TUESDAY – 4 NOVEMBER 2003
E/21249/G Enforcement action in respect of Medham Village, Medham Farm Lane, off Newport Road, Northwood
Officer: Mr S Cornwell Tel: (01983) 823592
Summary
To consider the developer’s offer of withdrawing their appeal against an Enforcement Notice if the Council extends the compliance period from three to twelve months.
Conditional planning permission was granted in June 1990 for a residential development consisting of sixty seven houses, four bungalows, garages, access road and estate road. The site is located in Northwood between the Newport Road and the River Medina. It is accessed from a road which runs from the Nodes Road/Newport Road traffic light junction with the development consisting essentially of a circular road with a number of cul-de-sacs of varying lengths running off it.
At the 19 November 2002 Development Control Committee meeting Members considered a report on the failure of the developer to comply with that part of a planning condition which required the kerbing of all the roads. Members accordingly resolved to authorise the service of an Enforcement Notice.
Following the Committee resolution, discussions took place with the developers and with local residents in an attempt to identify an amicable way forward without the need for the service of any notice. Although these discussions were protracted, they did not resort in any remedy and as a consequence the formal Notice was served dated 12 September 2003. The Notice was intended to take effect on 17 October 2003 giving a time period for compliance of three months. The Notice covered three specific areas, firstly the kerbing of the roads, secondly the installation of the rumble strips and thirdly the top surfacing of the roads.
An appeal was submitted before the Notice took effect and accordingly the Notice is now suspended.
The only ground of appeal that has been made is Ground G which is “That the time given to comply with the Notice is too short”. The papers attached to the appeal document indicate that a period of fifteen months is required and sets down nine reasons why the work cannot be done in the following timescale. These are as follows:
1. Poor weather conditions anticipated, particularly for laying tarmacadam.
2. Shortage in availability of skilled labour.
3. Three weeks closedown over the Christmas period.
4. Actual size of this job could not be done by our current workforce in perfect weather conditions in under nine months.
5. Construction work still continuing onsite by us and others.
6. Having to rely on subcontractors outside our control.
7. Will need to close off roads in rotation thus causing inconvenience.
8. Southern Water not happy with ingress of water to the foul system. This may well necessitate digging up the road and repairing the storm and foul system which must be done prior to the above works.
9. We have another site at Ventnor, Isle of Wight which requires tarmacking and kerb repairs and work is already in progress making it impossible to do the Medham site at the same time.
Some of these reasons have greater merit than others.
Further discussions with the developer have now resulted in an exchange of correspondence which has included the following statement:
“We wish to confirm that if the time given in the Notice at three months is extended to twelve months we would withdraw our appeal notice”.
None.
The Local Planning Authority has already served an Enforcement Notice with the intention of requiring the developer to undertake certain highway works which, it believes, are outstanding regarding this residential development site.
The developer has appealed the Enforcement Notice on the grounds that the time period for compliance set at three months is too short. Subsequent discussions have identified a time period for compliance of twelve months within which the developer believes he can undertake the required works. He has also indicated that should the Council agree to this extension of time then he would withdraw his appeal against the Notice.
The judgement which the Local Planning Authority has to make in deciding whether this request is reasonable is, I would suggest, a balance between the desired outcome against the length of time it will take to achieve. At present if the Council maintains its position seeking compliance within three months the matter will be determined by appeal. That process is allocated a determination period by the Planning Inspectorate of thirty two weeks. Accordingly, even if the Local Planning Authority were successful we are still faced with a compliance date that could be mid-September 2004. Furthermore, although the Local Planning Authority has confidence behind its decision to serve the Enforcement Notice there is obviously the possibility that the Inspector may consider the requirements of the Notice too severe and consequently pursuing with the appeal the LPA runs a risk of losing or variation to some or all of the requirements of the Notice. If the developer’s offer is accepted all matters will be resolved by November 2004. I would also suggest to Members that at the present time there is no significant level of injury being experienced by the residents of the estate that should also be considered as seeking to expedite the matter as soon as possible.
By agreeing to the extension of time, providing the Notice is withdrawn, the LPA will then achieve all the desired outcomes. Obviously, if the Notice is not complied with at the end of the extended period the Council would then consider if a prosecution action in the Magistrates Court was appropriate.
On balance, having considered the benefits and disbenefits of coming to an arrangement with the developer I consider that overall there are more benefits than disbenefits and given these circumstances as outlined above I would recommend that the Council adopts Option 1.
In coming to the recommendation to agree to extend the time period for compliance, 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 balancing act between those rights of the developer and the responsibilities on the Local Planning Authority to protect the community’s rights have been considered carefully and on balance, it is considered appropriate to accept the offer by the developer to extend the time limit for compliance in the knowledge that the Enforcement Notice will then be uncontested and all its requirements will be achieved.
In the light of the additional information to agree to extend the compliance period of the Enforcement Notice from three months to twelve months on the basis that the developer withdraws his appeal.
Head of Planning Services