Agenda item

To determine the application.

Nikki Carter presented the report to members and drew members attention to the update that had been circulated.

The committee had regard to its inspection of the site (as agreed in accordance with the Site Inspection: Policy and Procedure (minute P19/04 refers)) during its deliberations.

Members received a presentation, in accordance with the public participation procedure, from Ian Salter, an objector to the application. Mr Salter stated that he lives in Fairview Avenue, which is adjacent to the area of the planning application, and he is also the Neighbourhood Watch Coordinator of the Fairview Estate of 65 houses, with the proposal causing great consternation amongst the residents of the estate and many people have approached him to represent their views, fully supporting the officer’s recommendation for refusal. He stated that he intends to comment on four matters, drainage and flooding, employment, Middle Level Commissioners and the Local Plan.

Mr Salter stated that D&M Engineering occupy the buildings and the residents of the Fairview estate are proud to have them on the site and none of them have complained about the company or have supported the application. He pointed out that the company were key workers during the pandemic, and they had and continue to have the contract to look after the Amey waste treatment and collection vehicles including large metal structures at their waste tips. He stated that in the first report it explains that the company are in the process of relocating, however, in his view, this is not correct and the company does not wish to move from the site and has not identified another alternative site in the Chatteris area and he had requested that the Planning Officer should make contact with the company to clarify the situation, however, he appreciates that this was not the normal procedure.

Mr Salter stated that the applicant was contacted and in the latest report the applicant has now stated that the buildings are in a poor and unsafe condition, contain asbestos and are unsuitable for further use. He expressed the opinion that there have been no recent inspections of the buildings and the company is of the view that the buildings are safe for continued use into the foreseeable future but made the point that if the application were to be approved the company would be forced to move and the business would be likely to have to leave Chatteris and change its business model and possibly reduce its workforce.

Mr Salter stated that with regards to drainage and flooding there have been objections to the application which have included concerns about flooding in numbers 1 and 3 Fairview Avenue caused by drainage issues and the two properties in question suffer from annual drainage problems and flooding at the bottom of their gardens and it appears that the level of the new housing will be higher than the land at the two bungalows which will clearly make the situation worse. He stated that he has a scrapbook of when a similar situation arose at Lode Way in Chatteris when new buildings were built adjacent to all dwellings and the local paper at the time carried many stories about the situation with the Council and Local MP becoming involved and it took two years for a resolution to be found and he expressed the view that he does not want to experience the same situation in Fairview Avenue.

Mr Salter stated that with regard to the Middle Level Commissioners (MLC), in the previous report the Environment Agency and the County Council Lead Local Flood Authority (LLFA) strongly recommended that the applicant should contact the MLC with regards to flood risk associated with the proposed watercourse and surface water drainage proposals and in the latest report it states that the LLFA have recommended that the MLC should be contacted but there is no evidence to suggest this has happened. He referred to the Local Plan, with neither the 2014 or the emerging Local Plan identifying the land as being suitable for development and the emerging Local Plan draws a red line around Chatteris and inside the red line there is sufficient land identified to meet all of the development needs of Chatteris and the line runs along the rear fences of Fairview Avenue, with the barns and associated land being outside of the red line and have not been recommended for development.

Mr Salter made the point that the officer’s report suggests that it is too early to use the emerging Local Plan when considering the application, which he disagrees with and he feels that the MLC will have had an important input into the emerging Local Plan and in particular they will have taken a strong line into the positioning of the red line. He expressed the opinion that the planning process is somewhat daunting for individuals who have not dealt with the planning process, and it would be something he would be happy to discuss with officers going forward and thanked the Planning Officer for her professionalism when assisting the residents with queries.

Members received a presentation, in accordance with the public participation procedure, from Kate Wood, the agent. Ms Wood thanked the officers for their help in bringing the application back to the Planning Committee, with members resolving, at the committee meeting in August, that the proposal was acceptable but had requested further detail with regards to the improvements to the byway that serves the site which is to be improved with the proper surface and footway. She explained that updated plans have been submitted which show the changes to plot one to improve the relationship with number 88 and plans showing the road and pavements, which as a result of those changes has meant that the drainage strategy also needed to be updated because the roads will now positively drain into the existing surface water system rather than running off into the grass verge which the LLFA have stated they are now happy with this as well as the EA and Anglian Water.

Ms Wood explained that an arboricultural method statement and ecological survey has also been undertaken for the extra area where the road is being improved which shows how the works to the pavements will be carried out in a way which protects trees on the adjacent land and which the arboricultural officer is happy with. She added that there is no further impact on biodiversity and she anticipates that these matters will be subject to conditions which will require compliance should the application be approved.

Ms Wood explained that a Construction Management Plan was a matter which had been raised by Councillor Mrs French and, therefore, one has been submitted which officers are content with apart from the working hours and the wheel washing machinery to be used and she would expect a condition to be applied requesting an amended Construction Management Plan with preferred construction hours should the application be approved. She referred to highway matters and stated that the process for providing the new tarmac part of the roads and pavements at the end of West Street involves requesting a Definitive Map Modification Order (DMMO) due to the fact that the route is a byway which is open to all traffic on the definitive map which the County Council is responsible for maintaining.

Ms Wood explained that the County Council does not hold a record of the width of the byway or its alignment for which she would normally submit a request for a Section 278 Works Order for works within a highway boundary, however, in this case the definitive map needs to be modified first by way of adding information about the width and alignment of the byway so that the Highway Authority can then deal with the Section 278 application for highway works. She stated that the process has already been commenced and a Countryside Access Consultant has been instructed to carry out extensive historical investigations which has resulted in the width of the byway being clarified as being 30ft and this research work will form part of the application for the management order which will reduce the time taken to deal with that order as the research has already been undertaken.

Ms Wood stated that once the order is made, and the byway is clearer, the application for the 278 works can be applied for, with the only risk that she can foresee in the process for the order may result in another landowner coming forward to claim ownership of part of the subsoil and if that happens the applicant will need to purchase that land from them, however, in her view, that is unlikely as she has already served Ownership Certificate C with the planning application which includes sites and press notices. She made the point that if anybody was going to come forward and claim ownership of any unregistered land they would have done so by now and the current owner of the application site is in the process of registering the land adjacent to the byway with the Land Registry.

Ms Wood pointed out that the County Council have been maintaining the byway for a long period of time with nobody claiming the subsoil and the DMMO process has to be carried out but, in her opinion, it is clear that the risks are minimized with the research work having been carried out and, therefore, she is confident that planning permission could be granted with conditions, preventing any works prior to the access being approved under the Section 278 highway process which will ensure that the development will not be constructed or occupied. She added that conditions preventing any works prior to the access being approved under the Section 278 highway process will not be constructed without the proper standard of road being in place.

Members asked Ms Wood the following questions:

·       Councillor Murphy stated that the committee are here to make a decision and from the presentation it would appear that the level of detail is still not available and the DMMO is still to be signed off. He asked why committee should consider the application when the information required is still incomplete or missing? Ms Wood responded that, in her view, the answers have been provided as the process to ensure the highway is able to be provided securely is now clear. She added that there has been a great deal of work which has been undertaken directly with the County Council Rights of Way Officer and the Highway Officer, with the Rights of Way Officer being concerned that the information concerning the byway was missing even though the County Council have been maintaining it for many years. Ms Wood explained that a very large report was completed containing a great deal of historical detail which identified that the byway has been in place since the 1800’s. She stated that the land is not registered which is very often the case in rural areas and the farmer who is selling the land to the applicant is now registering the land as he has been maintaining the land which is not the highway. Ms Wood made the point that in August the committee were content that the land could be utilized for housing but had asked for clarification on the use of the highway which, in her view, has been provided.

·       Councillor Murphy stated that permission for land ownership takes some considerable time as he knows from experience and if the applicant has only just requested for the land to be registered there is at least a two year wait. Ms Wood stated that there are two processes for the registration of land with Land Registry and she does appreciate that they have a backlog which she believes is three months. She explained that the DMMO process is necessary to clarify on the definitive map that the byway is 30ft and that is the process that can take two to three years but the main reason that gets delayed is because the County Council does not have the time to do the research which is the process that takes the longest, hence she commissioned someone to do that research and they have consulted with the Highway Team and potentially it could be a year for the process to be finalised but it could be expedited if planning permission is approved.

·       Councillor Miscandlon expressed the opinion that the application is incomplete and does not contain the information and detail required. He added with regards to Land Registry and ownership in his experience the process can take up to five years and anyone can come forward during that time to put a claim on the land.

·       Councillor Sutton stated that at the meeting in August another member had questioned the level of detail around the Section 106 contributions which, in his opinion, resonated with members, and they may have supported the application. He made the point that he has noted that the over and above the already committed Section 106 contributions, the NHS have now requested £13,222.33 and he asked whether that request was going to have any effect on the provision of the other monies and social housing and will that request be agreed to? Ms Wood stated that there is no option other than to agree to it and she added that if she does not sign up to the Section 106 then the planning permission will not be granted. She added that she is aware of the NHS late response, but it has set out proper planning reasons why that money is required, which is to support the local Health Centre providing actual nursing staff. Councillor Sutton addressed Ms Wood and stated that one member had previously questioned whether she would be coming back with a viability assessment to avoid paying the Section 106 monies and at that time she had categorically stated that would not be the case and he questioned whether that opinion was still current. Ms Wood stated that she has not brought a viability assessment back as the applicant has carried out his viability work and has stated that he will pay an appropriate amount of money for the land should planning permission be granted that reflects his costs of building and all the other associated costs. She added that the applicant has calculated that he can recover money by selling plus the standard amount of profit and that is why she has not brought a viability assessment back. Councillor Sutton asked Ms Wood whether she can guarantee that she will not be submitting one and Ms Wood responded that she cannot guarantee anything but there is nothing to suggest that there needs to be a viability assessment.

·       Councillor Mrs French stated that there have been many instances where applicants state that they are not going to come back with viability, however, they do and especially in the current economic climate with regards to the increase in building costs that really does concern her.

Members asked officers the following questions:

·       Councillor Connor advised the committee that Shane Luck from the Highway Authority is also present to answer members questions and queries.

·       Councillor Mrs French asked the Highway Officer whether he is satisfied with the proposal before the committee or whether he has any concerns? Mr Luck responded that he is satisfied with the design as the applicant is proposing a five-metre carriageway and a 1.8 metre footway, however, he does not have certainty that the highway works are deliverable under highway legislation. Councillor Mrs French asked whether the Public Rights of Way Officer has any thoughts on the proposal? Mr Luck stated that the Public Rights of Way Officer has the same views to his own and he added that based on the report commissioned by the applicant, the views of both himself and the Public Rights of Way Officer is that the width of the highway is probably 30 feet, however, until the time the DMMO is made that is probable and not confirmed and until that is in place there is no certainty on the extent of the byway and the area in which highway works can be carried out.

·       Councillor Sutton stated that he can recall an appeal decision where a planning committee agreed that an application was granted due to the fact that members were content with the detail encompassed in the application as there was some benefit to the town and then subsequently the application came back and at that stage it was refused because the applicant had not provided what had originally been promised. He stated that at appeal stage it was upheld, and asked officers if they recalled the application that he is referring to albeit at another authority? Nick Harding stated that he does not recall that application and appeal and stated that the scenario is not something that is being used to determine the application, it is something that may happen in the future and the application now needs to be determined in its current state. He added that if planning permission is granted subject to a Section 106 Agreement, the agreement is entered into and if the applicant and developer subsequently comes back and asks for a reduction to their Section 106 offer, the Council does have to consider that request and then makes a decision on the evidence provided which is based around viability.

·       Councillor Cornwell asked officers to clarify that today the committee are only considering the highways elements of the application or is the application being considered as a whole? Nick Harding stated that the resolution at the previous committee was to defer the application to obtain greater clarity in respect of the highway proposal and the committee did not agree with the other reasons for refusal that were put forward by officers at that time. He explained that the officer’s presentation today, along with the agent’s presentation, has resulted in alterations of a slight nature to some elements of the scheme and, therefore, the committee are looking at whether the access proposal is acceptable or not. Councillor Cornwell stated that as he was not present at the previous committee when certain elements of the application were discussed he will take no further part in this item or vote on the proposal.

·       Councillor Benney stated that the application was deferred on highway grounds previously and the agent has submitted plans to bring the proposal forward and the Highways Authority have stated in the report that they suggest that the proposal should be deferred for further information. He asked that if the proposal was granted, could there be conditions applied to state that the site can only be built out if the land issue can be resolved and if all the requirements can be met then the scheme can proceed? He added if it gets approval, and the Highway Authority are not happy and the detail or the land ownership does not come forward then the proposal would not be built out anyway as it would not meet the criteria for it to proceed. Nick Harding stated that the officer recommendation is for refusal which includes highway grounds, and the Council should not be granting planning permission for a scheme which might end up being incapable of implementation. He added that it is a principle of the planning system that approval should only be given to developments which are physically capable of implementation.

·       Stephen Turnbull, the Legal Officer, stated that should the committee be minded to grant planning permission today, even if the view is that there is not a strong prospect of the highway’s issues being resolved then the committee can legally do so. He added that the policy is that such permissions should not be granted normally if the views of the committee are that they do not think that the proposal will ever be built out, however, legally there is no reason for the committee not to do so if that is the want of the committee. He added that the applicant has advised that there is a plan of sorts to deal with the highways issues and, therefore, it is legally possible for planning permission to be granted subject to a Grampian type of condition that the highways issues have to be dealt with before the build can commence.

·       Councillor Mrs French stated that the view of the Highways Authority is that they are not convinced that the proposal can be built out which does put the committee in an awkward position. She added that if it were approved and built out and then a situation arises what would happen? She made the point that she has seen it happen in other areas, such as March and Christchurch, where the top layer on a highway is still incomplete after 15 years as the developer went bankrupt and she does not want to see this situation arise again.

·       Councillor Connor stated that he agrees with Councillor Mrs French and made the point that he is very reticent to get the committee to approve the application without the highway issue being satisfied. He asked the Highway Officer to reiterate his opinion. Mr Luck stated that based on the information available at this stage his honest answer is that he does not know because the defined width of the byway has not been provided. He added that any third party works of the highway needs the consent of the Highway Authority and with an extension of byways to carry out any works there is the requirement to know what area of land you have to work within and that is what the DMMO would define. Mr Luck stated that in the absence of that information he does not know whether the highways will be able to enter into such an agreement because he has not seen what the boundaries will end up being.

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

·       Councillor Benney stated that when the application came before the committee previously, he was content with the proposed development being built out and at that time the application was deferred in order that the highways issues and technical details for the scheme could be brought back. He made the point that the level of detail is not complete, and the Highways Officer has stated that he cannot give a definite opinion. Councillor Benney stated that the application could be approved and then there could be issues further along and for that reason he feels that the committee have no option other than to refuse it as it is incomplete, as the agent has not undertaken what they were asked to do. He stated that he can see no other way than to refuse the proposal only on the grounds of access as the information is missing and a determination cannot be made.

·       Councillor Mrs Davis expressed the view that the application is incomplete and incomplete applications should not be coming before the committee to determine. She made the point that if the application is not refused then there is the opportunity for other to submit incomplete applications and that is a waste of everybody’s time.

·       Councillor Mrs French stated that she agrees with the comments made by Councillors Benney and Mrs Davis. She added that a request was made for the Highways Officer to be in attendance which has happened, but she cannot support an application in its current form and not knowing further along in time as to whether the proposal will end up causing issues and concern for the local residents and the Highway Authority and she cannot support it on highway grounds.

·       Councillor Sutton stated that he disagrees and made the point that the agent has listened to the feedback from the previous attendance at committee and has reduced the first dwelling near number 88. He added that the Agent has no control over the process of the DMMO and they have improved the water run off with the new scheme and, in his opinion, the Agent has carried out everything that has been asked of them. Councillor Sutton expressed the opinion that he cannot see any reason as to why the application could not be approved subject to the DMMO process which is ongoing.

·       Councillor Benney stated that he would like officers to give their opinion with regards to the DMMO process.

·       Nick Harding stated that the officer’s recommendation is one of refusal which includes the highway reason for refusal based on the lack of certainty that there is the necessary space available to implement the proposed highway improvements. He added that the Legal Officer has advised the committee that to grant planning permission with a Grampian style condition would not be unlawful and, therefore, it is for members to decide whether they are comfortable with taking a risk of granting planning permission for a scheme that is not implementable or whether the committee refuse the proposal because of the lack of certainty that there is with regards to the amount of space that there is on a public highway to make highway improvements.

Proposed by Councillor Mrs Davis, seconded by Councillor Skoulding and agreed that the application should be REFUSED for refusal reason 3 only of the officer’s recommendation in relation to access.

Members do not support the other recommended reasons for refusal as their position has not changed from when the application was deferred on 24 August 2022.

(Councillors Benney stated that he knows the female occupant of 88 West Street in a professional capacity, but it would not make any difference to his decision making and voting on the application)

(Councillors Benney and Murphy declared, under Paragraph 14 of the Code of Conduct on Planning Matters, that they are members of Chatteris Town Council but take no part in planning matters)

(Councillor Cornwell took no part in the discussion and voting on this item as he was not present when the item had been previously determined by the committee.)