REPORT OF THE DIRECTOR OF CORPORATE AND ENVIRONMENT SERVICES TO DEVELOPMENT CONTROL COMMITTEE

SITE INSPECTIONS – 29 NOVEMBER 2002

 

 

1.   TCP/16040/G                   Retention of stream culvert, land at 16-20 Church Road, Shanklin

 

Officer:  Mr J Mackenzie     Tel: (01983) 823567

 

Summary

 

To consider further action in relation to the retention of the culvert following the appeal against an Enforcement Notice requiring the removal of the unauthorised structure and works.

 

Background

 

In June 1996 planning permission was granted for a chalet bungalow at this site which abuts Church Road and in May 2001 a revised design was approved and subsequently, development commenced.

 

Neither the original scheme nor the revised submission authorised the installation of 8 metre length of culvert, although shown on the plan it was deleted from the proposals and form the subject of a separate application which was duly refused on 16 October 2001 for the following reason: -

 

  1. The retention of the culvert is likely to result in conditions which could adversely effect the efficiency of the existing land drainage regime of this part of the chine by the retention of a source of blockage and obstruction of a major water course which would be contrary to the principles of PPG 25 and policy U11 of the Isle of Wight Unitary Development Plan.

 

A subsequent application which, again, sought consent for the retention of the culvert but included the formation of a new driveway and turning area off Priory Road was submitted but was refused for the same reason as the previous application but two additional reasons were given namely: -

 

  1. The formation of an access drive, car parking and turning area in the chine and its use for the parking of vehicles would result in an unacceptable visual intrusion in this part of the conservation area contrary to policy B6 of the Isle of Wight Unitary Development Plan.

 

  1. The engineering operation to form the access road car parking and turning area would endanger trees which are available in this part of the conservation area and therefore the development would be contrary to policy B6 of the Isle of Wight Unitary Development Plan.

 

An appeal was lodged against the refusal decision of October 2001 and the subsequent Enforcement Notice which required the removal of the works within a period of 3 months, the works being the removal of all spoil infill above and alongside the pipe; the removal of headworks including railway sleepers and concrete at either end of the section of pipe; remove the sections of pipe and restore the water course and its banks to their original profile and contours.

 

The appeals against the Enforcement Notice and the refusal of planning permission were unsuccessful.  The Inspector dismissed both appeals and upheld the Enforcement Notice and upon the date of the appeal decision, the Enforcement Notice became effective and the compliance period for the above works expired at the end of October 2002.  The requirements of the notice have not been met and there is therefore a breach of the valid Enforcement Notice.

 

Following the receipt of the appeal decisions I have been approached by the appellant who is pleading to retain the culvert and associated works.  Ordinarily, following the close examination of the case via the appeal system and the associated support of the Inspector, I would proceed to prosecute the non-compliance with the notice. However, I believe further consideration of the matter needs to take place before such action occurs.

 

The appellant has gained the support of the owner and operator of Shanklin Chine into which the stream flows.  She is most concerned that the removal of the head walls, culvert pipes and fill material by the sides and over the culvert pipes is likely to result in significant amounts of silt washing into the chine and causing damage and, in addition, the removal of the works would result in a regime of further bank erosion thus destabilising the banks of the stream with similar effects.

 

In a letter from the agent on behalf of the appellant the applicant details the history of the site and the reasons for the request, a copy of his letter is attached.

 

In essence it appears that the appellant installed the culvert having been advised verbally by the Environment Agency that the works to install the culvert would be acceptable in 1.2 metre diameter concrete pipes, for a distance of approximately 18 metres (only 8 metres has been installed).  The works were carried out but without the necessary planning permission and retrospective consent was sought but was refused as detailed above.

 

In support of the request to retain the culvert the agent advises Members of the following:

 

1.      The new culvert has at no time since its construction had any blockages – proven beyond doubt during the last year’s record rainfall figures.  We all remember the countrywide flooding and yet this culvert performed admirably.

 

2.      In the unlikely event that this culvert did block, there would still be no risk of flooding to any property upstream. 

 

3.      Culverts upstream are somewhat smaller than this one and far more likely to cause damage should they become blocked.  Indeed, Mrs Springman and her staff were called out to attend to a blockage upstream – some quick action adverted a potential major flooding incident that would have been avoided had your Council properly maintained the culvert.

 

4.      The Environment Agency are recognised as the lead Authority on culverting, and they have now approved this particular culvert.

 

Financial Implications

 

There are no financial implications for the Council in this matter.

 

Options

 

  1. To adhere to the previous decision and to require the removal of all works and to restore the banks of the stream to their former profile and to prosecute if the works are not carried out in accordance with the Enforcement Notice within the next 4 weeks.

 

  1. To invite the resubmission of an application for the retention of the culvert only, advising the applicant that vehicular access and the formation of a driveway to the rear of the site remain unacceptable.

 

  1. To invite the submission of an application for the retention of only part of the culvert and works sufficient to enable pedestrian access and to allow the retention of gabions installed to reduce erosion.

 

  1. To defer for one month prosecuting the breach of the Enforcement Notice and to carry out further investigations regarding drainage, erosion and pollution and to report back upon conclusion of the investigation.

 

Conclusion

 

The matter of the need for planning permission has been raised.

 

This is a matter which has been before Members and has subsequently been determined, at appeal, by an Inspector.  Bearing in mind the appeal was against the service of an Enforcement Notice and the refusal of planning permission, the Inspector would have considered the need for planning permission for the development.  In my view planning permission was required since the installation of an 8 metre length of 1.2 metre diameter culverting with approximately 1.2 metres of fill above and around it, together with the construction of a headwall at each end of the culvert is a substantial engineering operation.  In addition I do not consider it could be construed as permitted development since, at the time the dwelling was being constructed, the installation of the culvert and its associated works took place.  The land was therefore a development site rather than the curtilage of a dwelling and therefore no permitted development rights would have existed.

 

Unitary Development Plan Policy G4 expects planning applications to take account of ponds, streams and other watercourses whilst Policy G6 will not permit development where flooding problems could arise as a result of the proposed scheme.

 

PPG25 advises Planning Authorities to apply the precautionary principle to the issue of flood risk and advises that consideration of flooding is you should not be confined to river and coastal flood plains and that the susceptibility of land to flooding is a material consideration and that the land concerned may be the application site or elsewhere where there may be flood implications.

 

Environment Agency policy states that culverting should not be considered until other options have been thoroughly explored.  The Agency confirms in its written documents that it is generally opposed to the culverting of watercourses and wherever practical will seek to have culverted watercourses restored to open channels.  In addition the Agency accepts that there are cases where culverting may, in practise, be unavoidable, such as short lengths for access purposes or where highways cross watercourses, but also indicates that alternatives such as bridges or diversions of the watercourse must have been rigorously considered.

In this instance, in the original proposal for the dwelling constructed adjoining Church Road, only pedestrian access to the parking area was proposed but in the later application a new access road and the infilling of the substantial area of land around the culvert was proposed to allow vehicular access.

 

Strong representations have been received from the owner of Shanklin Chine who also has riparian rights in relation to the watercourse which eventually discharges into the Chine.  It seems the owner of the Chine was not notified of the receipt of the application, claiming that her rights were not considered during the processing of the applications.  She strongly supports the appellant stating that the culvert and associated works have given this part of the Chine protection, have stabilised the banks where substantial erosion has occurred and developing the site has discouraged adjoining owners dumping rubbish in the Chine.

 

In summary, planning permission has been granted for the erection of a dwelling on part of the site with pedestrian to Priory Road to access the parking area for that dwelling.  The unauthorised engineering works to install the 8 metre length of 1.2 metre diameter culvert and the infilling of the land surrounding it has been refused and dismissed on appeal with the Inspector upholding the Enforcement Notice requiring the culvert’s removal.  The further information now submitted claims that the works are beneficial and that the requirements of the Notice to remove all of the unauthorised works will cause untold damage downstream in Shanklin Chine which is to receive an environmental designation.

 

There appear to be factors in this matter which have not been raised until after the appeal decision was made and therefore, under the circumstances, it is felt appropriate that prosecuting the non-compliance with the Enforcement Notice is deferred and further investigations take place with regard to drainage, pollution and erosion before any further action is taken.

 

Recommendation

 

To defer for one month prosecuting the breach of the Enforcement Notice and to carry out of further investigations regarding drainage, erosion and pollution and to report back upon conclusion of the investigation.