PAPER C1

REPORT TO DEVELOPMENT CONTROL SUB-COMMITTEE

Ref No: P/02481/03 – TCP/05746N OUTLINE FOR RESIDENTIAL DEVELOPMENT, PART OS PARCELS 1238, 0135 AND 9052, LAND BETWEEN WEEKS ROAD AND ASHEY ROAD, RYDE

Officer: Mr J Fletcher Tel: (01983) 823552

1. Summary

1.1 Members voted to refuse the above application at the meeting on 29 November 2005. The ‘cooling off’ period was invoked to enable a further report to be placed before Members prior to this decision being ratified. The cooling off period is a procedure within Standing Orders and is designed to give Members an opportunity to examine a decision that your officers consider to be fundamentally flawed and which would present extreme difficulty in defending at any resultant appeal.

1.2 Members’ reasons for wishing the application to be refused can be summarised as follows:-

§ the proposal fails to indicate how sustainable development can be delivered

§ the access off Woodland View onto Ashey Road is unsatisfactory to serve the proposed density of development by reason of unacceptable visibility

§ the application fails to acknowledge that the site is subject of land instability and therefore its development could result in subsidence problems

§ the proposal fails to allay the concerns of the planning authority that the site will not contribute to flooding problems downstream in relation to Monkton Mead brook.

1.3 The report below will advise Members that the above four reasons will need to be fully justified by providing compelling evidence which shouldmust be capable of withstanding robust challenge.

2. Background

2.1 This report needs to be read with the report to the Committee on 29 November 2005 (attached and updated).

2.2 In determining planning applications in a plan-led system the starting point is the adopted development plan. In the case of the Island this is the Unitary Development Plan. All other material planning issues should be balanced within the context of the primacy of the development plan. Decisions should be based on the development plan unless material considerations dictate otherwise.

2.1 Paragraph 9 of Circular No 8./93 states:-Members are not bound to accept officer advice. However, in circumstances where they do not do so Circular 8/93 identifies that Members will be expected to produce reasonable planning grounds for taking such a decision and, where necessary, support this decision at appeal.

2.1

2.1 In this context each and every reason for refusal needs to be capable of being substantiated in its own right. Reasons for refusal should not be included in order to consolidate a more limited number of reasons for refusal.

2.3 Planning authorities are not bound to adopt, or include as part of their case, the professional or technical advice given by their own officers, or received from statutory bodies or consultees. But they will be expected to show that they had reasonable planning grounds for taking a decision contrary to such advice; and they were able to produce relevant evidence to support their decision in all respects. If they fail to do so, costs may be awarded against the authority.

3. Members’ Proposed Reasons for Refusal

Sustainability

3.1 Sustainability is key to the planning process. PPS1 – Delivering Sustainable Communities sets out broad principles on how sustainability is to be delivered through the planning system.

3.2 Sustainability covers a wide range of issues. A key element of sustainability is access to shops, services and other local facilities in respect of new development. The sustainability of the site was assessed through the production of the UDP. The site is adjacent to the built-up area of Ryde and will benefit from the wider range of facilities in the town.

3.3 In order for such a reason for refusal to withstand challenge Members will need to demonstrate and justify why the site is no longer sustainable, and what factors have caused this to be the case.

Access

3.4 Members will recall that the application was deferred at the July 2005 meeting to allow further consideration of detailed information on this issue. Key to this was the scale and nature of traffic on Ashey Road.

3.5 The application is accompanied by detailed information from highway consultants. The methodology used complies with standard practice and shows that the proposed access is acceptable.

3.6 This view is supported by your highway officers.

3.7 In order for such a reason for refusal to withstand challenge Members will need to demonstrate and justify why an exception to the various technical guidance (particularly Design Bulletin 32 – Residential Roads and Footpaths) should be waived in this case.

3.8 Members are advised to give little, if any, weight to the suggestion that on-street parking in Woodland View should be a valid reason to refuse the application. In most cases the houses have two off street parking spaces. Similarly, the existing road is of a satisfactory width to accommodate emergency vehicles.

Land Stability

3.9 Land stability issues can be a material consideration in determining planning applications. PPG14 advises in some detail on this matter.

3.10 The issue has not been fundamental to the determination of previous applications, and the area is not one of the specific parts of the Island where particular measures or restrictions are in place.

3.11 The Building Control Manager has provided the following comments:-

(a) development on sloping sites and those with underlying clay soils is not an unfeasible matter pending appropriate foundation design, and this could adequately be dealt with at the Building Regulation stage.

(b) the use of soakaways in this area will prove unsuitable.

(c) the alternative to soakaways is the use of a suitable drainage system discharging ultimately into the existing infrastructure.

(d) the area in question to be developed is not as far as I am aware an area of known instability.

3.12 Members should also note that 27 houses have already been built on adjoining land, and 16 houses are currently under construction. Similarly the impact of new structure or existing dwellings is a civil rather than a planning matter. In any event properties in Leewood Close and Hazelwood Close are some distance from the site.

3.13 In order for such a reason for refusal to withstand challenge Members would need to be able to demonstrate particular evidence which would indicate that the ground is so unstable as to prevent the safe and practical development of the site.

Flooding

3.14 Flooding and drainage issues are material planning considerations. PPS25 – Development and Flood Risk – sets out key considerations on this matter.

3.15 The application is accompanied by a Flood Risk Assessment in accordance with this guidance. The assessment highlights the balancing pond solution.

3.16 The application is supported by the Environment Agency. Conditions are suggested by the Agency. The Agency also support the linked report on ecological matters.

3.17 In order for such a reason for refusal to withstand challenge Members would need to be able to demonstrate that the development is inherently flawed, and that surface water discharge from development on the site will cause flooding downstream in Monkton Mead brook.

4. Options and Risk Assessment

4.1 It is suggested that Members have the following options:

A. To reaffirm the decision to refuse the application as agreed on 29 November 2005.

B. To review and/or modify as appropriate the four reasons for refusal.

C. To identify any matters which may require clarification/further work before determining the application.

D. To grant planning permission for the proposal.

4.2 The risk assessment associated with each option are as follows:

Option A – Reaffirm Decision

4.3 Your officers’ view is that the four reasons for refusal are not sustainable. If the applicant appeals against such a refusal your officers’ view is that it would not be possible to defend such a case.

4.4 The risk of this eventually occurring is high. Its impact would also be high due to- .

· the loss of the ability to locally determine consent and any conditions

· the Authority could be exposed to enquiry costs of up to £100,000 or more for each party

Option B. Reviewed/modified reasons for refusal.

4.5 Your officers’ view is that none of the proposed reasons for refusal are sustainable. A reduction in the number of reasons would limit and restrict the matters to be debated at any Inquiry.

4.6 The risk of this eventuality occurring is high. Its impact depends largely on the number of reasons for refusal, and their precise terms. The higher the number of reasons found to be unsustainable at any enquiry, the higher the risk of costs award – and the higher the amount of any such award.

Option C. Matters for further clarification

4.7 In effect this would represent a further deferral of the matter. There are several risks with this course of action, including prolonging an eventual decision without a clear timetable, the applicant being unwilling to undertake further work, and the additional work and uncertainty for all concerned.

4.8 The risk of these matters arising from a further deferment are high. Their impact would be relatively low.

Option D. Approve.

4.9 To approve the application would be relatively risk free.avoid the risks associated with appeal. In particular Isle of Wight Council retains the ability to impose conditions. There is no risk of cost award. There is a risk of a development which is regarded locally as unsuitable, albeit on grounds which are difficult to justify as being sustainable. All available information submitted with the application indicates that the development can proceed in a satisfactory manner. Risks can be minimised by the use of appropriate conditions.

2.Further Information form Applicant

2.

2.1Wadham College has indicated that it normally prefers to negotiate planning permission with local authorities and has expressed its disappointment at the decision of the Committee.

2.1

2.1The College is hopeful that Members will reconsider their decision. However it is indicated that should members uphold their decision to refuse planning permissions for the scheme, the College would have no option but to appeal to the Secretary of State. The College would wish for the appeal to be considered by way of formal Public Inquiry and be represented by Leading Counsel. The College have advised that an application for costs will also be made against the Council.

5. Financial Matters

5.1 The principal financial issues stem around the cost of defending any refusal of planning permission at appeal. The information received from the applicant indicates that an appeal would be made.this would be the outcome of such a decision.

5.2 Any Inquiry would have as a minimum one set of costs for the Council presenting its own case and possibly a further range of costs if an Inspector considers the Council’s case to be unreasonable. On the former the Council would need to engage a solicitor/barrister and expert witnesses on each of the areas covered by the refusal. Based on the views expressed on the proposal your officers would not be able to represent the Council at any Inquiry. In any event to do so would conflict with professional codes of conduct. In respect of the latter advice in Circular 8/93 is clear that local planning authorities should not fear incurring the appellant’s costs at Inquiry if a reasonable case has been presented (irrespective of whether a refusal was or was not based on officer advice). If an Inspector concludes that either party has acted unreasonably or cannot properly present a case then an award of costs (partial or full) can be made to the other side. It should be assumed that the appellant would prepare for and attend the Inquiry with a team of professional witnesses based around the reasons for refusal.

6. Legal Issues

Helen/John to conclude.A planning authority should not prevent, inhibit or delay development which could reasonably be permitted in light of the development plan, so far as it is material to the application, and of any other material considerations. (Circular 8/93) Members are obliged to determine planning applications in accordance with the Unitary Development Plan unless material considerations dictate otherwise.

Members attention is drawn to the need for relevant evidence to be produced to support the reasons for refusal in all respects. If this cannot be achieved, there is a clear risk regarding a costs award on any subsequent appeal.

In the event that the decision to refuse is ratified the applicants have already expressed their intention to appeal and confirm that it would be by way of a public enquiry at which the parties would normally be represented by Counsel.

7. Recommendation