REPORT TO DEVELOPMENT CONTROL
COMMITTEE
TUESDAY 1 JUNE 2004
REPORT OF THE HEAD OF PLANNING
SERVICES
& TCP/19342/J Unauthorised
deposit of inert waste at former Brading Golf Course, Carpenters Road, Brading
Officer: G Hepburn Tel: (01983) 823575
Summary
To consider what action is necessary to resolve the breach of planning control following Counsel’s opinion and following a visit to the site of the Development Control Committee on 14 May 2004. Breach of planning control is the depositing of inert waste material without planning permission. In addition give consideration to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.
Originally there were two planning permissions relating to the land known as Brading Golf Course (renamed for clarity as the “original” and the “extension of land”). Subsequently these areas of land were designated as European Sites and both include a Section 106 Agreement limiting residential occupation, access and constructing the course to an International standard.
One of these applications was clearly not implemented (the extension of land) and was sought to be renewed under TCP/19342/J. Despite requests for additional information over the last two years none was forthcoming and the application was finally disposed of under the Town & Country Planning (General Development Procedure) Order 1995, Article 25 (11). It is important to mention this application as it may have allowed some flexibility to the layout of the original site should that original site need to be rearranged.
The information required for the extension of land was complicated as it tied in with the requests for information for the perceived need to review the extant planning permission of the original land under Section 50 of the Conservation (Natural Habitats and c.) Regulations 1994.
This legislation appeared somewhat toothless in that it stated (Section 48)(2)) that the developer should provide information required by the Local Planning Authority (e.g. the drainage regime) but unfortunately there were no powers to enforce this. Thus, despite requests and negotiations no information was forthcoming. Plans and information were promised but to no avail. The Environment Agency and English Nature have been involved throughout. In essence the Environment Agency have given an exemption licence to the deposit of waste required for an extant planning permission.
Finally, because of this impasse Counsel’s opinion was sought and following the review of all files and the developer’s comments it was concluded that the original permission (if accepting that there was a valid permission which he does not conclude on) was implemented and completed very quickly. The records show eighteen holes and greens were completed. The site then went dead for a number of years and approximately four years ago new works were started. The developer acknowledged that the existing golf course (now overgrown) could not be drained adequately for all year use and therefore the existing approval had to be “lifted” in height to obtain better drainage.
Counsel has concluded that the works on site do not represent the former planning permission and are therefore unauthorised. He refers to Section 56(3) of the Habitat Regs;
“Where the Authority ascertain that the carrying out of the development would adversely affect the integrity of the European Site, they nevertheless need not proceed under the Regulations 50 and 51 if and so long as they consider that there is no likelihood of the development being carried out or continued.”
He then concludes that the fact that these unauthorised operations have been undertaken in order to provide a playable golf course is the clearest possible evidence that there is no prospect of the golf course as approved being completed and subsequently used. He advises that the Council may therefore reasonably conclude that there is no need to proceed under the 1994 Regulations because there is no likelihood of that development being continued.
In deciding to take enforcement action and addressing any planning considerations the following policies remain appropriate:
G6 Development In Areas Liable To Flooding
G6 The Council will not permit development
in areas liable to flooding, or inundation from the sea, or where such problems
could arise as a result of the proposed scheme, and will seek to keep such
areas free from development. Where, in
exceptional circumstances, planning permission is granted for development, the
Council shall be satisfied that:
a adequate precautions and measures have
been taken to minimise the risk to life and property;
b adverse effects on adjoining or
associated areas will not be exacerbated;
c there is no increased risk of flooding
elsewhere as a result.
Development in areas liable to flooding will not be permitted if either
the development or the precautionary measures will have an adverse affect on
the ecology of the watercourses and adjoining land associated with them.
C8 Nature Conservation as a Material Consideration
C8 Only in exceptional circumstances will development be permitted if it adversely affects ecologically sensitive areas, protected or endangered species and their habitats. The level of protection afforded to such areas will be related to international, national, or local importance.
C9 Sites of International Importance for Nature Conservation
C9 Development will be permitted where the Council can ensure the protection of features of international importance which have been identified by the designation (or proposed designation) of sites under international conventions and directives. Where overriding public interest leads to development being permitted, compensatory measures to ensure the coherence of the international site will be secured.
C10 Sites of National Importance for Nature Conservation
C10 Development will not be permitted if it would be likely to destroy or adversely affect directly or indirectly a Site of Special Scientific Interest, or National Nature Reserve.
Brading Town Council comment:
“Brading Town Council fully support the Isle of Wight Council’s view that there is no likelihood of the development at Marsh Farm being continued.
The activities being undertaken on the site are extremely detrimental to the visual amenity and an environmental disaster. The work has now been continuing for four years, we still question whether the material being dumped there is inert, this must be having an adverse effect on the adjacent designated sites.
Brading Town Council therefore fully support the Isle of Wight Council’s steps to take enforcement action and would strongly urge that this action is taken with urgency”.
English Nature are taking further advice but appreciate the pragmatic approach although ideally they would like to see the material removed from the flood plain.
Under the Town and Country Planning (Environmental Input Assessment) (England and Wales) Regulations 1999 particularly S25 there is a duty to screen the development before dividing to consider enforcement action. This is currently being undertaken.
Members accompanied by officers recently visited the site following the resolution in January 2004 for a site visit. This had great benefit allowing the magnitude and context of the development with its surrounding area to be assessed, and gain information to that which may be required as part of any enforcement notice.
Members should be aware that under the Habitat Regulation’s requirement to review existing decisions and consents (under Section 50) that once reviewed their decision can lead to; affirm the permission; to modify it; or revoke it. To revoke planning permission would also carry the burden of compensation of which I would estimate that for a scheme of this magnitude would be approximately £2 - £6 million.
Therefore, on site we have an area of land with approximately 1-2 metres of inert waste placed to the west of the existing access road and adjoining the European designated site and SSSI. This development will need to be screened under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 to establish whether it is development requiring an Environmental Impact Assessment.
Counsel’s opinion has brought our attention away from reviewing the perceived extant planning permission to one that there is a breach on site. With hindsight the complicated nature of this development could have been tackled by taking Counsel’s opinion much earlier but the spirit of the Habitat Regulations was to resolve the matter with the developer which we have attempted to do. Rather than dwell on the process leading up to the position we are in today I feel it is important to acknowledge that there is a breach of planning control and also to look forward to a position where we want to end up. I believe it is therefore important to seek an area of land that relates to the surrounding environment that is appropriately landscaped and with minimal visual impact. Therefore, it is important that to get to where we want to go the Enforcement Notice should be tailored appropriately. Arguments can be made that the inert waste should be removed from the site but this should not be driven for punitive reasons. The adjoining sites are very sensitive because of their European designations and accordingly these must be taken into consideration through any enforcement action. I therefore conclude that Counsel’s opinion has given the clarity that we sought and now acts as a basis for this matter to be taken forward and resolved.
Whilst it is accepted that the recommendation to commence enforcement action may interfere with the rights and freedoms of the developer this has to be balanced with the rights and freedoms of others. Insofar as there is an interference with the rights of the developers it is considered necessary for the protection of the rights and freedoms of others. It is also considered that the enforcement action is proportional to the legitimate aim and in the public interest.
ANDREW
ASHCROFT
Head of
Planning Services