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Cleve Hill Battery Safety - Barrister's Letter to Swale

The Faversham Society sought legal advice on how Swale is handling its responsibility to approve, or not, the developer's plans.

The purpose of our barrister's letter is to raise the Society’s concerns as to the independence and quality of the advice provided in the Report and the procedure being followed by Swale. The barrister's letter extends to seven pages and can be downloaded here.

Some extracts from the barrister's letter follow here:

"No details are provided in either the Report or covering letter as to the relevant qualifications and experience/expertise BST&T have to enable it to comment authoritatively on the BSMP and Air Quality Report. All the Society has been able to establish of the consultancy is that it appears to act predominantly, if not solely, for applicants seeking to bring forward these types of development by reference to other similar DCOs currently undergoing examination - for example, Mr. Gregory is currently involved on behalf of applicants in both the Cottam Solar Project and Sunnica Energy Farm DCOs. However, it is unclear as to whether or not BST&T have ever been engaged to provide independent advice to a discharging authority in applications such as this."

Independence and Expertise

Further, the Society suspects that the Report was commissioned and paid for by CHSP, rather than the LPA. This appears to be clear from the fact that:
i. the Report fails engage with, refer to or address any concerns raised by third parties who provided responses to the consultation on the BSMP (including the Society)
ii. the Report appears to take great pride in displaying CHSP & Hoare Lea (who act for CHSP) branding on the first five pages and,
iii. at times the Report reads as if BST&T are acting as an additional adviser to CHSP.

Quality of the Advice "

"The Report does not appear to have reviewed any of the comments raised by third parties to this consultation. The Society is in the privileged position of having Prof. Sir David Melville as Vice Chair and through his expertise was able to advance a number of clearly key concerns that the LPA will need to consider as part of its decision making on this Application. The Report does not engage with these concerns at all and it is unclear to the Society how, in the absence of any advice on the concerns it has raised, the LPA is equipped to address them – other than dismiss them out of hand, which it is hoped is not the LPA’s intention."

Disclosure of information redacted in the Report is now requested under the Environmental Information Regulations. Should the LPA consider that Reg 12(5)(e) applies to this request, then the LPA will need to explain how it has considered and applied the public interest test found in Reg 12(1)(b) (and bearing in mind that Reg 12(2) sets out a presumption in favour of disclosure).

Procedure Now Being Followed

"It is clearly important that sufficient time is provided to the third parties to consider fully and consult on what has now been provided. The seeming deadline of 10th January 2024 needs to be extended further to account for the Christmas period."

The Society’s Proposed Solution

"... the Society considers that the LPA should, given the importance of this Application, identify its own, independent and suitably qualified expert to prepare a more fulsome and neutral report to assist the LPA in its role as discharging authority. Any such report should identify, consider and address the concerns raised by the third parties (including those raised by the Society) and be clear as to how they can, or cannot, be overcome to enable the LPA to consider fully and properly the Decision it has been tasked to make. The Report provided by BST&T is wholly deficient in that regard."

January 4, 2024

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