REPORT OF THE STRATEGIC DIRECTOR OF CORPORATE AND
ENVIRONMENT 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 CORPORATE AND 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.
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.
|
Electoral Division |
Site |
App. No. |
Rep. No. |
Recommendation |
|
SHANKLIN SOUTH |
The Boathouse
Restaurant 3 Esplanade Shanklin |
TCP/03889/J |
1 |
APPROVAL |
If you need to see a copy of any of the reports they
can be accessed on the Isle of Wight Council Web Site :
www.iwight.com/council/committees/Mod‑development_control/29‑04‑03/agenda
|
Electoral Division |
Site |
App. No. |
Rep. No. |
Recommendation |
|
FRESHWATER AFTON |
Helen's Copse off Gate Lane Freshwater |
TCP/24024/B |
2 |
REFUSAL BREACH
OF CONDITION NOTICE |
(a) TCP/13615F Former
Rex Cinema, Church Street VENTNOR
(b) TCP/14987G Ryde
Business Park, Nicholson Road RYDE
(c) TCP/18901G Island
Motor Salvage, Pritchetts Way, ROOKLEY
Rookley Industrial Estate
(d) TCP/21784B The
Orchard, Undercliff Drive ST
LAWRENCE
(e) TCP/22128A Land
north of Mountbatten Drive NEWPORT
(f) TCP/23485 Tamarisk,
Steephill Cove VENTNOR
(g) E/6387/M 10
Oakhills SHANKLIN
|
1. |
TCP/03889/J P/01147/02 Parish/Name: Shanklin Ward: Shanklin South Registration
Date: 03/07/2002 -
Outline Planning Permission Officer: Mr. J. Mackenzie Tel: (01983) 823567 Applicant: Mr P & Mrs M Andrews Demolition of
buildings; outline for 4 houses The Boathouse
Restaurant, 3, Esplanade, Shanklin, PO376BN |
This application
was considered firstly at the Development Control Committee on 4 February and
was then the subject of a Committee site inspection which took place on 14
February 2003 when it was resolved to defer it again, as Members were not
prepared to grant outline planning permission without further details in the
form of a geotechnical survey of the cliff to establish its stability. In addition, Members advised that the
application should be a detailed submission which should show a reduction in
terms of scale, mass and height and appearance of the block.
A letter of
response has been received from the agent which requests that the proposal be
considered taking account of further information submitted. A plan submitted shows the proposed building
is no closer to the foot of the cliff than the existing. The cliff has now been included within the
application site and the agent requests approval subject to a condition to
require cliff stabilization measures to be carried out prior to commencement of
development.
Such necessary
measures would become apparent following a geotechnical survey but in essence
the agent suggests this could take place following the grant of permission in
principle, subject to an appropriate condition. He requests that, if Members do not feel disposed to approve the
application without a geotechnical survey, that they could give an indication
of what decision would be likely if a favourable geotechnical survey were
forthcoming.
REASON FOR
COMMITTEE CONSIDERATION
Report requested
by Local Member at the time of submission.
LOCATION &
SITE CHARACTERISTICS
The site has
nearly approximately 0.02 hectares located at the extreme end of Shanklin
Esplanade on the rising land at Chine Hill which marks the southern end of the
physical development of the Esplanade. Chine Hill rises to the south, turns to
the west whilst still rising and, in pedestrian form provides access to the
Chine Public House, and turning further northwards links with Chine Avenue and
Everton Lane. The rear of the site is marked by the bottom of the cliff and further
terraced houses etc. abut the site further to the north including 4 and 5
storey block of flats known as Waverley Court. The site is currently occupied
by 1, 2 and 3 storey buildings currently used as cafe/restaurant with
residential accommodation covering the majority of the site.
RELEVANT HISTORY
Change of use of
ground floor from retail to cafe approved in January 1995 and in April 1994 a
change of use from class A1 retail to class A3 cafe was also approved, the two
applications relating to opposite ends of the building.
DETAILS OF
APPLICATION
Outline consent
is sought for the demolition of existing buildings and erection of 4 houses.
Siting is the only matter to be considered at this stage. Revised plans show
the layout of the site indicating the footprint and sketch plans have been
submitted showing a possible elevation indicating the building will be on 4
floors providing, typically, lounge, kitchen and 3 bedrooms. A revised plan
shows a scheme submitted which preserves the right of way at the northern end
of the site and steps the building to clear a window in the adjoining property
to the north.
DEVELOPMENT
PLAN/POLICY
PPG21 supports
tourism to assist in the economic sustainability of area (such as the Island)
and the UDP has been prepared taking into account the advice given.
Site is within
development envelope; outside but abutting Shanklin conservation area; outside
tourism policy (T4) area. Policy T2, whilst encouraging tourist facilities,
does not preclude changes of use to uses unrelated to tourism unless they are
unacceptable in the local environment or not easily accessible from existing
centres of population.
CONSULTEE
RESPONSES
Highway Engineer
raises no objection to the absence of parking.
Fire and Rescue
Service question suitability of development without turning facilities.
Environmental
Health Officer - no adverse comments.
The Coastal
Manager reports "the failures that have taken place in this vicinity have
been relatively small slab type failures, or clumps of vegetation or root balls
fallen under its own weight. Depending
on the height of the cliff these can cause moderate to severe damage. Any
development should therefore be set forward so there is an area for the debris
to fall into, which can be cleared periodically and if room permits then a
catch fence should be constructed to further improve safety. Much of what
should be constructed will depend on the usage and public access to the cliff
base and what risk reduction measure can be implemented on site. I would be
happy to comment on the specifics if I knew more."
PARISH/TOWN
COUNCIL COMMENTS
Shanklin Town
Council oppose the development on grounds of loss of amenity in the prime
tourist area. Stating that loss of such facilities on the seafront threaten the
long term viability of the Esplanade and therefore the tourist trade in
Shanklin.
THIRD PARTY
REPRESENTATIONS
Ten letters of
objection from and on behalf of local residents on grounds of over development
of the site, development too high and excessive density; inappropriate design.
Objectors point out lack of parking and expected generation of traffic.
Identified that there is no amenity space for the dwellings and a building of
this size would result in the loss of sunlight to adjoining properties. Loss of
an attractive building and loss of a tourist facility. Writers also draw
attention to its location at the foot of a cliff suggesting that the cliff is
unstable.
CRIME &
DISORDER IMPLICATIONS
The relevant
Officer has been given the opportunity to comment but no observations have been
received.
EVALUATION
This application
seeks to establish the principle of the redevelopment of the site with 4 storey
four residential units in a single block but, at this stage, only the principle
is sought but for a specified number of units.
The site is
outside the designated tourism area for Shanklin and outside of the hotel area
where 'facilities' would be required to be retained and therefore there is no
principle objection to the sites redevelopment for residential purposes.
The only details
to be considered at this time is the siting as numbers of units has been
specified. Revised plans have been received which show a recess in the northern
extent of the floor plan with the intention of retaining some space around and
adjoining properties kitchen window to ensure light and ventilation to that
property is not adversely affected. Although the site is shown to be
practically fully covered with the new building, much of the development to the
north, as far as Waverley Court, the large block of flats to the north, much of
the development takes a similar form.
The development
of this site, outside but abutting the conservation area, with a block of 4
floor in height, uses the slope of Chine Hill to give articulation to the
elevation. However, irrespective of the fairly substantial height, the building
would be seen from the Esplanade and fore shore but with a backdrop of the
cliff which rises well above the site. a sketch elevation shows the building to
be subdivided into its four elements with varying floor levels and in my view a
building erected in this position could result in an interesting environment,
consistent with design policies in the UDP. Design, however, will be a matter
for a future application in the event that this application is successful.
Despite the
Members' requirements following the site inspection the agent is reluctant to
advise his client to undertake a geotechnical survey which would be expensive
to find out, if the development is feasible.
He suggests the reverse situation that if Members felt the development
was acceptable in principle and aesthetically the applicant could then obtain a
survey which would prove whether the development was viable or not.
The applicant is
also reluctant to work up a fully detailed scheme incurring additional expense
if in principle development is not accepted or the cliff stabilization issue
precludes development. However a new
detailed elevational drawing has been submitted which shows accurately the height
and proportions, of a standard consistent with a full application. This drawing shows clearly the elements of
the proposed building and its relationship with the existing adjoining
development, and shows that the building will be lower than the four storey
gabled building situated next but one to the north. On the basis of the information supplied I am of the opinion that
Members could now grant planning permission or at least give an indication that
in terms of land use, mass and scale the development is likely to receive
favourable consideration. In essence
Members could indicate that, on the basis of the information currently
supplied, the development is considered favourable if a favourable geotechnic
report is forthcoming and satisfactory mitigation can be carried out.
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 impact this development might have on the
owners or 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
The use of this
site for residential properties does not contradict policies within the Unitary
Development Plan regarding tourism or to the designated conservation area
adjoining. The development of the site for residential purposes is likely to
result in a lesser generation of traffic, bearing in mind the authorised use of
there premises for residential use and as a cafe/restaurant therefore it is
considered that having given due regard and appropriate weight to the material
considerations as described in the evaluation section above, the use of the
site for four houses is acceptable and consistent with policies D1, TR7 and B6
of the Isle of Wight Unitary Development Plan.
RECOMMENDATION -
APPROVAL
Conditions/Reasons:
|
1 |
Time limit -
outline - A01 |
|
2 |
Time limit -
reserved - A02 |
|
3 |
Approval of
the details of the design and external appearance of the buildings, the means
of access thereto and the landscaping of the site (hereinafter called
"the reserved matters") shall be obtained from the Local Planning
Authority in writing before any development is commenced. Reason: In order to secure a satisfactory
development and be in accordance with Policies S6 (Standards of Design), D1
(Standards of Design), D2 (Standards of development within this site), D3
(Landscaping), TR7 (Highway Consideration for New Development) of the IW
Unitary Development Plan. |
|
4 |
Prior to the
commencement of any work pursuant to this approval, a competent persons
assessment of the ground conditions of the site along with suggested
foundation design details, details of how the cliff will be stabilised and
measures to reduce danger from cliff falls shall be submitted to and approved
by the Local Planning Authority and incorporated in any residential
development of this site. Reason: To ensure
that any adverse ground conditions encountered may be satisfactorily overcome
and the site development for (residential) purposes and to comply with Policy
G7 (Development on Unstable Land) of the IW Unitary Development Plan. |
|
2. |
TCP/24024/B P/00593/03 Parish/Name: Freshwater Ward: Freshwater Afton Registration Date: 26/03/2003 -
Full Planning Permission Officer: Mr.
A. Pegram Tel: (01983) 823566 Applicant: J H Hobson Renewal: Continued siting of 2
shipping containers Helen's Copse, off, Gate Lane, Freshwater, PO40 |
REASON FOR
COMMITTEE CONSIDERATION
The application
raises enforcement issues which need to be considered by Committee.
PERFORMANCE
INFORMATION
This is minor
application. The processing of this
application has taken five weeks to date.
A determination at this meeting would mean that the application has been
dealt with within the prescribed time limit.
LOCATION AND
SITE CHARACTERISTICS
Application
relates to rectangular site to south of property known as Bakers Farmhouse
which fronts Gate Lane and to rear of properties fronting Terrace Lane. Site is bounded to west by public footpath
and to south is open farmland which rises to Tennyson Down.
RELEVANT HISTORY
AGN/09916/E -
P/01071/99 - An application was submitted in August 1999 under the Agricultural
Prior Notification procedure in respect of a proposed planting scheme and an
implement shed. Applicant was advised
in a letter dated 14 September 1999 that there was no evidence of any forestry
or agricultural activity on the land and concern was expressed that the
building was unduly large for the intended use. Consequently, he was advised that this matter could not be
determined under the Prior Notification procedure and that it would be
necessary to submit a formal planning application which would be determined
against planning policy and other criteria.
In February 2001
an Enforcement Notice was served on the landowner in respect of two shipping
containers positioned on the site. The
Notice was to take effect on 20 April 2001 requiring the landowner to remove
the shipping containers within a period of three months.
The landowner
appealed the Enforcement Notice and on 26 September 2001 the Planning Inspector
allowed the appeal, quashed the Notice, and granted temporary consent for a
period of 18 months (expiring on 26 March 2003) on or before which date the
containers had to be removed from the land.
The Inspector indicated that in his view permanent retention of the
containers was unacceptable, but granted temporary consent in order that the
landowner could negotiate with the Council on a suitable permanent building or
structure that would be more in keeping with the surroundings.
AGN/24024 -
P/00518/01 - An application submitted under the Agricultural Prior Notification
procedure for an implement shed in connection with forestry on the land was
rejected in April 2001 on grounds that, having regard to limited size of
holding and fact that it had only recently been planted with saplings, the
Authority was not satisfied that a building of the size proposed was reasonably
necessary for the purposes of forestry operations, as required by the relevant
legislation.
AGN/24024/A -
P/00924/02 - An application was submitted in May 2002 under the Agricultural
Prior Notification procedure for an implement shed for use in connection with
forestry operations on the land. The
matter was considered by the Development Control Committee (Site Inspections)
at the meeting held on 14 June 2002 and, following an inspection of the site,
Members resolved to reject the application on the basis that they were not
satisfied that a building of the size proposed was reasonably necessary for the
purposes of forestry, particularly having regard to the limited area of the
site. In the letter notifying him of
the decision, the applicant was advised that, as a result of consultations
carried out with the Countryside Management Services and the Forestry
Commission, it was considered that the equipment to be stored in the building
was excessive for the scale of operation at the site.
DETAILS OF
APPLICATION
Application
seeks renewal of planning permission for the continued siting of two shipping
containers for storage of equipment used in connection with the maintenance of
the land. The shipping containers are
located adjacent the south eastern boundary of the site and are finished in
red.
DEVELOPMENT
PLAN/POLICY
Site is shown on
Isle of Wight Unitary Development Plan to be outside designated development
boundary, within an Area of Outstanding Natural Beauty (AONB) and Heritage
Coast. Relevant policies of the Plan
are considered to be as follows:
S1 - New
development will be concentrated within existing urban areas.
S4 - The
countryside will be protected from inappropriate development.
G1 - Development
Envelopes for Towns and Villages.
G4 - General
Locational Criteria for Development.
G5 - Development
Outside Defined Settlements.
D1 - Standards
of Design.
C1 - Protection
of Landscape Character.
C2 - Areas of
Outstanding Natural Beauty.
C4 - Heritage
Coast.
CONSULTEE
RESPONSES
None received at
time of preparing this report.
PARISH/TOWN
COUNCIL COMMENTS
No comments had
been received from the Parish Council at time of preparing this report.
THIRD PARTY
REPRESENTATIONS
Three letters
received, two from local residents and one from the Freshwater Bay Residents
Association objecting to the application on grounds which can be summarised as
follows:
Containers
unsightly/eye sore and inappropriate for the area - detrimental to visual amenities
of the locality designated as an AONB.
Originally
approved for temporary period of 18 months - considered to be adequate time to
negotiate over alternative building. Three year temporary consent sought by
applicant not justified.
Visible to users
of adjacent footpath.
Containers
larger than required to maintain area of land of less than two acres.
CRIME &
DISORDER IMPLICATIONS
No crime and
disorder implications anticipated.
EVALUATION
Determining
factors in considering application are whether the siting of two shipping
containers on land within the designated AONB and Heritage Coast represents an
appropriate form of development and whether they detract from the amenities and
character of the locality.
In determining
the appeal against the Enforcement Notice, the Inspector considered the main
issue to be the impact of the containers on the character and appearance of
this part of the AONB and Heritage Coast.
He commented that the landscape of this area is very special and that,
although the site is not prominent in views from the nearby roads there is a
public footpath that runs along the western boundary of the land. Both of the shipping containers are clearly
visible from this well-used public facility and he considered that the large
metal containers were a prominent and alien feature in this sensitive landscape
and was development that clearly harmed the character and appearance of this
part of the AONB and Heritage Coast.
The Inspector
acknowledged that the landowner was developing the land for forestry purposes
and that large numbers of saplings had been planted in order to produce an area
of coppice woodland. Whilst the Council
expressed the view that the amount of equipment stored in the containers in
connection with the maintenance of the land was excessive, the Inspector did
not share this view. In addition, the
Inspector considered that when working on the land the appellant would need
ready access to his equipment and that it would be most inconvenient and a
considerable waste of time if he had to leave the land in order to fetch a
particular piece of machinery.
Notwithstanding these comments, the Inspector expressed serious
reservations about the permanent retention of the containers on the land which
he considered were ugly, inappropriate structures, that should be removed as soon
as possible. He was made aware by the
appellant that these were only required on a temporary basis in order that he
could negotiate with the Authority for a more suitable building or structure
that would be more in keeping with the surroundings. Therefore, in quashing the Enforcement Notice, the Inspector gave
consent for the containers for a period of 18 months in order for these
negotiations to take place.
Recent
discussions with the applicant have been undertaken with a view to resolving
this situation and, in particular, determining the size of building required to
store the equipment used in connection with the maintenance of the site. These discussions were attended by the
Senior Countryside Officer who has carried out an assessment of this situation
and the level of equipment which he considers would be appropriate to maintain
the land. In order to assist in this
assessment, the applicant provided details of the equipment he uses in
connection with the maintenance of the site and a plan showing the layout of
the equipment within a building of a size which he considers would be necessary
for this purpose. The Senior
Countryside Officer acknowledges that there would be little surplus space in
the building but questions whether all of the equipment detailed is required
for maintaining the site. Furthermore,
he comments that the size of the plantation is so small and questions whether
any building is required at all. He
considers that the site is smaller than many gardens and advises that it is not
common for agricultural or forestry land to be managed independently in units
as small as this and, even where they are, it is unusual for all equipment used
to manage them to be stored and maintained on site. He has made reference to sites managed by his Section to
illustrate this and considers that the cost of a building and maintaining such
a structure and the equipment is likely to be considerably more than the cost
of maintaining the land using contractors.
Notwithstanding
the submission of several applications for a permanent building on the site,
and discussions with Officers in this respect, the landowner has failed to
resolve this situation and the containers remain on site. In particular, between June 2002 and
February 2003 the landowner made no attempt to resolve the matter and I do not
consider the fact that he has not felt sufficient urgency to resolve the matter
in the allotted time should be used as a justification for the Council to
accept the continued presence of the units on the site.
Under the
circumstances, and having regard to the comments of the inspection, I consider
that the containers should be removed from the site as soon as reasonably
practicable. Therefore should Members be minded to refuse the application, I
consider that it would be appropriate to take formal action to ensure that the
containers are removed from the land. In this respect, the authority would have
the option to serve an Enforcement Notice on the owner of the land requiring
him to remove the containers from the land within a specified period, against
which there would be a right of appeal. However, I consider that the applicant
is clearly in breach of the condition of the consent granted by the Inspector
restricting permission to a temporary period of 18 months and requiring the
removal of the containers on or before the expiry of this period. Therefore, I
consider that, in this instance, it would be more appropriate to issue a Breach
of Condition Notice, which would become effective after 28 days, seeking to
remedy the breach, i.e. the removal of the containers. Failure to comply with
the Breach of Condition Notice may ultimately result in legal proceedings
against the owner of the land. There is no right of appeal against a Breach of
Condition Notice although, in the event that the application were to appeal
against the refusal of planning permission, this may need to be taken into
account when considering legal proceedings.
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 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 permission 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 the containers are an incongruous feature
which detracts from the amenities and character of the locality designated as
an Area of Outstanding Natural Beauty and Heritage Coast. I do not consider there to be any justification
for the retention of these containers and, therefore, recommend accordingly.
1. RECOMMENDATION -
REFUSAL
Conditions/Reasons:
|
1 |
The containers, by reason of their size, colour, materials and general
appearance are considered to be incongruous features in the landscape,
detrimental to the rural character of the area and fail to protect and
enhance the special quality of the landscape designated by the National Parks
Commission under Section 87 of the National Parks and Access to the
Countryside Act 1949 as an Area of Outstanding Natural Beauty. In consequence, the proposal is contrary
to strategic policy S4 and policies G4 (General Locational Criteria for
Development), D1 (Standards of Design), C1 (Protection of Landscape Character),
C2 (Areas of Outstanding Natural Beauty) and C4 (Heritage Coast) of the Isle
of Wight Unitary Development Plan. |
2. RECOMMENDATION - That a Breach of
Condition Notice is served requiring compliance with the condition of the
consent granted by the Inspectorate and removal of the two shipping containers
from the land.
(a)
TCP/13615F/P/01216/00
Demolition of former cinema, 4 B 6
storey block of 18 flats with car
parking at ground level, one retail unit and bar/restaurant at ground floor
level, use of former public garden as private amenity area, car park access off
Hamborough Road (revised description/additional information) (revised
application), former Rex Cinema, Church Street, Ventnor, Isle of Wight
Officer: Mr S Cornwell Tel: (01983) 823592
Summary
For
the Local Planning Authority to firstly make a decision on interpreting the
degree of changes from the approved scheme which have occurred as the
development is being undertaken and secondly, how it should respond to those
changes.
At 3
October 2000 Development Control Committee meeting Members approved the above
scheme subject to a number of conditions.
Members may recall that this is a major redevelopment of a former cinema
site involving the construction of what will be a landmark building.
As
Members will appreciate when the application was being considered full detailed
plans were submitted together with information relating to ground
stability. Of particular relevance to
the matters currently under consideration were the following plans:
(i) front and rear elevations which showed the
adjoining building (the three storey property at no 21 Church Street) to
indicate how the new building would fit in.
(ii) a
scaled cross section taking a line through the site from Church Street picking
up the new building and running beyond the southern boundary and also showing ASt Andrews@ the adjoining property to the south. Again, this plan was used to interpret the
impact of the new building on the adjoining properties.
(iii) A further plan was submitted entitled AGarden Level Plan@ which showed the car parking facility that was intended to be formed in the basement of the building accessed off Hamborough Road. This plan contained a series of spot levels with one on Hamborough Road and others within the application site including one on the threshold of the entrance to the car parking area.
When
the application was determined the remnants of the former cinema building
remained. However, it is my
understanding that demolition commenced relatively soon after the approval in
2000 but there was a lull before construction work commenced in 2002.
Following
the installation of the floor slab, the Local Planning Authority received a
complaint in October 2000 that the floor slab of the building which is to
provide the basement car parking facility had been laid at too high a level. Shortly afterwards, further concerns were
raised that the activities on site were putting pressure on the southern
boundary wall which it was alleged was now also functioning as a retaining
wall. The concern was that additional
pressures were being applied to this boundary wall threatening the property
beyond. For Members=
information, this is the boundary that is required to be raised in height by
0.75 metre as required under condition 3 to protect the amenities of the
residential property beyond.
To
check whether the floor level in the basement car parking area had been formed
at a higher level than that shown on the approved plans Officers assessed the
situation on site relative to both the cross sectional plan through the
building and also the plan showing a series of spot levels. The ability to use the cross sectional plan
to any meaningful extent was limited by the fact that the demolition contractor
had placed a series of metal drums on the inside of the southern boundary wall
and filled them full of rubble. As a
consequence, identifying what constituted the original ground level at this
point was difficult. Whether the action
of placing the drums adjacent the boundary wall was intended to protect the
wall from damage is unclear. However,
the end result was that material built up on the development side of the drums
to the extent that in certain places the ground level was equal to the top of
the drums. It has been this action
which I believe has caused a concern to the adjoining property owner prompting
the allegations that this arrangement was permanent and is putting pressure on
the boundary wall.
The
developer was first alerted of the Local Planning Authority=s
concerns with regards to these matters at the end of October 2002. A series of meetings, both on site and in
the Planning office, and exchanges of correspondence have resulted in the
current situation where the Local Planning Authority has received six separate
items of correspondence from the agents together with various drawings, supporting
letters, photographs and photo montages seeking to clarify both the issue with
regards to the stability of the boundary wall, an explanation over the height
of the slab level and also seeking to clarify a matter with regards to a
variation to the overall height of the building. This latter point was not raised by any complainant but was
revealed during a closer examination of some of the submitted drawings by
Officers.
The
case put forward by the agent in explanation of these matters can be summarised
as follows:
·
Car park constructed 63 mm above approved plan
level attributable to incorrect positioning of a spot level on the approved
plan on Hamborough Road.
·
Relationship on ground floor to Church Street is
as approved.
·
Now appears levels on initial survey plan and
garden level plan not fully accurate, these levels intended to illustrate rise
to Hamborough Road. Regrettable this
not made clear on these drawings.
·
Regarding raising height of southern boundary
wall sensible to have further discussions with neighbouring property owner at
suitable time. Request postponement of
any action concerning this condition at present.
·
Letter submitted from Pritchard Wilmot
Structural Engineers confirming stability of southern boundary wall.
·
Agree access ramp from car park will not start
before southeast corner of building.
·
There will be a cross fall on driveway from new
building to southern boundary.
·
A raised kerb will be formed adjacent southern
boundary with drains to catch the surface water and a steel traffic barrier
will be installed along section of boundary.
·
Has been increase in height of building on north
elevation of 0.735 metres mainly due to changes from concrete construction to
steel to save weight.
·
This allowed adjustment of top floor handrail
which creates stronger and more effective relationship to adjoining building.
·
Ridge height of no 21 Church Street proved to be
marginally higher than expected and consequently difference in height between
two roofs so small to be virtually impossible to read.
·
Penthouse roof has an increase of 0.799 metres
over approved plan above car park floor also due to steel construction. Given relationship to next door property
still consider this is within the essential spirit of the approved plans.
·
Notwithstanding the above, if LPA determines
building height should be reduced can achieve a reduction of 0.3 metres in roof
of penthouse.
A
further letter dated 4 April 2003 has been received from the development
company and this is copied for Members=
information as appendix A to this report.
I
consider that the Local Planning Authority should adopt a two-stage approach to
the current situation.
1. To identify the nature and extent of the
variations.
2. To assess the changes identified and
consider whether any variations can be dealt with as an amendment to the
approved scheme or whether a fresh application should be requested.
With
regards to the first point in identifying the nature and extent of any changes
there have been divergence of views with the developer on the extent of these
matters particularly with regards to the issue over the floor levels.
In
making its original assessment of the scheme the Local Planning Authority
relied on taking measurements from the approved cross sectional plan and also
using the data contained on the original spot levels plan. For Members=
information, I enclose as appendix B an extract from that plan which shows the
relationship between the rear of the new building, the adjoining boundary wall
and the residential property beyond.
Scaling of this plan shows the floor level within the basement car
parking area as being 1.6 metres below the top of the wall level before it is
raised in height as required by the planning condition. Because of the drums placed up against the
southern boundary wall which have been referred to earlier in this report the
Local Planning Authority had to rely to a larger extent on the information
contained on the garden level plan with regards to spot levels. The position identified on Hamborough Road
was giving a reading of 11.250. A
further spot level immediately outside the threshold of the entry point to the
car parking area was given a figure of 9.630.
The difference between the two points is 1.62 metres. Even allowing for a minor increase in the
height of the threshold, calculations based on these measurements on site,
indicated the slab level to be elevated by 0.5 metres above that shown on the
approved plan. An extract from this
plan showing the spot levels is attached as appendix C.
In
response to these concerns the agent has submitted details indicating that some
of the original survey information was inaccurate and further details to
support his suggestion that any variation is no greater than 63 mm.
A
new general cross section plan along the same line as the earlier cross section
plan is attached as appendix D. This
plan contains more detailed figures and there is no need to rely on using a
scale rule to take dimensions. This
plan shows the difference between the top of the existing wall and the level
within the parking area as being 1.295 metres.
This is 0.3 metre difference from the original cross section plan.
With
regards to the overall height of the building Officers used the original cross
section plan to take a scaled measurement from the car parking area floor level
up to the top roof of the fifth floor.
In comparing this to the height for the similar distance on the up-dated
cross section plan this indicated an increase of 1 metre. The agent indicates that he believes the
height to be in the region of 0.735 metres to 0.799 metres.
On
receipt of the information from the agent from which the above points were
drawn a limited consultation exercise was undertaken with the Local Planning
Authority writing to the Town Council and those individuals who responded and
made representations when the original scheme was being considered. Considering the level of detail submitted it
was felt appropriate to give the third parties some guidance on what they were
being asked to consider. In response to
that exercise which had a deadline for comments of 4 April 2003 the following
comments had been received.
Ventnor
Town Council no objection.
Three
private households have responded together with one estate agency with the
latter pointing out that they are acting as selling agents for the
developers. One of the household
representations is a report consisting of eleven typed pages with a further 18
pages of annotated photographs. A video
running just over one hour has also been submitted showing eight days on which
disturbance is alleged as taking place.
The author of those representations has been advised that it is Council
policy to summarise any representations.
Accordingly they have condensed down the views to no more than two sides
of A4 and these are attached as appendix E to this report.
The
points raised in the other representations are as follows:
·
Question if landscaping scheme has been agreed.
·
See no point in registering any objection to
height variation.
·
Unfortunate this happened given original
concerns over size of building.
·
Feel developer should be asked to achieve any
alterations within original dimensions that are deemed reasonable.
·
We are acting as selling agents for developer,
true certain amount of comment locally about height but overall view is new
building appears most impressive and in proportion in street scene.
·
Believe it difficult to assess penthouse roof
height.
·
Scheme will help in regeneration of Ventnor.
·
On basis of architect=s
figures penthouse roof now 0.862 mm higher than approved B
this in itself a significant increase and a serious breach of planning consent.
·
Understand foundations were originally to be
piled but massive raft foundation constructed.
·
Original datum point was floor slab of old
cinema and I observed new raft foundation being formed directly on top of old
floor.
·
Most recent sectional drawing indicates raft as
275 mm thick over lower end of old cinema slab. This inconsistent with what was observed.
·
With change of foundations must have been
increase in weight with possible impact on landslide system.
·
Do not believe these changes can be dealt with
as an amendment.
None.
1. To accept as an amendment to the approved
scheme the recently submitted plans.
2. To advise the applicant that given the scale
of the changes the Local Planning Authority is not prepared to deal with these
matters as an amendment to the approved scheme but that a formal application
should be submitted. (Without prejudice
to the final decision).
3. To advise the developer that in the opinion
of the Local Planning Authority the changes to the scheme are so minor in
nature that they do not constitute a measurable variation to the approved
scheme.
4. To enforce the planning condition (no 3)
requiring the height of the southern boundary wall to be raised by 0.75 metre.
5. To note the positions of the developer and
the adjoining property owner regarding compliance with condition 3 on
increasing the height of the boundary wall and agree not to enforce this
condition at the present time but review the situation prior to first
occupation of the new development.
I
consider that the base points for assessing any changes to the approved scheme
are firstly the originally approved plans on which Members made their decision
to grant planning permission and secondly, notwithstanding the relationship
between the development and adjoining properties as depicted on the plans, how
this relationship is actually being reflected on the ground as the development
takes form.
Using
the above I propose to take the three separate matters and assess them
accordingly.
Changes
to the overall height of the building.
As Members will note, there is a slight difference of opinion between the developer and the Local Authority with regards to the figure of the overall increase in height of the building of some 0.2 metres. Taking this point into consideration I believe that any increase in the height of the building must be considered both in terms of the position of the building relative to the adjoining properties at the front and rear and also whether any increase in height has an implication on the degree of impact the building would have on the amenities of the adjoining property to the south.
I have viewed the overall scale and mass of the building from both Church Street and from Hamborough Road. As noted by the agent, the height of the adjoining building was slightly underestimated on the originally submitted plans and taking this factor into account, I believe the new building still fits into the street scene in an acceptable manner. With regards to the issue of the impact on the amenities of the adjoining property to the south I have observed the view from the first and second floor rear balconies. I do not consider that the increase in height will make any difference to the degree of overlooking anticipated under the originally approved plans.
Members will note that the original planning permission required an increase in the height of the southern boundary wall by 0.75 metre. This measure was intended to maintain the amenities of the adjoining residential property. The adjoining property owner has sought clarification from the Local Planning Authority on whether the wall would be increased in height indicating a desire that this action does not take place. Based on the developer=s most recent comments on this point which are contained in a letter of 14 January 2003 where they seek a postponement of any action concerning compliance with this condition pending the progression of the development to a stage where all parties can visualise the degree of impact that may occur, it seems reasonable for this condition not to be enforced at the immediate time.
The adjoining property owner has expressed concerns that the boundary wall now functions as a retaining wall and thereby threatens his property. If the height of the floor slab of the building has been increased then a corresponding increase in the height of the driveway would be required and consequently the possibility of additional sideways pressures on the wall needs to be investigated. Members will be aware that in accordance with PPG14 ADevelopment on Unstable Land@ the impacts of development is a material consideration although ultimately the responsibility for ensuring the integrity of any adjoining land and buildings rests with the developer. Officers therefore have felt justified in asking the developer to clarify the situation regarding the boundary wall. Letters from the contractor=s engineers and a letter from Pritchard Wilmot have indicated that the wall has been assessed and indeed a scheme designed and partly implemented which involves the excavation of a trench on the development side of the wall with the laying of a concrete beam to remove any sideways pressures from the building or from the land itself on the wall.
Under these circumstances, I consider that the Local Planning Authority has exercised its duties appropriately in firstly alerting the developer that the responsibility with regards to ground stability rests with him and secondly noting the work which the developer is undertaking to secure the stability of the building and adjoining land
Changes
to the slab level of the building.
The development has varied from the details shown on the
approved plans relating to the relative height of the slab level to the
adjoining southern boundary wall and the property beyond. Even making an allowance for an error in
reading off the scaled heights from the original plan it still does not account
for the difference of 0.3 metre which has been identified between the original
scaled plan and the more recently submitted plan which contained detailed spot
level positions. Furthermore, the
original survey exercise undertaken by the Officers showed a difference in
height with regards to spot level information in the region of 0.5 metre.
Whilst I note the information put forward by the developer
indicating that any change in the height of the slab level is only 63 mm I
believe that this height cannot be taken in isolation but must be read in the
context of the southern boundary, the property beyond and the level of
Hamborough Road.
The top of the boundary wall is now in the region of 1.2
metres above the slab level. The main
use of the land on the development side of this wall is to provide access to
the car parking area. Even if the
vehicles on this side of the boundary are manoeuvring at a slightly higher
level than that originally anticipated I do not consider that the variation is
so significant that planning permission would be withheld. I note that there is still the option of
raising the height of the southern boundary wall and every indication is that
this decision will rest largely with the adjoining property owner and under
those circumstances, I believe that there would be little to gain from
requiring the submission of a new planning application in terms of protecting
the amenities of the adjoining property owner.
Accordingly, I do not consider the current situation to be significantly
different than that which was originally approved.
Regarding the comments made by the developer in his letter
which is attached to this report and those comments received as a result of the
limited consultation exercise I would respond as follows.
Regarding the developer=s letter, I should explain to Members that given the
nature of the matters under consideration in the letter sent out as part of the
consultation exercise, it was considered appropriate that this gave some
guidance to members of the public as to what was being considered. Insofar as the developer expresses concern
over the bundle of material which is available to inspection I would point out
that this is a result of the information coming in from his agent on six
separate occasions. In reaching the
decision on the scope of the changes from the approved plans Officers used the
information that was provided by the developers. As the agent has acknowledged, some of this basic information was
misleading and that is the explanation for the errors. I cannot agree with the developer=s assertion that
the stability of the southern boundary wall is not a planning issue.
Finally, it has not been the Local Planning Authority=s desire to
protract the discussions regarding this matter over the period that has elapsed
since they were first highlighted. In
that context, Members will recall an item that was due for consideration at the
18 March 2003 Development Control Committee meeting which was reporting that
the matter could not be progressed until the submitted plans were
available. Members will recall that
this item was withdrawn from the meeting following the receipt of the required
plans.
Concerning the points raised in response to the
consultation exercise I would request that Members simply focus on those
matters relevant to the determination of the issue at hand. Accordingly, observations with regards to
traffic congestion and civil disputes between parties must not be
considered. I believe that these
matters insofar as they relate to the impact of the building on the wider
landscape and on the amenities of the adjoining properties have been considered
as part of the exercise outlined above.
Members will appreciate with a major development scheme, particularly on
a site occupied by a semi-derelict building, there are always variations which
arise particularly when the full detailed plans are drawn up. Accordingly, the fact that a variation may
occur should not in itself be a reason to seek a new application. In that context, the approach Members have
adopted previously in dealing with such matters, is to accept minor changes as
amendments to an approved scheme but to ask for new applications if more
substantial variations occur.
In this particular instance, I consider the critical
factor is the degree of impact that was always anticipated compared to the
current situation. Having considered
the matters carefully, I believe that the changes whilst recordable are not so
significant as to require the submission of a fresh application but should be
dealt with as an amendment.
To summarise:
I consider it can be agreed that:
·
The floor slab level is correct at
the Church Street elevation
·
The floor slab level and therefore
the vehicle access ramp is some 0.5m higher than shown on the originally
approved plans at the southern boundary, explained by the fact that the site
was originally surveyed when the former building still existed.
·
The overall height of the building is
about 0.8 m higher than shown on the approved plans, explained by the fact that
the originally proposed construction method was changed.
·
The impacts of these variations can
be assessed as follows:
·
The increase in floor slab height at the
southern end of the site means that vehicles will pass the adjacent property to
the south at a higher level. However,
the condition imposed on the original consent to raise the height of the
boundary wall will still be sufficient to ameliorate any loss of privacy to
that property, if the occupier eventually decides that it is in her interests
to agree to it.
·
The overall increase in the height of
the structure has no significant alteration to its relationship with adjoining
buildings, or the general character and amenity of the area.
Taking into account the views received following
consultation, including the fact that the Town Council does not object, I
consider that the alterations to the scheme, carried out during
construction, can be accepted as amendments to the approved plans.
Human Rights
In coming to this recommendation to accept the changes as
an amendment to the approved scheme, 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 that this
development might have on the owners/occupiers of other property in the area
and other third parties has been carefully considered. Whilst there may be some interference to
those rights the Local Planning Authority does not consider that this is
significant beyond that already anticipated and accepted when the original
decision to approve this redevelopment scheme was made. Accordingly, the proposal to accept these
amendments is considered to be in accordance with the legitimate aims of the
Council=s Unitary
Development Plan and in the wider public interest.
Recommendation
To
accept as an amendment to the approved scheme the recently submitted plans.
To note the positions of the developer and the
adjoining property owner regarding compliance with condition 3 on increasing
the height of the boundary wall and agree not to enforce this condition at the
present time but review the situation prior to first occupation of the new
development.
(b) TCP/14987G/M/10759 Ryde Business Park, Nicholson Road,
Ryde
Officer: Mr P Stack Tel: (01983) 823570
Summary
To consider the course of action to adopt in respect of
restrictions attached to both Section 106 Agreement and planning conditions
imposed in respect of the original outline permission to develop this site.
This
site, which was originally allocated for industrial development in the former
Northeast Wight Local Plan a designation which was carried through to the
Unitary Development Plan, was granted outline consent for B1, B2 and B8 use in
January 1993. Conditions attached to
the planning consent restricted areas of the site to specific uses to ensure
that any general industrial use (B2) was sited away from adjoining residential
property. Condition 3 also stated that
any warehousing and distribution use (B8) on-site should not exceed 25% of the
overall area of the site and that any such individual B8 uses should not exceed
a gross internal floor area of 10,000 square feet.
This
planning decision was also subject to a Section 106 planning obligation and the
requirements of the abovementioned conditions were repeated in the
obligation. The obligation also
required a financial contribution to undertake off-site highway improvements
which have been carried out and have been fully implemented.
Subsequent
to the outline consent there has been at least one application seeking approval
of reserved matters and therefore both the outline approval and the Section 106
have now taken effect.
In
addition to the single reserved matters application the remainder of the site,
of which approximately 50% has been built out, has received the benefit of
individual full detailed planning consents issued in their own right. Recently, enquiries have been made by
solicitors acting for prospective purchases seeking to clarify the current
situation regarding the Section 106 Agreement and particularly whether or not
the maximum 25% figure has been or is close to being exceeded by current
developments on site.
There
are no financial implications.
1. To enforce the provisions of both the Section
106 Agreement and planning conditions on the site.
2. To agree not to enforce the relevant
provisions of the 106 planning obligation and planning conditions.
With regards to the specific location of uses on site it
is considered that locational control can be achieved by way of detailed
consideration of individual planning applications when received following,
where appropriate, consultation with Environmental Health Officer.
Concerning restrictions requiring wholesale and distribution uses not to exceed 25% of the overall area of the site and any such use not exceeding a gross internal floor space of 10,000 square feet (930 square metres), the planning justification for such a restriction is to ensure that the main use of the site is put to those uses which generate the highest rates of employment which are usually light and general industrial use, and to ensure that storage and distribution uses which, generally speaking, attract lower levels of employment in relation to floor space involved remain as a secondary usage on this industrial estate site. Whilst I consider the imposition of these conditions and restrictions to be reasonable and well intended in respect of maximising the employment potential of this site, again I consider such control can be exercised by way of assessment of individual planning applications as and when they are submitted. Given the planning objectives outlined in the previous paragraph I consider the 25% maximum limit for B8 use to be reasonable, however, an assessment of the current situation of the site as developed will need to be carried out to establish the exact current position.
It is recommended therefore that the relevant conditions and sections of the planning obligation are not enforced by the Local Planning Authority, and that subsequent planning applications seeking to develop the remaining land on site are assessed against a general guidance figure of B8 uses not exceeding 25% of the overall area of the site or the current level of usage on site if identified as being greater than that figure.
That
the Council seek not to enforce conditions nos. 3 and 4 on planning decision
TCP/14987G/M/10759 issued on 20 January 1993 or clause 1 of the Section 106
planning obligation, provided subsequent planning applications to develop the
remainder of the site are assessed against the background of the land being
allocated for employment use whilst taking into account the potential for
impacting on neighbouring residential property where applicable. Furthermore, as a general guide the level of
B8 usage should not exceed either the current approved B8 usage of the site or
25% of the overall area of the site (whichever is the larger).
(c) TCP/18901G Island Motor Salvage,
Pritchetts Way, Rookley Industrial Estate, Rookley
Summary
To consider
whether the circumstances justify the service of an Enforcement Notice
Background
Members would
recall that at the 14 January 2003 Meeting authorisation was given to invite
without prejudice to the final decision a planning application for the
continued use of the land in the centre of the site for the breaking and
storage of vehicles together with the retention of the portakabins used as an
office reception and canteen.
By letter dated
11 February 2003 Island Motor Salvage was informed of the Committee=s decision
and requested to submit the application
within twenty-eight (28) days. The Operator
was further advised that if he failed to meet the deadline then the
matter would again be put to the Planning Committee for Members to consider
whether enforcement action should be initiated.
The deadline has
elapsed and an application has not been received by the Local Planning
Authority. Members may recall that their original invitation to the property
owner to apply was based on the site carrying an employment designation in the
Unitary Development Plan and the adjoining car dismantling uses which have been
supported in the past. Accordingly without prejudice to the final decision it
did appear that a conditional planning permission may be forthcoming.
The relevant
Unitary Development Plan Policies that apply:
Strategic
Policies
S2 Development
will be encouraged on land which has previously developed (brownfield sites)
rather than undeveloped (green field) sites. Green field sites will only be
allocated for development where they are extensions to urban areas and where no
suitable alternative brown fields exist
S6 All development will be expected to
be of a high standard of design.
General Location
of Development
D1 Standards
of Design
G8 Development
near to Hazardous Uses
G10 Potential
conflict between proposed development and existing surrounding uses
E1 Promote Suitable located new employment
uses
P1 Pollution and Development
P2 Minimise Contamination and Development
P5 Reducing the Impact of Noise
W7 Scrapyards
and Vehicle dismantling
Options
1. To serve an Enforcement Notice requiring
the cessation of the present use of the land for the breaking and storage of
vehicles, the use of the portakabins as an office reception and canteen. The
removal of all vehicles and equipment used in association with the breaking and
storage of vehicles and the removal of the portakabins from the land.
Time period for
compliance - 4 months.
2. To invite the property owner to make a
planning application without prejudice to the final decision to remedy the
breach of planning control.
3. To serve an enforcement notice imposing
conditions relating to operation of scrap yards and vehicle dismantling.
Conclusion
The material
concern in this matter relates specifically to the unauthorised use of the
parcel of land for the storage and breaking of vehicles that may without the
appropriate controls have an adverse impact on the amenities and physical
environment of the immediate area. Members would recall previous reports to
Committee providing updates on breaches of conditions on the adjacent approved
site utilized for similar uses relating to noise, hours of operation and height
of stacking of vehicles. The Unitary Development Plan policies provide guidance
on the operation of scrap yards and vehicle dismantling and for minimizing of
contamination. Planning Policy Guidance 18: Enforcing Planning Control also
provides guidance on how the Local Planning Authority should respond where
unauthorised development can be made acceptable by the imposition of
conditions.
The operator was
formally invited to submit a planning application but has so far failed to
respond. PEG :18 states that if in the
view of the Local Planning Authority the unauthorised use may result in injury
to the amenity which can only be removed or alleviated by the imposition of
conditions then the service of an enforcement notice would be justified. It is
my view that this consideration outweighs the support for local businesses
which is also referred to in the guidance note. Accordingly, I am of the
opinion that without the appropriate planning controls with regard to the management
of the uses, the continued unauthorised use of the site could have an adverse
impact on the environment and in this regard the Local Planning Authority would
be justified in issuing an enforcement notice requiring the cessation and
removal of the uses from the land.
Human Rights
In coming to the
recommendations to pursue enforcement action considerations have 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 immediate
area has been carefully considered. The action recommended is proportionate to
the legitimate aims of the Council as expressed through PPG 18 and the Unitary
Development and is in the wider public interest.
Recommendation
To serve an
Enforcement Notice requiring the cessation of the present use of the land for
the breaking and storage of vehicles, the use of the portakabins as an office
reception and canteen. The removal of all vehicles and equipment used in
association with the breaking and storage of vehicles and the removal of the
portakabins from the land.
Time period for
compliance - Four months.
(d) TCP/21784/B Unauthorised alterations to vehicular
access & formation of hardstanding at The Orchard, Undercliff Drive, St Lawrence, Ventnor, Isle of Wight
Officer: Mr Cornwell Tel:
(01983) 823592
Summary
To note the fact that the individual who undertook the
above unauthorised development does not have a legal right to use the new
access which was believed to be the case when the earlier Enforcement
authorisation was agreed and whether if this fact had been known this matter
would have been accorded any weight in the determination process.
Members may recall considering a report on this matter at
the 10 December 2002 Development Control Committee meeting. This was the second occasion when the report
was considered as Members had deferred a report on 17 September 2002 asking
officers to clarify the access arrangements to the three properties known as
Orchard Close, Orchard Dean and The Orchard.
The landslip on the old section of the Undercliff Drive had begun to
threaten the original shared access to these properties.
At
the 10 December 2002 Development Control Committee meeting it was reported that
a new access to the three properties had been formed north east of the original
access point which was now being overtaken by the edge of the landslip. The report therefore advised Members that
the need for the owner of The Orchard to have his own independent access and
hardstanding area off Undercliff Drive was not essential and Enforcement action
was duly authorised.
Following
the December meeting the Council=s
Legal Section was instructed to prepare an Enforcement Notice. At the end of January 2003 the owner of The
Orchard contacted the Council indicating that he has no legal right of way over
the new access. It is now my
understanding that the grounds to the three properties are divided between the
three residential units and that the section of land which is crossed by the
new access drive is in the control of one property owner. The Council=s
Legal Department has subsequently advised that in his opinion the Committee did
not have the full facts when they took the decision to enforce and that in his
view the matter needs to be referred back to Committee in the light of those
comments.
For
Members information, a listed building consent application for the relocation
of the gate pillars which flanked the original access and a planning
application for the new vehicle access (this section of Undercliff Drive is
still a classified road) have been submitted and are currently under
consideration .
It is my understanding that the relocation of the access
was undertaken as an element of the scheme at Beauchamp House which renewed the
through road by creating a new section of roadway along part of the
Undercliff. In that context, no formal
or legal agreement was entered into at that time. Highway officers have been in discussion with the owner of The
Orchard and suggested that he negotiate with the other property owners for his
deeds to be amended.
At the date of the last inspection of the site on 14 April
2003 there were no signs that the unauthorised access or hardstanding were in
use.
Financial
Implications
None.
1. To note the
additional information with regards to the concern over the legal rights to use
the newly formed access by the owner of The Orchard but to continue with the
current Enforcement action.
2. To note the
information put forward with regards to the owner of The Orchard=s right to use the
relocated access and to suspend the service of the Enforcement Notice as
previously authorised by Committee on 10 December 2002 until it is clarified
that the individual concerned has secured a legal right to use the new access.
Case to be reviewed in 3 months with regards to progress or earlier if evidence
indicates unauthorised access is in active use.
3. To note the
information put forward with regards to the owner of The Orchard=s right to use the
relocated access and whilst having noted the highway safety concerns regarding
the retention of the unauthorised access to resolve to cease any enforcement
action and allow its retention.
Conclusion
When considering this matter in the past the Local
Planning Authority has been quite categoric that the unauthorised access was
unacceptable because of concerns with regards to matters of highway
safety. This view has been tested on a
number of occasions by planning application in 1995 and subsequently in May
2002. The Council=s solicitor is
concerned that whilst the owner of The Orchard continues to have no legal right
to use the new access (although this has not been obstructed as I understand it
at the present time) the possibility exists that at some point in the future
the owner of the land which is crossed by the access may restrict rights of
passage and that would therefore leave the owner of The Orchard without any
vehicular access rights to their property.
Legal Services are concerned that Members were not aware of the full
facts and therefore the authorisation for enforcement action could be
challenged.
On the basis that the unauthorised access is not in use at
the present time I propose that the Local Planning Authority holds the service
of the Enforcement Notice in temporary abeyance in the expectation that the
matter will be resolved between the relevant parties with a time period for
review of this case of 3 months.
In coming to this recommendation to temporarily suspend
the Enforcement Action, 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 of Human
Rights. The impact of the unauthorised
development on the area in general and on highway safety has been noted
together with its current status in that it is not presently being used. It is recognised that if the enforcement
action continued after the three month period there would be an interference
with the owner=s Human Rights but this is felt to be proportionate to the
legitimate aims of the Council=s Unitary Development Plan and in particular the highway concerns
outweigh the need of the owner to retain the unauthorised access.
Recommendation
To note the information put forward with regards to the owner of The Orchard=s right to use the relocated access and to suspend the service of the Enforcement Notice as previously authorised by Committee on 10 December 2002 until it is clarified that the individual concerned has secured a legal right to use the new access. Case to be reviewed in 3 months with regards to progress or earlier if evidence indicates unauthorised access is in active use.
(e) TCP/22128A Surface water balancing pond including inlet and outlet
structures, land north of Mountbatten Drive, Newport, Isle of Wight
Officer: Mr S Cornwell Tel: (01983) 823592
Summary
To up-date Members on the position reached with regards to
this application following consideration of the matter on 13 March, 16 October
and 6 November 2001 and 5 June 2002.
Based on the current position, Members are requested to make a
determination with regard to this proposal.
This application has been considered at four previous
Development Control Committee meetings and I believe that it would be useful to
recap those reports so that Members can appreciate how the current position has
been reached.
At
13 March 2001 Development Control Committee meeting Members considered a report
on the above development. Briefly, it
was proposed to create a long narrow almost kidney shaped balancing pond which
would be used to collect surface water run-off from a section of the
Mountbatten Drive/Sylvan Avenue residential development site for 203
houses. The appropriate consultations
had been undertaken with the Environment Agency and Southern Water and these
were noted in the report. Provisional
discussions had taken place with the Council=s
Legal Section and these resulted in the recommendation which was subsequently
adopted by the Development Control Committee.
This was as follows: AApproval
(revised plans) (subject to a 106 Agreement authorising the pursuant of
negotiations with the landowner and developer for the creation and conveyance
for a nominal sum to the Council of the pond together with a maintenance area
for use as an urban wildlife feature and copse and the payment of a commuted
sum for future maintenance of the same and secure such agreements in the
Agreement).@
For
further information, Members are requested to refer back to the agenda of 13
March 2001, a copy of which can be inspected at the Committee Services Office
if necessary.
Following
the March 2001 Development Control Committee meeting discussions took place
with the developer in an attempt to identify an appropriate commuted sum to
reflect the future maintenance and liability of adopting the pond. After an initial offer of ,2,000
this was raised eventually to ,20,000.
The Highway Authority has agreed to adopt and maintain the balancing pond on
behalf of the Isle of Wight Council.
Because
of a variation in the terms of the proposal legal agreement as set out in March
2001, specifically the failure for the urban wildlife feature and copse to
materialise, the matter was reported back to the October and November 2001
Development Control Committee meetings.
Members may recall that at the October meeting the matter was deferred
until the next meeting on 6 November by which time Members would have attended
an Environment Agency seminar at Gurnard Pines in the hope that this seminar
would provide further information on how this proposal should be approached.
At
6 November 2001 Development Control Committee meeting Members reviewed the
situation and resolved to request Officers to undertake further negotiations so
that no liability
in
the short or long term fell on the IW Council.
Following this meeting a letter was sent to the developers setting out
the Council=s
position and asking if they could see an alternative way forward.
A
report considered at 5 June 2002 Development Control Committee meeting
reflected the latest position taken by the Members recommending that conditional
planning permission was granted without the applicant entering into a legal
agreement with the IW Council. The
implication of approving the application without the legal agreement was that
the responsibility for future maintenance arrangements was the sole
responsibility of the developer. After
considering the report, Members resolved to adopt the following resolution:
AThat
no approval decision notice should be issued until the Council is satisfied
that measures have been put in place by the developer for the future control of
maintenance of the system, sufficient to ensure there will be no requirement by
default or neglect for the Isle of Wight Council to assume any responsibility
in this matter whatsoever.@
The
developers have identified an organisation known as the Greenbelt Company which
is a self-financing organisation originally conceived in 1992 operating in
Strathclyde but has subsequently broadened its operational area and now
provides a number of services throughout the UK. This includes taking over drainage installations. For Members=
information I enclose as an appendix to this report a copy of an information
sheet provided by the developers and also a copy of a letter from the Greenbelt
Company to Persimmon Homes giving examples of similar facilities which have
been taken over.
It
is my understanding that in this particular instance the developers will give
the company a set amount of money as a substitute for the Greenbelt Company
collecting an annual management charge from each household. The Greenbelt
Company would then be responsible for future maintenance in perpetuity.
I
believe that the information submitted by Persimmon Homes provides the
reasonable degree of certainty that the Development Control Committee was
seeking when this application was last deferred and I propose that the
application is now approved (subject to conditions) with the decision notice
issued once the Local Planning Authority has a copy of the Green Space
Agreement which is the document signed between the developer and the Greenbelt
Company.
In
coming to this recommendation to grant planning permission subject to sight of
the Agreement, 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 impact of the development on the
immediate area has been carefully considered but supporting the application is
considered to be a proportionate and legitimate aim of the Isle of Wight
Unitary Development Plan and in the wider public interest.
That
conditional planning permission is granted without the applicants entering into
a Legal Agreement with the Isle of Wight Council but that the decision notice
is not issued until the developer has provided the Council with a copy of the
Green Space Agreement.
1.
Within eight weeks of the date of this decision notice a detailed landscaping
scheme shall be submitted to the Local Planning Authority with any such
landscaping scheme providing for the planting of appropriate species. The landscaping shall be undertaken within
the first planting season following the agreement of the scheme. Any such planting shall include provision
for its maintenance during the five years from the date of planting.
Reason:
To ensure the character of the balancing pond and its environs will contribute
to the Nature Conservation interest and amenity of the area.
2. Within eight weeks of the date of this
decision notice a fence shall be erected around the pond in location and of
height and style agreed in advance with the Local Planning Authority with any
such fencing being retained hereafter.
Reason:
To prevent direct access to the pond by the public in the interests of safety.
(f) TCP/23485/P/00382/00 Alleged breach of
materials condition at Tamarisk, Steephill Cove, Ventnor, Isle of Wight
Officer: Mr S Cornwell Tel:
(01983) 823592
Summary
To
consider an apparent breach of the planning condition with regards to the
materials used in the construction of the roof of the above property and how
the Local Planning Authority should respond.
At the 19 May 2000 Development Control Committee meeting
following a site inspection, Members resolved to support conditional approval
for a timber clad bungalow. Details
with the application indicated that the walls of the building were to be
stained timber posts and vertical cladding with the main house roof and the
veranda roof to be blue/black slate. A
planning condition was imposed (no. 2) which stated AConstruction of
the building hereby approved shall not commence until the colour of the stained
timber boarding and a sample of the proposed roofing material have been
submitted to the Local Planning Authority and both agreed in writing with the
Local Planning Authority. The
development shall then be carried out in accordance with the approved details@.
The dwelling has been constructed. A complaint has been received that the
materials condition has not been complied with specifically with regards to the
roof. A site visit has revealed that
red asbestos tiles have been used and that on approximately half of the western
roof slope the colouring on these tiles has disappeared exposing a natural
white finish. The property owner has
indicated that the colouring has been lost since the tiles were first installed
in 2001. He has stated that he is aware
of the problem and is currently experimenting with various materials to restore
an even colouration. He does indicate
that a sample of the tile was given to and confirmed by the Planning Department
but acknowledges there is no record of this.
When a developer seeks agreement on a material it is standard practice
to acknowledge this formally in writing so there is a clear record of what has
been agreed. There are no papers on
file relating to this matter.
The site lies within the Area of Outstanding Natural
Beauty.
The following Unitary Development Plan policies are
considered relevant to the consideration of this matter:
D1 (Standards of Design)
C1 (Protection of Landscape Character)
C2 (Areas of Outstanding Natural Beauty).
Financial
Implications
None.
Options
1. To accept the
current situation and to indicate to both the property owner and the
complainant that the Local Planning Authority does not propose to take any
further action with regards to this matter.
2. To advise the
property owner that in the opinion of the Local Planning Authority the
materials used in the construction of the roof are unacceptable given their
impact on the visual character of the surrounding area and that the Local
Planning Authority authorises the service of an Enforcement Notice requiring
the submission of more appropriate materials and the replacement of the roof
materials. Time period for compliance
three months.
Had the developer obtained the formal agreement of the
Local Planning Authority for the roof material then I do not believe that any
action could be initiated. However, no
record of such an agreement is held and so the Authority is free to take action
if so desired.
Having assessed the impact of the roof on the wider
landscape including the AONB I believe that notwithstanding the reference on
the original plans to a black/blue slate roof, had the developer installed
material of suitable uniform quality then the Local Planning Authority may have
considered this acceptable. However, I
believe that the current appearance of the building to be detrimental to the
visual amenities of the area. Under
those circumstances, I do not consider the Local Planning Authority should
retrospectively accept the roof in its present state but seek an
improvement. Whilst the use of a Breach
of Condition Notice may be one option to consider I believe it appropriate in
this instance to use the mechanism of an Enforcement Notice which does give the
property owner the right of appeal to challenge the Council=s decision. This route also has the benefit of giving
the property owner a clear timescale to remedy the breach.
In coming to this recommendation to take enforcement
action, 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 landowner
and third parties. On balance, I
believe that the proposal to take enforcement action is a proportionate
response to the situation as it exists on the ground and is in accordance with
the Council=s policies as
exhibited through the Isle of Wight Unitary Development Plan and is also in the
wider public interest.
To advise the property owner that in the opinion of the
Local Planning Authority the materials used in the construction of the roof are
unacceptable given their impact on the visual character of the surrounding area
and that the Local Planning Authority authorises the service of an Enforcement
Notice requiring the submission of more appropriate materials and the
replacement of the roof materials. Time
period for compliance three months.
(g) E/6387/M Unauthorised use of a domestic garage
in connection with the running of a carpet business at 10 Oakhills, Shanklin
Officer: Mr L Harper Tel:
(01983) 823569
Summary
To consider
whether the circumstances justify the service of an Enforcement Notice.
Background
On 10 March 2003
a complaint was received by the Enforcement Section alleging the use of a domestic
garage for the storage of carpets in connection with the running of a business
from a residence at 10 Oakhills, Shanklin. An Enforcement Officer visited the
site on the 12 March 2003 and observed the garage filled with carpets. A letter
was forwarded to the owners of the property on the same day advising that a
material change of use had occurred by the use of the garage for the storage of
carpets in connection with the running of a business and that the remedy would
be to cease the use and relocate the business to an alternative and more
appropriate location.
By fax dated 31
March 2003, the owners responded advising that the business use would cease
operations and the garage would be cleared of the carpets by 28 April 2003. The
owners were subsequently advised that the matter would be reported to the
Development Control Committee requesting authorization to serve an enforcement
notice if the business operation did not cease by 28 April 2003.
The relevant
Unitary Development Plan policies apply :
Strategic
Policies
S 14. New retail
development will be expected to locate within existing town centres
General Location
of Development
D1 : Standard of Design
G10 : Potential Conflict between proposed
Development and Existing Surrounding Uses
R2 : New
Retail Development
TR7 : Highway Considerations for New Development
Financial
Implications
None
Options
1. To
serve an Enforcement Notice requiring the cessation of the unauthorised use the
removal of the carpets and the revision of the garage to domestic use.
2. To
note the situation and take no further action.
3. To invite a planning application to
remedy the breach without prejudice to the final decision.
Conclusion
The material
factors that are given consideration in this matter relate specifically to the
use of a domestic garage in connection with the running of a carpet business
that is in conflict with the policies of the Unitary Development Plan. The
owners have stated that they were not aware that the use of the garage for uses
other that those directly related to or ancillary to the residential use
constituted a material change of use and on being advised as such by the Local
Planning Authority have indicated their willingness to cease the use within a
reasonable time frame. Whilst certain business can operate from home without
any detrimental effect on the character of the surroundings the nature of this
use with delivery vehicles and occasional customer traffic is not considered
acceptable within a residential area. The recommendation to pursue enforcement
action is a fall back position if the owners fail to observe their deadline to
cease the use. The site will be monitored in the run up to the date of the
meeting and Members will be advised of any change in circumstances.
Human Rights
In coming to the
recommendations to pursue enforcement action if the use does not cease within
the stipulated time frame, considerations have 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 immediate area has been carefully
considered. The action recommended is proportionate to the legitimate aims of
the Council as expressed through the Unitary Development Plan and in the public
interest.
Recommendation
To serve an
Enforcement Notice requiring the cessation of the unauthorised use and the removal of the carpets and the
reversion of the garage to domestic use.
Time for
compliance B Two months.
Strategic
Director
Corporate and
Environment Services