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
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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. |
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