14 OCTOBER 2003
REPORT OF HEAD OF PLANNING
SERVICES
TCP/25011/P01295/02 Demolition
of dwelling; replacement detached house, Edina, Mill Road, Yarmouth
1 Purpose of Report
1.1 To set out the background to this matter.
1.2 To propose enforcement action.
2 Background
2.1 Members will be familiar with this long-running matter.
2.2 In summary:
a) the application was registered on 5 August 2002
b) the application was approved on 9 January 2003
c) works commenced on site in February 2003
d) initial concerns expressed by neighbours over height of building in May 2003
e) detailed investigation by Enforcement Officers - June 2003
f) report to DCC – 20 June 2003
g) report to DCC – 12 August 2003
h) Committee site inspection – 22 August 2003
2.3 Appendix A sets out key information around the background to this matter.
3 Report Details
3.1 Members will recall that there has been much discussion about the exact height and positioning of the new dwelling on the site in recent months.
3.2 An independent surveyor has been commissioned by the Council to plot the building within the site, and to assess the height both of the new dwelling at these properties immediately adjoining in Mill Road.
3.3 In summary the comparison between the independent surveyor’s drawing and the approved plans are as follows:-
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New House Height to ridge (from ground level) Second floor overhang Height to eaves Overall width (building) Overall width (eaves) Height to head of first floor window (front elevation) Front boundary to main front wall Depth of building (excluding conservatory) Street Scene Height of dwelling to ridge Neighbouring property All measurements in metres |
Approved Plan 7.45 4.85 4.85 4.20 4.60 4.60 3.90 13.90 7.70 6.80 |
Surveyor’s Plans 8.25 4.85 5.45 4.20 5.05 4.85 5.10 (min) 5.35 (max) 13.90 8.25 6.45 |
3.4 On the basis of these recent measurements it is apparent that the overall height of the new house and its position on the site in relation to the boundaries and the neighbouring property go beyond what was understood to be the position when the matter was reported to DCC in June 2003.
3.5 In summary, your Officers conclude:
a) that the overall height of the new dwelling is 8.25m rather than 7.45m on the approved drawing. This difference of 0.8m is significantly greater than that originally calculated at 0.225m in June 2003.
b) whilst the overall footprint of the building is correct, when compared with the approved drawings it is in excess of 1.0 metres further to the east (rear) on the site.
3.6 Members should be aware that in a letter from the developer/architect of the site (14/08/02 – which should read 03) the following comments have been made:
This (the independent surveyors) report does not
have the height of my building or next door’s building marked on it. I find this strange. This is what I was told the survey was
for. I was with the independent
surveyor on site when he confirmed that the building was only 225mm higher than
my planning application drawing. I
would like to know how you make it 1m as reported at the Committee meeting.
I would like to note that the drawing does not
make it clear that the ground level has been excavated to the level shown. Original ground level is where the floor
level is shown.
I note the eaves shown on this drawing project
slightly further than they do on site.
The square hole for the window shown on the front
elevation is waiting for the round window to be set in the opening.
3.7 At the meeting with officers on 18 August (detailed in Appendix A) the developer/architect claims that the Council has incorrectly calculated the discrepancy and failed to give due regard to changes in ground levels, finished floor levels, tiling of roof etc, and claimed that the discrepancy is 0.244m, which is 0.019m higher than when the building was surveyed about ten weeks ago and that this is attributable to the laying of the roof tiles.
3.8 Members should also be aware that a letter dated 10 September 2003 has been received from RC Shrimplin, a Chartered Architect and Town Planner acting for the applicant/developer. This letter is attached to Appendix A to this report and raises procedural and estoppel issues.
4 Future Action
4.1 In determining whether or not to take enforcement action on this matter, Members must address two separate issues. The first issue is whether or not there has been a breach of planning control. The second issue is the proportionate nature of the action which is necessary to address the breach of planning consent. In this case the decision is complicated because there are two separate breaches of planning control (height and positioning of the house – see 3.4 above). The remainder of this section tackles these two issues separately, whilst recognising that there are relationships between the issues.
4.2 Your Officers conclude that there has been a breach of planning control on this count. The overall height of the building is 0.8m higher on the independent surveyor’s drawing (i.e. as constructed) than as originally shown on the approved plans.
4.3 Your Officers also consider that this breach is sufficiently serious to merit enforcement action. The increased height of the dwelling has a detrimental impact both on the harmony of the streetscene, and on the amenities of the property immediately adjoining the site (Moville) by virtue of its increased scale, massing and height. The new dwelling appears oversized and out of scale with existing development in the immediate locality. The external appearance of the building does not accord with the elevation indicated on the approved plans, and the heavy fascia and overhanging eaves, as currently constructed, present a somewhat cumbersome appearance.
4.4 It is suggested to Committee that proportionate action to remedy this breach of control would be the service of an Enforcement Notice requiring the reduction of the overall height of the building by 0.8 metre either by reducing the pitch of the roof, or by lowering the overall roof structure (i.e. reducing the height of the building from ground floor to eaves). In your Officers’ opinion the complete demolition of the building to rectify this breach of planning control would be disproportionate.
4.5 Your Officers conclude that there has been a breach of planning control on this count. The building is in excess of 1.0 metre further to the east (rear) of the site as constructed than as originally shown on the approved plans.
4.6 In the circumstances of the site your Officers do not consider that this matter in itself merits enforcement action. The original decision to grant consent for the new dwelling (as indicated on the approved drawings) takes account of the positioning of windows in the northern elevation of the property to the south (Moville), the velux roof light in the roof of the single storey element on the north side of Moville and the conservatory in the north east corner of Moville. That decision was based also on the fact that the proposed dwelling would be located on the north western side of Moville, and as such would not result in a significant or unacceptable loss of sun/day light which would justify refusal of the application. In all these circumstances it would be difficult to argue that the differential positioning of the new property in the site has had a significantly, and unacceptably greater impact on the amenities of Moville than if the new property had been constructed within the site in accordance with the approved drawings.
5.1 Resolve to take no enforcement action. On the basis of comments in para 4.3 of this report it is suggested that this course of action would be inappropriate.
5.2 Pursue proportionate enforcement action as set out in para 4.4 of this report.
5.3 Pursue enforcement action to secure the demolition of the property. This course of action is considered disproportionate to the breaches of planning control and is not recommended.
6.1 The serving of an Enforcement Notice will have limited financial implications which can be met from existing budgets.
6.2 In the event that the applicant appeals to the Planning Inspectorate there will be implications on officer time in defending the serving of the notice.
7.1
In taking any decision on enforcement matters Officers and
Members need to give appropriate consideration to Human Rights issues.
7.2
In considering this report members will be required to make a determination
of fact as to the true height of the property.
In doing so members must decide whether to accept the account provided
by both officers and an independent surveyor and therefore reject the
landowners version or vice versa.
7.3
In coming to a recommendation to pursue enforcement action
against the height of the new dwelling 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 landowner has a right to develop the land but
this must be in accordance with planning legislation. Any action recommended
must be a proportional response to what the LPA seek to achieve. The
neighbouring properties of the development have a right afforded to them under
the Human Rights Act not to have the exercise of the LPA function affect the
value or enjoyment of their property. The height of the ridge height is
considered to require action given the degree of difference between the new
height and the agreed plans which may interfere with the enjoyment or value of
the adjoining properties and constitutes a breach of planning control. The
action recommended would interfere with the landowners right to use the land he
owns as he wishes but this is considered proportionate to the legitimate aim of
enforcing planning legislation, the objectives of the UDP and of protecting the
neighbouring properties.
7.4 It is considered that no action should be taken in respect of the positioning of the property since this would be disproportionate to what the LPA seek to achieve.
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8 8.1 8.2 |
Recommendation That an Enforcement Notice
is served requiring the reduction in the overall height of the newly-constructed
dwelling by 0.8 metres either by reducing the pitch of the roof, or by
lowering the overall roof structure (i.e. reducing the height of the building
from ground floor to eaves). That the period for compliance be six months from the serving of the notice. |