Agenda item

To determine the application.

Hayleigh Parker-Haines presented the report to members and drew attention to the update report that had been circulated.

Members asked officers the following questions:

·       Councillor Marks asked how officers can state that the ecological test has failed because, in his opinion, it cannot have failed, it just has not taken place at the right time and questioned whether the application should be deferred. Hayleigh Parker-Haines responded that insufficient ecological information has been submitted and, therefore, that does form a reason for refusal.

·       Councillor Mrs French expressed the view that the time to do the survey would have been through the breeding season from March and, therefore, it would be unreasonable to refuse the application before it can be completed.

·       Councillor Connor stated that he recalls that officers did advise members previously, recommending to the committee that the breeding season was from March to September, but the committee placed a three-month timeframe on the application which was incompatible with the breeding season. He made the point that as a result the applicant is unable to undertake the survey as it does not fit in with the prescribed timescale anyway.

·       Councillor Marks stated that as it appears that there is a grey area he would suggest that the application is deferred for another six months.

·       Councillor Connor stated that it is evident that there is nothing new from the last application and the committee are in the same position as they were when the application was last considered and he asked the committee whether they agree to further defer the application.

·       Councillor Benney made the point that if the application is deferred then it is likely that it will be considered under the new planning rules, which means it will not come back before the committee. Matthew Leigh stated that, as it currently stands, he does not know as at the current time there is no legislation at the moment, it normally takes over two months for secondary legislation to be laid, and the transitional arrangements are not yet known. He made the point that it is also not yet clear how the transitional arrangements will work.

·       Councillor Benney stated that if the application is going to be deferred there are two reasons for refusal and if the application is deferred for an ecological report that may never come back to the committee then that would then be down to officers to decide on the reason for refusal in relation to Flood Zone 3. He questioned whether the application is deferred on both points or should the committee consider the Flood Zone element now.

·       Councillor Marks referred to the presentation screen, pointing out the applications which have already been given permission in Flood Zone 3, and he presumes that an ecology report would have already been undertaken. He asked when the other dwellings were given approval? Hayleigh Parker-Haines confirmed that it was in 2023 and any ecological report that was submitted as part of that application would be out of date now and reference to that as part of the current application cannot be made. She added that since the determination of that application the guidance used on flood risk has changed as well.

·       Councillor Marks stated that mitigation measures can be undertaken with regards to flood risk, so the concern is the ecological report if the committee wish to consider the application and make a determination.

·       Matthew Leigh stated that the Legal Officer gave advice to the committee previously with regards to the habitat’s regulations and as an authority it cannot be conditioned that it is likely to be acceptable in the future and that is the reason members deferred it previously. He added that those circumstances have not changed but if members are wishing to not have two issues stand up in the future it may be in their best interest to refuse it only on ecology grounds rather than deferring the application. Matthew Leigh stated that if the Council find that the only issue with this application is ecology that would be a material consideration in any future application.

·       Councillor Marks referred to the presentation screen and indicated that there is a blue line around an agreed build already which has not taken place yet and there is an out-of-date ecology report. He added that the builder could commence works tomorrow and badgers could have moved into there, but it seems that whatever wildlife would be on that site can be ignored, and there is the need to wait for an ecology report on the site next door. He added that the likelihood is that nothing has probably changed or if it has the adjacent site can still commence building whilst a development with a red line around it has to be stalled whilst an ecology report is undertaken and, in his view, there needs to be an element of common sense.

·       The Legal Officer stated that the planning system requires that the Council considers each application as it comes in and the fact there may have been previous applications next door is a matter of planning history, but members could not today approve this application in the absence of the ecology report simply because there is a site next door which has an existing permission. He stated that the ecology report for the adjoining site is out of date and it would be entirely wrong for members to rely on that to approve this application.

·       Matthew Leigh explained that the application next door was an outline application and if there has not been a reserved matters then there would still be the need for additional information. He made the point that there have been more case law recently which states that even on a same site you cannot rely on the fall back of an outline application for a full application when it comes to ecology. Matthew Leigh stated that the reality is that there is the requirement that officers need to have an ecology report to be able to support a scheme as a Council and without that members should not be looking to support this scheme.

·       Councillor Benney stated that if the committee refuse the application solely on ecology and feel that Flood Zone 3 is acceptable here then Flood Zone 3 would not be an objection. He added that when the application comes back with an ecology report which is favourable then the application should be approved. Matthew Leigh stated that the decision of the committee would be a material consideration for any determination of a future application, with the planning history being a material consideration of significant weight.

·       Councillor Benney stated that if the committee accept that it is a suitable site to build on, and members accept the Flood Zone 3, with everything built in Turves being in Flood Zone 3 then mitigation measures can be attached to the application. He added that if members deem that to be acceptable and then only refuse the application on ecology grounds and if it came back with a ecology report which was favourable then that can be overcome. Councillor Benney stated that if this came back and it had been refused on the flood zone, the fact it is in Flood Zone 3 cannot be got around and he would be minded to refuse the application on the ecology alone which would mean that an application could come back with the correct paperwork which could be approved. He stated that if the application is deferred with the changes that are coming in with the planning, it could be that this application goes straight to officers and then as it is in Flood Zone 3 it will get refused.

·       Councillor Connor asked if the committee could make a strong recommendation which states that when the ecology has been completed that it comes back to this committee irrespective of whatever the new law planning laws states? Matthew Leigh stated that his understanding of the points that Councillor Benney has raised is that with any application members are not bound to follow the recommendation and they are able to look at the various reasons of refusal and consider whether they think some or all of them have merit. He added that if members agree with some but do not agree with others, members can refuse a scheme only on some of the reasons for refusal. Matthew Leigh explained that as with any application, no decision means that automatically another application will have the same outcome or because of material considerations situations can change.

Members asked questions, made comments received responses as follows:

·       Councillor Benney stated that if there had not been the other adjacent development then he may have agreed with officers. He added that from the public’s perspective when the committee have already granted three dwellings and they are considering refusing the three dwellings next door, in his opinion, it looks poor but that is planning and that is how it works. Councillor Benney added that he does not want to see the dwellings refused and he would like to approve them, making the point that the issues of ecology can be overcome or another application would get round the ecology because they could undertake the ecology report. He stated that if the committee agree that it is Flood Zone 3, this may never come to planning committee again and in which case he believes it will be a flat refusal with Flood Zone 3 and the ecology. Councillor Benney expressed the view that it seems a cruel thing to do if the committee want it approved, but, in his view, the application needs to be refused but only on the ecology because the applicant can bring the paperwork forward to comply with the ecology aspect of it.

·       The Legal Officer stated that he needs to caution members, he understands the rationale about the way forward but if members feel that Flood Zone 3 is not an issue then members should not be relying on the change in the future rules to defer or refuse the application and members should focus only on the planning issues. He added that members should not be making a decision based upon the future changes in the scheme of delegation because that is not a reason for making a planning decision.

·       Councillor Connor stated that he believes the point that Councillor Benney was making is that there are three dwellings with extant planning permission and just for consistency’s sake it would look odd if consideration was not given to the three next door on the same site.

·       Matthew Leigh stated that he totally agrees with the point that the Legal Officer has made and added that what he has always said is that he would encourage members to refuse things on one reason when it would need to be deferred for a long time rather than deferring it, which would be consistent because it does become problematic. He added that if the site is in a flood zone that is fact and it cannot be changed and in officers’ opinion there is not the level of detail to pass the sequential test. Matthew Leigh added that if members consider that the fact that the application is in the flood zone is not problematic, there will still then need to be consideration in the debate around the exceptions test and why it is acceptable and that would then form part of any minutes for the meeting as well.

·       Councillor Benney stated that all of Turves is in Flood Zone 3 and, therefore, this means no development, with it not being good for a village to not have development, because villages die if they have no development and all the residents suffer from that. He added that he recognises the benefits of passing this application in Flood Zone 3 because if not Turves will die and there has been development throughout Turves including on the site of the old Public House. Councillor Benney made the point that he views the sequential test as a block to development and whilst he appreciates that it is policy, it does not look at all land usage. He asked officers what would happen if the application was approved without an ecology report? The Legal Officer explained that it would be a legally flawed decision because members are not taking into account the ecological information. Matthew Leigh stated that it would be as legally flawed as is possible when the legislation says do not do this, with the legislation around the considerations being just about ecology full stop and is around any decisions the Council makes, which, in his view, is dangerous.

·       Councillor Marks made the point that members have an application in front of them, there is approval for the site next door and advice has been given by the Legal Officer, but the developer could start building tomorrow on the site next door. He added that the whole of Turves is in Flood Zone 3 but based on previous recently approved applications mitigation can be undertaken in flood zones. Councillor Marks acknowledged that there is not an ecology report but reiterated that there is approval for the site next door and as Councillor Benney referred to, the former pub closed because there was not enough people supporting it due to there not being enough residents in Turves to support. He expressed the view that the most logical thing would be to approve this application, but he understands that legally it cannot be done without a favourable ecology report, so he feels that a mechanism needs to be found to bring this back, ideally to committee.

·       Councillor Connor stated that he does not disagree with anything Councillor Benney or Marks have said but drew attention to the fact that seven or eight properties were approved opposite on the other side of the road, which has resulted in him being in favour of the other three and it was only this side of the road where there were any building plots left in Turves without going outside the village envelope, with the village envelope being from the second crossing gates in Turves all on that side of the road, right up past Burnthouse Lane until it meets agricultural land. Councillor Connor reiterated that seven or eight properties were approved approximately four or five years ago on the other side of the road so he does not see too much wrong with this application, it is in a flood zone, and this is never going to change but feels that he can support it. He added that he feels that the application should only be refused on the ecological report which he hopes can be carried out and can be brought back to the committee.

·       Councillor Mrs French stated that it is only a few months away to get this survey undertaken and to be fair to the applicant and officers she would prefer to see the application deferred for 3 months to let them get their surveys carried out and then hopefully it will resolve the issue that is there.

·       Councillor Connor stated that he would be minded deferring for 6 months.

·       Councillor Benney asked for clarification as to whether it is being deferred only on the ecology? Councillor Connor stated that yes for it then to come back before the committee with the right paperwork and then the application could be approved.

·       Matthew Leigh stated that the committee cannot partly approve an application, explaining that if it is deferred like other items have on a single issue that may well be resolved or not there will be an officer's recommendation based on that information and members will get to debate and make the decision. He explained that the judgment of the committee cannot be fettered through partly implying they are approving aspects of that application and his advice to members would not to be putting a time restriction on the deferral to allow the applicant to get the ecology report undertaken and then for officers to consider.

·       Councillor Marks stated that there was an application in Manea for seven houses where the committee refused it and the Planning Inspector came along and said that he could not see a problem. He added that if the Inspector looked at this with the properties next door that already have permission and if it had to go to an appeal for whatever reason, it has been turned down because it has come back to the planners as opposed to the committee again so he would hope logic would prevail.

·       Councillor Benney stated that he is minded to approve the application and he added that members are content with the Flood Zone 3 issue and the committee accept the application without ecology and, therefore, approve it. He made the point that members have been given advice that to choose that course of action is dangerous, but that is down to a committee to decide. Councillor Benney expressed the view that if the committee does not feel that is acceptable then that is down to the committee.

·       The Legal Officer added that if members decide to go ahead and want to approve the application, notwithstanding they are completely as it were blind in relation to the ecology, his advice would be that is a clear unlawful decision and he would have to report members decision to the Monitoring Officer. He stated that it would be an unlawful if it was challenged and it would be successfully challenged.

·       Councillor Benney stated that he has reflected on the legal advice given by officers and as the proposal seems to be unlawful, he will withdraw that proposal.

·       Councillor Mrs French stated that she suggests that the application be deferred and for the committee to consider the advice provided to the committee by the Head of Planning. She added that the committee disregarded his advice previously when he had advised members that a three-month period was not sufficient timescale to defer the application. Councillor Mrs French added that the Head of Planning is now advising the committee not to add a time frame but that does concern her. She added that she would still like to see the application deferred so that officers work with the applicant in order to allow the survey to come out.

·       Councillor Connor asked Councillor Mrs French to clarify her proposal. Councillor Mrs French stated that the application is to be deferred in its complete entirety on the two reasons as that is the advice given by officers.

·       Councillor Marks asked for confirmation that the issue of Flood Zone 3 cannot be removed from the deferral? Councillor Connor stated that it must be included.

·       Councillor Benney asked how long the application is likely to be deferred? Councillor Connor stated until the end of September.

·       Councillor Benney stated that his suggestion was going to be the end of the year which gives the applicant 12 months and then if they have not brought it back in 12 months then it needs refusal.

·       Matthew Leigh stated that reports have been brought back for items that had been deferred by the committee from before he was in post and where they have not progressed, they were brought back to the committee with a recommendation of refusal, and he recalls that they have been refused. He explained that there does not necessarily need to be a time per se because once the opportunity for the ecology report has been undertaken it should come to officers in a timely manner. Matthew Leigh stated that if members do want to add a time limit then he would encourage the end of the year would be a reasonable time.

Proposed by Councillor Mrs French, seconded by Councillor Murphy and agreed that the application be DEFFERED until the end of the year.

(Councillor Connor declared, in accordance with Paragraph 2 of the Code of Conduct on Planning Matters, that he had been lobbied on this application)