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Friday, January 30, 2009

Day 34 – Agreements versus Conditions


Planning Inspector Mrs Wendy Burden explained to the inquiry that the Secretary of States office published guidelines on planning conditions. Mrs Burden said that discussions on these conditions were normal at all public inquiries and would not prejudice any decision taken by herself or the Secretary of State. She further explained that these conditions must follow six tests; they should be – necessary, relevant, permitted, enforceable, precise and reasonable.

Mrs Burden explained that she would have these criteria in mind when she compiled her report for the Secretary of State and considered what conditions should be in place. She had to tell the inquiry that she wasn't very happy, as the current conditions weren't in a fit state to be recommended to the Secretary of State. She wanted to take this opportunity to streamline them.

It transpired that there were 135 conditions and the inspectors advised a number should be omitted or combined in order to produce the desired streamlined version. It was agreed that this revised list would be submitted to the inspectors.

The afternoon session was taken up with technical arguments over the Section 106 agreements or to be precise the requirement for a Section 106 agreement rather than a Condition.

To KEIOC the implication is clear. The applicants and Knowsley Council would prefer the less enforceable Section 106 agreements whilst the opponents, fearing a compliant and somewhat impotent council, (no doubt the approval of planning permission at council level in mind) would prefer Conditions that if not complied with would be dealt with through the public system.

Some clear examples of these positions were seen during the discussions that developed.

Mr. Barrett, counsel for KMBC, told the inquiry that the phasing of the development would be best dealt with under a Section 106 agreement. He explained, “The council intended to impose positive obligations on Tesco and Everton.”

Mr. Sauvain QC, acting for Liverpool City Council, explained their position as one of concern over the wording of the Section 106 that allowed for variation of the phasing meaning that no guarantee that the phasing programme would be completed.

An astute Mr Sauvain explained that whilst he would not expect a condition to set out all the phases but one that should state that no development should take place except in accordance with the phasing of the development. Not surprisingly Mr. Roger Lancaster, counsel for the combined authorities concurred with this observation.

An agitated Mr. Barrett called this “scraping the bottom of the barrel” and point out that it could easily be dealt with under a section 106 agreement.

Whilst Mr Patrick Clarkson QC, acting for Tesco and Everton claimed that under the wording of the Section 106 agreement Knowsley Council would remain in control, Mr Sauvain QC explained that a Condition, the more enforceable of the two options, removed the uncertainty and ensured transparency.

In response to Mrs. Burden's request for comments on dealing with the phasing programme through a Condition, Mr Barrett reiterated that it was best dealt with through a positive obligation in the Section 106 agreement whilst Mr Clarkson stated there should be no changes to the wording of the Section 106

Mrs. Burden said it would therefore be a question of whether another condition should be inserted and she would take this away to consider.

Once again Mr. Sauvain introduced the need for conditions over the land ownership, Mr. Lancaster agreed whilst Mr Barrett took the opposing view. Mrs Burden made it clear that if there was doubt over how the Section 106 was enforced the Secretary of State would return the application.

Mr Piatt, acting for Everton FC, stated that the transport plan would need to be submitted to the council six months before operations began and that it would need to be agreed between Everton and the Council. Penalty clauses were already in place that could see the stadium's capacity capped at 40,000 if modal share targets weren't achieved over the first three seasons.

Mr Barrett and Mr Lancaster told the inquiry that an agreement over the parts of the controlled parking zone that impinged on Sefton had finally been agreed between Sefton and Knowsley councils.

The inspector closed the proceedings.

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