Agenda item

REPORT OF THE DEVELOPMENT AND CONSERVATION MANAGER

 

Erection of 3 x 3 bedroom dwellings with detached garages, associated car parking spaces and new vehicular access onto Rabley Heath road and ancillary works following demolition of all existing buildings (as amended by drawings received 13/07/2017).

RESOLVED: That application 17/01183/1 be GRANTED planning permission subject to the conditions and reasons as set out in the report of the Development and Conservation Manager.

Erection of 3 x 3 bedroom dwellings with detached garages, associated car parking spaces and new vehicular access onto Rabley Heath road and ancillary works following demolition of all existing buildings (as amended by drawings received 13/07/2017).

 

The Strategic Sites Planning Officer advised that, since writing the report, he had received a further representation from the Waste Services Team which reiterated that they had no objections to the application.

 

The Strategic Sites Planning Officer introduced the report supported by a visual presentation consisting of plans, drawings and photographs of the site.

 

Parish Councillor Mark Ireland, Codicote Parish Council, objecting to the application, thanked the Chairman for the opportunity to address the Committee and advised that he wished to draw attention to three issues regarding this application.

 

The site was in the green belt. The green belt was being eroded and, although the plans indicated a decrease in the space used for the development, it must be recognised that there was a permanence associated with housing as opposed to the current storage. He suggested that this was a significant visual impact.

 

The report stated this was a previously developed site, however there was some ambiguity regarding this definition. As a layman and business man he believed that any ambiguity should be clarified before any decision was taken regarding this site.

 

The last issue was that, as acknowledged by the applicant, the land was contaminated and housing should not be built on contaminated land.

 

Members asked for clarification regarding the comments made relating to ambiguity regarding the designation of previously developed land.

 

Parish Councillor Ireland advised that he had completed some research and there was some ambiguity regarding classification of the site as previously developed, which could be further developed and land that has been used as agricultural land, which was exempt from the presumption towards development. Paragraph 4.3.6 of the report acknowledged that the site had in the past been used for agricultural purposes.

 

The Senior Lawyer advised that there had been a Judicial Review case (Lee Valley Regional Park Authority against Broxbourne Borough Council 2015) that clarified that, if land was mixed use, or was no longer in agricultural use, it could be deemed as previously developed land.

 

The Chairman thanked Parish Councillor Ireland for his presentation.

 

Councillor Steve Hemingway, Member Advocate speaking in objection to the application, thanked the Chairman for the opportunity to address the Committee.

 

Councillor Hemingway advised that he wished specifically address the issue of whether this site could be considered as a brownfield site.

 

The legal case referred to by the Senior Lawyer was not mentioned in the Officer’s report and therefore he had not had the opportunity to consider it.

 

He informed Members that Councillor Jane Gray was not persuaded that the brownfield exemption could be applied to this site in the green belt and all the key arguments were set out on page 17 of the report.

 

Previously developed land did not mean land that had been built upon or occupied by buildings. There was a specific exception to the definition of previously developed land being when the land has been occupied by agricultural buildings.

 

The National Planning Policy Framework stated that “previously developed land is land which is or was occupied by a permanent structure within its curtilage and had fixed surface infrastructure”, but then stated that “this excludes land that is or has been occupied by agricultural buildings.”

 

The buildings on this site were agricultural buildings. They were chicken sheds. They may have been used for other purposes, but they had been used for agricultural purposes.

 

There had been an email exchange between Councillor Gray and the officer in which the officer made reference to the Town and Planning Act 1990, which stated that if land was in continued use for 10 years or more then that use became lawful in planning terms.

 

It did not matter that the land was currently used for industrial purposes did not mean that it did not previously have an agricultural use, which meant that it qualified for the exemption to the previously developed land classification.

 

Councillor Hemingway stated that to rely on a legal case that had not been referred to in the report was bad practice and that the application should be refused so that the Planning Inspector could make a determination as whether this really was acceptable.

 

He had no strong objections to the application itself and he was aware that the neighbours were in favour of the development.

 

The Chairman thanked Councillor Hemingway for his presentation.

 

The Senior Lawyer advised that there was a document from DLA, on the Planning Portal section of the website, that set out the Lee Valley case and gave details of the 10 year usage. This was and had been available for Members to look at.

 

Mr Mark Williams, Applicant’s Agent, thanked the Chairman for the opportunity to address the Committee.

 

Mr Williams advised that he would not reiterate the contents of the officer’s report, but would like to address the comments made by the Parish Council and the District Councillor.

 

In respect of the application being within the green belt, the applicant had undertaken formal pre-application discussions with officers regarding development of this site and he had been advised that the response provided to a Planning Contravention Notice was sufficient to demonstrate that the site was previously developed land.

 

The Planning Contravention Notice response was legally binding and therefore could be taken as proof that the had been used for non-agricultural purposes for a period over  years Furthermore planning permission had been granted to use one of the buildings for industrial purposes.

 

Even if this were not the case, the proposal would result in reductions in footprint and volume of approximately 37 and 47 Percent respectively, which would represent a significant improvement to the openness.

 

In respect of contamination, the NHDC officer had suggested that any contamination on the land could be dealt with satisfactorily by condition and Members were asked to note that the officer's suggested Condition 12 would ensure that any contamination was identified and mitigated prior to occupation.

 

Mr Williams concluded by urging Members to support the officer recommendation to approve the application.

 

Member asked whether the mature planting at the front of the site would be retained or landscaped and whether the existing access would be retained in addition to the new access.

 

Mr Williams advised that, apart from the gap to put in the new access, the intention was to keep as much as possible of the mature planting.

 

In respect of access the existing access to the rear would be retained as well as the new access.

 

The Chairman thanked Mr Williams for his presentation.

 

In respect of the previously developed land classification, the Senior Sites Planning Officer advised that the definition did include the phrase “this excludes land that has been occupied by agricultural buildings.”

 

This could be interpreted in different ways. This had been taken to mean land that had been used for agricultural buildings, but the site had become redundant and there had been no intervening use.

 

At the time of writing the report, he had undertaken a dialogue with Councillor Gray and based on his knowledge of the case law already referred to, he advised that after 10 years development became lawful, which was the case for this site.

 

Since writing the report two legal cases had been bought to his attention as follows:

 

·           Lee Valley Park Authority vs Broxbourne Borough Council 2015 where the Inspector applied a lesser test than he had applied in that he found that land had to be solely agricultural use in order to apply the exemption, rather than mixed use, as in this case.

·           The London Borough of Bromley vs Rookery Estates Company 2016 referred to the Lee Valley case and also found that land of mixed use could be considered previously developed land.

 

He advised that, based on the evidence and bearing in mind that the site had been used for storage and light industrial purposes since the 1990s. This site could be considered as previously developed land.

 

In respect of the visual impact on the green belt, the exception in the National Planning Policy Framework whereby limited infill development could be considered on previously developed land was dependent on there being no greater impact on the openness of the green belt.

 

In this case and as demonstrated in the earlier visual presentation, there was quite a significant reduction in both the footprint and volume of the proposed development when compared to the buildings currently on the site. There was also planting and vegetation that provided screening of the site, which was bounded on both sides by existing residential developments. He considered that the proposed development would provide positive benefits in terms of the impact on the green belt.

 

In respect of contamination, the Strategic Sites Planning Officer had discussed the site with the Council’s Environmental Health Officer who had confirmed that, although there was likely to be contamination of the site due to the industrial uses, this could be addresses by condition.

 

Members asked for clarification regarding the condition that would address any contamination issues and queried whether there was a condition regarding the possible need to remove asbestos from the former chicken sheds.

 

The Strategic Sites Planning Officer advised that Condition 12 required contamination to be identified and to identify how that contamination would be removed and this condition would cover removal of asbestos.

 

Members asked whether site fell within the Codicote Village boundary, queried the special circumstances identified to enable a previous development at Codicote Heights that was in the green belt and asked for clarification regarding who undertook and paid for the bat surveys.

 

The Strategic Sites Planning Officer advised that the site was beyond the village boundary, Codicote Heights had been developed a number of years ago and he was not familiar with the application terms of that development and the bat survey was carried out and paid for by the applicant and this had been submitted with the application.

 

It was proposed, seconded and

 

RESOLVED: That application 17/01183/1 be GRANTED planning permission subject to the conditions and reasons as set out in the report of the Development and Conservation Manager.