TUESDAY 14 OCTOBER 2003
REPORT OF THE HEAD OF PLANNING SERVICES
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TCP/9916K(E) |
The siting of two shipping
containers at Helens Copse, Gate Lane, Freshwater without the benefit of planning
permission. |
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Officer: Peter Barker |
Tel: (01983) 823573 |
Summary
To consider in the light of changed circumstances the service of an Enforcement Notice requiring the removal of the shipping containers from the land.
On 19 February 2001 an Enforcement Notice was issued requiring the removal of the above mentioned shipping containers. The Notice was to take effect on 20 April 2001 and gave the landowner three months from that date to remove the containers.
On 18 March 2001 the landowner submitted an Agricultural Prior Notification for an implement shed. On 11 April 2001 the Planning Officer dealing with the case wrote to the landowner informing him that the Local Authority were withholding prior approval for the implement shed the reason being that it was too large for the requirements of the plot of land.
The landowner appealed the Enforcement Notice and on 26 September 2001 the Planning Inspector allowed the appeal, quashed the Notice, and gave the appellant 18 months temporary consent on or before which date the containers had to be removed from the land. The Inspector gave the landowner 18 months temporary planning permission in order that he could negotiate with the Council a suitable permanent building or structure that would be more in keeping with the surroundings.
A further Agricultural Prior Notification for a building was submitted on 27 April 2002. Following consideration of this request by the Development Control Committee after a site inspection on 14 June 2002 the prior approval of the Local Authority was again withheld because the building shown was still considered too large.
The 18 months temporary consent granted by the Planning Inspector on 26 September 2001 expired 26 March 2003. On 25 March 2003 a planning application was made by the landowner seeking approval for continued siting of the two shipping containers on site. A letter with the application states “more time required to undertake negotiations prior to making further application.”
This application was refused at the 29 April 2003 Development Control Committee meeting at which time Members also supported the service of a Breach of Condition Notice (BCN) as the most immediate and effective way of rendering the breach. Although a first notice was served in May 2003, a land registry search revealed a second party with an interest in the land and it was considered appropriate to re-serve the notice including this new party. Fresh notices were served at the end of July and gave twenty-eight days for compliance. The containers have not been removed and the Council has, therefore, been preparing the evidence for a prosecution in the Magistrates’ Court for failing to comply with the notice.
On 16 September a planning appeal was submitted against the refusal of planning permission in April 2003 with regard to the planning application that was refused for the continued siting of the two shipping containers.
The land is shown on the IW Unitary Development Plan to be outside the designated development boundary, within an Area of Outstanding Natural Beauty (AONB) and Heritage Coast. Relevant policies of the Plan are considered to be as follows:
Strategic Policies
S1 New development will be concentrated within existing urban areas.
S4 The countryside will be protected from inappropriate development.
Detailed Policies
G1 (Development Envelopes for Towns and Villages)
G4 (General Locational Criteria for Development)
G5 (Development Outside Defined Settlements)
D1 (Standards of Design)
C1 (Protection of Landscape Character)
C2 (Areas of Outstanding Natural Beauty)
C4 (Heritage Coast)
There are no financial implications.
1. To issue an Enforcement Notice requiring the removal of the two shipping containers from the land, time for compliance three months.
2. To take no further action in respect of the two shipping containers until the planning appeal for their retention has been determined
When granting temporary consent for the storage containers, the Planning Inspector said that he would have serious reservations about the permanent retention of these containers on this land. He said that in his view they were ugly, inappropriate structures that should be removed as soon as possible. At the time the appellant indicated that he wanted only a temporary planning permission for this development in order that he could negotiate with the Council a suitable permanent building or structure that would be more in keeping with the sensitive surroundings. The Planning Inspector supported this approach. Nevertheless he did not consider that a three year temporary consent was justified and could see no reason why negotiations about a storage building and its erection on the land should require that amount of time. Accordingly he limited the temporary consent to 18 months.
When the April 2003 planning application for the continued siting of the two containers was refused Members saw the issuing of a Breach of Condition Notice as an immediate and effective response to the continued presence of the containers within the site. The merits of proceeding along this route were that there is no appeal procedure against the service of such a notice. Now that the Local Planning Authority is on the verge of taking the matter to the Magistrates’ Court an appeal has been submitted against the refusal of planning permission.
These circumstances had been discussed with the Council’s Senior Solicitor and the view taken that should the Council proceed to the Magistrates’ Court with the appeal still yet to be determined then any Magistrate would take this into account and in all probability be likely not to find in favour of the Council at the present time.
Currently, there is no outstanding enforcement action relating to this site with the earlier notice having been quashed by the Planning Inspector in September 2001. There is a concern that even if planning permission is not approved on appeal the Council may be faced with a similar procedure once an Enforcement Notice is then issued which still carries with it the right of appeal against that notice. Accordingly, taking all factors into consideration it is the Officer’s view that the Council should focus its efforts on the immediate service of a fresh Enforcement Notice so that if an appeal is proposed against that notice it can be dealt with simultaneously with the current planning appeal.
In coming to this recommendation to issue an Enforcement Notice, consideration has been given to the rights set out in Article 8 (Right to Privacy) and Article 1 of the First Protocol (Right to Peaceful Enjoyment of Possessions) of the European Convention on Human Rights. The impacts this development might have on the owners/occupiers of the other properties in the area and other third parties have been carefully considered and balanced against the rights of the land owner. Whilst there may be some interference with the rights of the property owner and in particular an interference with the peaceful enjoyment of his possessions, it is considered that the recommendation to issue an Enforcement Notice is proportional to the legitimate aim of the Council’s Unitary Development Plan and in the public interest.
Recommendation
To issue an Enforcement Notice requiring the removal of the two shipping containers from the land, time for compliance three months.
Head of Planning Services