It’s been a long trek from the residents’ meeting a year ago when we discussed whether it was worthwhile trying to come to an agreement with the developers who now own the orchard, and those members who were present may recall that the meeting voted overwhelmingly in favour of exploring a compromise. It does, however, appear to have been worth the effort as the developers have come back with a list of options for ownership or leasing which give us a genuine choice for the future.
IRARA representatives will be canvassing the area soon to find out your views on the way forward, but obviously there are limits to how much information can be imparted on the doorstep, so this post is an attempt to provide some background information so that your decision is as well informed as possible.
At this stage you will be asked simply to decide whether to accept a deal with the developer to develop some of the orchard in return for leasing or selling the majority of the land to the community, or continue to fight any development at all. It’s an important decision, and we hope the information below helps you make a choice.
History of the campaign
Some of what follows is old news, but it may be new to some and we think it does provide some valuable context:
1. The Irvine Road orchard was originally owned by David and Mary Locke but eventually bequeathed to a selection of charities and some individuals, the intention being that they develop it for profit.
2. Up until about 15 years ago the orchard had been designated as residential/development land and a planning application to develop the entire orchard had been submitted and approved, but for reasons best known to themselves the Locke family allowed this to lapse.
3. Since that time IRARA has worked to try and preserve the orchard intact and obtained an Area Tree Preservation Order on the trees, hedgerows and boundaries and was successful in getting the orchard designated as a Local Wildlife Site in the current Local Development Plan. However, this was not enough to prevent the managing agents from destroying the mature plane trees along The Chase and clearing the undergrowth at the side.
- As part of our attempts to preserve the orchard, we looked into the possibility of getting public funding to buy and maintain it as a community orchard and wildlife site. In the end we failed, principally because a number of built in ‘catch 22’ clauses in the funding policies of most of the major funders. These either required us to already own the land to get funding or to show that it would benefit a much larger number of people than the residents of this neighbourhood.
5. Eventually the orchard came up for sale and a group of local residents agreed to contribute to buy the orchard, following a similar example in Bures where local residents raised £90,000 to buy their local open space from a developer. Again we failed, not because we didn’t raise the cash, but because the land was sold at a slightly higher price than our offer with a built-in clause requiring the purchaser to ‘make all possible efforts’ to develop the land, with the beneficiaries of the previously mentioned will receiving a significant proportion of the profits. Even if we had purchased the land we would have been legally bound to develop it!
If the planning application is initially turned down by Colchester Council, the developer is legally bound by the conditions of sale to appeal and this would be heard by an independent planning inspector who would solely be concerned with planning-related matters.
2017 – 2033 Emerging Local Development Plan
6. When the consultation period for the latest ‘Emerging’ Local Development Plan for 2017 –2033 began in 2015 the orchard appeared on the list of sites submitted for potential building development. IRARA and many residents immediately objected on the grounds of its designation as a Local Wildlife Site and the Area Tree Preservation Order.
7. As part of the development of the Local Plan, Colchester Borough Council undertook a survey and review of the site, which turned out to be less than favourable to us.
8. When the draft Local Development Plan was published we were shocked to discover that Colchester Borough Council had this to say about the orchard:
“The 2016 Local Site Review concluded that this site is in favourable but declining status as an orchard with no management of the fruit trees or other vegetation in recent years. The grassland is becoming rank and the Prunus scrub which is spreading, is already dominant in some areas. The northern edge of the site is also being managed inappropriately, from a conservation point of view. This lack of active and appropriate management if not addressed over time, will result in further decline in the ecological value of the site. This could result in it eventually being de-designated as a Local Site if it fails to meet the qualifying criteria for designation.
Whilst the site has some limited wildlife value, a small amount of development, of up to a maximum 8 dwellings, covering no more than 40% of the site is considered appropriate at this location. The remaining 60% of the site should be brought back into suitable condition with management to improve the sites ecological value and to ensure it continues to contribute to the local Green Infrastructure network. A detailed ecological management plan and mitigation plan should be prepared as part of any future development proposal to conserve the most valuable habitats/part at this site.
Development of this site will be supported where it provides:
(i) Up to 8 new dwellings of a mix and type of housing to be compatible with surrounding development;
(ii) Access via existing track off Irvine Road;
(iii) A maximum development area of 40% of the site;
(iv) An Ecological Management Plan and Mitigation Plan for the remaining 60% of the site to improve and enhance its ecological value.”
9. In effect, this policy, while obviously seeming like a reasonable compromise to the planners, completely undermined our attempts to save the orchard in its entirety and gave notice that the Colchester Planning Department would approve a planning application that met the requirements listed.
10. Following this development IRARA members voted overwhelmingly in favour of talking to the developers to see what kind of deal could be reached while retaining our position that we may still choose to fight any and all development. We wanted to keep our options open.
The options available to us
To cut a long story as short as possible, after 9 months of discussions, here are the various options for the 60% of land that would not be developed that we are talking to the developers about, each with a brief summary of what we regard as the pros and cons.
Option 1: Lease
A 50 year lease at a peppercorn rent (with restrictions on use based on it being a community orchard). The charities would not agree to any restrictive covenants beyond the 50 year lease period and there would be no automatic right to renew that lease.
Pros: Quick, easy, cheap. We could begin work on restoring the 60% immediately. We think, and hope, volunteers and funding would be available if we had long term tenure.
Cons: Not freehold, so not permanent. Could be argued that it means the orchard will be developed in 50 years’ time. As tenants we would not be in total control of our own destiny and a future change of ownership of the freehold could change things for the worse at any time.
Feasibility: This is the baseline option assuming we can get the developer to commit to this deal. If the orchard was developed into a truly valuable wildlife site it could be much harder to get permission to develop. Who really knows what the development landscape will look like in 50 years’ time. We would need to continue to work to make future development as difficult as possible.
Option 2: Freehold Sale
They will agree to a freehold sale, but at a figure of £35,000 with covenants to protect against future development and the use of the Orchard. That amount could be paid in two stages, £15,000 straight away and £20,000 in 3 years time.
Pros: We would own the freehold, so be free of developers; not required to come up with the full amount immediately.
Cons: A lot of money to raise; they still want covenants in place to restrict what can be done with the orchard. These would need to be looked at very carefully; we would need to form a legally constituted body to own the land, but this is true in all cases. Very difficult to see how we could commit funds now before any planning application is available.
Feasibility: Raising the cash is possible, we’ve proved that, but raising it from external funders is more complicated and time consuming. It could be done but would require hard work.
Option 3: Lease with an Option to Purchase
They would grant the 50 Year Lease at a peppercorn rent, but with an option to purchase the freehold in five years time, but at the higher price of £45,000 which in part reflects the additional legal fees that would be incurred. Again there would be covenants imposed restricting the future use of the land.
Pros: We get five years to raise the purchase price and the the lease would continue if we failed.
Cons: Even more money to raise; again more covenants; a legally constituted body (like a charitable trust) would need to be formed; a lot of effort to raise that kind of cash; it might take effort away from setting up the Orchard and bringing it back into health and getting people involved.
Feasibility: Good news and bad news in that we get the lease anyway and the time to raise the cash, but it’s even more cash to raise. It may prove quite difficult to do in the time.
Option 4: Oppose any attempt to develop any of the orchard
There is nothing to prevent any organisation or individual from objecting to any attempt to develop the orchard. The overwhelming majority of the IRARA committee do not support this approach, given the context provided above.
Pros: If successful, we could block any development on the orchard.
Cons: Even if we were successful in blocking development this time around, the orchard remains private property and presumably all bets are off. We know there is no chance of buying it and the obligation to develop will remain, so it will remain neglected and the developers will probably apply to have it de-designated. Certainly no benefit nor access to the community. Strong pressure for re-development in the next planning cycle (in 5 years time) seems very likely.
Feasibility: Given the current housing demand, the council’s emerging Local Plan, the current planning ‘climate’ and the obligation to seek development that comes with the ownership of the orchard, the chances of successfully opposing a planning application appear slim, given that the developer is duty bound to appeal and the decision will then be in the hands of an independent inspector. There is a risk that outright opposition may result in a larger development being put forward, either now or soon after an initial application, as the developer would have nothing to lose by doing so.
What would development look like?
The drawing above was put forward by IRARA as the most acceptable way of developing 40% of the orchard and broadly agreed by the developer. It still leaves a sizeable area of orchard and hedgerows with which to work and provides for a green link onto Shady Lane and the open playing fields beyond, which is integral to the orchard’s ecological importance. Since this drawing was submitted, the proposed number of houses has been reduced to six, which also reduces the traffic/parking congestion potential slightly.
At this stage we are deciding whether or not to accept the development of 40% of the orchard and possible options for ownership or long term tenure, so details of the development and management plans for the remaining 60% are still to be discussed and obviously depend upon the outcome of this consultation. In the long term, our aim is to maintain it as a community orchard, a truly valuable local wildlife site and an outdoor learning resource for the local schools.
If you need any further information, or would like to tell us what you think, please email us at: info@irara.org.uk