Agenda item

To determine the application.

David Rowen presented the report to members and drew members attention to the update they had been circulated.

Members received a presentation, in accordance with the public participation procedure, from Malcolm and Jennifer Gray, objectors to the proposal.  Mrs Gray expressed the opinion that the acceptability in principle of this application has been based on it being a minor development, but the site is 0.8 hectares with surface water drainage and the field is not within the curtilage of 107. She referred to NPPF for housing development and the Town and Country Planning Consultation England Direction 2021 document which states that a major development in respect of residential development is development where the number of dwellings that could be provided is 10 or more or the site area is 0.5 hectares or more, therefore, in her view, this is a major development and has not been considered against the correct legislation. 

Mrs Gray referred to the Town and Country Planning Development Management Procedure England Order Schedule 4 Paragraph ZE, which requires the Local Lead Flood Authority to be consulted about major developments with surface water drainage before the grant of permission and that the Cambridgeshire Flood Water SPD Section 4.3.15 requires a major application to submit a surface water flood risk assessment before permission is granted.  She expressed the view that, as this is an outline application for a major development, it should have been subject to a site specific flood risk assessment. 

Mrs Gray stated that their garden is already suffering from surface water run-off from the field, which is approximately 1 metre higher than their damp course, and this would have been picked up if a topographical survey had been carried out in accordance with NPPF 157B, referring to photos 1 and 2 on the presentation screen which showed their garden flooded.  She expressed the view that the plot of 107 has been raised by 300mm from the original ground level as could be seen by photograph 3 on the presentation screen.

Mrs Gray expressed the opinion that the change of use of garden land to an access road would increase surface water run-off and the positioning and design of this access with a slight bend changes their property into a corner plot.  She feels that if a vehicle was to lose control on the proposed access road it could hit their bedroom wall, which is less than 1 metre away from the fence, and could be potentially fatal if they were in bed, referring to photo 4 showing the distance between their fence and property.

Mr Gray expressed the view that this proposal does not meet the objectives set out in the Fenland Local Plan LP16 as the proposed access runs the full length of their property, which is approximately 53 metres, and will be in close proximity to their conservatory and patio, which will have an adverse impact on their amenity and on their health and well-being from noise and vibrations from vehicles passing in close proximity to their bedroom disturbing their sleep.  He feels it will also impact on the peace and quiet of their back garden, and a loss of privacy to their patio area. 

Mr Gray expressed the view that the 8 dwellings proposed will generate more noise and increase pollution from vehicle movements, with statistics showing that car ownership in the East is 1.4 per household and they make 1.1 journeys per day, equating to 173 vehicle movements per week along this access road, which excludes visitors, deliveries and bin collections, which is considerably more than a lawnmower once a week in the Summer.  In his opinion, the fumes from these vehicles entering their bedroom and conservatory windows will have a detrimental impact on their health. 

Mr Gray expressed the view that the impact on their amenity cannot be resolved via Reserved Matters if the road constructed is where shown and made the point that other approved applications in this area were minor developments, less than 0.5 hectares, using existing access roads.  He stated that no other new developments in this area have access roads passing so closely to the living space of an existing single-storey dwelling. 

Mr Gray stated that this application relies on the access being acceptable in principle, but, in his opinion, it fails to comply with all the requirements of LP16 and asked how would it be possible for this to be mitigated against at Reserved Matters as it needs to be assessed as another source of flooding.  He stated that 7 street trees and 5 mature Ash trees have already been removed from this area, with this application requiring the removal of another street tree. 

In Mr Gray’s opinion, this is an invalid application as there are serious errors in the executive summary and he asked the committee to be sure that all the information in front of them is correct as they will be making a decision that will affect the rest of their lives.

Members asked questions of Mr and Mrs Gray as follows:

·         Councillor Booth referred to the photos and that Mr and Mrs Gray have said their property is affected by the flooding and asked how regularly this occurs?  Mrs Gray responded that recently in 2017 and December 2020 and stated that when they first moved into the property in 1977 they had a septic tank and in the Winter the water from this would flood their garden.  She advised that they went onto a surface water drainage system and the applicant’s father also put drainage in the field.  Mrs Gray stated that they had not suffered any flooding problems until recent years, however, with climate change and the extra water, their property is at medium risk of flooding due to surface water.  She advised that there has always been drainage problems as they are on clay soil but it has become progressively worse and housing on the field is not going to help.  Councillor Booth made the observation that those periods in time when the flooding was particularly bad was when there were problems in March due to extreme weather events.

Members received a presentation, in accordance with the public participation procedure, from Ian Gowler, the agent.  Mr Gowler stated that the site is proposed to be accessed between 105 and 107 and a detailed access is not being proposed as it only an Outline application and Highways have indicated that they are happy, in principle, with the proposed access.  He made the point that Environmental Health were consulted during the application, particularly in relation to the road being next door to 105, and they were happy in principle.

Mr Gowler referred to the removal of a tree on Upwell Road and that the Tree Officer is happy that this is removed but wants new trees providing in the site.  He stated that the field where the proposed dwellings would be built is only half of that field and believes this is why it is a minor application as it only part of the whole field.

Mr Gowler stated the site is currently a grass field and has been for many years, which the applicant regularly cuts, and there is, in his view, very little ecological value to the site and it is proposed as one of the conditions that there would be an ecological survey prior to a Reserved Matters application and ecological enhancements proposed as part of this. He acknowledged that surface water drainage is an emotional and important topic, with the proposal having a strange layout to reach an attenuation pond at the back of the field and the reason that this is in this location is because it is much lower than the existing Upwell Road so water will naturally drain away to this point and there is also a ditch in the corner which will take an attenuated flow from the development.

Mr Gowler made the point that the existing properties of 109 and 103 both have no objections to the application, with their written statements being on the Planning Portal.  He stated that the occupants of 103 are his wife’s aunt and uncle and he believes that they would have mentioned if they had any issues with flooding on their property.

Members asked Mr Gowler questions as follows:

·         Councillor Cornwell referred to the overflow from the surface water going into a dyke and asked if the applicant owns the dyke or is it an Internal Drainage Board dyke?  Mr Gowler responded that he believes it is a half-ditch and is not a Drainage Board ditch as far as he is aware.  Councillor Cornwell stated that it falls under riparian ownership rules then.

·         Councillor Mrs French expressed the view that access should be determined at the Outline stage and she is concerned that the access is not being committed at this time.  She stated that she is well aware of the flooding issues and asked if the development is going to be connected to the main sewerage?  Mr Gowler responded for foul drainage yes and made the point that Highways have been consulted over the access and are happy in principle with the layout as well as Environmental Health.

·         Councillor Mrs French asked Mr Gowler if he was aware that they would possibly have to undertake an archaeological dig?  Mr Gowler confirmed that he was and that it is one of the proposed conditions.

·         Councillor Miscandlon referred to a section of land at the back of the site along the drainage pond and asked if this was in the ownership of the applicant?  Mr Gowler responded that the whole field past the proposed attenuation pond is in the ownership of the applicant.  He stated that the actual red line is a funny shape as it includes the drainage pipe that will take the surface water away from the development to the attenuation pond, so although it looks like there will be a parcel of land left it will still be one big field left in the ownership of the applicant.

·         Councillor Miscandlon questioned whether there is potential for more development to take place on this bit of remaining land?  Mr Gowler responded that he and the applicant felt it would not be appropriate as Upwell Park and a recently approved site form a natural boundary and it would not comply with policy.  The Chairman reiterated that members need to determine the application that is in front of them.

·         Councillor Mrs Mayor referred to photograph 3 of the objector’s presentation and asked for an explanation on the site level being 300mm higher than the original ground level and is this causing the flooding issue or exacerbating it?  Mr Gowler responded that he is not sure if and when the existing level of 107’s garden was raised, on the flood maps it does seem to be a low spot in relation to 107 and their garden does seem lower than other properties on Upwell Road.  He stated that as far as he is aware the ground levels have not been raised in recent years.

·         Councillor Connor acknowledged that the proposal is for Outline planning permission, but asked, if the proposal is approved today, recognising that there are some flooding issues in the area, could the attenuation pond be formed at the point the properties reach slab level?  Mr Gowler responded that the management and maintenance need to be conditioned stating that it is maintained by some kind of management company and the applicant would be happy for this to be part of a condition.  He made the point that as the drainage is part of the detailed application and the road would not be adopted they will both need some kind of management company put in place to oversee their maintenance.

·         Councillor Mrs Davis asked why the attenuation pond is at the back of the field and not closer to the houses?  Mr Gowler responded that part of the field falls away from Upwell Road and this is the lowest part of the site so it makes sense for the drainage to fall that way and the rear boundary has a ditch with an attenuated pipe flow which will take the outfall of the attenuation pond.

·         Councillor Booth referred to a management company managing the attenuation pond and he believes in adopted policy that the preference would for it to be managed by an Internal Drainage Board and asked if Mr Gowler had approached any drainage board regarding this?  He further asked what the levels of the attenuation pond would be referring to lower levels and 300mm differences in ground levels?  Mr Gowler responded that some of these issues would be subject to detailed design and at that time Middle Level would be consulted where drainage calculations will be asked for.  He made the point that it is always a balancing act on whether to undertake a drainage strategy now but not knowing if the site is going to be acceptable in principle for a development.  Mr Gowler stated that if Middle Level will take responsibility for that drainage pond this will come out of the agreement and discussion at the detailed application stage, but he not sure it would as the pond is not directly out-falling into a Middle Level ditch.  He thinks the land drops between 1-1½ metres between Upwell Road and the bottom of the field.

Members asked officers questions as follows:

·         Councillor Mrs Mayor expressed concerns about the levels and thinks from what Councillor Booth has said he has concerns as well, there is obviously an issue with the land levels, an issue with a riparian ditch and the attenuation pond and the circumstances needs to be right from the beginning it cannot be a situation of an Outline application which is constantly altered, and asked how the land level issue can be overcome?  David Rowen responded that it is clear that the levels at 105 Upwell Road are lower as has been seen from the photographs, but why this is he is not sure and queried whether the land level at 105 had been changed, such as has the garden been dug down?  He feels the issue of land levels and drainage is that there is an existing problem with that property on Upwell Road notwithstanding if this development goes ahead or not and the question is would this development exacerbate or make worse that situation and as part of the application there is a demonstration that there is a possibility of the site being drained in a different way and potentially in a way that would take away some of that drainage away from the properties on Upwell Road, which would be subject to a more detailed drainage strategy that would be required as part of the recommended condition 6.  Officers are comfortable that there is a way of adequately draining the application site which does not exacerbate any existing drainage issue that properties on Upwell Road may be experiencing. Councillor Mrs Mayor expressed concern over the fact that people buy properties and do things in their gardens without the knowledge on what is going to happen to a neighbours gardens, whilst there is nothing members can do about this, the scheme needs to be right from the beginning and that is what she is trying to get to.

·         Councillor Murphy referred to 9.25 and 9.26 of the officer’s report where it mentions refuse vehicles would not be able to go down a private road, which on this development it is likely to be as it would not be adopted, and it says the occupiers could be required to wheel their bins down to the highway which is 115 metres against a Recap guidance of 30 metres, which is a long way to take bins down and questioned whether it should say could or would because if nothing happens to the roadway refuse vehicles would not be able to get down to the properties and they would have to wheel the bins down not could.  David Rowen responded that use of the word “could” is correct as part of Condition 6 there is a requirement for a refuse collection strategy to be submitted and it could be the case that a private refuse collection is arranged, it could also be that the developers of the site enter into a non-indemnity clause with the Council to indemnify collection by the Council down a private road so there is several different options which could emerge in the future.

·         Councillor Murphy asked if the best way to approach it would be through a management company?  David Rowen stated that this would have to be addressed by the developer in the future, but there is going to have to be a management company set up in respect of the road and any drainage so it may be that as part of this general management that a private refuse collection forms part of this.

·         Councillor Mrs Davis expressed concern over applications such as this where there are not full details over the access road and asked if there is any idea on how wide the access will be?  David Rowen responded that the indicative plan indicates the width of the road is 5 metres.

·         Councillor Booth stated that Mrs Gray referred to the NPPF and whether this application should have been determined as a minor or major application, with the implication being that the Lead Local Flood Authority being engaged with the process.  He asked for clarification on whether the application should be a minor or major and why?  David Rowen stated that it is a minor application and the Local Government Association Planning Advisory Network gives a definition of “a major development is one where the number of residential units to be constructed is 10 or more, where the number of residential units to be constructed is not given in the application a site area of 0.5 hectares should be used as a definition of a major development” and in this case there is a number of dwellings specified as part of the application, which is 8 dwellings.

·         Councillor Cornwell asked what is the distance between the access road and the boundary of the bungalow as Mr and Mrs Gray mentioned that it was very close?  David Rowen responded that looking at the indicative plan showing the 5 metres access road it looks as though it would be approximately 1½-2 metres.  Councillor Cornwell expressed the view that this seems tight, but asked if officers are saying that this is acceptable?  David Rowen stated that this is the view that has been taken, Environmental Health have commented on the application and have not raised any amenity issues and the officer’s assessment is that it is tight but it is not considered that the impact on amenity to be unacceptable.  Councillor Cornwell made the point that concern has been raised by the speakers today and, therefore, he feels it does become an issue.

·         Councillor Mrs French expressed concern about the access and, in her view, it should be decided at this stage and not at Reserved Matters. She stated in regard to the flooding she is well aware of the flooding down Upwell Road, which was severely flooded in December 2020.  Councillor Mrs French advised that from her investigations that have been undertaken with officers at the County Council going around every dyke, drain and gulley, they have discovered that there are approximately 10 properties down Upwell Road who have either got greenhouses/garden sheds or other structures built over a riparian dyke.  She stated that part of that dyke belongs to Fenland District and Cambridgeshire County Councils and there will be a legal agreement that all these obstructions need to be removed and the dyke reinstated, but there is no timescale for this to happen as it is in the hand of the Legal Team at County Council.  Councillor Mrs French referred to 9.15 of the officer’s report where it states “it is clear that surface water flooding already occurs to properties along Upwell Road and it is unlikely that the development would overcome the existing issues”, but she would not expect it to overcome flooding issues.  She stated that she knows what the problem is in Upwell Road, she is not sure if it comes up as far as 105 and 107, but it certainly affects No.1 up and the land that belongs to the Council backing onto the cemetery, which was cleared out a few weeks ago by Fenland District Council.  Councillor Mrs French feels that the flooding issues are being overcome, but she would like to see an attenuation tank as she is concerned that if the water is piped into a riparian dyke that does not belong to the owner it is somebody else who has to maintain somebody else’s water.  She feels that there are a lot of questions still to be answered and officers need to take these concerns into consideration.  Nick Harding responded that in respect of access not being included as a matter of detail in this Outline application, this is a decision solely for the applicant to make, but if as the Planning Authority this is unsatisfactory then planning consent could be refused on the grounds that access details are so important that it is fundamental to the acceptability of this site, however, in this instance there has been an indication from the County Council’s Highways Officer that, in principle, the formation of an access serving the site on to the adopted highway is achievable and hence the officer’s recommendation for approval.  In respect of surface water, he made the point that there is an indicative proposal that has been tabled as part of the application, it is conditioned and it appears highly likely that an acceptable detailed scheme could be arrived at.  Nick Harding stated that the proposal is going to be positively drained away from existing development to the balancing pond, with the roof water from the properties and hardstanding areas also going to that piped system and that system of surface water management will have to take into account climate change and there will be some betterment over the existing situation.  He made the point that whilst he might not be an expert on riparian responsibilities it is his understanding that if you have a parcel of land that backs onto a riparian ditch you have responsibility for your half of it and, therefore, by default the landowner in this instance would have the ability to discharge into that ditch.  Councillor Mrs French stated providing it belong to them, you cannot put water into someone else’s ditch without permission.  Nick Harding responded that if it is riparian then it is half of their responsibility and, therefore, the landowner would have the ability to discharge into it.

·         Councillor Booth asked if in officer’s view the access is acceptable and whether there was any guidance on what the minimum distances are or is it a subjective matter on whether there is a loss of amenity?  Nick Harding responded that there is no prescribed technical manual to establish whether an adopted highway is too close to an existing property, but what needs to be recognised is down that boundary a 2 metre high fence can be erected by the existing landowner and that would act as a sufficient boundary to protect the amenity of the adjacent landowner to a significant degree and, therefore, officers deem the relationship acceptable as well as the physical gap that is proposed. David Rowen drew members’ attention to 5.2 of the officer’s report where following consideration of a neighbouring objection regarding the proximity of the access road to their property further comments were received from Environmental Health acknowledging the concerns raised regarding the access road, but they would not object subject to conditions already recommended and would also recommend that no gravel is used on the access road and at the Reserved Matters stage the access road is tarmacked or concrete surfaced to reduce noise and disturbance.  Environmental Health officers are better equipped than Planning Officers to deal with detailed scientific levels of amenity considerations and Environmental Health are satisfied in that regard subject to that condition.

·         Councillor Marks referred to the photographs and believes this property already has a fence all the way around it.  Officers confirmed in the affirmative.

·         Councillor Mrs Mayor referred to 5.2 and it does not say whether officers actually visited the site or whether it was a desk top study and thinks that sometimes Highway engineers need to visit the site to see whether the access is possible or not.  Nick Harding stated he is not aware whether the engineer did visit the site or not, but in terms of the visibility splays that has been considered as it has resulted in the need to remove a tree in the public highway and officers are satisfied that the Highway’s Officer considers there is going to be adequate visibility when exiting from this junction.

·         Councillor Connor made the point that members are worried about flooding issues and asked officers if they are confident that perceived flooding issues on this site can be addressed?  Nick Harding responded in the affirmative.

Members asked questions, made comments and received responses as follows:

·         Councillor Topgood acknowledged that there are issues with the access and flooding, but feels that members are forgetting that this application is an Outline one and the details will come at the Reserved Matters stage.

·         Councillor Booth understands what Councillor Topgood is saying, but once the application is approved it has permission and if there are concerns they need to be discussed at this point.  He does have serious reservations about the development, especially in relation to flooding.

·         Councillor Connor made the point that the Head of Planning was confident that flooding issues could be overcome.

·         Councillor Mrs French expressed the opinion that there is no reason to justify refusal, but she is not happy with the application, especially in relation to access and flooding, but hopes when a Reserved Matters application is submitted these issues would be resolved.

·         Councillor Benney referred to all the concerns regarding flooding, with members having seen the photographs which confirms that it does, but members have been told by officers many times before that when a scheme comes forward it can solve the problems with flooding. He referred to the 88 homes at Wimblington where there was a strong compelling argument to turn it down due to flooding, but members called in the technical experts from Anglian Water and Internal Drainage Board who all said the development was acceptable from a drainage/flooding perspective.  Councillor Benney made the point that members are not qualified to challenge this view and if officers are telling members that these issues can be addressed through a mitigation scheme how can the committee go against it. He feels that the proposal is a scheme that is policy compliant and if members vote against it today it will go to appeal and the Council would probably lose.  Councillor Benney acknowledged that there are flooding problems in Fenland, but officers say there is a technical solution and if it cannot be found on this development it will not be built, and as much as he sees the concerns there are with this proposal, he does not see any other option than to approve it today.

·         Councillor Mrs Mayor referred to the comments of Councillor Mrs French whereby the County Council have already done some surveys in the area and made the point that there are more riparian ditches, with landowners or property owners having no idea what a riparian ditch is and if they had looked at their deeds when they brought the properties it would have been clearly marked on it, would have had it all explained to them and would have known that they should not build anything over a riparian ditch.  Councillor Mrs French is saying that the Legal Team at the County Council are looking into this and these property owners are going to be told to move these structures that have been built over them and with this in mind, Councillor Mrs Mayor cannot support approving this application as it is today as there is more that needs to be done before going down this route.

·         Councillor Cornwell agreed with Councillor Mrs Mayor comments.  He does not feel he is in a position to support this application as, in his view, there are too many ifs and buts and he has concerns over drainage and access.

·         Councillor Mrs French asked if the application could be deferred for further information on the drainage and access? Nick Harding stated that technically the application could be deferred by committee, however, members would need to be very clear on the reasons why as there is no objection from the County Council in respect of the access and, therefore, what is the question that members would want to put back to County.  He stated, in terms of drainage, the use of a condition to secure surface water drainage details are common and on major schemes consultation with the Local Lead Flood Authority on the drainage strategy for those developments, but this is a minor development proposal and, therefore, there is not the luxury of having the input of the Local Lead Flood Authority, but in this instance there is a substantial sized site and in terms of the proposed drainage solution there is a network of pipes that will collect the water from all of the areas of hardstanding and take it to the bottom of the field into a surface water lagoon before it goes on to be discharged into the riparian ditch and that surface water lagoon can be increased in capacity in accordance with the drainage calculations that will be run as part of satisfying the proposed planning condition.  With regard to issue of riparian ownership, the Council cannot be in the position where it is stymying a development proposal because there might be somewhere down the riparian chain someone who has not maintained their ditch appropriately or in the future as there is never going to be a position that every riparian network is going to be regularly surveyed and checked so that it is clear and operational and it would be a civil matter that would deal with any issues of blockage of the riparian network.

·         Councillor Mrs French responded that it is not necessarily a civil matter as having worked on this through the County Council there is quite a lot of legal issues and the County Council are taking steps to resolve that as it is an offence to stop water flowing down dykes and it could actually be a criminal offence.

·         Councillor Booth stated that the key recommendation here about the flooding issues is 6.2 which talks about a surface water drainage scheme and its future management which follows the principles set out in the adopted Cambridgeshire Flood Water SPD 2016.  It has been some time since he read that SPD, but was quite heavily involved with it as it came to the Drainage Boards and Fenland District Council and part of his concern is this condition strong enough and can it be strengthened in some way, particularly as the applicant has said about getting a proper scheme established and it is debateable about whether it is done at this stage or at the full application stage, and asked for officers advice on whether this was possible.  Nick Harding referred to the Chairman adjusting this condition requiring the details to also say that prior to the access way coming into use or first occupation of any dwelling on that site the surface water system is operational and, therefore, as and when you have the implementation of development it is actively being served by the proposed surface water scheme and the condition as it stands does ask for the details of the design to be submitted, which is a regular occurrence in terms of planning consent.  The Chairman made the point that he said slab level, but if pushed would support first occupation as he feels the attenuation pond is key to the drainage of this site.

·         Councillor Mrs Davis expressed the view that the drainage issues have been exhausted and whilst members might have concerns she feels that what officers are saying has to be accepted.  Her concern is more about the access as she feels there is a serious loss of amenity to the existing property and, she knows you must not take into account what might happen, but there could be more than the 8 dwellings in the long-term using this roadway and to have just a couple of metres between your property and the roadway will cause 105 a lot of noise and traffic with vehicles going up and down the side of their property, with the average house having 2-3 cars now.  She stated that she would not like it if it was her property.

·         Councillor Cornwell expressed the view that Environmental Health have acknowledged something as they are saying that the access should not be a gravel one as gravel makes noise.  He feels that members have a responsibility towards everyone else in the area for health and wellbeing and he feels that this proposal will act in a detrimental manner, certainly to Mr and Mrs Gray.

Proposed by Councillor Cornwell, seconded by Councillor Mrs Davis and agreed that the application be REFUSED against officer’s recommendation.

Members do not support approval of planning permission as they feel that the proposal would have a detrimental impact on the amenity and health and wellbeing of the immediate neighbouring property due to the impact of traffic movements along the proposed access for the development.

(Councillor Skoulding declared an interest in this application, by virtue of owning Upwell Park which borders the application site, and retired from the meeting for the duration of the discussion and voting thereon)

(Councillors Mrs French registered, in accordance with Paragraph 14 of the Code of Conduct on Planning Matters, that she is a member of March Town Council, but takes no part in planning matters)

(Councillor Connor declared that Mr Gowler, the agent, is known to him, but this has no bearing on his determination of this application)