Officer: C S Hougham (Development Control Manager) Tel No: (01983) 825576
To decide how to respond to a request
from a local consultant on behalf of the owner of the abovementioned land that
they should be allowed to use the unauthorised motocross track for a single two
day international event which is likely to be held in late May or early June
2005.
1.1
In August 2003
Development Control Committee resolved to grant conditional planning permission
for a temporary period of twelve months allowing this land to be used for
motocross purposes. A further condition restricted the use of the site to 24
occasions a year but, as Members know, the site was hardly used by enthusiasts
and was actually only used on three occasions which were major weekend events
which amounted six or seven days in total.
1.2
This decision to grant
temporary approval was eventually challenged and judicial review proceedings,
brought by the former owners of Arreton Manor, were scheduled to be heard at
High Court on 8/9 July 2004. This hearing did not take place as the claimants
and the defendant (i.e. the Council) signed a consent order agreeing to quash
the temporary planning permission prior to that date.
1.3
Previously the
Development Control Committee believing that they were dealing with an extant
planning permission, agreed to one further event taking place in September 2004
following the expiry of the temporary period. Committee, however, reaffirmed
their earlier decision and agreed not to take any enforcement action when the
event took place, despite the fact that there was not valid permission. This
was on the understanding that the land would only be used on this one occasion
between the date of the decision and the date of the event which was scheduled
to last for just two days.
1.4
Two months later
Officers in consultation with the Chairman agreed to a request to use the site
in connection with a motorcycle launch event on 19/20 October 2004.
1.5
Less than two weeks
later Members were invited to consider how the Council, as Local Planning
Authority, should respond to the use of the site as a temporary car park in
connection with a music event being held at Robin Hill on the weekend 10/12
September 2004. The decision taken was that despite the impending breach of
planning control Members resolved not to take any enforcement action on the
basis that a significant highway safety problem could result if the site were
not used for this particular purpose.
1.6
At that time Members
also supported a further recommendation that a report should be submitted to
Development Control Committee at the meeting on the 26 October 2004 on the
situation regarding the anticipated submission of a planning application for
the continued use of the land and, if not received, to consider how the Council
should respond to the situation.
1.7
Notwithstanding the
advice given at a number of meetings with the then promoter over a period going
back twelve months or more the Council still had not received an application
for the continued use of the site for motocross purposes before the matter was
due to be reconsidered.
1.8
When the matter was
considered by the Committee, in accordance with the earlier resolution, Members
decided to give the necessary authorisation for enforcement action to be taken
in respect of the extensive engineering works carried out in connection with
the actual track, the construction and laying out of the vehicular/pedestrian
access onto the A3056 and the engineering works carried out on the adjacent
land to facilitate the use of that part of the site as a temporary car park as
“permitted development” which should have been reinstated within a specified
period following an earlier major event. It was agreed that the enforcement
notice would require full reinstatement of the land back to the original
contours rendering it capable of agricultural related use with a compliance
period of six months.
1.9
Since that resolution
there have been a number of developments:
·
Promoter eventually
investigated the likely cost (and likely timescale) of preparing an
Environmental Impact Assessment to accompany an application for the continued
use of the site.
·
It quickly became apparent
for various reasons that an application was unlikely to be submitted.
·
It is understood that
the promoter is no longer involved with the use of this site for motocross
purposes.
·
A Merstone resident is
pursuing a complaint against the Council with the Local Government Ombudsman
over the way the matter has been handled from the submission of the application
up to the decision to take enforcement action.
·
Due to
clerical/administrative difficulties the enforcement notice was not served
prior to Christmas 2004 as anticipated, however, the landowner has already
indicated that he intends to appeal against the service of the Notice which
will mean it will not become effective until the appeal has been determined (or
withdrawn) and the six month compliance period will be likely to stretch into
2006.
·
It is understood that
the landowner, who is in discussion with the relevant national and
international bodies, is keen to hold one major event in late May/June 2005.
1.10
We have now received a request from a local consultant
on behalf of the landowner seeking support from the Council to hold a single
major event in a few months time. It is understood that that this is a round of
the World Championships, identical or very similar, to the event held on this
site on 29/30 May 2004. The consultant advises that his client will require a
response before the end of January 2005.
1.11
It is clear that this is
a particularly complicated situation with significant political implications.
Following internal consultation it was decided to seek advice from Counsel
before preparing this report with Members being asked to make the decision.
2
ACTION TAKEN TO DATE
2.1
Following consultation
with the Chairman of the Development Control Committee it was confirmed that
this was a decision that would need to be taken by elected Members and that a
meeting would need to take place prior to 31 January 2005.
2.2
The Chairman has agreed
that the matter should be treated as an urgent item.
2.3
Enforcement Notice was
served but has had to be withdrawn. Following advice from Counsel the
re-drafted Enforcement Notice will now include a Screening Opinion on the need
for Environmental Impact Assessment and will be served within a matter of days.
2.4
Landowners consultant
has been told that having taken legal advice, the Council is not prepared to
accept a planning application in the absence of an Environmental Statement.
2.5
Landowners consultant
has been told that Members will be asked to consider exercising discretionary
enforcement powers to allow the two day event to take place and end of
May/early June 2005.
2.6
If Members decide to
exercise discretionary enforcement powers this will be subject to the landowner
entering into a Section 106 Agreement with the Council to control the future use
of the site and to impose (planning) controls prior, during and after the
event.
2.7
A consultation exercise
has been undertaken with the Parish Council, the Local Member and all other
Members of the Council.
2.8
Following further advice
from Counsel this report has been amended and if she has any further comment to
make her observations will be relayed to Members at the meeting.
2.9
Circumstances dictate
that Members will require expert advice and guidance from an environmental
health officer and a highway engineer when considering this request so they
have been invited to attend the meeting.
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3
OPTIONS 1.
To advise the
landowner’s consultant that having taken legal advice the Council has
considered the nature of the development and concluded that it will not be
able to grant planning permission even for a two-day event without
consideration of an Environmental Statement and the authorised Enforcement
Notice will be served. However, the Council supports the principle that, if
the event can be properly controlled, the enforcement action should not
prevent the international event taking place and the landowner will be
invited to enter into a Section 106 Agreement which, once concluded, will
result in an amendment to the Enforcement Notice to permit the single event
in a few months time. 2.
To advise the
landowner’s consultant that having taken legal advice the Council has
considered the nature of the development and concluded that it will not be
able to grant planning permission even for a two-day event without
consideration of an Environmental Statement and, in all circumstances, the
Council is not prepared to exercise discretionary enforcement powers or delay
the service of the authorised enforcement notice in order to allow the
two-day event to take place; advising on possible implications if his client
proceeds without the support of the Council. |
4
FINANCIAL
IMPLICATIONS
4.1
Initial direct financial
implication is the cost of seeking advice from Counsel
4.2
Possible indirect
financial implications will include a significant income for the local economy
should the event take place and conversely there is also a question of the
possibility of compensation should the Local Government Ombudsman uphold the
complaint by the Merstone resident and decide that there has been
maladministration causing injustice to this particular individual. It is
important to stress that while these factors may be material planning
considerations, they are not factors that can influence a decision on the need,
or otherwise, for an Environment Statement.
5
CONSIDERATIONS
5.1
The problems and
difficulties associated with the extensive engineering works and the occasional
use of the land for motocross racing have been well documented and covered on a
reasonably comprehensive basis in this latest report.
In
relatively simple terms, Members are advised that, notwithstanding an appeal,
the enforcement notice will not require the removal of extensive unauthorised
engineering works for six months after the date when the notice becomes
effective which should mean that the works are completed in early autumn 2005.
Members are required to make a judgement in the public interest having taken
into account all material planning considerations. Consequently, I conclude
that the material considerations, other than the known economic/tourism
benefits of holding a major sporting event on the Island, that need to be taken
into account in dealing with the landowner’s request to hold this particular
event fall into two broad categories:
o
General amenity and
environment health considerations which will include noise/dust/fumes etc.
o
Highway matters, which
will include traffic arrangements, potential congestion, adequacy of access,
onsite parking facilities etc.
This is why Environmental Health Officer and the Highway Engineer have
been invited to attend the meeting so that they may give Members an informed
professional view on the proposal based on information which they have
collected when the site was used for major motocross purposes in 2003 and 2004.
5.2
In my opinion the
consensus view of members of the Development Control Committee and the Local
Parish Council within the twelve month period leading up to the last event was
that there was a significant change in terms of what they had originally
anticipated when planning permission was granted in August 2003 and what
actually took place on site up to that date. (i.e. National, European and World
Events)
5.3
Nevertheless IWC Members
have been keen to indicate that they were impressed with the organisation of
these events and recognise the fact that it was enjoyed by many thousands of
people, residents and visitors, while making a significant contribution to the
local economy as well as giving positive exposure to the Island throughout the
world.
5.4
However, this view has
been set against a background of local concerns expressed about the
(anticipated) problems in respect of noise/dust and the impact on the landscape of quite extensive
engineering works particularly in connection with the construction of the
track.
5.5
The local promoter (RTT
Racing) is understood to be no longer involved and it is the landowner who is
enquiring about the possible use of the site for a single major international
event in a few months time.
5.6
Unfortunately it would
seem that the failure of the former promoter to recognise the significance and
importance of making an early and detailed submission with a supporting
Environmental Statement in order to apply for conditional planning permission
before committing to events scheduled to be held this year was a very serious
oversight. It is clear that the preparation of an Environmental Statement will
not only be an expensive exercise but will also take a considerable period of
time due to the extent and nature of the survey work and analysis.
5.7
Having taken legal
advice the view is taken that the fundamental issues can be summarised in the
following terms:
·
In terms of the
Environmental Impact Assessment Regulations 1999 the advice is that since the
change to use had a permanent character (i.e. the land now has the character of
a motocross track and does not revert to another use between events) this would
be a Schedule 2 development, even if the number of occasions were very limited.
·
Therefore, if the Council
were to treat an application for the temporary use of a site on the basis that
it had been determined that it was not Schedule 2 development and subsequently
grant permission, the view is held that an application for a judicial review
would hold that the Council was in error and quash the grant of planning
permission.
·
The importance of the
event for tourism on the Island is not relevant to the judgement necessary to
determining whether an Environment Statement is or is not required.
·
Section 106 Agreement
might be of assistance in that respect, e.g. an undertaking not to conduct
races or training on any other days, and setting out the safeguards that might
apply to the use prior to during and after the event. Such an undertaking would
be a material consideration for the Council to take into account when deciding
whether to enforce.
5.8
Counsel concludes that in principle it is open to the
Council to decline to enforce against the use and while objectors may seek an
injunction against the landowner/promoters they are unlikely to be successful
if the Council has lawfully decided against enforcement. Furthermore Counsel
also concludes that to serve and enforcement notice now will not prevent the
variation of its requirements should a satisfactory Section 106 Agreement be
agreed in respect of this single event.
5.9
Based on my knowledge of the recent planning history
of the site, the current situation and the advice from Counsel my conclusions
are as follows:
·
There is no extant permission or even a current application
to use the site for motocross purposes.
·
Enforcement Notice needs to be amended in accordance
with advice from Counsel and will be served at the earliest possible date.
·
Council is asked to decide whether it is prepared to
support a single major event on the site.
·
Any planning application for the continued (temporary)
use of the site for motorcross purposes must recognise that this is Schedule 2
development and needs to be accompanied by an Environmental Statement.
·
Council has the option to exercise discretion in the
use of enforcement powers which may enable them to agree to a single event
taking place on the site.
·
If the Council chooses to exercise discretion then
consideration should be given to the landowner being required to enter into a Section
106 Agreement to ensure that the site is not used for this purpose again in the
absence of an extant planning permission and as a method of imposing conditions
and controls in respect of the proposed two-day event.
·
Any third parties taking out an injunction against the
promoters are unlikely to be successful if the Council has lawfully decided
against the exercise of enforcement powers.
5.10
Quite clearly a decision not to exercise enforcement
powers, as set out above, to effectively allow this two day event to take place
towards the end of May/June has major implications in terms of the support of
the many residents, visitors and enthusiasts that will be keen to see a major
motocross event continuing in this particular location set against the opposition
to the extensive engineering works and the likelihood of continuing use of the
site voiced by some residents living in the locality over the last eighteen
months.
5.11
Notwithstanding the comments of the Environmental
Health Officer and the Highway Engineer in planning terms I would broadly
support a decision to allow this event to take place subject to various
controls encapsulated in the format recommended by Counsel which will be a
Section 106 Agreement (see Option 1). Counsel
advises that the Council can serve a notice and on the completion of a planning
obligation (or Section 106 Agreement), alter the requirements of the Notice so
effectively Members would be asked to support the principle that, if it can be
properly controlled, the enforcement action should not prevent the
international event from taking place. If this is the case, the Enforcement
Notice should be issued and the owner should be invited to enter a Section 106
Agreement. The enforcement notice may subsequently be amended to permit the
single event controlled by the Agreement.
5.12
Counsel confirms the view held by officers that a
decision to support the event in the absence of detailed information as to the
impact the use would run a serious risk of being quashed on an application for
judicial review and that is why expert opinion has been invited to the meeting
to comment on the two principle considerations highlighted in paragraph 4.1.
|
RECOMMENDATION 1.
To advise the
landowner’s consultant that having taken legal advice the Council has
considered the nature of the development and concluded that it will not be
able to grant planning permission even for a two-day event without
consideration of an Environmental Statement and the authorised Enforcement
Notice will be served. However, the Council supports the principle that, if
the event can be properly controlled, the enforcement action should not
prevent the international event taking place and the landowner will be
invited to enter into a Section 106 Agreement which, once concluded, will
result in an amendment to the Enforcement Notice to permit the single event
in a few months time. |
ANDREW ASHCROFT
Head of Planning Services