REPORT OF THE HEAD OF PLANNING SERVICES TO DEVELOPMENT CONTROL COMMITTEE SITE INSPECTION – 12 SEPTEMBER 2003

TCP/8557C- Two storey rear extension to form two self-contained flats, rear of 26/28 Regent Street, Shanklin

Summary

To decide how to deal with amended plans which have been received following investigations into the abovementioned development the finished height is in excess of that which was originally approved. The decision has to be taken against a background of a comprehensively documented complaint by the owners of the neighbouring commercial premises.

Background

In July 2002 an application was received for a two storey extension to provide two self-contained flats at the rear of retail premises fronting onto the western side of Regent Street. The site was previously unused land which could only be accessed by pedestrians off Regent Street.

The application was advertised in accordance with the publicity procedure.

No adverse comments were received and it was processed and determined in accordance with the delegated procedure with the decision notice granting conditional planning permission was issued on 25 September 2002.

During construction Officers were alerted by the owner of the neighbouring commercial premises, accessed off Landguard Road, about their concern in respect of the building in terms of the overall ground coverage, or footprint, and the height. In their view, this resulted in a significant loss of amenity because of the impact on a first floor east facing office window.

The Case Officer and the Enforcement Officer visited the site and checked whether the partially completed building was in accordance with the approved plans. This investigation revealed that the siting of the extension was accurate but, as work progressed, it transpired that the overall height of the building had been increased (when compared with the approved drawings) by approximately 0.7 metres. The findings of the Case Officer suggest that the differences are cumulative including an increase of the height of the upper ground floor; increases in floor to ceiling heights on both ground and first floor; and an increase in the thickness of the floor itself. The agent accepts this view but submits that his “as built” survey suggests that the height increase is approximately 0.55 metres. (The difference, 0.15 metres is approximately six inches).

In my opinion the unauthorised increase in the overall height of the building has nil effect on any other adjoining or nearby commercial/residential properties other than the aforementioned first floor office window in the neighbouring commercial premises. The window is 1.17 metres from the new structure and the sill height is approximately level with the eaves of the new two storey extension although the southernmost part of the new extension is approximately level with the northern most side of the window, the eaves overhang does project partly across the window.

Representations

Members are advised that the complainant(s) made a number of written representations to Members/Officers prior to the meeting held on 2 September 2003.

· A letter to the Development Control Manager (DCM) dated 25/8 which reiterates many of the earlier representations which led up to this investigation but also seeks a deferment and/or a site visit by Members.

· A letter to the DCM dated 25/8 referring to written advice given by him in letters dated 31/7 and 1/8. The complainant(s) representations effectively reproduced the letters from the DCM and incorporate within the text their own observations and criticisms. These representations go into considerable detail and were copied to the Chairman of the Development Control Committee and the Ward Members for Shanklin.

· A letter to the DCM dated 25/8 written following a visit to Seaclose Offices and discussion with East Team Leader (Mr Hepburn) a few days earlier. Alleging that the amended drawings continued to be inaccurate in terms of the overall height of the building under construction. This is another lengthy submission again copied to the Chairman and Local Members.

· A letter to the Chairman (and possibly other Members of this Committee) referring to the written representations already made to the DCM and enclosing yet further detailed representations outlining seventeen separate issues intended to support their argument that Members should not agree to this unauthorised increase in the overall height of the neighbouring building as an amendment to the approved plans and consequently should be calling for a fresh application and/or a site visit to be followed by appropriate action to rectify the situation.

· Further written representations from the complainant(s) dated 27/8 to Members of this Committee accompanied by the reproduction of the report considered at the last meeting which incorporates their comments in a similar manner to the way in which they presented letters from the DCM.

My experience leads me to believe that Members should have the opportunity to properly assess these representations and on this basis all the complainants letters prior to the last meeting are attached to this report.

Financial Implications

None.

Options

1. To request the submission of a fresh planning application.

2. To accept the latest revised drawings which represent the “as built” situation as an amendment to the approved plans.

3. To effectively “reject” the amended drawings showing the increase in height of the building, refuse to treat these drawings as an amendment to the approved plans, not ask for a fresh application and to embark on proportionate enforcement action designed to rectify the situation.

Conclusions

Having examined the extensive late representations from the complainant(s) I remain satisfied that the original application was handled in an appropriate manner and that the procedures relating to publicity and the processing/determination of that application under delegated powers were properly observed.

The development accords with Government policy to make the best possible use of urban land and will result in two two bedroom units in a very sustainable location within the town centre. Notwithstanding the overall footprint of the new building in relation to the size of the site I remain satisfied that any impact on neighbouring properties, residential or commercial, is relatively minimal and did not amount to a reason for withholding permission.

It is not disputed that the building, as constructed, is higher than that illustrated in the approved drawings. The matter has been thoroughly investigated by the Case Officer and the Enforcement Officer and the complainants have been visited at their premises by myself. They were provided with detailed written guidance on my interpretation of the situation, the action the Council intended to take to address the matter and the options available to them as owners of the neighbouring property to voice their concerns about this particular issue.

On the basis that the application was handled in a satisfactory manner and that there is no evidence of any maladministration, which may or may not have caused any injustice to the owners of this commercial premises, it is my view that Members should focus on just one issue and that is the unauthorised increase in the overall height of the building. In this context, in my view, there is a fundamental question that needs to be addressed.

Are the amended drawings showing unauthorised increase in height so significantly different from the approved drawings in terms of scale, design, impact on neighbouring commercial/residential properties etc. that had they been considered at the appropriate time there was a likelihood of permission being refused.

This “test” has been applied by the author of the report and he concludes that the difference is not sufficiently significant and on that basis his view was that the latest amended drawings, showing the increase in height, should be treated as an amendment to the approved plans and the applicant should be allowed to complete the development without submitting a further application. The alternative approach would be to ask the applicant, or his agent, to submit a fresh application which, if he agreed, would mean a delay in building works (or continuation at the applicant’s risk), the application going through a further round of publicity and the opportunity for the complainant(s) and others living in the immediate vicinity to submit comments on the application and take the opportunity of addressing Members should Officers decide that the matter needs to be determined by this Committee.

Members were advised in the Schedule of Late Representations considered at the last meeting that while it is not suggested that the Council should give way simply because of the number and weight of representations submitted by the complainant(s) it remains important that the Council, as Local Planning Authority, should be seen to be open and transparent in this kind of situation. Notwithstanding the lengthy representations by the complainant(s) Members should be quite clear that they are not reconsidering the application but merely how best to handle the unauthorised increase in the height of the new building.

My interpretation of the situation, having discussed the matter at length with the complainants when visiting their premises, is that they are principally concerned that this development, in whatever form, may prejudice any future application they may wish to make in connection with their own property for conversion to residential use. It is apparent that the complainant(s) has not been seriously disadvantaged in terms of commenting on the original application or the latest situation but it was my view that there was benefit in Members visiting the site before taking a decision.

It is understood that the complainants have now submitted an application for the conversion of their premises to residential use.

In conclusion, for whatever reason, the complainants declined to submit any representations in respect of the original application and it was dealt with in the appropriate manner under the delegated procedure. When taking into account the urban location of the site and the minimal impact on one first floor opening of a building which is used for commercial purposes it is my view that had the complainants submitted representations objecting to the application on these grounds they would not have been sustainable and would not have warranted reporting the application to this Committee although it would have been necessary to carry out consultations with the Ward Member and the Chairman before dealing with the matter under the delegated procedure and issuing the decision notice.

In terms of the unauthorised increase in the height of the building and the effect that it has on the neighbouring commercial premises when compared with the original approved drawings, the Case Officer has said:

The height of the building has been increased by between 0.55 metre and 0.70 metre bringing the eaves to a position which is approximately level with the window in the adjoining property. Despite this increase in height, bearing in mind the position of the window and the relative position of the roof of the extension, I do not consider that the different position of the building significantly affects the light levels, or that an unacceptable relationship of building results, especially bearing in mind this is the centre of the town where density of development is high and buildings are necessarily close together.

The objector argues that this development may prejudice their ability to convert their building into residential development in the future. The planning system is not intended to be used to prejudice or safeguard one developer against another. It is intended to promote good development. It should also be remembered that the outer wall of the objector’s premises form the common boundary between their property and the site the subject of the application and the extension is approximately one metre within its own boundaries. However, I do not consider this development would prejudice the ability of the objector to develop their property which will, if and when a planning application is made, be determined on its own individual merits.

Having visited the site Members, if they can seen no sustainable objection to the retention of the new building “as built”, have a relatively simple choice in terms of how they wish to deal with the situation. If Members decide to treat the latest revised drawings as an amendment to the approved plans it will enable the developer to continue with building work and complete the two flats. However, it could be argued that the amendment should be the subject of a fresh application which would involve appropriate publicity including neighbour notification etc. and the possibility of the matter (i.e. the increase in height) being formally considered by this Committee. If we invite a fresh application this may result in a delay in the completion of the development but would represent the preferred methodology and particularly should the Council find itself in a position whereby it has to defend any further complaint through its own procedure or the Local Government Ombudsman.

On balance, it has been decided that the route of a fresh application is the most appropriate way of handling the matter and recommend accordingly.

Recommendation

To request the submission of a fresh planning application.

C S HOUGHAM

Development Control Manager

ANDREW ASHCROFT

Head of Planning Services