PAPER C

 

ISLE OF WIGHT COUNCIL DEVELOPMENT CONTROL COMMITTEE –

12 AUGUST 2003

 

REPORT OF THE STRATEGIC DIRECTOR OF ENVIRONMENT SERVICES

 

TCP/25508/P00628/03                   Continued use of land for motocross; upgrading of track and facilities, land opposite Gore Cemetery, south west of Arreton Cross, Downend Road, Newport

SUMMARY

 

To reconsider decision taken to approve the abovementioned application on a temporary basis in light of representations made by solicitors acting on behalf of an objector.

 

BACKGROUND

 

Members will be familiar with this site and will recall considering the abovementioned application at the meeting held on 10 June 2003. 

 

Although the application was submitted several months ago the decision to report the matter to this Committee attracted a number of late representations which were recorded in the Schedule of Late Representations and an addendum to that schedule. 

 

These late representations included a lengthy and detailed submission from a solicitor acting on behalf of one of the principal objectors to the application who highlighted what he believed to be shortcomings in terms of the processing of the application combined with an expression of his disagreement with the assessment/evaluation and the weighting given to the various policies which had led to a recommendation for temporary conditional planning permission. 

 

Despite the fact that the submission from the objector’s solicitor was not received at Seaclose Offices until 9 June a detailed response was prepared on the following day and faxed to the solicitor prior to the meeting. Notwithstanding this submission and other late representations Members resolved to support the recommendation granting conditional planning permission for a temporary period due to expire on 30 June 2004.  

 

Members will find attached copies of the relevant reports and correspondence referred to above prior to the resolution to grant permission.

 

 

 

 

 

 

 

A decision was taken on the following day (11/6) that the issue of the decision notice should be delayed to enable Officers to further consider the implications of these representations and the most appropriate course for the Council to take as Local Planning Authority. 

 

This short delay allowed the following work to be undertaken:

 

·        To further investigate the views/representations of the objector’s solicitor.

 

·        To enable the Environmental Health Officer to clarify, in more detail, his position on the application and his support for a temporary planning permission.

 

·        To review conditions in accordance with the advice given in Circular 11/95 addressing, where necessary, the points raised by the objector’s solicitor.

 

The objector’s solicitor was kept informed and he confirmed that he would use the opportunity to seek advice from Counsel about the possibility of challenging the decision to grant permission. 

 

In response to a specific request the Environmental Health Officer promptly made further representations in a memorandum supported the verbal advice he had already given at the meeting.

 

The proposed conditions of the temporary approval have been fully reviewed and a revised schedule is attached to this report as Appendix F.

 

Two weeks after the resolution by this Committee the objector’s solicitor was advised by the Development Control Manager that the Council were not prepared to wait indefinitely to learn from him as to whether there was to be a legal challenge to the resolution and that, in his view, when giving appropriate weight to the decision taken by the Development Control Committee, there was not sufficient justification for the ongoing delay in issuing the decision notice particularly as we had completed our investigations outlined above.

 

The objector’s solicitor claimed that this conflicted with the undertaking that he had received from the Head of Planning Services and wrote to the Chief Executive Officer alleging that HOPS had reneged on the understanding and agreement that had been reached and, his view, that the permission must not be issued until after the 29 June which as Members know, was the date of the national event on the site, since, for one reason, in his opinion, the scheduled activity was likely to result in a statutory nuisance. 

 

The Planning Solicitor (Mrs Kirkman) responded on this particular issue advising the solicitor that she was satisfied the Council had fulfilled their part of an undertaking to review, clarify and seek further information and that we were now ready to issue the decision notice.  She advised that it was intended to issue the decision notice on the afternoon of 27 June 2003. 

 

At the same time formal notification was received from different solicitors acting on behalf of the same objector(s) that under the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000 they were requesting certain information to assist them with advice that they were giving to their client in relation to a potential judicial review of the decision.           

 

It further transpired that the objector’s solicitor had also submitted a written request to Government Office requesting the First Secretary of State (ODPM) to exercise his powers and “call-in” the application.  A copy of the Government Office response (Appendix G),  copied to the Council, advised that the Secretary of State had concluded that there was not sufficient conflict in this case with national policies, or other sufficient reason, to warrant calling-in the application for his own determination; the decision as to whether grant planning permission would remain with the Council.

 

On the afternoon of 27 June a letter (Appendix H) was received from the objector’s other solicitors by fax to the effect that they had been advised by their Counsel in strong terms “that the Council’s decision to grant planning permission is unlawful on a number of grounds.”  The subject area of their grounds can be summarised as follows:

 

·        Failure to heed advice from Environmental Health Officer, Ecology Officer and AONB Officer

 

·        The duty of the Council, as the Local Planning Authority, under Section 54A of the Town and Country Planning Act 1990

 

·        The view that this should have been treated as a departure application

 

·        Duty imposed by Listed Buildings and Conservation Areas Act 1991 and PPG15 (Planning and the Historic Environment)

 

·        Failure to consider crime and disorder implications

 

·        Misdirection of Members in terms of Human Rights

 

·        The former use of the land under “permitted development” rights and the possibility of an Article 4 Direction

 

·        Failure to consider the need for an Environmental Impact Assessment

 

·        Enforceability of proposed conditions

 

·        Failure to properly address matters of highway safety

 

·        Failure to consider consequential noise/disturbance from ancillary uses on the land related to the motocross

 

·        Incompatibility of the decision to grant temporary planning permission with the advice contained in Circular 11/95

 

The penultimate paragraph of the letter states:

 

In the light of the above a decision to issue a notice of planning permission would be unlawful.  The matter should be taken back to Members for a full reconsideration.  If you issue the planning permission we will commence proceedings for judicial review.  We also reserve the right to claim damages for the Council’s breach of its statutory duties and damages under the Human Rights Act 1998.

 

Notwithstanding any initial views on the nature and substance of this challenge a decision was taken, following advice from Counsel, that the circumstances warranted reconsideration of the application and on that basis it was decided not to issue the decision notice.

 

In the event, the decision notice and relevant papers having been prepared in advance, an Officer inadvertently without the appropriate authorisation delivered the decision notice to a member of the Motocross Club on site.  The recipient was immediately advised that the premature issue was erroneous and was provided with a letter of explanation to that effect.  The decision letter and related paperwork was subsequently recovered from the Motocross Club who have indicated that they understand the situation and accept that at this moment in time they do not have the benefit of an extant permission.

 

Counsel advising the objector’s solicitor has taken the view that there is an extant permission whereas Counsel advising the Authority, in possession of all the relevant facts, holds a significantly different view to the effect that there is not an extant permission and that the Council is in a position to reconsider the application which should accord with the wishes of the objector and his Solicitors.

 

As Members know, the national event did take place on 29 June (Sunday).

 

The second part of the recommendation in the report submitted to Members included a commitment to monitor the use when it was taking place on site.  On the basis of the developments outlined in this report, it was clearly imperative that the event should be properly monitored by both Planning Officers and Environmental Health Officers.

 

The Development Control Manager accompanied by an Enforcement Officer visited the site and the immediate locality, including the vicinity around the White Lion Public House, Arreton Barns (and Dairyman’s Daughter), residential properties to the rear of the public house and Arreton Church, the access off Downend Road to Arreton Manor and Burnt House Lane during the event.  He then prepared a detailed monitoring note which is attached to this report as Appendix J.  Members are asked to note that this report was prepared using contemporaneous notes and included the following observation:

 

From various vantage points in the proximity of the White Lion Public House and Arreton Church and The Barns, it will be reasonable to say that the motocross (and public address) was virtually inaudible, and at times, inaudible against a background of traffic noise using the A3056.  While it is appreciated that the wind direction on the day favoured the promoters/supporters of the use, as opposed to the objectors, it is my view that the activity at Arreton

 

 

Cross over a four or five hour period of practising/events caused no disamenity to owner/occupiers of residential properties at the northern end of the village.

 

This statement now includes a minor amendment when compared with the original note designed to better clarify the observations.

 

Members may wish to compare these findings with the views expressed by the objector who submitted his own written account (Appendix K) a few days later.

 

Members will recall that the matter was reported back to the meeting held on 1 July 2003 when it was decided that there was no wish to see any enforcement action taken against the motocross club should they hold further scheduled local events on the site in advance of the issue of the decision notice providing the matter is resolved within a reasonable timescale.

 

Our Counsel, furnished with various documents (including a copy of the Unitary Development Plan), reports, correspondence etc has now offered formal advice on the challenge lodged with us by the objector’s solicitor which has enabled the Development Control Manager to prepare this detailed report to facilitate reconsideration of the application.

 

EVALUATION

 

This assessment deals virtually exclusively with the various issues raised by the objector’s solicitors and consequently falls short of an overall comprehensive evaluation of the merits or otherwise of the application.  On this basis, Members will appreciate that the report needs to be read in conjunction with the original report (10/6) in forming a view on whether the Committee should adhere to the decision taken several weeks ago or, in light of issues raised by the objector’s solicitors, wish to change that decision for reasons/grounds to be specified; this would include refusing permission.  Notwithstanding this advice Members will appreciate that this report represents the latest most up to date assessment of the application focussing on the numerous detailed aspects identified as shortcomings by the objector’s solicitors in correspondence which has taken place over the last two months; consequently it should be given maximum weight in the determination of the application.  

 

The evaluation of the various issues has been prepared following consultation with the Head of Planning Services and the Planning Solicitor following the receipt of advice from Counsel.

 

Our Counsel advises that he feels the application should be considered on four specific matters:

 

·        Precise clarification on the position adopted by the Environmental Health Officer

 

·        Identification and weighting of applicable policies in the Unitary Development Plan (including the issue over whether the matter should have been treated as a departure application)

 

·        Need to review advice given on the matter of Human Rights.

 

·        The need to show that the need, or otherwise, for an Environmental Impact Assessment (EIA) has been properly considered

 

We concur with the further view of Counsel that, notwithstanding his advice relating to just four specific issues, that attention should be given to all matters arising from the letter from the objector’s solicitor (27/6) and that this should include appropriate consideration of powers available to the Council under Article 4 of the GPDO 1995 restricting “permitted development” rights, and the desirability of obtaining some kind of qualified comment or observation on crime and disorder issues before determining the application.

 

In addition to the points raised by Counsel, the Planning Solicitor has asked that certain issues be included in conjunction with advice to Members reading this report and the various appendices.

 

·           Issues were raised by objectors prior to the initial consideration of this application about the name of the applicant and whether an application which stated Vectis Motocross Club as the applicants should be dealt with as a valid submission.  Legal advice was taken on this particular point and the motocross club were told to put forward an individual as the applicant, as opposed to the club.

 

My understanding is that this issue has been addressed and the matter has been rectified although the earlier report (10/6) still showed Vectis Motocross Club as the applicants since it had been prepared, printed and published prior to this matter being resolved.

 

·           The need to obtain a comment/observation from the Crime and Disorder Manager.

 

·           The importance of the matter and the need for Members to read the report and all the appendices which have been carefully selected to ensure that Members are comprehensively informed and that the information is balanced and includes submissions made by the objector’s solicitors in their entirety, as opposed to summary or selective reference.

 

·           Members must balance all the issues contained in this report and should not allow the decision taken on 10/6 to fetter their discretion; effectively requiring the Committee to consider the application afresh.

 

The Environmental Health Manager and the Crime and Disorder Manager have been formally requested to respond on the abovementioned points.

 

It is my intention to address the individual issues and subject areas as set out in the letter from the solicitor and summarised on page C3 of this report.

 

Failure to heed advice from Environmental Health Officer, Ecology Officer and AONB Officer

 

The observations made by the solicitors on the position taken by the Environmental Health Officer, clearly relate to the information contained in the EHO’s memorandum of 28 May 2003.  It is reasonable to say that the comments were ambiguous and the EHO has since clarified his position, both verbally at the meeting on 10 June and in a further memorandum dated 19 June 2003, in which he said:

 

…., the conditions imposed significantly limit this impact to a total of only 24 days per annum, and therefore whilst still having the potential to have a detrimental impact, would recommend that conditional approval be given for a period of twelve months to allow monitoring to be undertaken to full evaluate and quantify the impact on the neighbouring residential premises.

 

The Environmental Health Officer supports various amendments and additions to conditions made by the Development Control Manager under delegated powers, post resolution by this Committee.  A formal request was made to the Environmental Health Manager to give further comments in support of their view that the activity should be judged over a twelve month trial period as well as incorporating a detailed observation arising from the monitoring of this national event (29/6).  His comments are attached as Appendix L and should be read in conjunction with Appendices J and K (Monitoring Report of D C Manager and latest representations from objector).

 

The Ecology Officer indicated concerns about the nature of this type of recreational use in the countryside and while inferring that this is not an ideal situation, he nevertheless advocated that certain conditions should be imposed on any approval to protect the flora/fauna in the vicinity of the site.  The view now held is that with the completion of the engineering works and the very restricted use of the site there is not a sustainable argument for withholding permission on ecology grounds.  However, the Ecology Officer has adopted the following position:

 

In the event of an application for full planning permission coming forward, I would anticipate the opportunity to impose conditions could be addressed at that time.  This would enable the impacts on nature conservation interests to be minimised.

 

It is assumed that the comments in respect of the observations made by the AONB Officer are based on his initial response and did not include knowledge, and consequently any reference to, further representations which fundamentally relate to the unauthorised engineering works undertaken on site prior to the national event.  He clarifies his opposition to the application, based on his understanding, that any use of the site should be limited to a formalisation of “permitted development rights, specifically fourteen days,” with an additional requirement to landscape the new engineering works to limit their impact on the landscape of the designated area.

 

Due regard and appropriate weight is always given to comments made by the AONB Officer but recognition must be given to the fact that the site is not within the designated AONB, and therefore a strict interpretation suggests that the application of policy C2 (Areas of Outstanding Natural Beauty) should not be applied in this particular case.  On this basis, in our view, the “AONB objection” is not sustainable.  The visual impact of the engineering works carried out on the site are now complete and, with the passage of time, “softened” by weathering and natural regrowth and in the event that full planning permission is forthcoming, is likely to be enhanced landscaping/planting by imposition of conditions.  In assessing the merits of the application, considerable weight has been given to the need for environmental/landscape protection, but it is necessary that Development Control Officers, as part of the overall process, set this against the socio/economic benefits arising from this type of recreational use, to the advantages and opportunities for tourism and, importantly, the advice given in the UDP in support of Policy L9 (Noisy Sports).

 

Should an application come forward for full planning permission on this site the AONB Officer will be consulted not only about this site but other possible alternative sites which will be brought forward as part of the overall consideration prior to any decision being taken to grant planning permission.

 

Solicitors on behalf of the objector claim that the advice given by these consultees made it “clear that the proposal has an unacceptable noise impact on neighbouring dwellings”.  This is not correct.  The additional information provided by the Environmental Health Officer in connection with further explanatory observations from the Environmental Health Manager including results from the recent monitoring exercise support the view that the approach outlined in the Officer’s report, in terms of temporal controls and a temporary planning permission for a twelve month period, is reasonable; a view supported by this Committee two months ago.

 

The duty of the Council, as the Local Planning Authority, under Section 54A of the Town and Country Planning Act 1990

 

All members of the Development Control Committee (including deputies), as well as other members, through their training, should be fully aware of the implications of Section 54A and the need to apply (approved) policy as a primary consideration and determine, in accordance with policy, unless material considerations indicate otherwise.  On this issue, in a case heard by the Court of Appeal in 1998 a particular observation was recorded which, in my view, is applicable to this case. 

 

The purpose of (Section 54A) is to try and obtain some sort of consistency and long-term objectives out of the planning process.  However, in many cases, … each side of the argument will be able to cite different policies in the same or different plans in support of their contentions.  In many cases the relevant policies will contain within themselves valued judgements upon which reasonable persons may differ ….

 

Our Counsel advises that if there can be properly said to be planned policies pointing both ways, there is no question of the application not being in accordance with the Development Plan simply because the balance is struck in favour of approval.

 

The relevant policies to be applied in connection with this application were highlighted in the Officer’s report.  The policies referred to are C1, C2, C11, L2 and L9.  Inevitably, this cannot be an exhaustive list and there will be other policies which, in part, or indirectly, will relate to this particular (or type of) development, and it is the responsibility of both Officers and Members to satisfy themselves that they concur with the view that the most relevant policies have been properly considered.  With the benefit of hindsight, in our view,  policies G5 and P5 should also have been included, although in our opinion, would have been unlikely to affect the outcome; indeed, our interpretation would be that they would largely support the adopted approach. 

 

The contention by the objector’s solicitors that the application was “plainly in breach of the development plan policies” is not accepted and to illustrate that point it is our view that they have given insufficient weight to the application of policy L9 and socio/economic benefits for the whole community of making provision for this kind of sport/recreation/tourist attraction on the Island, which by definition has to be located in the rural location.  This site is not as sensitive (if there is such a term) as many other possible locations throughout the Island of which approximately 55% or more of the overall area is designated AONB.  It also seems doubtful whether the solicitors acting on behalf of the objector are aware, or were aware, that this site has been used for a considerable period of time for motocross purposes in accordance with the fourteen day “permitted development” rights without any recorded objections; this is a material consideration.

 

On reflection and following advice from Counsel the following policies have been identified as being the most relevant to the determination of this application.

 

Planning Policy Guidance Notes (PPGs)

 

·        PPG1            General Policy and Principles (1997)

 

·        PPG7             The Countryside: Environmental Quality and Economic and Social  Development (1997)

 

·        PPG15           Planning and the Historic Environment (1994)

 

·        PPG17           Planning for Open Space (Sport and Recreation) (2002)

 

·        PPG18           Enforcing Planning Control (1991)

 

·        PPG24           Planning and Noise (1994)

 

Unitary Development Plan (Strategic Policies)

 

·        S4       The countryside will be protected from inappropriate development.

 

·        S5        Proposals for development which on balance, will be for the overall benefit of the Island, by enhancing the economic, social or environmental position will be approved, providing any adverse impacts can be ameliorated.

 

Unitary Development Plan (Local Policies)

 

·        G5       Development Outside Defined Settlements

 

·        B2       Setting of Listed Buildings

 

·        B6       Protection and Enhancement of Conservation Areas

 

·        T2        Tourism Related Development (other than accommodation)

 

·        T11     Special Events or Festival Sites

 

·        C1       Protection of Landscape Character

 

·        C2       Areas of Outstanding Natural Beauty

 

·        P5       Reducing the Impact of Noise

 

·        TR7     Highway considerations for new development

 

·        L2        Formal Recreation Provision

 

·        L9        Noisy Sports

 

In an attempt to provide Members with as detailed analysis as possible copies of the relevant local policies have been attached to this report as Appendix M.

 

In terms of PPG1 Members may find the following advice quite familiar but helpful.

 

Members of the Local Planning Authority are elected to represent the interests of the whole community in planning matters.  When determining planning applications they must take into account any relevant views on planning matters expressed by neighbouring occupiers, local residents and any other third parties along with all other material considerations.  However, local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless that opposition or support is founded upon valid planning reasons which can be substantiated.

 

Detailed advice contained in PPG7 on areas designated AONB would appear to only make reference to those areas which are actually designated as opposed to tracts of countryside which are adjacent to a designated area or visible from a designated area.  Guidance on the accommodation of sports/recreation within the countryside fails to focus on this particular type of activity despite the fact that, by definition, such a facility has to be provided in a rural area.

 

In terms of PPG15 the application, in accordance with procedure, was advertised as development adjacent to a designated Conservation Area (Arreton).  The designation, which was made twenty years ago, in our view, was largely devised to protect the predominantly rural character of the land just outside the village from inappropriate development which could harm the unique character of this part of Arreton.

 

In terms of any effect on the setting of a listed building, such as Arreton Manor, Members are invited to consider the distance between the site and the building and the visibility, as opposed to visual impact, of the activity from the listed building and its curtilage or grounds.  In the context of any undesirable effect on the setting of this particular building, or other listed buildings in the village, Members should give regard to distance, topography and the nature of the use inasmuch as it is will be restricted to a limited number of occasions for a temporary period of less than one year.  The conclusion is that any effect arising from the development of the motocross track on any listed buildings in the immediate locality is negligible.  On registration and initial processing of the application Officers gave due regard to this particular issue as one of a number of aspects that needed to be taken into account and had a view been taken that the development in the use of this land as a motocross track was likely to effect the setting of a listed building then we would have carried out the necessary consultations and made specific reference to the issue as a material consideration in the report to this Committee.

 

It may assist Members in their deliberations if further clarification is given in terms of any likely effect on the setting of the designated Conservation Area.  There is no statutory provision for the setting of a Conservation Area to be considered under Section 72 of the Planning (Listed Buildings and Conservation Areas) Acts 1990 it is quite specifically stated that the general duties of the planning authorities apply “with respect to buildings and other land in a conservation area.  However, PPG15 at para.414 states “the desirability of preserving or enhancing the area should also, in the Secretary of State’s view, be a material consideration in the planning authority’s handling of development proposals which are outside the conservation area but would affect its setting, or views into or out of the area”.  On closer examination Development Control Practice, which is a regularly updated manual used by practitioners throughout the country, comments on the setting of conservation areas in the following terms.

 

Situations may often arise, particularly in the case of villages and smaller towns which form a cohesive designated conservation area, where planning control may be used to preserve a free standing or open setting which is an important component of their character.  Sometimes such open land may be included in the designation itself, although this may be a matter of contention

 

This commentary could easily be applied to the seemingly oversized designated area for Arreton which includes a substantial expanse of land around what would be viewed as the “core” of the original settlement around Arreton Manor, St George’s Church and The White Lion public house.  The view is that the inclusion of these fields within the designated area, in all probability, was because they help to maintain the setting of the original settlement as well as being used as an additional “tool” for resisting further development within the vicinity of the settlement,  that may detract from the various views into and out of the settlement.  While parts of the motocross track may be visible at some distance from various vantage points within the designated area, in practice it has a very minimal impact on the setting of the conservation area and although this should have been taken on board and reported as a material consideration it is considered that it would only be given minimal weight and would be extremely unlikely to form the basis of any reason for withholding planning permission.

 

General advice given in PPG24 (Noise) appears in paragraph 11 where it is indicated that “the impact of noise from sport, recreation and entertainment would depend to a large extent on frequency of use and the design of facilities.  Although this represents the most basic  advice on what can be a very complex issue it is considered that the reference to the extent of the frequency of use is relevant to this particular case.

 

In paragraph 23 attention is drawn to additional statutory powers to control noise outside the planning system such as Part III of the Environmental Protection Act 1990 as amended by the Noise and Statutory Nuisance Act 1993, which requires “local authorities to serve Abatement Notices where the noise emitted from  constitutes a statutory nuisance.”  On this particular point Members should refer to the latest observations of the Environmental Health Manager (Appendix L).

 

The most pertinent advice appears in paragraph 22 of Annex 3 which deals with detailed guidance on the assessment of noise from different sources and states:

 

For these activities (which include open air pop concerts), a local planning authority will have to take account of how frequently the noise will be generated and how disturbing it will be, and balance the enjoyment of the participants against nuisance to other people.  Partially open buildings such as stadia may not be in frequent use.  Depending on local circumstances and public opinion, local planning authorities may consider it reasonable to permit higher noise emission levels than they would from industrial development, subject to a limit on the hours of use, and the control of noise emissions (including public address systems) during unsocial hours …

 

We would submit that the approach adopted by the Council in this particular case, in combination with the monitoring exercises to date, is in accordance with the guidance contained in PPG24.

 

Policy G5 identifies that this type of development is appropriate to the countryside in combination with the requirement for a rural location.  The criteria set out in the policy which would render development unacceptable should be applied to this application.  Views relevant to this criteria can be summarised in the following terms:

 

·        It is understood that this site is not high quality agricultural land.

 

·        In visual terms, the starkness of the recent engineering works has harmed the landscape, but the obtrusiveness of the topographical changes will “soften” with the passage of time and can be addressed by landscaping/planting or restoration at a later date.

 

·        Any ecological impact has been referred to in the earlier part of this report.  There are no SINCs on the application site.

 

·        Any (adverse) effect on the historic environment and listed buildings in the nearby village has been referred to in the earlier part of this report.

 

·        The development enhances the value of the countryside as a sporting/recreational resource.

 

·        Visibility of a small part of the site from relatively distant residential properties is a factor, but does not necessarily mean that there is significant harm to their visual amenity.

 

In terms of the visual effect on the landscape of this former agricultural land it is clear that the harshness and unusual features of the recent engineering works has been harmful and failed to enhance the local environment but this is a factor which has to be balanced against other policy considerations.  These would include the temporary nature of the proposed planning permission, the draft conditions and the potential to enhance the area by landscaping/planting in the event of the land becoming a permanent site for motocross or returning to agricultural use or possibly another use appropriate to a rural area.

 

The reasons advanced above, in dealing with policy G5, are clearly relevant to policy considerations under B2 and B6 and, as such, any conflict with objectives designed to protect and enhance the built environment, including the setting of the village, should only be given very limited weight because of the distance and the occasional use of the site.  These issues have been covered in the detailed analysis of the implications of PPG15 earlier in this report.

 

Policy T2 refers to proposals for sporting facilities but is clearly addressing activities which could potentially become a tourist attraction preferably throughout the year.  While this may not be entirely applicable to the use of this site for motocross, there is little doubt that the recent event attracted very substantial numbers of Island residents and visitors and inevitably this must have had a beneficial effect on the local economy if only over a relatively short weekend period.

 

The intention of policy T11 is to allow for the consideration of the use of land for various events at venues throughout the Island.  The Council is of the view that small scale venues for a variety of events is appropriate but when considering whether an area is suitable to host an event(s) full consideration will be given to environmental matters and the need to divert pressure away from more sensitive locations.  Once again there is criteria to be applied and in this context Members may find the following brief observations helpful.

 

·        The site is outside the designated AONB and due to the occasional nature of the use is unlikely to have a serious detrimental effect on the ecology of the area.

 

·        On the basis of the information available to the Council a determination has to be made as to whether the effect on any nearby residential properties by way of noise generation represents a “significant impact”.

 

·        It is clear that this site has the benefit of a good access by way of a classified road with the benefit of extensive on-site parking facilities, when required.

 

The application of this criteria would seem to suggest, once again, that while there might be some initial short-term reduction in the quality of the landscape in the immediate area this is unlikely to be long-term since the site will be landscaped/planted or returned to agricultural/other use next year.

 

Consequently when giving appropriate weight to policy C1 it is apparent that the visual impact and, to a lesser extent because of occasional use (potential for noise), the laying out of the track fails to “maintain and protect the landscape” and therefore, although it has a beneficial effect on the rural economy, or is likely to have a beneficial effect, it could be argued that the continued use is in conflict with this particular policy.  It is important to qualify this view by pointing out that any visual damage arising from the recently completed engineering works is presently having the greatest impact since the passage of time with, or without, landscaping/planting/screening is likely to mitigate against and reduce the more undesirable aspects of this change to the local landscape. 

 

Notwithstanding the comments of the AONB Officer and solicitors acting on behalf of the objector, it is apparent that policy C2 quite specifically relates to sites within areas designated as AONB.  Of course it is necessary to give appropriate weight to any visual effect on specially designated areas from outside those areas, but in this case advice is that the policy is not strictly applicable and therefore consideration in connection with this particular aspect should focus through other legislation and policies which include aims and objectives designed to maintain and protect the rural landscape.  In this context, it is important that due regard is given to the general duty of care in areas designated as AONB as set out in Section 85 (1) of Countryside and Rights of Way 2000 which states

 

In exercising or performing any functions in relation to, or so as to affect, land in an area of outstanding natural beauty a relevant authority shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty. 

 

This section was brought into force relatively recently on April 1st 2001.  The view is that the proposed grant of temporary planning permission does not compromise the position of the Council in terms of exercising its duty of care since the proposal is a short term planning permission designed to enable monitoring to take place to assist in the formulation of a more accurate assessment of the merits of the application.  The site is not within the AONB and although it is adjacent to the designated AONB and visible from designated parts of the surrounding countryside the present level of visual intrusion does not represent, at this stage, permanent development; and the use, in terms of potential noise pollution impacting on the quality of the environment, is quite drastically restricted by temporal controls.

 

The planning system has the task of guiding development to the most appropriate locations.  It is important that new development which has the potential to create a noise nuisance should be separated from existing noise sensitive activities or that adequate and practical controls are put in place to reduce noise levels by insulation, screening, design, layout or operational controls.  The relevant policy P5 refers to “mitigating measures” which may become conditions of approval.  In this case the nearest residential properties are a considerable distance away from the centre of the activity and it is necessary for the Council to determine whether the occasional use of this site for a maximum of twenty-four days in a twelve month period, at a specific time of day, for a limited number of hours, is likely to have an adverse impact on the occupants of these properties to a point which would justify refusing planning permission. 

 

The latest information that we have at our disposal arising from the monitoring of the national event would seem to suggest that the activity was virtually inaudible from a number of residential properties due east of the site because of distance, wind direction and background noise of vehicular traffic using the classified road, while in other locations although the motor cycle engines and public address system, which will not be used for local events, could be heard it would be difficult to argue that the effect amounted to a loss of residential amenity sufficient to justify refusing the application or, even, further restricting the use in terms of number of days/period etc.

 

In accordance with the advice given in P5 mitigating measures in the form of temporal controls have already been suggested in terms of the proposed conditions and despite the fact that there is currently not an extant permission the applicants have carefully sought to comply  leading up to, during and after the aforementioned event.  Further investigation at a later date by negotiating a repositioned track layout and landscaping/planting will be a likely option.  Having analysed the latest comments of the Environmental Health Manager he shares this view.

 

Highway Engineer considers that the applicants have complied with his requirements in terms of the provision of access to the site and car parking facilities and it is understood that on the day of the national event, effectively the “worst case scenario”, that there were no problems associated with traffic congestion/safety.  Furthermore it is apparent that the use of the site does not infringe on the public use of the byway; any possibility of inappropriate use was controlled by the provision of fencing around the perimeter of the site.

 

On the basis that formal sports are best defined as those activities requiring facilities such as laid out pitches or grounds, i.e. football, squash, cricket, golf, etc it is debatable, in my view, despite the need for a track, whether policy L2 is applicable to this particular application.

 

However, it is very apparent that the interpretation and application of policy L9 (Noisy Sports) is relevant to the determination of this application and, in that respect, the application of the three criteria is a significantly important factor in the determination.  To further demonstrate the importance of this particular issue Members are referred to paragraph 17.18. of the explanatory text contained in the UDP supporting this particular policy where it states:-

 

If a suitable site could be found, conditions could be imposed to regulate the use.  There is a need to find acceptable sites for noisy sports such as speedway, motocross, shooting and waterborne activities which would then allow more stringent policies to be applied in other countryside areas.  If a site is not identified it is likely that the Island will continue to accept such activities to take place in potentially sensitive areas under the fourteen day rule.  This could potentially create more problems if allowed to continue in an uncontrolled way and the identification of acceptable sites may lead to the alleviation of noise and environmental disruption.

 

This section of the explanatory text concludes by indicating that sites of (former) mineral workings may be the preferred choice for noisy sports as they are likely to do little additional harm to the landscape and reduce noise nuisance by their location and features.  Members will recall that the Motocross Club have been using Knighton Sandpit for several years.

 

The view taken when the application was initially considered by the Committee over two months ago in terms of the relevant criteria essentially remains unchanged.

 

a)                 The controlled use for a temporary period does not significantly adversely impact on a sensitive area.

 

b)                 The site has the benefit of a main road location and adequate access has been constructed in accordance with the requirements of the Highway Engineer.

 

c)                  Dependent on weather conditions, it is very debatable whether the use adversely affects the nearby residents to the extent to justify refusing planning permission.

 

The events on 29/6, in our view, would seem to endorse the interpretation and application of this particular policy just a few weeks earlier, particularly on the basis of a tightly controlled one year trial period as opposed to full planning permission.  Hopefully the information contained in this section of the report also adequately demonstrates that the Council has recognised and undertaken the duty imposed by Section 54A of the Act and when balancing all relevant policies the view is that a temporary consent is preferable to an outright refusal of planning permission.

 

The view that this application should be treated as a Departure

 

An application which is deemed to be a departure from the development plan (i.e. the UDP) is “an application for development which does not accord with one or more provisions of the Development Plan …” (source: The Town and Country Planning (Development Plans and Consultation) (Departures) Directions 1999).

 

Officers involved with this particular case all hold the same view, contrary to the objector’s solicitors, that on the basis that this site is not allocated for any specific proposal in the adopted UDP and the use of the site for this particular activity will not prevent or be contrary to any specific proposal then the application is not a departure from the approved Development Plan. 

 

For the benefit of Members establishing that a particular development is (partially) conflicting with a policy, or policies, contained in the approved Development Plan does not mean that it should be treated as a departure.  Our Counsel concurs with this view and we remain of the opinion that in terms of the processing of the application it was interpreted and treated correctly and received the appropriate publicity for an application of this nature.

 

Duties imposed by Listed Buildings and Conservation Areas Act 1991 and PPG15 (Planning and the Historic Environment)

 

Solicitors acting on behalf of the objector have raised this particular issue but failed to go into any further detail other than the duty imposed on the Council, as Local Planning Authority, under Section 72 of the Act.  The Council through its exercise of the development control function recognised the duty of care and duly complied with the publicity requirements in respect of the site being adjacent to a Designated Conservation Area (Arreton).  These issues have been thoroughly explained in the earlier part of this report in the section dealing with local policies contained in the Unitary Development Plan.

 

Failure to consider Crime and Disorder Implications

 

Members are aware, and indeed it is confirmed in a statement on the cover sheet of every report to this Committee, that matters relating to crime and disorder can be an important consideration in the determination of some applications.  Moreover, there is a consultation procedure established with the Crime and Disorder Manager, with a separate section devoted to any response in the report to this Committee.  The relevant Officer is given the opportunity to comment on every planning application and in this particular case no observations were received.  However, the view of our Counsel is that the determination process would be better served if there was a professional contribution on this particular issue and the Crime and Disorder Manager has been invited to submit, if she so wishes, detailed comments on this particular application.

 

Our assessment of this particular issue at the time of the initial consideration by this Committee was that if you give due regard to the fact that the applicants are a long established organised motocross club combined with the requirements of their own national association and the need, in certain cases, for liaison with the local police there is unlikely to be any significant crime and disorder issues.  If you then add to this strict controls enforced on the applicant by requirements under other legislation in addition to the conditions of planning permission the likelihood of any potential problems is further diminished.  In this context I am not aware of any crime and disorder problems arising from the national event which was attended by hundreds of competitors, pit crew and national/local officials as well as 3,000 or more spectators.

 

Misdirection of Members in terms of Human Rights

 

The guidance given to Members in terms of Human Rights implications took the form of written advice contained in the Officer’s report and verbal advice given by the Planning Solicitor as part of the introduction of the application and prior to the debate and eventual determination.

 

Counsel has taken the view that the advice given to Members was largely both clear and entirely appropriate but feels that the extent of the application of Article 8 needs further clarification and that any lengthy and detailed analysis carried out by the Case Officer as part of the preparation of his report now needs to be thoroughly covered as part of the reconsideration of this application.  The Planning Solicitor has provided a detailed statement together with brief advice for Members in respect of the involvement of the Council as one of the sponsors of the national event.  Her advice, which has been agreed with Counsel, is attached to this report as Appendix N.

 

The former use of the land under “Permitted Development” Rights and the possibility of an Article 4 Direction

 

Members of this Committee will be familiar with the extensive “permitted development” rights contained in the GPDO 1995 and the ability of the Council, as a Local Planning Authority, to effectively withdraw or negate those rights by serving what is known as an Article 4 Direction which would mean that a use which was potentially “permitted development” would then require the benefit of planning permission.

 

This is an opportunity to reiterate that notwithstanding any possibility of a misinterpretation of the advice given in the report, further verbal advice was given to the Committee on the matter of the application of rights relating to temporary use of land.  It was clarified for the benefit of Members that the unauthorised engineering works and the permanency of the layout of the track with features such as fencing etc meant that the applicants could no longer rely on a “fall back” position of fourteen days since the “permitted development” rights no longer applied under Class B Part

4 of Schedule 2 of the GPDO as the land cannot be returned to its normal or former use without relatively extensive works.  Effectively, this meant that Members were not constrained in any way in terms of a possible outcome, and while it would be reasonable to give some weight to the less intensive use of this land for this particular activity for a number of years, there was no requirement for them to give any weight to any “fall back” position.  The view is that Members were quite clear on this particular point. 

 

The matter of a possible Article 4 Direction was raised by the objector’s solicitor and dealt with in correspondence that he has had with the Development Control Manager.  It is extremely debatable whether a report carrying a favourable recommendation would also include information that, in any event, due to the semi permanency of the works carried out on site is unlikely to apply in this particular case.  It was explained in our response that we did not raise this issue in the report in the same way as we had not referred to the various enforcement options available to the Council if Members were minded to refuse permission.  The objector’s solicitor was given the following advice prior to the meeting of this Committee.

 

., if the resolution is to refuse permission, then I shall seek an instruction, and offer advice, on the most appropriate way of dealing with the matter in terms of enforcing that decision, and if Members are minded that this land is not suitable for this kind of recreational use at any time, we may consider the merits of making an Article 4 direction.

 

If Members were minded to refuse permission they would have had to have given due consideration to taking proportionate enforcement action to ensure, as far as is practically possible, that the site was restored to its former condition.  In similar terms if a temporary planning permission were granted and no further application was forthcoming and the applicants failed to comply with condition relating to temporary consent/restoration then the Council would need to give due consideration to enforcing that particular condition.

 

Working on the assumption that the site, in the near future or sometime next year, or at a later date, will need to be restored to its former condition, and, if Members took the view that the use of the land for motocross purposes for fourteen days in any calendar year was also quite unacceptable, the Committee would need to consider making an Article 4 Direction withdrawing that particular “permitted development” right.  Without wishing to unduly complicate this particular scenario it is my view that Members should be aware of three particular points.

 

·        An Article 4 Direction requires confirmation by the Secretary of State.

 

·        It is a power of pre-emption and prohibition: by withdrawing the deemed permission under the GPDO, its effect is to require an application to be made for express permission for development proposals.

 

·        If that permission is refused, or granted subject to conditions other than those in the GPDO, the landowner is entitled under Section 107 of the Town and Country Planning Act 1990 to claim compensation for abortive expenditure and any loss or damage caused by the loss of rights.

 

The power to withdraw permission by making an Article 4 Direction is entirely prospective.  Under Art.4(1) and 4(2) the Planning Authority must be satisfied that it is expedient that the development “should not be carried out” without specific permission.  It cannot, therefore, be used to withdraw permitted development rights in respect of development which already has been carried out.  It is our view that this represents a further consideration or even an obstacle to making an Article 4 Direction on this land and quite clearly before considering any action we would require legal clarification on this particular point. 

 

Guidance on the use of Article 4 Direction is contained in Appendix D to DOE Circular 9/95, which states that, generally, “permitted development” rights should be withdrawn only in exceptional circumstances and only where there is a real and specific threat.  The advice points out that “permitted development” rights have been endorsed by Parliament and consequently should not be withdrawn locally without compelling reasons.

 

When taking into account all the relevant factors, it is considered that if the application was refused permission, or at the end of the temporary period, that there is unlikely to be sufficient justification for the making of an Article 4 Direction.  Arising from the extensive engineering operations which have already been undertaken on site, the applicants do not have the benefit of a “fall back” position and consequently the possible scenario which centres around the making of an Article 4 Direction at some time in the future becomes somewhat unlikely.

 

Failure to consider the need for an Environmental Impact Assessment (EIA) or Environmental Statement

 

Having interviewed the Officer responsible for this particular application immediately after its submission, the view is that the allegation would be more accurately described as a failure to properly   record   that    appropriate   consideration   had   been  given  to  the   need   for an Environmental Statement.  However, it is accepted that short of asking the Officer to make a sworn statement to this effect the Council is unable to provide any evidence to support his assertion that due consideration was given to this particular aspect.

 

Essentially there are two issues:

 

·        Whether there should have been a screening opinion as to whether this development required an Environmental Statement.

 

·        If a screening opinion was thought to be necessary and had been formally undertaken whether an Environmental Statement for this development was required.

 

In practical terms this is a two-stage process.   Under Schedule 2 (Regulation 2 (1)) of the Town and Country Planning (Environmental Impact) (England and Wales) Regulations 1999, the relevant table identifies a type of development and applicable thresholds and criteria.  Under 11(a) (Other Projects) the description refers to “permanent racing and test tracks for motorised vehicles” and in terms of the threshold/criteria states “the area of development exceeds one hectare”.

 

Under Part 1 of the aforementioned Regulations under “Interpretation” there is no definition of “permanent”.  The 21st Century Edition of Collins English Dictionary states:

 

“Permanent (1) existing or intending to exist for a definite period. (2) not expected to change for an indefinite time; not temporary”

 

Notwithstanding any initial aspirations on the part of the motocross club, it has never been the intention of Officers involved in this particular case to recommend full planning permission; indeed the processing and determination of the application has proceeded for a considerable period of time on the basis that we should only be prepared to consider a temporary planning permission in the form of a trial run.  Additionally the failure or difficulty to accurately define “permanent racing” is thrown into further doubt by the fact that the application to use the site is for a limited number of days in any calendar year.

 

However, our determination is to ensure that this is a thorough response to the challenge to the decision taken by this Committee so let us assume the application is “caught” by the aforementioned description/threshold and is therefore deemed to be “Schedule 2  Development”. 

 

While it may be largely a token exercise, it still remains necessary, in our view, to investigate the possible outcome in terms of a screening opinion had we decided that one was required.  In identifying whether there is a need for an Environmental Statement for Schedule 2 Development the test has been applied as set out in paragraph 36 (Development in Environmentally Sensitive Locations) in Circular 02/99 (Environmental Impact Assessment) with the conclusion that this area of former agricultural land, although in the countryside, for the purposes of this guidance would not be defined as a “sensitive area”.  Consequently the question that needs to be applied is whether, as Schedule 2 Development, it is likely to have a significant effect on the environment.  In this context, we are reliant on Annex A to the aforementioned circular which deals specifically with indicative thresholds and criteria for identification on Schedule 2 Development requiring EIA.  Paragraph A35, which incidentally again refers to permanent racing, states:-

           

particular consideration should be given to the size, noise impacts, emissions and the potential traffic generation.  EIA is more likely to be required for developments with a site area of 20 hectares or more.

 

The previous use of the site over a considerable period of time and the recent events has enabled monitoring to take place in connection with these particular factors.  The previous use under “permitted development” rights attracted no complaints that we are aware of and if this is combined with the controls imposed through the grant of the short term temporary planning permission, together with monitoring and the fact that the site area is less than twenty hectares; leads to a conclusion that if the application should have been treated as Schedule 2 Development requiring a screening opinion, it still would have not required an Environmental Statement.

 

It is worth pointing out, however, that this particular issue has caused the Development Control Manager to issue a detailed guidance and advice on the determination of a need for an Environmental Statement to all professional/technical members of the Development Control Section of the Council to ensure that each “candidate application” is correctly processed and that a written record is produced and appears on the public file to provide part of an audit trail if there is any future scrutiny.

 

Enforceability of Proposed Conditions

 

The expression or allegation on the part of the objector’s solicitors that the conditions are “practically unenforceable” is not supported by any evidence that would enable us to reapply the test set out in paragraph 14 of Circular 11/95.

 

The draft conditions have been prepared with considerable care, with the assistance of various technical advisers and also in consultation with the applicants and their agents.  Furthermore in accordance with the undertaking which was given on the day following the 10/6 meeting these draft conditions have been reviewed and, where necessary, appropriately amended combined with the addition of yet further conditions.

 

Members’ attention is drawn to the (main) condition which specifies the temporary nature of the permission.

 

The proposed condition in the report to this Committee two months ago said:-

 

The use hereby permitted shall be discontinued and the land restored to its former condition on or before 30 June 2004 in accordance with a scheme of work submitted to and approved by the Local Planning Authority.

 

The engineering works carried out on the site in the period following the preparation of the report and the resulting delay in the issue of the decision notice has enabled this condition to be reviewed and amended to read:

 

The use hereby permitted shall be discontinued and the land restored to its former condition on or before 30 June 2004 in accordance with a scheme of work to be submitted no later than 30 April 2004, and approved by the Local Planning Authority, the scheme of work will include the removal of all fixtures/fittings denoting the track and ancillary facilities, the removal of any artificial aids involved in the design of the track, the closure of the access onto the A3056 and the re-contouring and restoration of the entire site so that it has the appearance of agricultural land and is capable of being used as agricultural land”

 

If the application is approved and if, in the event, the above-mentioned revised condition was contravened it is considered that as a last resort it could be enforced by taking action against the applicants/landowner by the service of an Enforcement Notice or a Breach of Condition Notice subject to advice on the best approach from the Planning Solicitor.

 

Failure to properly address matters of Highway Safety

 

The objector’s solicitor complains that these issues have not been “properly addressed”, despite the fact that the Highway Engineer was consulted on the application and submitted his observations, with suggested conditions.  It is understood that the Highway Engineer is satisfied with the work which was carried out on site prior to the national event.  Similarly, a draft condition for fencing to be erected prior to the event to ensure there was no direct conflict between the motocross and users of the public byway was acknowledged and the necessary work was carried out.

 

Failure to consider consequential noise/disturbance from ancillary uses on the land related to the Motocross

 

The issue relating to live entertainment and the serving of alcoholic drinks on site, is largely outside planning control as it is dealt with under other legislation.  On this particular point the motocross club co-operated with the Council inasmuch as when this issue was raised it was discussed with them and it transpired that the facility provided on the night before the national event was for the benefit of club members only, who provided their own entertainment.  I am advised they did not require an Entertainments Licence and as far as we are aware this is a very minor aspect that took place without any problems or complaints and therefore as a material consideration given only very minimal weight.

 

Incompatibility of the decision to grant temporary planning permission with the advice contained in Circular 11/95

 

The legal position is that under Section 72(1)(b) of the Act power is given to impose conditions requiring that a use be discontinued or the buildings or works be removed at the end of a specified period (ie temporary permission).

 

Circular 11/95 deals with the use of conditions in planning permissions.  The section referred to by the objector’s solicitor (paragraphs 108 – 113) deals specifically with temporary planning permissions.  The solicitor alleges that granting temporary planning permission in the present case is “incompatible with that advice” referring specifically to paragraph 108 but again with no evidence to support this particular view.

 

It is considered that the objector’s solicitor has failed to identify the correct paragraph and should be referring to paragraphs 109 to 113 inclusive, with particular reference to paragraph 111 which deals with “trial runs”.  It is apparent that the nature of the intensified use in this location, giving due regard to the various policies and other material considerations, clearly lends itself to the approach that has been adopted by Officers and supported by this Committee some weeks ago.

 

Paragraph 109 (Principles applying to Temporary Planning Permissions) states:-

 

… temporary permission will normally only be appropriate either where the applicant proposes temporary development, or when a trial run is needed in order to assess the effect of the development on the area.

 

More importantly, paragraph 111 (Trial Runs) states:-

 

…, where an application is made for permanent permission for a use which may be ‘potentially detrimental’ to existing uses nearby, but there is insufficient evidence to enable the authority to be sure of its character or effect, it might be appropriate to grant a temporary permission in order to give the development a trial run, provided that such a permission would be reasonable having regard to the capital expenditure necessary to carry out the development.

 

The commitment  in terms of capital expenditure has already occurred, so this factor should be discounted. 

 

Paragraph 112 gives further advice on this issue where it says:

 

A second temporary permission should not normally be granted.  A trial period should be set that is sufficiently long for it to be clear by the end of the first permission whether permanent permission or a refusal is the right answer.

 

Paragraph 113 (Restoration of Sites) the guidance says:

 

If the temporary permission is for development consisting of or including the carrying out of operations, it is important to make provision by condition for the removal of any buildings and works permitted – not merely for the cessation of the use – and for the reinstatement of the land, when the permission expires.

 

It is clear that the recommendation and the decision taken by this Committee to grant temporary planning permission concurs with the advice contained in the relevant section of Circular 11/95.  The issue of restoration of the land at the end of the temporary period has been addressed in the revised condition referred to above which would appear to go beyond the level of detail set out in the model condition contained in the Circular under Appendix A.

 

FINANCIAL IMPLICATIONS

 

The standard report format currently used by this Authority for the consideration and determination of planning applications does not include a section which deals with financial implications.  However, in this particular case there are two points relative to (possible) financial expenditure on the part of the Council which should be brought to the attention of Members of this Committee.

 

·        The objector’s solicitor has put the Council on notice that they “reserve the right to claim damages for the Council’s breach of its statutory duties and damages under the Human Rights Act 1998.

 

·        The cost incurred by the Council in seeking advice from Counsel on the challenge to the resolution to grant temporary planning permission.

 

If Members feel it is necessary the Planning Solicitor may be able to offer verbal advice on either issue, although the latter point should ideally be treated on a confidential basis.

 

 

OPTIONS

 

1.      Refusal of permission.

 

2.      Temporary planning permission to use the site for a maximum of 24 days in a twelve month period (as per the Officer’s recommendation and the resolution of this Committee).

 

3.      Temporary planning permission to use the site for 24 days over a period in excess of twelve months.

 

4.      Temporary planning permission to use the site for any other number of specified days in a twelve month (or longer) period.

 

5.      Full planning permission to use the site for 24 days in every twelve month period/or each calendar year.

 

6.      Full planning permission to use the site for any other number of specified days in a twelve month period/or calendar year.

 

 

CONCLUSIONS

 

While there may be some concern about the overall length of this report (and appendices) it was considered that the nature of the challenge to this resolution was such that it demanded a thorough investigation based on careful research combined with legal advice to enable the author to prepare a detailed and comprehensive response to what are largely unsubstantiated allegations and views on the part of the objector’s solicitors.

 

The report gives Members constructive advice and guidance on material considerations/weighting and the implications of adhering to their earlier decision to grant temporary planning permission, or the grant of planning permission in any other form or the refusal of planning permission.  It also serves as a detailed justification if Members decide to adhere to their earlier decision or adopt one of the other options which involve approving the application.

 

Members will appreciate that there are a number of complex issues which have to be balanced against each other as part of the overall determination process.  The objector’s solicitors have challenged the recommendation and resolution but mostly failed to provide substantive evidence as to why a favourable decision would be erroneous and unlawful and that the only option available to this Council, as Local Planning Authority, is to refuse permission.

 

With the benefit of hindsight an admission can be made that there were some shortcomings in terms of the processing of the application and the identification and assessment of various policy issues in the formulation of the recommendation.  However, the conclusion of this investigation is that these matters did not impact on the eventual outcome.

 

As part of the process of reconsidering this application Members are invited to take into account the following points:

 

·        The clarification of the position adopted by the Environmental Health Officer/Environmental Health Manager.

 

·        The comments of the AONB Officer, who objects to the application, and the Ecology Officer who has made further representations clarifying his position if a further application is forthcoming for full permission.

 

·        The legal verification that a (temporary) approval is not a departure from the approved Development Plan and confirmation that due consideration has been properly given to the requirements of Section 54A of the Act.

 

·        The acceptance that the application, due to the engineering works, is presently in conflict with policy C1 (Protection of Landscape Character) but there are various other policies which, at least in part, would support the view that a “trial run” is the most appropriate way of dealing with this application.

 

·        That due weight should be given to the criteria and various considerations set out in Policy L9 (Noisy Sports) and the explanatory text (see C13 and C14) and the application of this policy in the determination of the application and the support that it offers to allowing the intensified activity to continue for a trial period.

 

·        The confirmation through the analysis contained in this report that the Council  recognise the duty imposed by the Listed Buildings and Conservation Areas Act 1991 and the duty of care imposed by Section 85 (1) of the Countryside and Rights of Way Act 2000.

 

·        Under advisement from Counsel the Planning Solicitor has submitted revised observations in terms of implications in connection with Human Rights.

 

·        The possibility of a future Article 4 Direction affecting this land is a relatively unlikely event when giving consideration to the present situation and the relevant legislation and guidance.

 

·        Confirmation that the application did not need to be screened and, even allowing for difficulty with interpretation of the Regulations, if it did need to be screened as Schedule 2 Development, it would not need to have been accompanied by an Environmental Statement.

 

·        The draft conditions have been reviewed and amended with some additional conditions.

 

·        The view that the resolution is clearly compatible with the advice contained in Circular 11/95 on the grant on temporary planning permissions.

 

Notwithstanding the weather conditions on the day of the national event, the monitoring which was carried out has strengthened the view that there is sufficient justification for allowing this use for a temporary period which will allow any monitoring programme to continue.  If and when, a further application for full permission is submitted the Council will be in a position to determine the application against a background of detailed information and analysis prepared by Environmental Health Officers together with mitigation measures which could be carried out to reduce/soften the visual impact of the engineering works in terms of the local landscape. 

 

Although we have agreed to the reconsideration of this application Members should be aware that the objector, through his solicitors, may well still seek judicial review if Members are minded to adhere to their earlier decision or approve the application in any other form.

 

 

RECOMMENDATION

 

Temporary planning permission to use the site for a maximum of 24 days in a twelve month period (as per the Officer’s recommendation and the resolution of this Committee).

 

 

 

 

' 823565 Contact Chris Hougham, Development Control Manager

 

 

 

ANDREW ASHCROFT

Head of Planning Services