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