JUDGEMENT DAY TOO EXPENSIVE FOR SHIRLEY

29-11-2006

Friday is D-Day for campaigners against the re-development of Shirley High Street which will see yet another supermarket built, and open parkland sacrificed. What'seven more galling for people like Barbara Panvel is thatthe anti-lobby would seem to have astrong legalcase - if only they could afford it.

It appears that in this country the only people who can afford to take legal action are the rich or those on a very low income, who would be entitled to legal aid. To challenge the decision of Solihull Council by judicial review would cost an estimated £20,000 - £70,000 with the possibility of added costs to be paid to this commercial/municipal partnership if unsuccessful.

Nearly 2000 people voted against the infliction of an Asda-Walmart supermarket on the small suburb of Shirley which already had six supermarkets within its boundaries. They want to see the former Territorial Army site developed in a way which would benefit the residents of Shirley and local businesses.

Many were also deeply concerned that the council, intends to sell parkland and open space in which there is an ancient oak tree within a circle of younger oak trees - a rare feature according to a specialist survey. This land is being sold to provide a building site for desirable flats overlooking the park, in order to make the Asda development financially viable.

A group of companies have formed a development consortium called Shirley Advance and this is in partnership with Solihull Metropolitan Borough Council.

A solicitor who specialises in the judicial review process advises that there are grounds on which the decision to go ahead with this inappropriate development could be challenged by calling for a judicial review. In a six page document three grounds were listed which could, if combined, offer a base for a successful judicial review:

Before granting permission to develop open space or parkland, the local authority or planning applicant must have carried out an assessment showing the land is surplus to requirements. In addition, the developers must consult the local community and demonstrate that their proposals are widely supported by them.

There is no statement that an assessment has been carried out in the Chief Executive's Report or in the grant of planning permission. Nor is there any clear statement as to how the Council considers the land to be surplus to requirements.

The decision to sell parkland was based on information in the draft Green Space Strategy which, on examination, proved to include such recreational green space as cemeteries, a privately owned and gated nature reserve, a steep bank which was fenced off, containing a high-voltage pylon with a warning notice, and parkland which has been sold and developed as a business park. This was land listed as being available to people, making the acres of Shirley's parkland and open space surplus to requirements.

Another ground centred on the ring of oaks: the report of Solihull Council's Head of Planning Services assesses the main oak in the “Ring of Oaks” as having a high amenity value, scoring 21 on the Tree Evaluation Method for Preserving Orders. A tree scoring over 14 is considered worthy of a TPO.Anancientoak to the side of 63 Haslucks Green Road scores 24. Ironically it recommended that Tree Preservation Orders should not be made on the basis that the trees were “not currently under threat” because they were on land owned by “a body which is responsible, well-informed, and capable of carrying out proper tree management, such as a local authority” - the very body which had been holding talks regarding the disposal of the land since April 2004, according to the Chief Executive's Report. The solicitor concludes:

In this context it would seem likely that the Council has failed in its duty to make adequate provision for the Oaks in Shirley Park under section 197 TCPA and Policy ENV15 of the UDP. This is because, firstly, it did not make adequate provision for the Oak trees, which would have included considering whether a TPO should be made. Second, the Council was itself considering disposing of the land at the time the Report on TPOs was written and so was fully aware that the trees were in fact under threat.

A third major ground cited was:

. . . clear inconsistencies between the extent to which the UDP Policy supports the development and the extent to which it is relied on in the Chief Executive's Report. In particular, the UDP refers to a “general location” which did not encroach on the Park and . . . the development now exceeds the UDP boundary.

This decision was passed despite the report by the council's Chief Executive in which he refers to Policy R2 of the Solihull UDP, which says that the Council:

will not permit the loss of existing open space through development, where it is of value for formal and informal recreation, urban quality, nature conservation, visual amenity, and strategic purposes, or as a community resource.”

The solicitor concludes that this failure to comply with the UDP, both by exceeding the boundary and by failing to comply with Policy R2, is the strongest of the potential grounds of challenge, which would combine with the other issues mentioned and other possible challengeable grounds: the inadequacy of the consultation process, the inadequacy of the Environmental Statement and the need for a Retail Impact Analysis.

A concerned disabled Shirley resident was keen to apply for a judicial review but her family advised against incurring this stress. Later a local undergraduate seriously considered taking this action but finally decided that his studies would be placed at risk.

Unless a last minute application for a judicial review is made - on or before the 28th - whoever gets control of the council will presumably have to honour the contract made by their predecessor.

Will the council and the power of expected profit win the day?