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BARRISTER LETTER TO HARROGATE BOROUGH COUNCIL
The following is a letter sent to the Harrogate Borough Council concerning the “Annex” part of the building.
The applicant seeks, in their letter of 6 th August 2018, to rely on the restrictive covenants applied to the part of the building at the point of his purchase of the same from the wider Henry Jenkins Inn structure and site.
The restrictive covenants applied by the vendor at the point of sale – and acceded to by the applicant at the point of purchase – seek to restrict the use of the part of the building purchase to use as a single dwellinghouse and also restrict access to the side and rear of the Henry Jenkins site in such a way as to require the permission of the vendor of the remaining Henry Jenkins site to give permission. That landowner has indicated he will not permit vehicular access other than in connection with a dwellinghouse use.
Two points are developed by the applicant from this state of affairs, both of which are wrong in varying ways.
First, the applicant suggests that this state of affairs satisfies limb A of policy CFX in that the re-opening of the Henry Jenkins as a public house would cause unacceptable planning problems (being the lack of parking and lack of delivery space). This is an entirely incorrect reading of policy CFX and a misapplication of the same.
Policy CFX applies to proposals comprising the loss of premises in community use. Limb A is only engaged where continued use of the site the subject of the current application would cause unacceptable planning problems. Limb A of policy CFX has nothing to say about uses of land outside the red-line application area.
It is abundantly clear that the applicant is seeking to misuse limb A of policy CFX in the manner attempted in order to try and ‘sidestep’ the applicant’s complete failure to comply with the requirements of limb C of policy CFX, which is the correct limb to apply to the current proposals. Non-compliance with the same formed a substantial part of the Inspector’s very recent dismissal of proposals to redevelop the entire Henry Jenkins site for four residential units. It would be wrong in law to read and apply limb A of policy CFX in the manner proposed by the applicant in their letter of 6th August 2018 and such an error would be susceptible to challenge in the courts.
The second matter arising from the applicant’s reliance on private law restrictive covenants applied at the point of sale of part of a building is that it is a brazen attempt by landowners to use private law matters agreed between them at the point of sale in order to effectively ‘force the hand’ of the planning system and planning authorities to bring about the landowners desired outcome of residential use of the land.
It is wrong in principle to seek to use restrictions which are privately agreed between vendor and purchaser at the point of sale to try and ‘force’ the planning system to produce the landowner’s desired outcome of residential use. The vendor did not have to apply the restriction of ‘use as a single dwelling house’ and the purchaser did not have to agree to it. That land was sold subject to a private restriction that it ‘only be used for a purpose for which it does not have planning permission’ is a matter of the deal struck between those two individuals, it is of no concern to a policy- and plan-led system of planning controls. No private agreement between two individuals as to uses of land could possibly affect whether as a matter of public planning policy any given use of land is acceptable or not.