Committee : DEVELOPMENT CONTROL
SUB-COMMITTEE
Date : 25 SEPTEMBER
2006
Title : LAND BOUNDED BY KINGSTON FARM LANE/CADETS WALK/KINGSLEA PARK/BEATRICE
AVENUE, EAST COWES POWER STATION/AGRICULTURAL LAND/SOUTH OF EAST COWES VICS
FOOTBALL GROUND, INCLUDING LAND OFF WHIPPINGHAM ROAD, EAST COWES
REPORT OF DEVELOPMENT TEAM MANAGER IN CONSULTATION WITH
LEGAL SERVICES
P/00563/06 – TCP/18291/D
This application is for outline
consent for 9.9 hectares of residential development; 9.9 hectares of employment
development; managed woodland; nature conservation areas, proposed access road
junction with Whippingham Road and Beatrice Avenue, network of public
footpaths/cycleways, public transport link only to Kingston Road, land bounded
by Kingston Farm Lane/Cadets Walk/Kingslea Park/Beatrice Avenue, East Cowes
Power Station/agricultural land/south of East Cowes Vics Football Ground,
including land off Whippingham Road, East Cowes
1. Purpose
1.1 The purpose of this report is to request members of the
Development Control Sub Committee to reconsider the resolution to refuse
planning permission for development of land at Kingston in the light of legal advice
referred to herein.
2. Background
2.1 Members resolved to refuse the above application at the
Development Control Sub Committee meeting of 11 July 2006 held in the Town Hall
at East Cowes. The decision was
contrary to officer recommendation and the Committee’s proposed reasons for
refusal were that there was overdevelopment of the site, a lack of infrastructure
to support the development, and alternative brownfield sites were available in
the area.
2.2 The proposed development scheme is a resubmission following the
refusal of planning permission in January 2006. The original reasons for refusal were based on insufficient
affordable housing, over development, and green field development in an are
with brownfield opportunities and without adequate links to facilities. This decision is subject to a planning
appeal inquiry scheduled to take place in December 2006.
2.3 The resubmitted scheme sought to address these reasons for
refusal by increasing the affordable housing provision (up to 30%), by
delivering the access road as part of phase 1 (within 18 months), and by
increasing contributions towards public transport provision. A slight reduction in housing unit numbers
is also proposed.
2.4 The reports to members for the meeting of 11 July (overview
report and the Kingston Planning Application) are attached as an Appendix 1. Also attached is a transcript of all
comments made during the public speaking procedures at that meeting addressing
this application. (Appendix 3)
3. Invoking of the Cooling Off Period by Officers
3.1 At the Development Control Sub Committee meeting of 18 July
officers invoked the cooling off period. It was believed that officers would be
unable to sustain the reasons given for refusal at an appeal as they were
contrary to the Isle of Wight Unitary Development Plan, the emerging Island
Plan, and Section 36(6) of the Planning Act 2004. It was proposed that legal advice be brought back to Committee in
September 2006.
3.2 It is acknowledged that Members have expressed concern at the use of the “Cooling off “ period, after the day of the meeting, and that the constitution may not have been adhered to. Officers gave extremely careful consideration to the constitution and at when the Cooling off period could be exercised and whilst this action did cause Members concern, it was not Officers intention to do so. Their only intention was to draw to Members attention their belief that the decision may not be defendable if challenged based on the reasons given, and to give them the opportunity in light of this advice, to further consider the matter.
3.3 It would have been preferable for the cooling of period to have been invoked at the 11 July meeting, as there is concern that the constitution does not allow that process to be invoked after the end of the meeting which determined the application. However, elected members, members of the public and other stakeholders can be reassured that there are two other mechanisms by which the decision could have been brought back before the committee:
- The Monitoring Officer has power to halt the implementation of a decision (through the issuing of a decision notice) in cases of apparent illegality or maladministration.
- s.70(2) Town and Country Planning Act 1990 places a duty on a Local Authority when considering an application, to have regard to all material considerations , enabling a matter to be referred back to committee after a decision has been made (but before a notice has been issued) to reconsider as appropriate.
4. Legal
Advice
4.1
legal advice
has been sought from Counsel who was asked to consider the likelihood of the
proposed reasons for refusal being sustained in the event of an appeal to the
Secretary of State. His conclusions are
that there are strong planning arguments to utilize this particular Greenfield
site. He also concludes that the
concerns relating to density are capable of being controlled by the imposition
of conditions and careful consideration of the design at the reserved matters
stage. They do not, therefore, justify
the refusal of planning permission. The
legal advice is set out in full in Appendix 2 attached to this report.
5. Members’
Proposed Reasons for Refusal
5.1 Legal advice considers
there are strong arguments that justify the use of this greenfield site for
development. Firstly it is in line with
current adopted planning policy and secondly seeks to achieve high priority
aspirations for employment and affordable housing. The legal advice acknowledges that in pure numeric housing terms
the Kingston site may not be required to meet needs for the period to
2011. This is based on current urban
capacity conclusions and the supply of existing planning permissions. However, existing permitted sites and identified
opportunities for increasing urban capacity will not achieve the meeting of
employment and affordable housing needs.
Nor would awaiting the outcome of the new Local Development Framework
(Island Plan) process.
5.2 Legal
advice concludes that it is entirely unrealistic to expect the development of
previously developed land elsewhere to fund provision of new access road to
serve employment land at Kingston.
Application proposes the complete construction of the access road within
an eighteen month period and provides a major enhancement to the attractiveness
of the employment land. A substantial
S106 package has been secured for the contributions towards community
facilities, education and open space enhancement. Given the contributions towards 30% affordable housing, the
provision of the Kingston access road to support employment development and the
support from Highway Officers, the legal advice concludes there is no justified
reason for refusal based on infrastructure.
Density
5.3 The
legal advice outlines a number of issues in the interpretation of Government
guidance addressing density, links to town centres and opportunities for
non-car modes of transport. Having
considered these issues in the light of proposals for Kingston, namely the
density of 55 dwellings per hectare, the distance to East Cowes town centre and
the proposed provision of a new bus route, the advice is that there is no
sustainable objection based on density in the event of an appeal being lodged.
Additional
Advice
5.4 The
legal advice recommends that the condition on density be reworded for it to
allow for an average density of 55 dwellings per hectare across the site as a
whole. It is also recommended that
controls be applied to ensure development delivers a completed access road at
an early stage. This may be in the form
of imposing an additional condition to preclude the occupation of more than a
specified number of dwellings before the completion of the access road.
6. Options and Risk Assessment
6.1
It is
suggested that Members have the following options:
(a)
To reaffirm the
decision to refuse the application as agreed on 11 July 2006;
(b)
to review
and/or modify reasons for refusal;
(c)
to identify
any matters which may require further clarification for determining the
application;
(d)
to grant
planning permission for the proposal.
Option (a) – To Reaffirm the Decision
6.2
Your
officers’ view, and that of the legal advice, is that the reasons for refusal
are not sustainable. If the applicant
appeals against such reasons for refusal, it is officers’ view that they would
not be able to defend them at an appeal enquiry.
6.3
The risk of
an Inquiry taking place is high.
Potential outcomes of this are as follows:
§
The loss of
the ability to determine the planning application locally;
§
the loss of
the ability to apply locally agreed planning conditions and a Section 106
Agreement;
§
the exposure
of the Authority to the high risk of incurring Inquiry costs.
6.4
Paragraph 9 of Circular 8/93 states:
“Planning
Authorities are not bound to adopt, or include as part of their case,
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 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.
Option (b) –
Reviewed or Modified Reasons for Refusal
6.5
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. There will nevertheless be a
high risk of losing an appeal and the Authority incurring considerable
costs. Nevertheless, the higher the
number of reasons found to be unsustainable at an Inquiry, the higher the risk
of costs awarded.
6.6
In effect this would represent a further deferral of the matter. Officers are of the view that there is now
sufficient information either submitted as part of the original planning
applications or subsequently sought, in order for Members to make a
decision.
67. The approval of planning permission would
avoid risks associated with an appeal.
In particular the Isle of Wight Council retains the ability to impose
conditions. There is no risk of costs
awarded against the Council. All
available information submitted and the subsequent advice sought from legal
experts indicates that the development can proceed in a satisfactory and
sustainable manner. Further risks can
be minimized by the use of appropriate conditions as with the securing of a
Section 106 Agreement.
7. Financial
Matters
7.1 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. An appeal has already
been lodged for the original refusal in February 2006.
7.2 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 will need to
engage a solicitor/barrister an expert witness on each of the areas covered by
the refusal. Based on the views
expressed on a 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
appellants costs in Inquiry if a reasonable case has been presented
(irrespective of whether 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.
8. Legal
Issues
8.1
A Planning
Authority should not prevent, inhibit or delay development which could
reasonably be permitted in the light of the Development Plan, so far as it is
material to the application and of other material considerations. 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.
8.2
In the event
that a decision to refuse is ratified, these will be taken forward to the planned
Public Inquiry set up to consider the original refusal of January 2006. The likely outcome based on the resolved
reasons for refusal is for the appeal to be upheld with a high risk of costs
being awarded against the Council. The
Council would also lose control over the application of conditions it could
apply as well as the requirements set out in any Section 106 Agreement.
9. Recommendation
9.1 It is
recommended that the Committee:
(a)
Reconsiders
its decision to refuse the application, and
(b)
approve the
application subject to conditions set out in the attached report.
10. Appendices
Appendix
1 - Reports of 11 July
Appendix
3 - Transcript of meeting
Phil Salmon
Development Team Manager