TUESDAY 16 NOVEMBER 2004
Officer: Mr J Mackenzie Tel: (01983) 823567
To consider the above application which was subject to conclusion of a Section 106 Agreement in respect of the making of financial contributions towards education and open space facilities, and to consider the agents request to waive these contributions following a recent appeal decision.
In February 2004 an application for the demolition of the building for the construction of a two and three storey building to form fourteen flats with associated parking was refused on the grounds that the access onto the Broadway was unsatisfactory to serve the development by reason of unacceptable visibility contrary to Policy TR7 of the Unitary Development Plan. This decision was taken, contrary to officer recommendation, following site inspection by Members. An appeal was lodged against the decision.
In May a further application was submitted for fourteen dwellings on this site, a revised proposal for alternative site layout with access directly off Uplands Road, the unmade road on the south eastern side of the site. Permission was granted under the delegated procedure but subject to the conclusion of a Section 106 Agreement requiring the payment of contributions towards education and open space facilities. The legal documentation has now been concluded and the decision notice is about to be issued.
In the meantime, the appeal
against the refusal of initial application has been allowed. As a result of the
appeal being allowed and the later grant of planning permission, the situation
has effectively resulted in two permissions either of which could be implemented.
Following the appeal decision the applicants agent, not surprisingly, has drawn attention to the fact that there are financial advantages for this client to implement the appeal decision rather than the consent which is about to be issued where there are implications of the payment of monies to the Council towards education and open space provision. Despite the fact that the first consent can now be implemented without the payment of any contributions, his client feels more disposed to implement the second permission using an improved access off Uplands Road but requests that the Council review its decision to require the payment of contributions.
He points out that the Local Authority refused the first application as they felt that access off Uplands Road was safer. His client now feels that the second application was a better scheme and the access off Uplands Road made the resultant development more desirable and would be prepared still to improve Uplands Road as an access to the development if the Council were minded to accede to his request to remove the requirement for the financial contributions.
My assessment of this current
situation is that the developer would be faced with a choice to implement the
original scheme (allowed on appeal) where there are no contributions payable or
to implement the similar development off an improved Uplands Road where he is
required to pay a substantial financial contribution. The Council and the
developer both prefer the second scheme but the developer is likely to
implement the first scheme if the Council adhere to the decision to require
contributions. On that basis it would appear that contributions are not going
to be received and that therefore in agreeing to the agents request to waive
the contributions, the Council will still achieve its paramount desire of
having the access to the development via Uplands Road rather than directly off
Broadway.
By waiving the requirements of the
legal agreement, the Council will not receive contributions towards education
and open space provision, an aggregated sum of £27,160.
OPTIONS
1(a) To agree to the
applicant’s agent to request to waive the financial contributions and issue the
conditional planning permission without a Section 106 Agreement.
1(b) To require the applicant
to agree to a voluntary revocation of the comment granted on appeal under
TCP/1813/N) which involves access onto the Broadway
2(a) To acknowledge the
benefits of the applicant/agents request and issue the conditional planning
permission subject to a Section 106 Agreement having negotiated for a lesser
sum in terms of financial contributions.
2(b) To require the applicant
to agree to a voluntary revocation of the comment granted on appeal under
TCP/1813/N) which involves access onto the Broadway
3. Notwithstanding the
applicant/agents request to waive the financial contributions we issue the
decision granting conditional planning permission subject to the Section 106
Agreement requiring financial contributions towards education and open space
provision.
Following the appeal decision it
is clear that the development can be implemented without either the need to
make the financial contribution towards educational and open space provision or
to access the site from Uplands Road and therefore, in economic terms the clear
choice for the applicant is to implement the recent appeal decision. However,
the agents wish to implement the second scheme with access of Uplands Road as a
preferred choice.
If we agreed to the request to
waive the financial contributions, the Council will at least achieve the
primary objective of obtaining a safer vehicular access to the site. It is
clear that if members adhere to the latest decision requiring the
contributions, despite the fact that such a decision is consistent with current
policy, the financial contributions would not be received since the development
would then be implemented in accordance with the original scheme and accessed
off Broadway thus also resulting in a less desirable means of access.
In reaching a decision Members are
asked to take into account the following points:
Notwithstanding the Officer’s
recommendation on the initial application there continues to be a local concern
about the use of the existing (improved) access onto Broadway to serve the
proposed development.
The applicant/agent recognises
that the second application is the preferred solution to the development of
this site. However, all parties acknowledge that the applicant can implement
the permission granted on appeal without making any financial contribution and
consequently he is asking the Council to consider forgoing the contribution in
order to achieve a better scheme and, more importantly, access to the rear of the
site off Uplands Road as opposed to the Broadway.
This is a very difficult decision
which is why we are asking the Committee to make a final determination. In the
simplest possible terms the scenario is one where if we pursue the financial
contributions through the Section 106 Agreement, the developer can avoid
payment by implementing the approval for the first scheme which, it is widely
agreed, is inferior in a number of respects but primarily because the
development will be served off the Broadway. On balance, it is considered that
the benefits which arise from the making up and use of Uplands Road as an
access in combination with an improved
layout, as opposed to the use of the Broadway, outweighs the financial
contributions that would be payable for education and open space provision.
1(a) To agree to the
applicant’s agent to request to waive the financial contributions and issue the
conditional planning permission without a Section 106 Agreement.
1(b) To require the applicant
to agree to a voluntary revocation of the comment granted on appeal under
TCP/1813/N) which involves access onto the Broadway
Head of Planning Services