The reasons why we were advised not sign the covenant, despite working tirelessly to get it right, are given in a letter to the objectors below.
HARRY WOLTON LIMITED
Ms Bridget Barker12th July 2017
Duncan Matthews Q.C
By e-mail only
Dear Ms Barker and Mr Matthews,
Holycombe Retreat and Camping Site
You have both referred to myself in your recent correspondence with Mr and Mrs Birtwell in this matter and I now feel that it is time for me to set out my own side of the story in response to the numerous publications by and on behalf of the persons who have been in opposition to the continuation of the Retreat and Camping Site; which publications, I have to say, have appeared and have always appeared to have been, in my view, highly economical with the truth.
It is also necessary, in my view, to record some incidents and conversations to which reference can be made in the future should it becomes appropriate.
I will start with your assertions that the Birtwells initially agreed to enter into a restrictive covenant that would control their operations at Holycombe. It has always been agreed, by both of you, reciting similar agreement by others, that the Birtwells were entitled to, and that it was wholly reasonable for them, to take advice following this agreement to enter into a covenant and before entering into that which had been proposed.
You now assert that, because I approved the final draft of a covenant after the extensive re-drafting of the original document that I had received, and which can only be described as including ludicrous requirements that were totally without any sensible or ascertainable meaning and without any legal justification or foundation, the Birtwells should now honour their initial agreement and execute the covenant.
What you have failed to understand is that my advice has been required, and has been given, not just upon the basis of the actual drafting of a document, but also, and fundamentally, on the issue of whether or not it was either reasonable or appropriate for them to execute any such covenant.
It has always been my view that a restrictive covenant was unnecessary in order to secure the objectives that had been advanced by yourself and your fellow objectors to the effect that you would not object to the Holycombe activities, in the way that they had been operated for the last two years without any complaints, provided that they were adequately controlled.
It was, in consequence, a matter for my advice as to whether or not planning conditions could and should achieve the consensus that, what I then believed to be the earnest desire of most, if not all local, residents, planning permissions were the correct and most appropriate way of dealing with the issues that were then apparent.
It has been suggested on more than one occasion that the Birtwells have deliberately delayed the agreement upon the wording of the covenant drafted by Mr Ranson, Ms Barker’s partner in MacFarlanes. I have ample evidence by way of correspondence between Mr Ranson and myself to show how much effort both of us have put into the proposed draft covenant and I have also to remind you of the requirements postulated on your and your colleagues’ behalf that were, firstly, beyond any tentative agreement initially reached between the objectors and my Clients and which were, in several respects, way outside and beyond what was reasonable or realistic for the Birtwells to accept. All that the Birtwells wanted to do was to continue to operate their business which had been in operation for many years and in the particular manner that it had operated during the previous two years which, again as agreed by all parties, had not given rise to any complaints or difficulties.
It was also relevant for me to deal with the need for the agreement of the Birtwells’ mortgagees, the Nationwide Building Society, but which, despite the not inconsiderable help given to me by Mr Ranson, proved difficult to achieve and was not completed.
Detailed and extensive negotiations with the Local Planning Authority were pursued and concluded in respect of planning conditions and it is upon the basis of these conditions that the planning permissions were issued.
As I understand the current situation, you and your fellow complainants do not appear to be critical of any particular condition but that you are worried about the potential for a future change of ownership of Holycombe leading to an operation which, unlike that undertaken by the Birtwells, would not be acceptable to you.
I have been involved in planning for nearly fifty years and I am aware of the self- same argument against the grant of planning permissions being raised on many occasions with the adage “we do not know what they are going to do next”. That is why planning conditions are the subject of detailed advice from Government and imposed within the parameters set out. Conditions have been the subject of many Court decisions and their legal impact and the levels of control that they can embrace are well defined . Bearing in mind the care taken and attention given by the objectors to the Birtwells operations, I find it difficult to believe that those who are concerned at any time in the future with the operations at Holycombe, no matter who is the operator, will not, swiftly, become aware of any breach of control, and report such breach(es) to those who are concerned in authority, i.e. the Local Planning Authority and/or the Environmental Health Authority. This is far better for all concerned because it allows for any necessary enforcement to by the relevant Authorities rather than leaving covenants to be enforced by those who, at any time in the future and after any changes of ownership of the covenantees’ properties, might have an axe to grind.
In these circumstances I have advised the Birtwells that a restrictive covenant is not only inappropriate but that it is also totally unnecessary. The planning permissions, now issued and controlled by the agreed conditions, are quite sufficient within the scope of planning practice, to safeguard the public from loss of amenity or nuisance.
When I first became involved in this matter, I was met with a blatant attempt at the intimidation of my Clients in that Mr Richard Buxton, as Solicitor for yourself, your husband and Mr Matthews, had retained, as advisers, Paul Brown Q.C., Andrew Parkinson of Counsel and Terence O’Rourke as Planning Consultants to assist in securing your objectives which, up to that time, were stated to be and appeared to be to bring the Retreat and Camping operations at Holycombe to an end.
You have expressed the wish to achieve an amicable resolution of the issues between the objectors and the Birtwells “for the benefit of the Village”. It is my own opinion that these threats, the formation of a Company and the formation of “The Preserve Whichford Group” expressly intended to pursue the objectives of preventing the grant of the planning permissions, the repeated publication of tendentious encouragement to find other persons to object to the planning applications with leaflet drops around the Village and a dedicated website for objections, have been hardly what would be expected of persons seeking “an amicable solution” and could not have been pursued in a spirit of consensus. These efforts to bring the Holycombe operations to an end have amounted to, and have evidenced, a woeful lack of understanding of planning law and I cannot help but observe that no further involvement by Mr Buxton and his team has occurred since the first letter to me from Mr Buxton dated 9th February 2017 until the Judicial Review process was initiated by a letter dated 10th July.
I have little difficulty in accepting, in the light of all that has been reported to me, that the attitude and behaviour of some of the objectors, both collectively and individually, has constituted the bullying of my Clients into entering into a covenant that was, both unnecessary and, fundamentally, contrary to their best interests.
This background was exemplified by a telephone conversation that took place on 4th July and was a call from Mrs Duncan Matthews to Mr BIrtwell. It was also overheard and noted by Mrs Birtwell. It included the following threats:
(i)the Birtwells were “sabotaging” their (the Matthews’) future if they did not sign the covenant because “they” (unspecified identities) were going to complain (presumably to the Council) every weekend that they could hear the campsite from their garden
(ii)all the residents of Roman Row were going to do the same
(iii)the Birtwells “have to sign” the covenant and then “they” will be perfectly happy
(iv)if the Birtwells do not sign the covenant they will not be able to extend their permission beyond the initial two year period permitted (as per the relevant condition)
(v)“they” will keep a log and it will be “very bad”
(vi)it is terrible how you are treating “us”
(vii)we cannot protect you in the future if you do not sign
(viii)it was the Birtwells’ fault that they had had to spend so much money because of the deliberate “stringing along” of the signing of the covenant
In a similar vein, I received two e-mails from Duncan Matthews, both being dated the 10th July, i.e. the same day upon which the JR Protocol letter was despatched by Richard Buxton. I will not descend into an examination of the vituperative language and factual errors contained in these e-mails but simply recite the plea made by Duncan Matthews for a “compromise” between the Birtwells and the objectors. A “compromise” involves give and take on both sides; I find it difficult to understand what further “give” can be effected by the Birtwells when they have agreed to the substantial ramifications of the planning conditions attached to the planning permissions recently granted. This is to be related to the “take” indicted as necessary for a compromise which is no more than a requirement for the Birtwells to execute the covenant the wording of which has been agreed.
I fail to see any “give” from the side of the objectors other than the suggested undertaking not to object to the continuation of the operations at Holycombe. Firstly, the continuation of the Holycombe operations is now available with the benefit of the planning permissions and, secondly, the only other give that I can envisage is a withdrawal of the threats such as those recorded in the telephone conversation cited above.
In all these circumstances, it is difficult to see the invitation to compromise given on the same date as formal litigation proceedings were instituted as being either genuine or meaningful.
The Birtwells have also been subjected to the facile attempts, by persons unknown, to make bookings that were contrary to the rules adopted for the Campsite as to the acceptability of such bookings in an attempt, presumably, to be able to bring the Birtwells into disrepute.
I cannot accept that there has been any serious attempt to achieve an amicable settlement so that the Village and its residents could revert to the traditional way of life that most of them have enjoyed for many years in the light of the history to date to which I have referred above. In addition my Clients have had to cope with the worry and expense of dealing with the additional threats that, in the absence of a signed restrictive covenant, any planning permission granted would be challenged, in the same way as previously effected, by way of Judicial Review proceedings; a threat that has now been implemented.
I am glad to have been able to assist Mr and Mrs Birtwell and I hope that the opposition from such a small fraction of the residents of Whichford can now be allowed to subside. I do, however, consider it necessary to publish, for both the present and the future, this record of what I have been made aware of and have, myself, experienced, over the last five months.
The objectors claim that it is only by way of a covenant with them that there can be proper "control". Stratford District Council Planning Department strongly disagrees. Furthermore their opinion is that "the objectors covenant was overly restrictive, unreasonable and impractical to enforce" and they thought that "any provisions can be dealt with by the planning conditions", as do other planning experts. So although we very much hope to, if we do not manage to reach consensus because the objectors version of the covenant is different from what we originally agreed to (e.g. in the pub, that evening) the village can rest assured that rules we made in the agreement will be contained and dealt with satisfactorily in the planning "conditions" written into the planning permission.
Please also be advised that:
1. The drafts that Bridget's lawyer drafted varied considerably from what we agreed and read out in the pub. For instance, to give two examples, their first draft included “not to vary, extend, or change in any way or apply for any variation, extension or change any planning permission in relation to the property” for 20 years. Their second draft applied our agreed 'campsite rules' to the Retreat Centre (no children under 12, no dogs, no groups of over 5 people (our normal weekends average 15 people) and no more than 31 people on site – which would mean we could no longer host the occasional 3 generational 70th birthday parties or wakes where there might be, say, 70 people.
2. They insisted we get legal advice for signing the covenant and our lawyer is not yet satisfied that we should sign in it's present form, so naturally we are taking his advice. Until he says it is OK, we are, quite obviously, not going to sign it. However, we are very nearly there now. If Bridget's lawyers had stuck to what we read out in the pub there is every chance the document would have been signed already.
Despite what the objectors claim in their website, the major delays in signing the covenant has been for the above 2 reasons.
The actual facts of our Planning Applications in brief.
The strict planning conditions agreed with SDC attached to the present Planning applications, (incorporating the points in our draft agreement with the neighbours ) states that the planning permissions are for Sally and Andy Birtwell only and they end when they die or leave. The site has to then revert back to residential and agricultural use. The temporary planning permission lasts only 2 years on the campsite, in order that SDC can test out whether those tough conditions actually work properly and enable SDC to tighten them up if they don’t.
If granted the two parts of the site (Holistic Retreat Centre and Campsite) will become sui generis – i.e. outside identified class use. In such cases there are no automatic rights to convert to anything else, unless otherwise written into the planning permission. Any granted permission will not allow a bingo hall or any other fanciful idea that the objectors suggest. It will only allow for what is being applied for and nothing more.
Our application is only for what we have been doing for the last few years and is a considerable reduction in numbers from the last camping planning application.
And in more detail
Contrary to what you may have heard about the future of Holycombe if we were to sell, here is what our planning consultant had to say about it " The planning process is designed to control current and future developments and uses of land and to ensure there is no harm to acknowledged interests, which includes neighbour amenity and the character of an area. Planning conditions attached to any permission are designed to ensure that there is sufficient control.
The Current plan is that any permission for the Retreat will be for the benefit of Mr and Mrs Birtwell only. Should they leave then the lawful use reverts to a single dwelling and either two ancillary residential properties or two holiday cottages. Such uses are appropriate to the locality and are common in village locations such as this without the need for further control.
The Retreat and campsite are to be run under a strict Management Plan which will be agreed with SDC prior to the determination of the applications. If the current occupiers breach that Management Plans it will be a breach of a planning condition and there would be consequences.
The planning permissions sought are to ensure the ongoing use is properly managed. If granted the two parts of the site will be sui generis i.e. outside any identified use class. In such cases, there are no automatic rights to convert to anything else, unless otherwise written into the planning permission. So, any grant will not allow a bingo hall, a nightclub, a campsite for 500 people or a restaurant. It will allow only what is being sought and nothing more. Anything else would be properly and separately assessed by SDC.
Finally, just because the District Council has chosen not to enforce against the current breaches of planning control for so long does not mean they would not in future enforce against breaches of condition. Indeed, it would be far simpler for them to do so if a planning permission were in place and thus far more likely."
If you have other specific questions not answered below, please do get in touch and we will try to respond.
Are the planning applications just a formalisation of how Holycombe and the Campsite are currently run?
Yes and no. The applications seek permission for the development which has already occurred, with the only addition being a change to the campsite access. They will be determined against the current National and Local Planning Policies and if they comply then permission will be granted. If not they will be refused. Any permission will come with several conditions which will control the management and future use of the site. Any breaches of those conditions would result in consequences.
Will Holycombe operate in the same way as it does today?
Yes, absolutely. We don't intend to make any changes to how it is being run today.
If passed, will planning create more traffic in Whichford?
In short, no. There will not be any increase in traffic because we are not increasing the amount of people we are allowing here. We are very strict about our numbers. Here is a quote from the SDC planning portal re 16/04039/FUL our planning application:
"Having undertaken a full assessment of the above planning application, the response of Warwickshire County Council as the Local Highway Authority is one of No Objection."
The slight change of access they advised was passed by SDC on the last planning application.
Interestingly, a recent planning application by the primary objecting household to build five houses in the same street, applying for 13 car parking spaces, would have generated far more cars and traffic than we ever could. (This planning application was rejected. We have estimated that, had that planning application been passed, that it would have meant an increase of a minimum of 4000 car journeys a year. By contrast our campsite creates nowhere near this amount of traffic.)
Haven’t the you pledged to operate the site sensitively?
Yes, as we have been doing so for the last few years. We have listened to the small number of issues that have been raised. As a direct consequence, that is why we now do not allow, on the campsite, groups of more than 5 people, children under the age of 12, parties, weddings, dogs or music and why we explicitly advertise as a quiet campsite.
These conditions are expected to be incorporated.
You’ve already received planning permission, so why are you applying all over again?
We have received planning permission twice, in fact, from Stratford District Council (SDC) and both times the primary objecting household took SDC to Judicial Review at the high court where our planning was quashed for procedural errors made by SDC. This is why we have been forced to apply for a third time. All development, whether building or changes of use, requires permission from the Local Authority. This is to ensure that proposals do not harm the environment, neighbour amenity, or recognised interests. It also seeks to ensure the right development is directed to the right places.
The site has been operating for a number of years without complaint, so what’s the problem?
We understand that people may have had reservations or concerns. Complaints were made when we introduced weddings and large groups, which were stopped at the end of that same season, (2011) which have not been allowed since, and will not be allowed in the future.
These issues are historical and not current. The site has been running since 2002 for both camping and the retreat centre and should therefore be eligible for a lawful development.
We hope we will continue, as we have done these past few complaint-free years, to operate sensitively in relation to the village community. As was our pledge at the village meeting in January at The Norman Knight.
Where does this ongoing opposition come from?
As evidenced on the comments section on the planning portal for our campsite application there is a tiny minority have written to object.
Also, despite having 2 live planning applications SDC were pressurised on behalf of the primary objecting household to enforce against us.
Why is it taking so long to get planning?
As mentioned above, this is our third round of applying for planning, which we have been granted twice already. We are hugely looking forward to putting all of this behind us so we can get on with our lives.
As far as we are concerned this could have been done and dusted years ago. It is a tiny minority in the village who have forced this to go on and on by making sure our planning was quashed and for putting pressure on the council to enforce against us.
Isn’t a campsite and holistic retreat exactly the type local business we want?
Absolutely. Both these businesses are in line with government policy of supporting small rural enterprises. We not only provide jobs for local people, but we provide business to the other local enterprises in the village who are very clear on the significant contribution that our existence makes to their trade. We are also in line with the tourist government policy guidelines.
Doesn’t Government policy support rural small business?
Yes, wholeheartedly. Especially low impact ones such as ours and ones that support other local businesses in the village and beyond, even in AONBs and conservation areas.
When will the planning applications be determined?
We are expecting the planning applications to be decided in late May
How do I make my views known?
We have been touched by the overwhelming support from the village and from our clients. We feel, further, it would be unacceptable and set a dangerous precedent if an influential minority were able to override democratic process and dictate planning outcomes. If you have yet to contact the council has express your views, there is still time. You can submit your views directly to the Council. For Application One, Holycombe House 15/02005/FUL here For Application Two, The Campsite 16/04039/FUL here:
Alice Cosnett, the Case Officer, Stratford District Council, Elizabeth House, 4 Church Street,Stratford upon Avon CV37 6HX or via email to email@example.com or the direct links which are: The campsite application 16/04039/FUL https://appsstratford.gov.uk/eplanning/AppDetail.aspx?appkey=OIA714PMIRR00 Holycombe Retreat Centre application 15/02005/FUL https://appsstratford.gov.uk/eplanning/AppDetail.aspx?appkey=NPH056PMJKQ00
Or if you would prefer to write, send them by post to the case officer at Elizabeth House, Church Street, Stratford-upon-Avon, Warwickshire, CV37 6HX.