PAPER B3

 

REPORT TO DEVELOPMENT CONTROL COMMITTEE –

TUESDAY 29 NOVEMBER 2005

 

 P/00566/04 - TCP/22221/E

Demolition of golf driving range structure, single storey extension to form replacement golf driving range, proposed floodlighting, Westridge Golf Centre, Brading Road, Ryde

 

Officer: Mr S Cornwell, Enforcement Team Leader                          Tel: (01983) 823592

 

Summary

 

To consider a request by the site operator for limited use of the flood lights without complying with the planning condition which requires the installation of an earth bund and landscaping which is to act as a screen along the eastern boundary of the site.

 

This report was considered at the 4 October 2005 Development Control Committee Meeting. At that time Members adopted the following recommendation:

 

“In recognition of the fact that the trees are still carrying their leaves which would not enable a full assessment of the potential impact of operating the lights and secondly in recognition that the nights had not drawn in as much as they would be, to defer consideration of this request until 29 November 2005 Development Control Committee Meeting. Such a deferment would also enable Members individually or collectively to visit the site to assess the degree of impact.  

 

To advise the operator that, until the consideration of this proposal, no enforcement action will be initiated against them on the understanding that the lights are not used after 20.30 hrs. Mondays to Fridays; after 18.30 hrs. Saturdays and at no time on a Sunday”

 

The report outlined below includes an update on the representations received which had been reported through the Late Representations Sheet at the October meeting and includes reference to the Committee Site Inspection which took place on the evening of Tuesday 8 November 2005.

 

Background

 

At the 13 July 2004 Development Control Committee Meeting Members considered a report on a planning application for a redevelopment of the site as outlined above. During the consideration of planning application the impact of operating the lights was noted as a contentious issue.

 

Having considered all the details placed in front of them including a number of representations, Members resolved to grant conditional planning permission and the decision notice was issued dated 16 July 2004. Whilst the replacement of the golf driving range structure, and the single storey extension was given full planning permission the proposed flood light arrangement was only given temporary consent expiring on 31 July 2007. This was to enable the impact to be reviewed at a later date. In addition to other conditions relating to the flood lights conditions 4 and 9 are particularly relevant to the consideration of this report.

 

Condition 4 states “The floodlights hereby approved shall not be operated after 21.00 hrs.”

 

Condition 9 states “No development shall take place until there has been submitted to and approved in writing by the Local Planning Authority a schedule of landscaping and earth mounding to be carried out along the eastern boundaries of the site. Such an agreed scheme to be fully carried out in the first planting season following the commencement of development. Any trees which within a period of 5 years from the completion of development die, are removed or become seriously damaged or diseased shall be replaced in the next planting season with others of similar size and species.”

 

The reason behind both conditions was to protect the amenities of nearby residential properties.

 

In early November 2004 the Local Planning Authority received a complaint alleging that light pollution problems in Seaview were worse than ever following the installation of the new light.  The initial investigation revealed that the details to be agreed had not been submitted as required before the installation of the new lights. The construction of the bund and its planting was required in the first planting season, i.e. by end of March 2005, so initially that part of the condition was not breached. Through November and December 2004 and through January, February and March 2005 the Local Planning Authority was investigating and corresponding with the site operator and a number of interested parties on this matter. In late January 2005 a scheme showing the proposed bund was submitted but this was rejected as it was considered unsatisfactory. In late February 2005 faced with the possibility of action by the Local Planning Authority requiring the lights to be switched off, the operator fitted a number of diffuser screens across the front of the lights which did reduce their impact to some degree. Obviously, the diffusers did not eliminate the direct line of sight of the light from the Nettlestone/Seaview area as this would only be addressed by the installation of the earth bund. In discussion with the operator in early March 2005, it was agreed that if the lights were operated up until 31 March 2005 for a limited time (Mondays to Fridays) up until 2030hrs and not at weekends after 1830 hrs then the Council would not initiate any enforcement action. After this date they would be switched off and not re-used until all the planning conditions were satisfied. On balance, this was considered to be an acceptable solution to what was at that time considered to be short term problem.

 

The final detail with regards to the installation of the bund was submitted on 1 April 2005. The details showed a proposal for a structure approximately 100m long on the eastern boundary with a return 65m long on the south eastern boundary. The bund would range in height from 9.91m at its northern end to 11.29m at its southern end. Information was submitted to show that a structure of this size would obstruct a direct line of sight from the properties in the Nettlestone area of the light units. Obviously, it would not eliminate the halo effect. After clarification on the engineering detail of building such a feature, the submitted details were accepted as partial compliance with the planning condition with the two remaining areas identified as firstly the landscaping details and secondly the issue with regard to the screening to be provided beyond the northern edge of the bund that would protect the amenities of the properties off Bullen Road. For Members information in March the importation of material to form the bund had already commenced in recognition of the magnitude of material that would be required to form an effective screen.

 

The operator adhered to the agreement as specified above.

 

On 15 September 2005 officers were invited to a meeting with the operator and his agent at which time it was confirmed that the new screen bund is only 50% complete and due to general ground conditions, no major progress is likely to be made over the winter months. Accordingly, the operator is requesting that the Local Planning Authority consider allowing him to operate the lights without the earth bund being in place. A letter from the agent makes the following points (summarised) with your officer’s commentary attached.

 

·         The new screening bund is now about 50% complete with materials brought in from sites in and around the Ryde area. It is not cost effective to bring material from beyond Ryde, Sandown and Shanklin due to transport costs – (The Local Planning Authority: cost is not a planning consideration.)

·         Had anticipated a greater supply of material from a number of sites but their development has been delayed – (LPA: this is not a planning consideration.)

·         Material will be run into Westridge while the weather is dry. However, on wet days lorries cannot gain access to the tipping area. Whilst a certain amount of stock piling can take place concerned lorry movements will transfer mud onto the main road outside Tescos creating a traffic hazard – (LPA: the operator can install temporary roadways and/or wheel washes.)

·         Anticipated remaining spoil to be brought into the site from early spring 2006 so that the bund can be completed by late summer 2006 – (LPA: Members will place such weight on this as they consider appropriate in light of progress to date.)

·         Operator accepted if allowed to put the flood lights back on over the dark Winter nights will reduce the number of hours so that Monday to Friday they will be switched off at 20.30 hrs instead of 21.00 hrs and on Saturday and Sunday 18.30 hrs instead of 21.00 hrs. – (LPA: this is a matter for Members to consider.)

·         With the nights drawing in and over the winter customers cannot use the course and turn to the range for golf practice. If the range had no flood lights during the winter time business would suffer considerably and some staff would need to be laid off. Driving ranges in general all over the country rely on risk trade during the winter months to balance out the lack of summer trade – (LPA: this is not a planning consideration and the operator’s business model risk assessment should have allowed for a failure to comply with conditions and service of enforcement proceedings.)

·         Operator confirmed lights would not be used after 31 March 2006

 

A further letter has been received sent from the operator’s agent with a graph depicting the variable times throughout the year when lights are used. These are as follows:

 

In June & July  -  Lights are not required at all.

In August & May - Lights switched on between 2000 hrs and 2100 hrs. Switched off at 2100 hrs

In September & April - Lights switched on between 1900 hrs and 2000 hrs. Switched off at 2100 hrs

In October & March - Lights switched on between 1800 hrs and 1900 hrs. Switched off at 2100 hrs

In November & February - Lights switched on between 1700 hrs & 1800 hrs. Switched off at 2100 hrs

In December & January - Lights switched on between 1600 hrs and 1700 hrs. Switched off at 2100 hrs

 

Following the decision to defer the consideration of this matter at 4 October 2005 Development Control Committee Meeting, Members took the opportunity of undertaking a site visit on the evening of 8 November 2005. At that time Members noted the impact of the lights on the surrounding area by observing them from a number of positions on Eddington Road, Nettlestone Road, Seaview Lane, Nettlestone Hill and Bullen Road. Members also went to the Westridge Golf Centre to familiarise themselves with the situation on the site. It was noted that only four of the five lights were in use that night.

 

Planning Policy Background

 

The following Unitary Development Plan Policies are considered relevant:

 

G10     Potential conflict between proposed development and existing surround uses.

D1       Standards of Design

D14     Light Spillage

 

Circular 11/95 – The Use of Conditions for Planning Permission sets out the six tests for conditions. The principle behind the imposition of any condition is that in considering whether a condition is necessary the authority should ask itself whether planning permission would have been refused if a condition were not imposed.

 

PPG18 – Enforcing Planning Control indicates that local planning authorities have a general discretion to take enforcement action when they regard it as expedient. In making this decision, authorities should be guided by a number of considerations including:

 

·         The commissioner for local administration (the local ombudsman) has held in a number of investigating cases that there is maladministration if the authority fails to take effective enforcement action which was plainly necessary.

 

·         In considering any enforcement action the decisive issue should be whether the breach of control would unacceptably affect public amenity or the existing use of land and buildings meriting protection in the public interest.

 

·         Enforcement action should be commensurate to the breach of planning control to which he relates.

 

PPG18 also advises that authorities should consider the impact of enforcement on small businesses or self employed people. In that context, it encourages negotiations to explore whether a business can be allowed to continue operating acceptably on a site at its current level of activity or perhaps less intensively. Only if a mutually satisfactory compromise cannot be reached, should formal enforcement action be considered.

 

Representations

 

The Authority has undertaken a limited consultation exercise writing to people who commented when the original application was being considered and also to those parties who have contacted the Council since November 2004 expressing concern over the degree of light pollution they have been suffering. A total of six letters of representations have been received.

 

Nettlestone and Seaview Parish Council

 

The Parish Council feels that because of the invasive nature of these lights Condition 9 of the planning consent should be rigidly enforced. The operator has, in their opinion, had adequate time (in effect from July 2004 when planning permission was granted) until now to have completed the bunding and the planting of trees in accordance with Condition 9.

 

The Parish Council notes that the operator states “that due to the lack of material being sourced in the East Wight it has not been possible to finish the bund.” It is quite apparent that insufficient priority has been placed in complying with a very reasonable condition. The applicant should have looked further afield for the necessary material to ensure the completion of the work to prevent further breaches of planning condition. One way to resolve the problem would be to lower the lights.

 

The following points are taken from the five other letters:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

·         Even with lights switched off at 2030 hrs and 1830 hrs sunset evenings will be badly polluted.

 

·         Operator shown total disregard to planning authority and everyone affected by intrusive lights.

 

·         Questionable if he will manage to complete work by 2006.

 

Options

 

 

1.     Not to agree the request to waive the requirement that the earth bund be in position before   the lights are in use and to advise the operator that any such use of the lights will result in enforcement action to ensure that they are not used.

 

2a    To agree to the request by the operator not to enforce compliance with condition 9 of   P/0566/04 – TCP/22221/E on the understanding that the lights are only used with the diffuser screens in place and switched off by 20.30 hrs on Mondays to Fridays inclusive and by 18.30 hrs on Saturdays and not used at all on Sundays. Furthermore that the lights were not used at all after 31 March 2006.

 

2b    That the situation is reviewed in August 2006 which represents the first month when the lights would be used after the summer period.

 

 

Conclusion

 

The condition requiring the installation of the earth bund was imposed to protect the amenities of residents east of site. The nature of the use is such that the lights point horizontally down the driving range and consequently residents in that direction experience the equivalent of facing car headlights head on.

 

The solution that was arrived at over last winter was only considered as a temporary measure for a limited period of time and allowed residents some assurance that the situation would not arise again.  

 

Clearly, the Local Planning Authority must consider the impact of enforcing the condition on any business. However, this has to be balanced against the adverse impact that the lights have on the amenities of local residents. This is clearly a difficult balance to make. Based on the assessment over the last winter the lights will clearly be seen from a number of public vantage points in the Nettlestone area. With regards to the impact from private residential properties, I consider that over the winter months residents would be less likely to use conservatories later into the evening and as the nights close in would be more likely to close their curtains; therefore it could be argued that light pollution invading residential properties would be significantly mitigated.

 

There is nevertheless general concern over light pollution in the wider locality. The deferment of this request from the 4 October 2005 meeting has enabled a fuller assessment of the potential visual impact of allowing the lights to operate over the coming winter months.  

 

The Members assessment took place from a number of vantage points in the Nettlestone area. One consideration to be noted at present is that the lights currently operate with the diffuser screens fitted in front of them. This has reduced the level of light which shines outward. This factor is evident at the golf driving range itself at as the ability to follow the trajectory of a golf ball has been reduced and is now lost at approximately the 170 yard marker. Obviously, once the bund and landscaping is in place the operator will be seeking to remove the diffusers.

 

Members are advised that floodlighting is often an integral part of any golf driving range application, and certainly appears to have been so in the case of this application. There is also the established doctrine that a condition which effectively negates permission is to be regarded as unreasonable (see Circular 11/95, para. 35). In this instance permanent permission was given to the driving range but the lights were restricted to a 3 year period, using the rationale that if found unacceptable no doubt the LPA would then contemplate further restrictions on their use or, in extremis, have them removed altogether given the test of reasonableness set out in Circular 11/95.

 

Concerning the representations received, Members will note the comments and give them the appropriate weight in making their decision. Regarding the attachment of the CPRE letter of 30 January 2005, this has not been outlined as it contains no relevant information relating to the question immediately at hand. The officer’s report provides all the background information that Members need with regard to this matter. Concerning the strip lights that illuminate the booths, they will be screened by the bund.

 

The original planning condition requiring the installation of the earth bund and landscaping was fully justified and served a clear planning purpose. Consequently for this requirement to be set aside would require adequate grounds. Whilst noting the representations received having taken into consideration the information outlined in this report and specifically the installation of the diffusers and the more limited operating hours, it is considered that whilst the lights are in view and do have an impact on the amenities of the surrounding area it is considered that a case can be made to allow the operation of the business as set out in the report without compliance with the condition.

 

In coming to this recommendation consideration has been given to the human rights of the parties concerned. Whilst it is acknowledged that local residents will experience some loss of amenity by virtue of the fact that the lights are operated without the earth bund and landscape screen this is not to the full level of intensity or use and consideration has been given to the impact on the applicants business. Accordingly, the recommendation outline below is considered to be a proportional response to the situation.

 

 

Recommendation

 

2a    To agree to the request by the operator not to enforce compliance with condition 9 of   P/0566/04 – TCP/22221/E on the understanding that the lights are only used with the diffuser screens in place and switched off by 20.30 hrs on Mondays to Fridays inclusive and by 18.30 hrs on Saturdays and not used at all on Sundays. Furthermore that the lights were not used at all after 31 March 2006.

 

2b    That the situation is reviewed in August 2006 which represents the first month when the lights would be used after the summer period.

 

 

 

ANDREW ASHCROFT

Head of Planning Services