fund and Deal & Betteshanger Rugby Club are among recipients of donations and sponsorship from Quinn Estates. The firm is also a donors to political parties, especially the Conservative party.

It may seem everything works in favour of developers — but it is not completely hopeless. Decisions are supposed to be reasonable and address any objections. The scope for interpretation is wide but not unlimited; some policies can be found of little weight, but not all of them. The arguments have to be based on fact and logical — although we haven’t always found this to be the case. Further laws and regulations have to be followed — although, here again, there is a huge scope for interpretation and weighting. Finally, statutory consultees such as Kent Wildlife Trust (KWT), local parish councils, CPRE (formerly the Campaign to Protect Rural England) etc have to be asked for a view. A late consultation with the Coal Authority by DDC has produced a demand that Quinn Estates produce a safety report because of the 2,000ft mine shafts etc. The KWT has stated that the site would qualify as a “Local Wildlife Site”. Public objections also have to be considered and reported to the planning committee. There is also public pressure.

Questions of strategy

We started the campaign at the beginning of lockdown, and it wasn’t possible to hold face-to-face meetings, set up a committee, share out tasks etc, so we set up a private Facebook group to co-ordinate our activities. This worked well since, with filter questions, it is possible to ensure all members agree with the aims and it avoids becoming a general discussion group. Our focus was persuading the planning committee and challenging the DDC process. The basic approach was to keep our strategy simple: the rejection of the application due to the environmental destruction and social unsustainability due to its location far from amenities, excess car travel etc.

We thought it pointless to approach Quinn Estates with a “shopping list” as one local councillor suggested. It is an outline planning application, so can be changed later before construction begins — in any case, what Quinn Estates wants is to create an impression that it is all inevitable.

We have tried to produce clear and simple messages, study planning and environmental regulations and the decision-making process in depth and insist that DDC follows the rules. This require persistence, as often emails are not replied to without reminders.

We also decided to approach environmental NGOs, parish and town councils and use any contacts we had. This has generated a lot of support. Currently there are 123 objections from the public and three comments in support. Many very busy people are prepared to devote some time without becoming fully engaged.

FOB produced a timeline — with links — covering the history of the site and used this to generate questions and areas where we needed information. This generated a number of Freedom of Information (FoI) requests. We are currently waiting for an Information Commissioner’s Office ruling and a response to our complaint about the pre-application meetings where no notes were taken: why had DDC apparently changed its policy when there was no evidence of discussion by DDC? Why did DDC agree to accept the application at all? There were further questions about roads and rat-runs. It is a very good idea to get FoI requests in early, especially if the council digs its heels in. It all takes a long time but we are expecting a judgment shortly. We have also complained to DDC’s head of governance about the lack of notes for the pre-application, which has already had an initial response and then review. We have now taken this to the second stage (another 21 days), after which we will decide if we want to make a complaint to the Local Government Ombudsman.

Objections need to analyse the proposal and show how they do not accord with the planning principles in the NPPF and Local Plan. They also need to take apart the case presented by the developer. Here factual evidence about light pollution, poor transport links, environmental destruction etc are helpful. Developers need to prove that their plans don’t contradict planning policies. It’s the weight of argument that is supposed to count — but we have found that some people do seem to be easily convinced.

We had thought there would be a quiet period between making objections and the planning committee, but this is not so. At an early stage DDC made the concession that they would leave the planning portal open for comments up to the time of the planning meeting: something I would commend. A lot happens while the planning report is being produced and, although they don’t say so, objections do register. It is worth writing to the planning committee and all officers. You will need to send lots of reminder emails and need to challenge all incorrect statements. Quinn Estates has made two variations to its initial application, supposedly to address environmental concerns. But the result is exactly the same plans and destruction of the habitat at Betteshanger — moving the grass-poly, turtle doves etc to a new-build open mosaic habitat, a much smaller site in the Country Park, the old spoil heap on the other side of the A258.

Developers do have concern for public relations, which is why they do so much of it. For them, appearance is important. They need to appear to have addressed concerns, even if their solution doesn’t add up — as with Quinn Estates’ “mitigation” proposals and claims of increases in biodiversity after development.

Quinn Estates and DDC have also claimed that there is “extant planning consent” for the site: something which we are certain is not the case. This argument has been taken up by KCC Highways, which has claimed that the Quinn Estates proposals would result in a traffic reduction rather than gain because, they argue, the traffic that might have been generated (calculated very generously) has to be deducted from the traffic generated by the Quinn Estates development.

Kent Wildlife Trust has stated the site could become a Local Wildlife Site because of its biodiversity. We have also had to get assurances from DDC and Quinn Estates that the site was not damaged by maintenance by Quinn Estates after the strimming of some of the orchids.

There has been the objection made by the Coal Authority on safety grounds.

We have disputed the degree to which DDC is following environmental regulations such as Natural England’s standing advice and the degree to which DDC is following its own Local Plan etc.

There has been publicity surrounding the discovery of a grass-poly in Norfolk. Betteshanger contains the only example in Kent, discovered by the Botanical Society of Britain & Ireland, which conducted a plant survey for Friends of Betteshanger.

I would say it has now been clearly established that the site has a very rich biodiversity — despite the initial claims by Aspect Ecology — and that the development is in opposition to DDCs own Local Plan policies.

DDC has declared a climate emergency and so should act to prevent a development that will destroy a carbon sink and result in a large addition of car journeys.

But winning the argument does not automatically translate in a rejection of planning consent, especially when it is hard to get the message across.

The media and the problem of building links and support

The hardest part of contesting a planning application is communicating with the wider public. The local media is either unsympathetic or uninterested.

It is odd, as they often seem to produce a very toned-down version of tabloid journalism with stories such as the gardener who worked for Gogglebox stars Steph and Dom getting a new gardening job and the like.

They don’t cover stories like the local plan or the destruction of natural habitats very much.

Experiences with the destruction of mature trees in the Deal Aldi car park showed that even when we can stage publicity generating events, we have no control of the story. The local media presented the story as “discount food versus trees”.

The media seems to like simple stereotypes and dramatically staged conflict, which seems their idea of news value: “Man bites dog.”

Why doesn’t the media give a voice to grassroots activities? They simply don’t accept them as mainstream and part of their news agenda. We have sent in press releases, but most are not taken up. One did get covered but the most important parts were left out. In recent years, with falling readership and advertising revenues, the media has cut costs, reduced staff and now is very dependent on professionalised PR input. There is a huge gap between the personalised simplistic picture presented by the media and the way things actually work, which is not simple.

We have had a number of letters published, but some have been edited, and a letter about the objection from the Coal Authority wasn’t published at all.

The coverage from Julie Wassmer and the Whitstable Views website is the only publicity we have received.

Our approach has been to “internetwork” using digital media. This a slow-but-worthwhile process, as it also allows us to see common problems such as the lack of transparency in DDC and the scale of building, environmental destruction and other fallout in our area.

It is difficult to extend our support. It is about being persistent and keep telling people about Betteshanger. Don’t expect everybody to reply or even acknowledge an email. We do know that many share our views and will help when they can.

Sharing information and seeing other methods of working has been very useful and is the way to go.

DDC politics has become more lively and varied of late. Please make an objection on the DDC planning portal (20/00419) and campaign where you live. We can all help each other out — the more the better.

Peter Cutler

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About:

Peter Cutler is a member of Friends of Betteshanger and a retired lecturer with interests in computer science, discourse analysis and sociology. He has been a member of the Green Party since 2004 but is not keen on party politics. He is concerned about the democratic deficit in the UK and the lack of serious policies to address growing inequality, accelerating climate change, and quality of life that have led to very dangerous times.

This is the third part of our series about the proposed development by Quinn Estates at Betteshanger, a former mining village near Deal in Kent. For more information about the background to the campaign, and to the developer, Quinn Estates, please go to: Betteshanger v Mark Quinn: by Julie Wassmer. For more information about the environmental issues at stake, please go to: Betteshanger wildlife and the threat it faces: by Sue Sullivan.

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