PAPER B1

ISLE OF WIGHT COUNCIL DEVELOPMENT CONTROL COMMITTEE -

TUESDAY 23 SEPTEMBER 2003

REPORT OF THE HEAD OF PLANNING SERVICES

WARNING

1. THE RECOMMENDATIONS CONTAINED IN THIS REPORT OTHER THAN PART 1 SCHEDULE AND DECISIONS ARE DISCLOSED FOR INFORMATION PURPOSES ONLY.

2. THE RECOMMENDATIONS WILL BE CONSIDERED ON THE DATE INDICATED ABOVE IN THE FIRST INSTANCE. (In some circumstances, consideration of an item may be deferred to a later meeting).

3. THE RECOMMENDATIONS MAY OR MAY NOT BE ACCEPTED BY THE DEVELOPMENT CONTROL COMMITTEE AND MAY BE SUBJECT TO ALTERATION IN THE LIGHT OF FURTHER INFORMATION RECEIVED BY THE OFFICERS AND PRESENTED TO MEMBERS AT MEETINGS.

4. YOU ARE ADVISED TO CHECK WITH THE DIRECTORATE OF ENVIRONMENT SERVICES (TEL: 821000) AS TO WHETHER OR NOT A DECISION HAS BEEN TAKEN ON ANY ITEM BEFORE YOU TAKE ANY ACTION ON ANY OF THE RECOMMENDATIONS CONTAINED IN THIS REPORT.

5. THE COUNCIL CANNOT ACCEPT ANY RESPONSIBILITY FOR THE CONSEQUENCES OF ANY ACTION TAKEN BY ANY PERSON ON ANY OF THE RECOMMENDATIONS.

Background Papers

The various documents, letters and other correspondence referred to in the Report in respect of each planning application or other item of business.

Members are advised that every application on this report has been considered against a background of the implications of the Crime and Disorder Act 1998 and, where necessary, consultations have taken place with the Crime and Disorder Facilitator and Architectural Liaison Officer. Any responses received prior to publication are featured in the report under the heading Representations.

Members are advised that every application on this report has been considered against a background of the implications of the Human Rights Act 1998 and, following advice from the Head of Legal and Democratic Services, in recognition of a duty to give reasons for a decision, each report will include a section explaining and giving a justification for the recommendation.

LIST OF PLANNING APPLICATIONS ON REPORT TO COMMITTEE –

TUESDAY 23 SEPTEMBER 2003

TCP/01272/D P/01122/03

Clematis Cottage and Berrylands, Heathfield Road,

Bembridge, PO35

Bembridge

Conditional Approval

TCP/14537/F P/01105/03

part OS Parcels 4261, 5760 and 6360 including access track, off, Newnham Road,

Ryde, PO33

Ryde

Refusal

TCP/25709 P/01234/03

Maryons Gift Shop, 109 High Street,

Shanklin, Isle Of Wight, PO376NS

Shanklin

Conditional Approval

TCP/25754 P/01448/03

Honeysuckle Cottage, Seven Sisters Road,

Ventnor, Isle Of Wight, PO381UZ

Ventnor

Conditional Approval

TCP/01272/D P/01122/03 Parish/Name: Bembridge Ward: Bembridge North

Registration Date: 24/06/2003 - Outline Planning Permission

Officer: Mr. J. Mackenzie Tel: (01983) 823567

Applicant: B B Developments

Demolition of dwellings; outline for 9 houses; formation of vehicular access and parking

Clematis Cottage and Berrylands, Heathfield Road, Bembridge, PO35

REASON FOR COMMITTEE DETERMINATION

The application is particularly contentious and has attracted a substantial number of representations.

PROCESSING INFORMATION

The application has taken twelve weeks to date due to workload of Case Officer.

LOCATION AND SITE CHARACTERISTICS

These two residential properties are located on the south east side of Heathfield Road, a few metres from the 90º bend which, in turn, is a few metres south east of Pelham Close.

Heathfield Road is a rough, unmade carriageway serving many residential properties, linking with Preston Road and Mitten Road, both unmade roads and part of the route from this site to the metalled highway. The area of land is 0.2 hectares; it forms the garden areas of both of the existing residences and also forms the western limits of a large tract of land in separate ownerships, parts of the gardens of those properties which front Steyne Road, Preston Road and Heathfield Road. It is relatively flat although there is a gentle fall to the south east and is presently well grown in, mostly with hedgerows and trees marking the boundaries.

RELEVANT HISTORY

In April of this year planning consent was refused for demolition of these dwellings and an outline for ten houses on grounds of overdevelopment, inadequate access and development being premature which would be prejudicial to the overall development of the area.

DETAILS OF APPLICATION

Outline consent sought for the demolition of the two existing buildings known as Clematis and Berrylands and for the redevelopment of the site with nine houses, the provision of a new access road in running along the north eastern boundary. The plans show a short cul de sac road installed providing a layout of three pairs of semi detached houses and three detached houses and as the proposed access road runs in very close proximity to the north eastern boundary, it enables a continuation of the development into that land to occur.

DEVELOPMENT PLAN/POLICY

The site is within the designated development envelope of Bembridge but is not under any specific designation. The site is not within the Area of Outstanding Natural Beauty.

PPG3 Best Use of Urban Land is applicable.

CONSULTEE RESPONSES

Highway Engineer's comments awaited.

PARISH/TOWN COUNCIL COMMENTS

Bembridge Parish Council recommend refusal on grounds of overdevelopment, excessive density which would be likely to result in overlooking and loss of privacy and on grounds of unsatisfactory access, inadequate drainage and parking. Further commenting that they do not favour tandem development and that development is contrary to the Village Design Statement.

THIRD PARTY REPRESENTATIONS

Twenty five letters of objection from local residents on grounds of adverse effect on property through overlooking and close proximity of dwellings; inadequate drainage, both storm and foul water; increased traffic, further damage to an already inadequately constructed road; inadequate lighting; loss of trees; structural damage to adjoining properties; development in an area of ground movement; disturbance and loss of privacy and overlooking and the creation of a dangerous precedent for further development. One writer suggests that, in the event that planning permission is granted, conditions should be imposed in order to ensure that the road is made up and proper drainage is provided.

CRIME AND DISORDER IMPLICATIONS

No crime and disorder implications are anticipated.

EVALUATION

This land is located within the development envelope and in an area surrounded by residential property. It presently forms the rear gardens of residential property and its development for residential purposes would fulfill some of the objectives of PPG3 in achieving the provision of housing by the economical use of land within designated development envelopes. There is, therefore, no objection in principle terms to the land use proposed.

It will be seen from the relevant history section above that planning permission was refused earlier this year on the basis of overdevelopment, prematurity and inadequate access. The scheme has been reduced by only one unit and it is understood that the developers are prepared to make up that section of road between Pelham Close and the site in order to facilitate improvement in quality of access.

It is also understood that enquiries by the applicant with Southern Water have taken place with a view to the provision of an improved scheme of drainage for both foul and storm water.

An application for development on the adjoining land to the north was refused in January of this year and the subsequent appeal result is imminent. However, prior to the submission of this application the applicant has carried out an exercise to show how development could continue into the adjoining land to the north east and that the current scheme does not prejudice such continuing development. It is clear from the submitted plan that access would be physically available thus enabling a continuation.

Determination of this proposal therefore turns on matters of density and arrangement as siting and access are to be determined at this stage. Bearing in mind this development comprises the intended economic use of what would otherwise be described as a backland site, it is inevitable that an access road needs to be driven in to serve development fronting it, but this has been done by the demolition of a property to give sufficient space for an access road whilst increasing the density of development on a second. The layout of the site, especially the westernmost dwellings respects the general line and pattern of development in the area. The existing dwelling known as Berrylands which is to be demolished is set some way forward of the adjoining property known as Lark Rise. The dwellings do create a more dense development since a distance of approximately 17 metres is allowed between the rear faces of the properties. However, despite this distance it is felt that adequate levels of privacy may be maintained. The development does proposed a higher density and therefore distances between dwellings is inevitably to be reduced. At a site area of 0.21 hectares, the development of the site with nine dwellings would represent a density of approximately 42 dwellings per hectare, midway between the 30 to 50 envisaged by the government.

Whilst matters of drainage have been investigated, development should not commence on this site until a comprehensive scheme of storm and foul water drainage has been prepared and installed. Similarly any further development of this site, and certainly one of the scale envisaged should not commence until the road access between Pelham Close and the site has been made up to an agreed specification with the Local Planning Authority.

Turning to other matters, it is clear that this development will be the first phase of a continuing residential development, the total of which is likely to exceed twelve units hence triggering the need for a social housing element. Bearing in mind this application seeks consent only for nine units and that there is likely to be a continuation of the residential development, it would be wrong to require the next developer to provide all of the social housing units on his site as this will be likely to render any continuation unviable economically. It is therefore suggested that, with the continuation of development in mind, 20% of the houses provided at each phase of the continuing development be set aside for social housing units and, in addition, as this is a windfall site a contribution should be made to the provision of educational facilities. In this instance the formula suggests that a figure of £8,100 contribution to the provision of educational facilities would be appropriate for this development.

Turning finally to grounds of objection, this is an outline application and therefore any siting and means of access are proposed to be considered at this time. Matters of inadequate drainage and increased traffic and matters relating to inadequate access would be addressed by the need to provide these facilities before any further development occurred in the area. In terms of inadequate lighting, I do not consider this to be a factor in determining the application. There will be some loss of trees, which is inevitable with such a densely developed site but there is no Preservation Order on trees in this area and, from my inspection, many of the trees are overgrown garden trees as opposed to specimens worthy of individual preservation. It should be remembered that increased densities within towns and villages are promoted to ensure that the countryside is preserved. There is little land within Bembridge which is readily accessible and ripe for development and the majority of recent developments in the village have taken place via the development of windfall sites comprising the subdivision of existing curtilages or by land assembly, mostly in backland sites. It is the inevitable result of the combination of countryside restraint policies and the need to provide housing for the population.

HUMAN RIGHTS

In coming to this recommendation to grant planning permission 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 property in the area and other third parties have been carefully considered. Whilst there may be some interference with the rights of these people this has to be balanced with the rights of the applicant to develop the land in the manner proposed. Insofar as there is an interference with the rights of others it is considered necessary for the protection on the rights and freedom of the applicant. It is also considered that such action is proportional to the legitimate aim and in the public interest.

JUSTIFICATION FOR RECOMMENDATION

Having given due regard and appropriate weight to the material considerations as described in the evaluation section above, the development of this site within the development envelope for higher density housing is consistent with UDP policies regarding residential use and in accordance with Planning Policy Guidance on housing.

RECOMMENDATION - APPROVAL (subject to a S106 Agreement regarding the payment of a committed sum towards the provision of educational facilities)

Conditions/Reasons:

1	Time limit - outline - A01

2	Time limit - reserved - A02

3	Approval of reserved matters - A03

No development shall take place until there has been submitted to and approved in writing by the Local Planning Authority a plan indicating the positions, design, materials and type of boundary treatment to be erected. The boundary treatment shall be completed before the buildings are occupied. Development shall be carried out thereafter in accordance with the approved plans.

Reason: In the interests of maintaining the amenity value of the area to comply with Policy D1 (Standards of Design) of the IW Unitary Development Plan.

5	Drainage - G07

No dwelling erected pursuant to this permission shall be occupied until the highway between the entrance to the site and the metalled section of Pelham Close has been constructed and/or resurfaced and drained in accordance with a full specification submitted to and approved by the Local Planning Authority.

Reason: To ensure adequate access to the proposed development and to comply with Policy D1 (Standards of Design) of the IW Unitary Development Plan.

Two of the nine dwellings hereby approved shall be built and handed over to a registered Social Landlord at a discounted premium (50% market value) and shall be used for the purpose or providing housing accommodation for rent to meet the objectives of a registered landlord (except where tenants exercise their right to purchase property under the Purchase Grant Scheme included in the Housing Act 1996 and except also that the conditions are not binding or enforceable against any mortgage or chargee (or person deriving title from such mortgagee or chargee which is in possession of these plots (or either of them) pursuant to any mortgagee or chargee and which mortgagee or chargee in exercising the power of sale).

Reason: To ensure that adequate provision is made for affordable housing.

8	Details of roads, etc, design and constr - J01

9	Timing of occupation - J10

10	Provision (loading, unloading & parking - K01

TCP/14537/F P/01105/03 Parish/Name: Ryde Ward: Binstead

Registration Date: 30/05/2003 - Full Planning Permission

Officer: Mr. P. Stack Tel: (01983) 823570

Applicant: Mr P Legge

Stable block comprising 8 stables, 2 store rooms & 2 tack rooms; formation of access track

part OS Parcels 4261, 5760 and 6360 including access track, off, Newnham Road, Ryde, PO33

REASON FOR COMMITTEE CONSIDERATION

This application is particularly contentious and has attracted a substantial number of representations.

PROCESSING INFORMATION

This is a minor application and will have taken sixteen weeks to determine.

LOCATION AND SITE CHARACTERISTICS

Application relates to land situated immediately south of Millgrove residential estate and which forms north eastern corner of Brickfields Equestrian Centre complex.

Site is presently served and bounded to west and south by a public footpath system and presently comprises grazing land.

RELEVANT HISTORY

TCP/14537D - stable block comprising eight stables, two store rooms and two tack rooms with access off public footpath system - refused April 2002 on grounds that access to application site, involving public footpath, was considered both unsatisfactory and inappropriate to serve the proposed development and would be likely to create nuisance to users of public footpath system and add to hazards of pedestrian traffic contrary to UDP policy.

TCP/14537E - stable block comprising eight stables, two store rooms and two tack rooms and including upgrading of footpath R40 to bridleway - refused December 2002 on grounds that access to application site utilising a public right of way was considered both unsatisfactory and inappropriate to serve the development and its associated increase in usage would be likely to create a nuisance to users of the public footpath system and adding to hazards of pedestrian traffic contrary to policy TR7 and C24c.

DETAILS OF APPLICATION

In terms of size and siting proposed stable block is identical in respect of these issues to previous submissions refused in April and December 2002.

Stable block measures some 22.75 metres length by 9.75 metres width having height to ridge of some 5 metres. The building will comprise two store rooms, two tack rooms and eight stable units served off central corridor with building constructed in dark stained horizontal cladding under plastic coated steel clad roof. Building has north south orientation and will be located close to public footpath R40/41 and a minimum distance of some 15 metres to nearest residential curtilage. Application now submitted on basis of providing different access arrangements in order to service new stable block.

Briefly amended access arrangement involves construction of three metre wide trackway which runs parallel to existing public right of way for a distance of some 140 metres which connects at the southern end to the existing internal trackway system to Brickfields and at the northern end necessitates crossing over public right of way into paddock area where stable block is proposed to be sited.

Newly formed trackway would be bounded by post and wire fence comprise earth surface and require construction of two sets of gates either side of public footpath. In support of application agent states that proposal does not necessitate use of stretches of adjoining public footpaths only crossing at right angles at one of them at access point into field. Agent now considers proposal acceptable as previous refusal related to impact of development on possible use of footpath by vehicles and horses from stables which has now been overcome.

DEVELOPMENT PLAN/POLICY

The following policies of UDP are considered relevant to this application:

G5 - Development Outside Defined Settlements. Policy allows for development outside defined settlements connected with agriculture, forestry, fisheries and related ancillary activities and also recreation and sports activities appropriate to countryside and appropriate small scale rural tourism development.

G10 - Potential Conflict Between Proposed Development and Existing Surrounding Uses.

D1 - Standards of Design.

C1 - Protection of Landscape Character.

C23 - Stables and Field Shelters in the Countryside. Policy allows for such structures for the keeping of horses for recreational purposes and advises such development will be approved where they are sensitively sited to avoid harming visual amenity of countryside for occupiers of adjoining land or buildings, they are of a scale, design and construction appropriate for the location and are of timber construction and conditions and/or legal agreements are applied to prevent incremental development, such as feed stores, tack rooms, mobile field shelters, caravans or similar structures.

C24 - Commercial Riding Establishments. Applications for new commercial riding establishments and extensions to existing premises will be approved where it involves the reuse of an existing farm complex, minimises any impact on adjoining residential occupiers, will not result in unacceptable conflict between riders and vehicles on nearby road network and they have direct access to the rights of way network.

TR7 - Highway Considerations for New Development.

CONSULTEE RESPONSES

Highway Engineer raises no comment.

Environmental Health Officer commented on previous application and recommended the imposition of conditions relating to prohibition of burning of manure and stable waste on site together with storage of material on site.

In respect of previous application Environment Agency raised no objection in principle.

Rights of Way Officer has visited the site and expressed a number of concerns.

a Construction of crossing over footpath R40/41 would entail the breaching of the hedge banks either side of the footpath. These are undoubtedly ancient and I suggest the Council's Senior Countryside Officer be asked to comment on this issue. Within the affected section the following species are present, elm, hawthorn, field maple, hazel and willow. The elm is dying and therefore the value of other trees has extra importance.

b The difference in levels between the surface of the footpath and that of the field to the south is about 1.5 metres. Access to the stables would therefore have to be ramped at this point with a batter on either side of the cutting. Therefore the section of hedge bank which would need to be removed is several metres wide.

c The surface water run off from the field to the south of the footpath is into the north east corner, i.e. at the point where the ramp's cutting would need to be made. There is already a drain under the footpath at this point. There will be a tendency for surface water to funnel into the ramped access and discharge onto the footpath.

d The driver of a vehicle approaching the stable block from the south will need to view at an acute angle over the right shoulder to see if anyone is approaching along the footpath from the south. Vehicles such as Land Rovers have opaque sides behind the driver and visibility at such an angle is impossible.

The Archaeological Officer regards hedgerows as being "important" using criteria relating to archaeology in Part 2 of Schedule 1 of the Hedgerow Regulations 1997. The boundaries which are shown on early unpublished Ordnance Survey plans are recorded on the Sites and Monuments Records as Archaeological Sites. Hedgerow Regulations state that archaeological sites recorded on such a basis before the relevant date should be afforded protection by the Act.

County Archivist advises that using maps it has been possible to establish that lane with attendant hedgerows has been in existence since at least 1793 and this part of lane in map of 1862 appears to fall wholly within parish boundary of Binstead. However, the department does not have any body of estate maps which cover this area and therefore there is no documentary evidence available which would enable the hedge to be regarded as being of historic importance within criteria set out in Hedgerow Regulations.

Assistant Ecology Officer advises that hedgerows on either side of bridle way are important under wildlife criteria of Hedgerow Regulations 1997. Hedges are species rich containing an average of seven species per thirty metre stretch (in total ten different species in the hedge on the south side and nine on the north side) and they are set on prominent banks. There are reliable reports of dormice in these hedges (a protected species).

These hedgerows should be afforded protection as they are valuable ecological and landscape features. Area currently proposed is likely to lead to damage or loss of trees as well as hedgerow shrubs. If it were considered essential to breach this hedgerow to allow access to field it would be preferable if a different area could be used. There has already been some damage to the northern hedgerow further to the west of the crossing proposed and this would be less detrimental site for gate. If permission is granted to remove any section of hedge a thorough survey for dormice by a suitably qualified person must be undertaken and if dormice are present a DEFRA licence will be required before works can go ahead.

PARISH/TOWN COUNCIL COMMENTS

Not applicable.

THIRD PARTY REPRESENTATIONS

Two letters have been received from the Ramblers Association with one letter objecting on grounds that buildings are outside development area, that building should be inside present farm boundary which is well defined with no justification for development on undeveloped grazing land away from main farm area. Building is also adjacent housing on north boundary, smell and flies associated with manure storage must be recognised. Second letter comments that new access track appears designed to allow vehicle and bridle access between new stables and existing internal tracks of establishment without conflicting with pedestrian use of right of way. It is hoped that there will be a positive condition requiring all bridle and vehicular traffic to use new track. Concern is raised over lack of restriction of access to right of way at northern end of new access track with possibility that installation of gate could result in users taking easier alternative right of way R40 or indeed that lack of knowledge of correct route would result in similar usage. Installation of fixed barriers are suggested and furthermore condition is suggested requiring vehicles connected with building of stables and new track to use new trackway only. It is also suggested that stables would harm visual amenity by intruding into overall aspect of locality contrary to policy C23 with development itself appearing to be too large in terms of scale. Reference is also made to policy C24 and it is suggested there will be considerable impact on nearby residential properties, particularly in respect of waste storage and treatment.

Twenty eight individual letters of objection have been received. The main points of objection summarised as follows:-

Proposal involves crossing existing right of way and a potential conflict and danger to footway users.

Inadequate access arrangements for emergency vehicles to service site.

Potential for parked vehicles in open countryside associated with use of stables.

Potential nuisance to nearby residents in respect of smell, rodent, fly problems.

Increased surface water run off and impact on nearest residential property.

Incremental development of the locality.

Potential damage to footpath.

Proximity of development to housing.

Loss of trees and need for tree protection.

Inappropriate location for this development.

CRIME & DISORDER IMPLICATIONS

No crime and disorder implications are anticipated.

EVALUATION

Planning considerations again relate to appropriateness and development in rural location, its potential visual impact together with matters relating to means of access.

Policies within UDP allow for development outside defined settlements connected with agriculture, forestry, fisheries and related ancillary activities, recreation and sport activity appropriate to the countryside, appropriate small scale rural tourism development and/or appropriate small scale development to create or sustain rural employment.

Additionally policy C23 advises that in respect of applications for stable and field shelters for recreational purposes such development will be approved where they are sensitively sited to avoid harm to visual amenity, are of a small scale and are designed and constructed appropriately for location.

Policy C24 deals with extensions to existing commercial riding establishments which will be approved where they involve re-use of existing farm complex or group of farm buildings, minimising impact on adjoining residential occupiers, will not result in unacceptable conflict between riders and vehicles on nearby road network and have direct access to rights of way network.

Given previous decisions on this site, again it is considered there is no reasonable objection in principle to further provision of stable block in this location and as previously advised by Environmental Health Officer given distance to nearest residential property, provided appropriate conditions are attached to any consent it is not felt that building itself and associated uses will have any undue detrimental impact on amenities of nearest residential occupiers.

Main consideration therefore relates to means of access to application site, its appropriateness and potential conflict with other footpath users.

Application as revised clearly seeks to overcome potential conflict with users of public rights of way system given that newly constructed access way will run parallel to existing footpath for a distance of some 140 metres and only cross it at right angles at one point providing access into field which will contain stable block.

Whilst it is agreed that such an arrangement will reduce potential for conflict with footpath users the difference in land levels between the footpath and adjoining fields, use of two sets of gates will it is felt be difficult to construct and operate given the potential usage proposed and will still result in a level of conflict with users of the public footpath system. Additionally the construction of an access way running parallel to an existing footpath is somewhat contrived and gives an indication as to the associated access problems associated with developing this site in isolation from the existing riding complex. Furthermore the construction of an access way over this length will inevitably have some impact in terms of urbanising what is currently a relatively undeveloped rural location.

Proposal will also result in loss of sections of "important" hedgerow which has been identified as being species rich and within which may provide habitat for protected species. The introduction of new access points would also require substantial earthworks given fact that level of field to south of footway in some 1.5 metres above level of public footpath which is to be crossed. Given the proposal involves introduction of second access point into field there is considered to be insufficient justification for loss of these sections of hedgerow.

As with previous applications it is considered reasonable to assume that provision of eight stable units in this location will result in increased usage of newly formed access way given its relative remoteness, day to day usage of building together with essential deliveries which will inevitably involve vehicles which will increase potential for conflict between all users of public footpath system. Countryside Access Manager remains concerned in respect of breaching of ancient hedgerow, difference in levels, surface water run off and potential danger to footpath users from lack of visibility particularly for vehicles crossing public right of way. Footway system in locality is generally well used and I again consider that proposed development will inevitably increase potential danger to users of rights of way creating both a nuisance and highway hazards to pedestrian traffic. I therefore consider proposal is contrary to Unitary

Development Plan policy which firstly seeks to ensure development provides for safe movement and separation of vehicular traffic, cyclists and pedestrians whilst maintaining safety of all road users and secondly resulting in unjustifiable loss of sections of an important hedgerow.

HUMAN RIGHTS

In coming to this recommendation to refuse planning permission, 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 property in the area and other third parties have been carefully considered. Whilst there may be some interference with the rights of the applicant to develop the land in the manner proposed, it is considered that the recommendation to refuse is proportional to the legitimate aim of the Council’s Unitary Development Plan and in the public interest.

JUSTIFICATION FOR RECOMMENDATION

Having given due regard and appropriate weight to all material considerations referred to in this report it is considered that access to the site is considered to be inappropriate, contrary to policies of Unitary Development Plan and therefore represents a fundamental planning objection to proposal and application is recommended accordingly.

RECOMMENDATION - REFUSAL

Conditions/Reasons:

The access to the application site, crossing a public right of way, is considered both unsatisfactory and inappropriate to serve the proposed development and the associated level of usage of the proposed access would be likely to create a nuisance to users of the public footpath system and add to the hazards of pedestrian traffic contrary to policies TR7 (Highway Considerations) and C24c (Commercial Riding Facilities) of the Isle of Wight Unitary Development Plan.

2	The development proposed would be likely to adversely affect an important hedgerow and any approval would be contrary to policy S6 (Be of a High Standard of Design) and Policy C13 (Hedgerows) of the Isle of Wight Unitary Development Plan.

TCP/25709 P/01234/03 Parish/Name: Shanklin Ward: Shanklin South

Registration Date: 02/07/2003 - Full Planning Permission

Officer: Mrs. J. Penney Tel: (01983) 823593

Applicant: Madeline Trigwell

Change of use from gift shop (class A1) to tea room (class A3)

Maryons Gift Shop, 109 High Street, Shanklin, Isle Of Wight, PO376NS

REASON FOR COMMITTEE CONSIDERATION

Report requested by Councillor Rees, Ward Member, following request to deal with the application under the Part 1B procedure. Councillor Rees considers that the cumulative effect of this type of development should carry sufficient weight for the application to be refused or at best establish a policy so this application can be viewed in context.

PROCESSING INFORMATION

This is an "other" application. The processing of this application has taken fourteen weeks to date, this being the earliest committee date following the Local Member's request.

LOCATION AND SITE CHARACTERISTICS

The site is located on the western side of the High Street in Shanklin Old Village. The character of the area is tourist based with a mix of uses. The application premise is a three storey vacant building previously used as shop at ground floor and residential above.

RELEVANT HISTORY

TCP/20886/A - change of use from retail to bakery and takeaway 111 High Street, Shanklin. Conditional approval 12 September 2001. Hours of operation 0900 to 2030 hours daily.

DETAILS OF APPLICATION

The application seeks consent to use ground floor of previous gift shop as tea room. The floor plan shows limited seating area at the front of the premises with kitchen and WC to rear with no external alterations proposed. The applicant has advised intention is to operate as café/tea room/restaurant and requests opening hours until maximum of 12.30 at night.

DEVELOPMENT PLAN/POLICY

Policies G1 (Development Envelopes for Towns and Villages), D1 (Standards of Design), G10 (Potential Conflict between Proposed Development and Existing Surrounding Uses), T1 (The Promotion of Tourism and the Extension of the Season), B6 (Protection and Enhancement of Conservation Areas), R2 (New Retail Development) are considered relevant.

CONSULTEE RESPONSES

Highway Engineer confirms no highway implications.

Environmental Health Officer recommends conditions be applied to any approval.

Licensing Officer confirms supper hours licence does not deal with noise or planning considerations.

PARISH/TOWN COUNCIL COMMENTS

Shanklin Town Council recommend approval.

THIRD PARTY REPRESENTATIONS

One letter concerned with too many eating establishments in the locality and loss of shop.

CRIME AND DISORDER IMPLICATIONS

No crime and disorder implications are anticipated.

EVALUATION

The proposal is within the development envelope, in Shanklin Conservation Area, outside the Town Centre boundary in an area popular with tourists.

Determining factors in considering the application are whether proposal detracts from the reasonable use and enjoyment of adjoining buildings, whether there is any potential for conflict between existing, adjoining or surrounding development and activities, whether proposal promotes and supports tourism and/or extends the tourist season and whether proposal preserves and enhances the character or appearance of the Conservation Area.

This is a vacant premise in a mixed use area, just outside the town centre, where there is evening activity with the existing nearby businesses including public house and hotel.

With regard to the concern over number of eating establishments in the locality and the loss of shop, a refusal of permission on these grounds is considered unsustainable. Policy R2 refers to proposals for new retail development but also states that "applications involving the loss of local shops and pubs will not be approved where it is shown that this will have a damaging impact on the local community". The shop has already closed and the main town centre is in very close proximity.

Policy R5 relates to retail only frontages and does afford protection to the loss of A1 uses where there is a level where their loss will threaten the vitality and viability of the town but is not relevant to this proposal as it is outside the town centre and retail only frontage.

Local Member concern regarding cumulative effect of this development is not sustainable on policy grounds in this location. A business operating in this location rather than a vacant building protects and enhances the Conservation Area.

With regard to operating hours and given proximity of residential property, hours of operation need to be imposed to protect neighbouring amenity. The applicant has advised that they will be living in the accommodation above the café/restaurant and have requested operating until 12.30 at night as applying for a supper hours licence. It is reasonable to assume that the potential disamenity will be limited by the nature of the use as restaurant rather than takeaway and there is limited floor space providing seating.

It is relevant that recently approved takeaway establishment in Shanklin High Street within the town centre boundary has operating hours of 0900 to 2300 Sunday to Thursday and 0900 to 2400 on Friday to Saturday and Saturday to Sunday mornings. Generally, takeaway establishments have the potential to adversely impact on neighbouring amenity more than a restaurant facility.

There is a public house near to the application site operating until 11 pm; it is reasonable to assume that activity would generally cease soon after. I recommend a closure time of 11.30 pm is reasonable in this location and that to allow later opening would conflict with policy to protect neighbouring amenity, would be difficult to control if the use adversely impacted on

nearby property and would also give grounds for precedence when assessing similar applications outside town centre. Conditions can be imposed to limit operating hours and provide extraction systems and refuse receptacle to minimise impact on locality.

HUMAN RIGHTS

JUSTIFICATION FOR RECOMMENDATION

Having given due regard and appropriate weight to all material considerations referred to in this report, application represents appropriate use of building supporting tourism in this location subject to conditions and I recommend accordingly.

RECOMMENDATION - APPROVAL

Conditions/Reasons:

1	Time limit - full - A10

2	Extraction systems - details required - C13

The means of extraction of fumes and smells from the premises as required by Condition 2 of this consent shall be installed before the use is commenced, and thereafter effectively operated for as long as the use continues.

Reason: In the interests of the amenities of the adjoining residential property and to comply with Policies P1 (Pollution) and D1 (Standards of Design) of the IW Unitary Development Plan.

4	Provision of litter bins - C15

5	The use hereby permitted shall not be open to customers outside the following times 0900 - 2330 daily. Reason: In the interests of the amenities of the area and the occupiers of nearby properties and to comply with Policy D1 (Standards of Design) of the IW Unitary Development Plan.

6	Restriction of use to a cafe/restaurant - C18

TCP/25754 P/01448/03 Parish/Name: Ventnor Ward: Ventnor West

Registration Date: 28/07/2003 - Full Planning Permission

Officer: Miss. D. Cooper Tel: (01983) 823854

Applicant: Mr & Mrs McInnes

Alterations and single storey extension to form entrance hall and link to dwelling

Honeysuckle Cottage, Seven Sisters Road, Ventnor, Isle Of Wight, PO381UZ

REASON FOR COMMITTEE CONSIDERATION

The applicant is an employee of the Council.

PROCESSING INFORMATION

This is a minor application, the processing of which will have taken ten weeks and one day to the date of the committee meeting. This is beyond the prescribed time limit because of the need for Committee consideration.

LOCATION AND SITE CHARACTERISTICS

This application relates to a detached chalet bungalow which is situated on the eastern corner of Fishers and Seven Sisters Road at Ventnor. The bungalow is constructed of artificial stone blocks under a plain tile roof. There is a detached garage in the rear garden which lies between the bungalow and a cul-de-sac known as Fishers. Land slopes away in a southerly direction with well established screening on all boundaries. The site is within St Catherines Conservation Area.

RELEVANT HISTORY

None.

DETAILS OF APPLICATION

Consent is sought to construct a link between the bungalow and the detached garage. The link would measure 2 metres long, 1.8 metres wide with eaves and a ridge height of 2.6 metres and 3.5 metres respectively. The garage is shown on submitted plans to be converted into an entrance hall and utility room, while the existing garage door and front facing gable wall would be replaced with a pair of french doors and a series of glazed panels.

DEVELOPMENT PLAN/POLICY

Relevant policies of the UDP are considered to be as follows:

D1 Standards of Design

H7 Extension and Alteration of Existing Properties

B8 Alteration and Extension of Non Listed Buildings in Conservation Areas

CONSULTEE RESPONSES

None.

PARISH/TOWN COUNCIL COMMENTS

Ventnor Town Council see no reason why planning consent should not be issued.

THIRD PARTY REPRESENTATIONS

None.

CRIME AND DISORDER IMPLICATIONS

No crime and disorder implications are anticipated.

EVALUATION

Having regard to the minor nature of the proposed works coupled with substantial screening along the site boundaries, it is considered that the proposed development would not have an adverse affect on the amenities currently enjoyed by neighbouring property occupiers or detract from this part of St Lawrence Conservation Area.

HUMAN RIGHTS

In coming to this recommendation to grant planning permission 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 property in the area and other third parties have been carefully considered. Whilst there may be some interference with the rights of these people this has to be balanced with the rights of the applicant to develop the land in the manner proposed. Insofar as there is an interference with the rights of others it is considered necessary for the protection of the rights and freedom of the applicant. It is also considered that such action is proportional to the legitimate aim and in the public interest.

JUSTIFICATION FOR RECOMMENDATION

Having given due regard and appropriate weight to all material considerations referred to in this report, I am satisfied that the proposed extension and alterations to this property would not have an adverse impact upon adjoining property occupiers or detract from the visual amenities and character of the locality.

RECOMMENDATION - APPROVAL

Conditions/Reasons:

1	Time limit - full - A10

2	Detail external roofing/facing finishing - S02

OTHER MATTERS NOT RELATING TO CURRENT PLANNING APPLICATIONS

(a) E/11822/R Unauthorised use of land as car park, Embankment Road, Bembridge

Officer: Mr L Harper Tel: (01983) 823569

Summary

To consider whether the circumstances justify the service of an Enforcement Notice.

Background

A complaint was received by the Enforcement Section in April 2003 relating to the formation of a car park at Embankment Road, Bembridge. An Enforcement Officer visited the site and confirmed that the land had been cleared but not surfaced. A low fence had been installed and the land in use as a car park. It appears that the car park is being used by residents of the boathouses within the harbour. The Enforcement Officer wrote to the owner informing him that the area within which the car park is located adjoins a designated SSSI and that the use of the land as car parking was unauthorised and in breach of planning control. The owner was invited without prejudice to the final decision to submit a retrospective planning application to retain the use of the land as a car park. The owner was further advised that such an application should be supported by an environment statement with regard to the impact of the car park on the SSSI and any mitigating measures that may be required.

The owner responded advising that a planning application would shortly be forthcoming. A planning application has not been made to date and the Owner was reminded on several occasions the latest in September 2003 when he was informed that the matter would be reported to the Development Control Committee.

The following Unitary Development Plan Policies apply

Strategic Policies

S1 New development will be concentrated within existing urban areas.

S4 The countryside will be protected from inappropriate development.

S6 All development will be expected to be of a high standard of design.

S10 In areas of designated or defined scientific, nature conservation, archaeological, historic or landscape value, development will be permitted only if it will conserve or enhance the features of special character of these areas.

Detailed Policies

Countryside and Coast

C1 : Protection of Landscape Character

Coast

C3 : Development of the Coast Outside of Development Envelopes

C4 : Heritage Coast

Nature Conservation

C8 : Nature Conservation as a material Consideration

C10 : Sites of national Importance for Nature Conservation

Design & Standards for Development

D1 : Standards of Design

General Location of Development

G1 : Development Envelopes

G4 : General Locational Criteria

G5 : Development Outside Defined Settlements

Pollution

P1 : Pollution and Development

Tourism

TR16 : Parking Policies and Guidelines

Financial Implications

None

Options

To serve an Enforcement Notice requiring the unauthorised use of the car park to cease, removal of the wooden fence and reinstate the ground to its original condition and use.

To note the information presented in the report and write to the owner requesting a planning application within twenty-eight (28) days before taking enforcement action.

To note the information in the report and to take no further action.

Conclusion

The main issues with regard to this investigation are the formation of the car park which although unsurfaced is an operation that requires planning consent, the potential impact on the adjacent SSS1 and the impact of the use on the visual character of the locality. With regard to the visual impact, the site lies outside the development envelope and is considered to contribute towards the break in development on that side of the road between Bembridge and St. Helens.

There are a number of other significant concerns with regard to the denuding of the site, excessive runoff, the possible adverse impact of oil and petrol spillage from motor vehicles parked on the land and seepage into the soil and ground water pollution. The Owner has submitted that the use of the land for car parking eliminates the practice before the land was brought into use for parking of using the narrow shoulder of Embankment Road which posed hazard for both vehicular traffic and pedestrians. Notwithstanding the obvious and serious traffic concerns the planning and environmental considerations if not addressed could over time have an adverse impact on the land and the adjoining SSSI.

Human Rights

In coming to this recommendation, consideration has been given to the rights set out in Article 8 (Right to Privacy) and Article 1 of the first Protocol (Rights to Peaceful Enjoyment of Possessions) of the European Convention on Human Rights. The impact of the unauthorised use on the land and the immediate locality has been carefully considered. The action recommended is proportionate to the legitimate aims of the Council to remedy the breach of planning control and is made in the public interest.

Recommendation

To serve an Enforcement Notice on the Owner requiring the unauthorised use of the car park to cease, remove the wooden fence and reinstate the ground to its original condition and use.

Summary

To consider whether it is appropriate to release a Section 52 (Planning Obligation) Agreement requiring the flat at Eremue Hall to be retained with the existing dwelling (Solent View Cottage) and not disposed of separately.

Background

TCP/17551B/SB/15459 An application for the conversion of Church Hall into two garages on ground floor with flat over was conditionally approved in December 1982. Occupation of the flat was restricted by a condition as follows:

“The flat hereby approved shall be retained with the existing dwelling at Solent View Cottage as one property and shall not be disposed of separately.”

The planning permission was also subject of a Section 52 Agreement, again requiring retention of the flat with Solent View Cottage preventing disposal of the flat separately from the cottage.

TCP/17551C/P02285/02 An application for continued occupation of the flat without complying with the above-mentioned condition, retaining the flat with the existing dwelling and not to be disposed of separately, was approved in January 2003.

This consent authorises occupation of the flat independently of and its severance from Solent View Cottage, thereby permitting its disposal as a separate unit of accommodation.

A letter has now been received from an Agent acting on behalf of the owner of the property seeking to remove the Section 52 Agreement.

The following policies of the Unitary Development Plan are considered to be relevant:

S1 – New Development will be concentrated within Existing Urban Areas.

S2 – Development will be encouraged on land which has been previously developed (Brownfield Sites), rather than undeveloped (greenfield) sites.

G1 – Development Envelopes for Towns and Villages.

D1 – Standards of Design.

Occupation of the unit was restricted by the condition and Section 52 Agreement as, at that time, it was considered that a separate residential unit in this position, unrelated to Solent View Cottage, would not have been permitted, however, since the application was approved, I

consider that there has been a change in the policy considerations applicable to this type of development and there is now a greater emphasis on making efficient use of land within the

defined settlements and, in particular, the development of previously developed (Brownfield) sites and provision of housing through conversion of existing buildings. In this respect, Planning Policy Guidance note 3 advises as follows:

“The Government is committed to maximising the re-use of previously developed land and empty properties and the conversion of non-residential buildings for housing, in order both to promote regeneration and minimise the amount of Greenfield land being taken for development. The national target is that by 2008, 60% of additional housing should be provided on previously developed land and through conversions of existing buildings.”

When dealing with the recent planning application, and having regard to these factors, it was considered that the condition restricting occupancy had outlived its useful purpose and the consent was granted for the continued occupation of the flat independent from Solent View Cottage. Consequently, it is now necessary to consider whether the Section 52 Agreement serves any useful purpose and whether it should be rescinded.

Financial Implications

None.

Options

1. To agree to the release of the Section 52 Agreement.

2. Not to agree to the release of the Section 52 Agreement.

Conclusion

At time of considering original application in 1982, occupation of the flat to be created by the proposal separate from Solent View Cottage was not considered acceptable. However, in considering such a proposal against current policies and guidance, I do not consider that such a restriction would be considered reasonable or necessary. Conversion of such buildings within the defined settlements provide a valuable source of housing and, subject to satisfying other relevant criteria, is encouraged by PPG3 – Housing.

I consider that, since planning permission was granted for the conversion of the former church hall, there has been a change both in terms of Planning Policy Guidance and the general approach to this type of development and I am satisfied that the condition and the Section 52 Agreement have outlived their useful purpose. Therefore, I would recommend that the committee agree to the removal of the Section 52 Agreement.

Human Rights

In coming to this recommendation 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 possession) of the European Convention on Human Rights. The impacts the release of the agreement might have on the owner/occupiers of this and other property in the area and other third parties have been carefully considered. Whilst there may be some interference with the rights of owners/occupiers of neighbouring properties and other third parties, this has to be balanced

with the rights of the applicant to occupy the property in the manner proposed. Insofar as there is an interference with the rights of others it is considered necessary for the protection of the rights and freedom of the applicant. It is also considered that such action is proportional to the legitimate aim of the Council’s Unitary Development Plan and in the public interest.

Recommendation

To agree to the release of the Section 52 Agreement.

(c) E/18880/A Proposed use to accommodate cinema organ in building rear of 80 High Street, Wootton

Officer: Mr L Harper Tel: (01983) 823569

Summary

To consider whether the nature of the proposed use to accommodate a cinema organ in building rear of 80 High Street, Wootton is incidental to the use of the dwelling house.

Background

In June 2003 the Enforcement Section received a complaint regarding the construction of a large building in the rear garden of 80 High Street, Wootton. In July 2003, the Enforcement Team Leader and the Area Planning Enforcement Officer visited the site and met with the Owner. During the site investigation the Owner informed the Officers that he wrote to the then Joint Planning Technical Unit in 1982 requesting information on whether planning permission would be required to demolish a number of sheds to rear of the dwelling house and to erect a new building 18.3 metres by 7.32 metres positioned 5.0 metres away from the residential building. The building would be used for housing a cinema organ. The then Joint Planning Technical Unit responded by letter in April 1983 stating that planning permission would not be required for the building provided it is to be used for purposes incidental to the enjoyment of the dwelling house and does not exceed 4 metres in height. This advice was in accord with the parameters set out in the 1977 General Permitted Development Order regarding the construction of outbuildings within a domestic curtilage.

The Owner stated that on the basis of this response he commenced construction of the building in 1983 by putting in place the foundations, pit to accommodate the organ and a single row of blocks. Construction activity ceased in 1983 and recommenced in June 2003. At the time of the site visit the brickwork was at a height of 1.9 metres on the western elevation and 3.25 metres on the eastern elevation.

Based on the limited information that was originally sent to the Local Planning Authority in 1983 and a broader understanding of what can be termed an incidental use to a dwelling house the Owner was invited without prejudice to the final decision to submit a retrospective planning application for the building and its use for housing the organ. Alternatively an application could be submitted to obtain a Lawful Development Certificate.

In August 2003, a Planning Agent on behalf of the owner wrote to the Local Planning Authority outlining the reasons why the use of the building to accommodate the cinema organ was incidental to the use of the dwelling house. The Agent raised the issue that his Client should be able to rely on the earlier letter for any subsequent actions he has undertaken. At the end of August 2003 the Local Planning Authority responded requesting clarification of documentation submitted by the owner in 1982 and 1983 respectively and advising that the matter would be put before the Development Control Committee asking Members to make a formal decision on how the Local Planning Authority should respond.

Financial Implications

None

Options

To accept that the Local Planning Authority is bound by the terms of the previous correspondence and can take no further action.

To note the position to date and to take no further action until the building is completed and the use commences at which time the use can be reconsidered.

To indicate to the owner that given the limited information on which the original exchange of correspondence took place, that the use of the building to house a cinema organ goes beyond the limitations that an incidental use would be bound by. Accordingly the Authority considers that the formal consent is required and that the owner should be invited (without prejudice) to make a retrospective application. Time frame for submission of application twenty-eight (28) days . If no application is received the matter will be brought back to Committee

Conclusion

I consider that there are two principal material concerns to be resolved in the consideration of this matter.

1. Whether the use of a cinema organ can be interpreted as being genuinely incidental use within the meaning of the General Permitted Development Order, and,

2. Whether the letters of response from the then Joint Planning Technical Unit in 1982 and 1983 can as considered as providing the Owner with a definitive response that the proposal to use the building to accommodate and use the cinema organ is incidental to the enjoyment of the dwelling house and therefore does not require planning permission

Both the Town and Country Planning Act and the General Permitted Development Order does not provide a definition of the term ‘incidental to the enjoyment of the dwelling house’ and guidance on the interpretation is taken from case law and decisions of Planning Inspectors. Class E of the General Permitted Development Order 1995 states, ‘purposes incidental to the enjoyment of the dwelling house as such include the keeping of poultry and livestock for the domestic needs or personal enjoyment of the occupants of the dwelling house’. The generally accepted definition of incidental use includes such activities as hobbies and game rooms and other similar uses. The basis premise for interpreting what activities is considered as incidental use is the example of the man on the Clapham omnibus, ie what the average person in the street would normally do at their property. Case law clearly demonstrates that there is a limit to the level of activity that can be undertaken for the use to be accepted as incidental and that any proposal should not be based on the owners unrestrained whim.

The past twenty years have provided a degree of case law which combined with current practice indicate that if an enquiry were made to the Local Planning Authority a more cautious response would be sent. In such circumstances an invitation to make an application for a Certificate of Proposed Lawful Use or Development would be made as guidance would suggest that the use is outside of the generally accepted definition of incidental use because of the particular requirements that is necessary to house the organ and minimize the adverse impact of noise within the external environment.

Whilst noting the above, the principal issue to resolve is whether the guidance provided by the then Joint Planning Technical Unit in 1983 to the Owner was definitive or contained caveats and was not a conclusive statement on whether the use was incidental to the enjoyment of the dwelling house.

The respective letters from the Joint Planning Technical Unit in response to the Owner’s enquiry set out the criteria under the 1977 -1981 General Development Order but did not provide any statement that the specific use was not incidental. The Owner has stated that he provided the then Joint Planning Technical Unit with sufficient information to make a determination at that time and that there is a ‘legitimate expectation’ that the response

provided him with sufficient guidance for him to commence the proposal. Members will have to decide whether or not an average member of the public would interpret the Local Planning Authority’s response as a green light to proceed with the proposal.

I believe that based on the limited information regarding the nature of the use which is in possession of the Local Planning Authority in 1982 and 1983 there must be a window of opportunity for the Authority to question if the use is truly incidental and that this will occur when the use starts. In any event it would be appropriate to take no further action until the building is completed and the use commences at which time a further revaluation of the case will take place.

Human Rights

In coming to this recommendation not to take enforcement action at present, 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 of Human Rights of both the land owner and third parties. On balance, I believe that the proposal to take no formal action at this stage is a proportionate response to the situation as it is actually developing on site and does not undermine the public interest as exhibited through the planning policies.

Recommendation

To note the position to date and to take no further action until the building is completed and the use commences at which time the use can be reconsidered.

ANDREW ASHCROFT

Head of Planning Services

LIST OF OTHER MATTERS NOT RELATING TO CURRENT PLANNING APPLICATIONS ON REPORT TO COMMITTEE – 23 SEPTEMBER 2003

(a) E/11822/R Embankment Road Bembridge

(b) TCP/17551C Eremue Hall, Eremue Lane Yarmouth