planning practice guidance and affordable housing committee...2015/03/19 · planning permission...

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Agenda Item No

Report No CD23/15

FRONT ITEM

Eden District Council

Planning Committee 19 March 2015

Planning Practice Guidance and Affordable Housing

Reporting Officer: Head of Planning Services

Responsible Portfolio: Economy and Planning

1 Purpose of Report

1.1 The purpose of this report is to seek agreement from Members of the planning committee to change the resolution of two planning applications which the head of planning services was given delegated powers to approve subject to the successful conclusion of a section 106 legal agreement regarding affordable housing.

2 Recommendation:

1. That the report be noted.

2. That delegated authority is given to the Head of Planning Services to grant planning permission for the following applications without the need for either the provision of an affordable unit or a 3% financial contribution to the Council’s affordable housing fund.

Applications:

13/0521 - Icold Barn, Greystoke. Erection of five dwellings and formation of access. Delegated authority to approve subject to a section 106 legal agreement to secure the provision of an affordable unit.

11/0939 – Garth House, Little Salkeld. Erection of two dwellings. Delegated authority to approve subject to a section 106 legal agreement to secure the provision of a 3% financial contribution for each unit to the Council’s affordable housing fund.

3 Report Details

3.1 On 27 January 2015 the Executive resolved to accept a report from the Director of Corporate and Legal Services (Appendix 1). This report updated Members on the effects of revisions to Planning Policy Guidance made by the DCLG on the 28 November 2014 and which affect the Council’s ability to seek contributions for affordable housing.

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3.2 As a result of this change in guidance the Executive resolved that the Council should no longer require affordable housing contributions for developments of 5 or less houses (except on rural exception sites). For developments of 6 -10 houses outside the urban area of Penrith the contribution can only be in the form of a commuted cash contribution. Within Penrith urban area itself no affordable housing contribution can be sought on sites of 10 or fewer dwellings.

3.3 Previously, policy dictated that an affordable housing contribution of 3% market value per dwelling had to be paid on completion, and this was secured by the provision of a Unilateral Planning Obligation (UPO) for sites of 1 – 3 houses before permission was granted. On development of 4 or 5 houses, a single affordable house was normally to be provided on site in kind and also secured by an s.106 legal agreement or UPO.

3.4 The planning committee has historically considered two applications and granted delegated authority to the head of planning services to approve the applications subject to the successful conclusion of a section 106 legal agreement for each application to secure either an affordable unit or a financial contribution. These legal agreements have not been concluded and following the resolution of the Executive on 27 January 2015, they are no longer considered necessary.

3.5 As the affordable unit and the financial contributions can no longer be sought, both previous resolutions of the Committee need revising and updating to allow these applications to be determined and permission to be issued without the affordable housing unit or financial contribution.

3.6 The two applications affected are set out below.

APP 13/0521 - Icold Barn, Greystoke

Erection of five dwellings and formation of access.

This application was originally referred to planning committee on 17 October 2013 with an officer recommendation to refuse the application. Members were minded to approve the application and the application was brought back to planning committee on 13 March 2014 and approved subject to a section 106 legal agreement to secure one of the units as an affordable unit.

Since delegated powers were granted the planning department has been in ongoing discussion with the applicant’s solicitors although the legal agreement has yet to be concluded.

These ongoing discussions have now been superseded by the resolution of the Executive to no longer require affordable housing contributions for applications of this type.

In light of the above it is the continued recommendation of the head of

planning services that this application should be refused for the

reasons provided in the original case officer report to committee on 17

October 2013. However, should Members remain minded to approve the

application then the resolution should be amended to allow the

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application to be approved subject to the conditions set out in the 13

March 2014 committee report (Appendix 3) without the requirement for

an affordable unit.

APP 11/0939 Garth House, Little Salkeld

Erection of two dwellings.

This application was referred to Planning Committee on the 16 February 2012 as an objector requested a hearing. Members resolved to grant delegated powers to the head of planning services to grant planning permission subject to a section 106 legal agreement requiring the payment of a 3% commuted sum for each dwelling prior to their occupation.

Since delegated powers were granted the planning department has been in ongoing discussions with the landowners regarding the legal agreement. There have been delays concluding the legal agreement due to bereavement in the family and the resultant inability to enter into a section 106 legal agreement.

These ongoing discussions have now been superseded by the resolution of the Executive to no longer require affordable housing contributions for applications of this type.

There have been significant changes to national planning policy since the original application was determined (including the introduction of the NPPF and NPPG). Notwithstanding the changes to policy and guidance, the recommendation for the application remains that it should be approved subject to conditions.

In light of the above change to Council procedures regarding affordable

housing contributions it is the continued recommendation of the head

of planning services that this application be approved subject to the

conditions set out in the original committee report (Appendix 2) without

the requirement for the 3% financial contribution.

3.7 Should the Committee not accept the recommendations in this report the above applications would have to be refused (as the timeframe for appealing non-determination (6 months) has expired. If no substantial reason for not determining the applications in a timely fashion could be given, there would be the risk for an award of costs against the Council.

3.8 Conclusion

The two applications referred to above have been assessed previously by the planning committee and subsequently considered to be acceptable forms of development. Affordable housing contributions (either for a unit or a financial contribution) can no longer be sought on these applications since the changes to the Planning Practice Guidance. In order to enable these developments to progress without delay it is recommended that the Planning Committee resolve to amend their original resolutions to no longer require an affordable housing unit (Icold Barn) or affordable housing financial

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contributions (Garth House) and allow the Head of Planning Services to grant permission subject the conditions as previously agreed by Committee.

4 Policy Framework

4.1 The Council has four corporate priorities which are:

Housing Quality Environment Economic Vitality Quality Council

4.2 This report addresses the first (Housing) and third (Economic Vitality) corporate priorities, as it refers directly to the provision of housing within the district and would affect economic activities in the district.

4.3 This report addresses “Further develop the local economy” and “meet current and future housing needs” strategic actions in the Corporate Plan.

4.4 This report helps to meet CS1 of the Core Strategy through the provision of sustainable development.

5 Implications

5.1 Legal

5.1.1 Legal implications are set out in the Report appended as Appendix 1 that was considered by the Executive on 27 January 2015.

5.1.2 No implications are believed to arise from the Human Rights Act 1998.

5.2 Financial

5.2.1 Any decision to reduce or increase resources must be made within the context of the Council’s stated priorities as set out in its refreshed corporate plan.

5.2.2 This report is not considered to have any significant effect on the Council’s finances.

5.3 Equality and Diversity

5.3.1 The Council has to have regard to the elimination of unlawful discrimination and harassment and the promotion of equality under the Equality Act 2010 and related statutes.

5.4 Environmental

5.4.1 The Council has to have due regard to conserving bio-diversity under the Natural Environment and Rural Communities Act 2006.

5.5 Crime and Disorder

5.5.1 Under the Crime and Disorder Act 1998 the Council has to have regard to the need to reduce crime and disorder in exercising any of its functions.

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5.6 Children

5.6.1 Under the Children Act 2004 the Council has to have regard to the need to safeguard and promote the welfare of children in the exercise of any of its functions.

5.7 Risk Management

5.7.1 The report is not considered to create significant risk to the Council, although failure to agree the recommended course of action could lead to awards of costs against the Council, as indicated earlier in the report at paragraph 3.6.

6 Reasons for decision/recommendation

6.1 To enable effective and efficient dealing with planning applications that have previously been considered in detail by the Planning Committee.

Gwyn Clark Head of Planning Services

Governance Checks:

Background Papers: Contact Officer: Daniel Addis, Senior Planning Officer Telephone Number: 01768 212317

Checked by or on behalf of the Chief Finance Officer ✓ Checked by or on behalf of the Monitoring Officer ✓

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APPENDIX 1

Report No CLS 11/15


Executive

27 January 2015

Planning Policy Guidance

Reporting Officer: Director of Corporate and Legal Services

Responsible Portfolio: Economy and Planning

1 Purpose of Report

1.1 This report is to advise the Executive of the implications for Eden District Council of recent revisions to the Planning Policy Guidance issued by the Secretary of State for Communities and Local Government (DCLG) on 28 November 2014.

2 Recommendation:

1. That the report be noted.

2. That the proposed approach as set out in paragraph 3.17 be agreed and adopted pending further information from the Council’s external consultants on appropriate levels of financial contribution for affordable housing and formulation of new policy in the Local Plan.

3 Report Details

3.1 On 28 November DCLG issued revisions to the current Planning Policy Guidance (“PPG”) which affect the Council’s entitlement to seek contributions for affordable housing when considering planning applications. Both Planning and Legal Services have now considered the details and implications, and can now recommend the best way forward pending the adoption of the new Local Plan.

3.2 The risks to the Council in ignoring the new guidance (PPG) are that on appeals Inspectors will expect the Council to follow it – unless there are very good reasons for not doing so. So unless the Council can clearly demonstrate it has such good reasons, there is a risk both of losing appeals and of costs being awarded against Eden for unreasonable behaviour.

3.3 Eden’s Core Strategy (CS) and Housing SPD (both adopted in 2010) set out our policy. Our basic starting point is the provision of 30% affordable housing on large schemes. Since 2012 our policy has already been overtaken (to some extent) by the requirements of the National Planning Policy Framework (NPPF), because we do not have a five year supply of housing, which means

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that in some cases our adopted policy can be treated as outdated and superseded by the NPPF. Under the Housing SPD, which provides more detailed policy based on Policy CS10, outside Penrith itself, or ‘rural exception sites’, there are 2 groups of sites:

Sites of 1 – 3 units - where a 3% of the value of the dwelling(s) is taken as a contribution toward affordable housing

Sites of 4 units or above - where 30% on-site provision is expected, subject to a viability assessment.

3.4 The revisions to PPG now instruct that no contributions should be sought on sites of 10 units or less. However, in “designated rural areas”, Councils can apply a lower threshold. Apart from the former urban district of Penrith, the whole of Eden is such a designated rural area. Under this exception, the Council can therefore still seek contributions on schemes of 6-10 units outside Penrith, as well as on rural exception sites which would remain at 100% affordable.

3.5 The PPG thus deprives the Council of the ability to seek contributions on the smallest schemes outside Penrith, which make a valuable contribution for various reasons, and on schemes of less than 10 houses in Penrith.

3.6 So the question is whether Eden’s elected members - as the decision-makers on planning – can, or should - ignore the PPG in order to avoid losing affordable housing? There are numerous authorities in case law which show that the Courts will not interfere with the proper exercise of a decision-maker’s discretion - provided that they have not acted manifestly unreasonably. However, this assumes that a matter is going to Court, which means significant legal costs would be accrued. Members will wish to avoid such risks.

3.7 Apart from the legal authorities, simple questions of fact arise, such as: What benefit has Eden derived from the existing policy to justify ignoring the PPG? leading to: Would it therefore be reasonable to ignore the PPG revisions?

3.8 A review of what has actually happened has taken place, and of the facts at the Council’s disposal in the event of a challenge at an appeal. The Housing Team has advised that since 2010 Eden has actually received an identifiable £47,028 on sites of 1 – 3 (from 119 permissions for 174 units). But there is clearly an unknown quantity of further money in the pipeline, although much of it may now be irrecoverable - as applicants could apply for a fresh permission to avoid the contributions, or simply refuse to pay in the knowledge of new Government advice.

3.9 Since 2010, on sites of all sizes, Eden has achieved 324 affordable units from a total of 1,556 units permitted (just under 20%), bearing in mind not all schemes have yet been completed or permissions implemented.

3.10 On this basis, both Legal and Planning Services conclude it would be unreasonable to continue to insist on the contributions set out in the Housing SPD for sites of 1 – 3, because if challenged at appeal our evidence of the benefit to Eden is weak. The £47,028 received builds less than one unit.

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3.11 PPG also goes on specifically to prohibit seeking contributions on sites of 4 or 5. It then states that in rural areas, on sites of 6 – 10 units, contributions should be taken in the form of ‘cash payments’ only, (rather than affordable units on site), which must be ‘commuted’ until completion of the development. By this it is understood that the sum should not be collected until the scheme is finished. That is unhelpful because it potentially allows developers to fail to complete a scheme if it will stop them being liable to pay over the sum due for affordable housing. It is advisable to insist that contributions are paid earlier in the process by negotiation to avoid losing them altogether.

3.12 In addition, it now seems that it will now be viewed that Eden has no up-to-date evidence or policy on how much per unit it is proper to ask for on sites of 6 – 10. The policy in the Housing SPD is now treated as out of date, not only because the research on which it was done is about five years old, but because it is superseded by the NPPF (para 49). Normally such policy should appear in a Development Plan Document, which is formally examined by an Inspector, whereas an SPD is not, and thus carries less weight.

3.13 Planning Services therefore propose to commission “NPS”, who undertake viability assessments for the Council, to re-assess the appropriate level, as the previous requirement of 3% per unit appears too small, and the general aim of 30% provision on site could be too large.

3.14 It is important for the Council to adopt a consistent approach to implementing the PPG revisions, and Planning Services are under pressure from agents to announce our new stance in relation to applications currently being considered, and those already granted permission. Indeed, Eden has received the first application which is designed to remove the 3% contribution from a planning permission already granted.

3.15 A new policy can be developed - based on the NPS assessment and current evidence collected for the Local Plan, related to the housing information in the updated SHLAA. It will then be written into the Local Plan before the next public consultation. The new policy will acquire credibility and effectiveness the closer its gets to examination and adoption. It will replace the outdated policies, although it must be generally consistent with NPPF and PPG advice so far as possible.

3.16 It must be clear that members do have the option to ignore the PPG advice, and continue to ask for the affordable housing contributions as per the Core Strategy and Housing SPD. However, unless they can show good reason for ignoring the guidance, there is a risk of challenge on appeal, leading not only to overturning the Council’s demands, but also to costs for unreasonable conduct.

Conclusions

3.17 Pending the replacement of the policy on affordable housing contributions in the emerging new Local Plan, it is considered a pragmatic approach should be adopted for the time being, which involves:

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For schemes for 3 or less units - no longer to seek a financial contribution through a Unilateral Planning Obligation.

For schemes of 4 and 5 units - no longer to seek the provision of an affordable dwelling on site or financial contribution through a Section 106 Agreement.

For schemes of 6-10 units in the rural area (excluding Penrith) - to rely on Policy CS6 on Developer Contributions. This states contributions may be sought for affordable housing, and goes on: “In some cases the obligation will take the form of a financial contribution. In all cases they will be directly, fairly and reasonably related in scale and kind to the proposed development”. This means developers will be asked (case-by-case) to make an offer of financial contribution towards affordable housing, which can then be assessed as to viability by our external consultants.

For schemes of 11 and above units to seek the existing 30% requirement for affordable housing as at present through a Section 106 Agreement.

4 Policy Framework

4.1 The Council has four corporate priorities which are:

Housing Quality Environment Economic Vitality Quality Council

4.2 This report meets the first corporate priority in continuing to seek contributions for affordable housing

4.3 This report addresses “increasing housing affordability and availability to meet current and future needs” as a strategic action in the Corporate Plan as refreshed in 2014.

4.4 This report helps to meet Core Strategy CS10 and CS6 adopted policy of the Council, although Policy CS10 has been outdated as a result of both the NPPF and PPG requirements, so it appears sensible to rely instead on Policy CS6.

5 Implications

5.1 Legal

5.1.1 For planning applications, including those for housing, the Council must act in accordance with section 38 (6) Planning and Compulsory Purchase Act 2004, and determine them in accordance with the development plan - unless material considerations indicate otherwise. Such material considerations include the National Planning Policy Framework and ministerial guidance to it issued and revised from time to time.

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5.1.2 Case law including the recent decisions in R (Tesco) V Forest of Dean DC 2014, South Northants Council v SSCLG 2013 and R (Ash PC) v Guildford BC 2014 clearly establish that it is matter for the decision maker what weight to attach to a material consideration (such as the NPPF or PPG). However, in choosing to ignore such policy or guidance the Council must avoid acting irrationally or unreasonably.

5.1.3 Eden District Council is a designated rural area under the Housing (Right to Buy) (Designated Rural Areas) (England) Order 1981 SI 1981/397, and is thus partly exempt from the new guidance requirements.

5.2 Financial

5.2.1 Any decision to reduce or increase resources must be made within the context of the Council’s stated priorities as set out in its refreshed corporate plan.

5.2.2 As the report states the PPG revisions may impact on future income. However, the Council has only budgeted for income it is certain to receive.


5.3.1 The Council has to have regard to the elimination of unlawful discrimination and harassment and the promotion of equality under the Equality Act 2010 and related statutes.

5.3.2 The largely rural area of the District means that new ministerial guidance in PPG potentially has a particularly negative effect on Eden’s ability to secure the provision of affordable housing on the smallest of sites in rural areas outside Penrith.

5.4 Environmental

5.4.1 The Council has to have due regard to conserving bio-diversity under the Natural Environment and Rural Communities Act 2006.

5.4.2 None have been identified here.

5.5 Crime and Disorder

5.5.1 Under the Crime and Disorder Act 1998 the Council has to have regard to the need to reduce crime and disorder in exercising any of its functions.

5.6 Children

5.6.1 Under the Children Act 2004 the Council has to have regard to the need to safeguard and promote the welfare of children in the exercise of any of its functions.

5.7 Risk Management

5.7.1 Risk Management is a process whereby attempts are made to identify, actively control and reduce risk to protect the council. This covers not only the traditional areas of insurable risk but also the organisational risk that the council faces in undertaking all its activities.

5.7.2 The Report refers to the need to take account of material considerations in determining planning applications. The recently revised guidance impacts

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upon the delivery of affordable housing in the District. The Report sets out an approach to this guidance which is aimed at minimising the risk of challenge to the Council in taking account of the guidance.


6.1 To enable an approach to be adopted to the recent planning policy affecting affordable housing issued by the DCLG.

P Foote Director of Corporate and Legal Services

Governance Checks:

Background Papers: PPG, NPPF and Eden Core Strategy Contact Officer: Dr Clorinda Goodman Telephone Number: 01768 212250

Checked by or on behalf of the Chief Finance Officer Checked by or on behalf of the Monitoring Officer

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APPENDIX 2


Planning Committee 16 February 2012 20

Planning Application No: 11/0939

Full Planning Permission for the Erection of 2 dwellings Garth House, Little Salkeld

for Mr D Fawcett

Head of Planning Services

Site Plan:

REPORTS FOR DEBATE

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1 Purpose of Report

1.1 This application is before members as an objector has requested a hearing.

2 Recommendation:

It is recommended that delegated power be given to the Head of Planning Services to grant planning permission subject to the applicant first entering into a Unilateral Obligation to the satisfaction of the Director of Corporate and Legal Services and the Head of Planning Services requiring the payment of a commuted sum for each dwelling prior to occupation, and subject to the following conditions:

1) The development permitted shall be begun before the expiration of three years from the date of this permission.

2) The development hereby granted shall be carried out strictly in accordance

with the amended details and plans hereby approved (plans received 20 October 2011) and shall not be varied other than by prior agreement in writing by the Local Planning Authority.

3) Samples of the materials to be used on external elevations of the two houses

hereby approved shall be submitted to and agreed with the Local Planning Authority prior to being used on site.

4) The whole of the vehicular access area bounded by the carriageway edge

and the highway boundary shall be constructed and drained to the specification of the Local Highways Authority.

5) Before any development takes place, a plan shall be submitted for the prior

approval of the local planning authority reserving adequate land for access by vehicles engaged in construction operations associated with the development hereby approved, and that land, including vehicular access thereto, shall be used for or be kept available for these purposes at all times until completion of the construction works.

6) The dwelling shall not be occupied until the vehicular access and turning

requirements have been constructed in accordance with the approved plan and has been brought into use. The vehicular access turning provisions shall be retained and capable of use at all times thereafter and shall not be removed or altered without the prior consent of the Local Planning Authority.

Reasons

1) In order to comply with the provisions of the Town and Country Planning Act 1990.

2) To ensure a satisfactory development and to avoid any ambiguity as to what

constitutes the permission. 3) In the interests of visual amenity.

REPORTS FOR DEBATE

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4), 5) & 6) In the interests of highway safety.

3 Report Details

3.1 Proposed Development:

3.1.1 The application seeks full planning permission to erect two detached, two storey, 3 bedroom dwellings and their associated garages, as well as a further detached garage for the benefit of the adjoining property part of whose garden the application site comprises. The two dwellings would be faced in local stone under slated roofs whilst the detached garage blocks would be finished in roughcast render under slated roofs. Windows would be of timber, traditional vertical sliding sash construction and doors would be of painted timber. The two houses would be accessed via a new paired driveway running between the houses and on to the adjacent Class 3 Road. Foul sewage from the development will be disposed of via the mains sewer and surface water will be disposed of by a soakaway.

3.2 Description of the Site and the Surroundings:

3.2.1 This gently sloping site extends about 850m2 and presently forms part of the side garden of Garth House, a detached two storey cottage. It fronts on to the Langwathby to Glassonby road and is located at the sharp bend where it is joined by the minor road which leads to Salkeld Hall and a number of residential properties and a farm before leading on to Lacy Caves. The site is fronted in part by a hedge and in part by a low stone wall toped with railings. The garden of Brooklyn, a large detached bungalow, adjoins the north eastern part of the site at a higher level.

3.3 Relevant Planning History:

3.3.1 11/0365 - Proposed 2 number dwellings - Withdrawn 3.4 Method of Publicity and Summary of Representations:

3.4.1 The application was advertised by way of individual neighbour notification letters and the posting of a Site Notice. Four letters/emails objecting to the development have been received raising the following, summarised, concerns:

The scale of the proposal on a sloping, relatively small site

The amended plans show three access points just below a blind corner, traffic travelling downhill will not see any vehicle entering or leaving the site and the plans suggest that vehicles would reverse out on to the highway

Now that trees have been removed my property and garden, which was previously a private area, will be overlooked

The increase in vehicles may lead to more traffic hazards on the corner, there are two working farms in the village, a contractor just outside and Little Salkeld is on the C2C route

It would set a precedent for other applicants to re-apply on land to the north and west of the site

REPORTS FOR DEBATE

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The site is the garden of an old traditional sandstone house. It is our understanding that such sites should not be seen as „fair game‟ for the building of new properties. Garden sites have been designated as green belt

There are currently vast number of properties of all types for sale in the surrounding area

The proposal will have an immeasurable impact on our quality of life in the village

The 1m shift southward will not remove the potential for traffic hazard with 3 access points placed close together, on a blind corner, opposite a small road which is routinely used and which is effectively a blind access.

3.5 Parish Response:

3.5.1 No response received to the current application. 3.6 Consultation Responses:

3.6.1 Highway Authority - No objection subject to conditions. 3.7 Main Planning Issues Raised:

3.7.1 Housing Policy Highway safety Design Impact on neighbours 3.8 Planning Assessment:

3.8.1 The site is located within Little Salkeld which is identified within the Council‟s adopted Core Strategy as a Local Service Centre where new housing can, in principle, be permitted subject to the normal range of planning criteria being adequately satisfied and a financial contribution being made towards the general provision of affordable housing within the District. In accordance with those policies the application is accompanied by a unilateral obligation signed by the Applicant offering to pay the Council 3% of the final value of the 2 houses proposed should planning permission to be granted.

3.8.2 In terms of the suitability of access the current proposal follows a previously withdrawn application to which the Local Highway Authority had objected due to concerns over restricted emerging visibility from the proposed accesses. The current proposal has been amended in light of those concerns and now shows a paired access and the proposed houses moved slightly further to the south to improve visibility when emerging from the site. A separate access at would be created towards the southern end of the site to serve the existing property, Garth House. Though nearby residents have objected to the proposed accesses on highway safety grounds the Local Highway Authority are satisfied with arrangements now proposed.

3.8.3 Turning to issues of appearance the two dwellings would be of a high quality design which both reflects and respects the neighbouring property Garth House, as well as the local vernacular. Both would be finished in local stone with slated roofs and incorporate traditional vertical sliding sash timber windows. The submitted plans indicate that, apart from the necessary access works, the low stone roadside wall would be retained thereby maintaining the visual appearance of the road frontage.

REPORTS FOR DEBATE

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3.8.4 Though objectors refer to changes in national planning policy guidance which removes residential gardens from the previous definition of „brownfield land‟, this was not intended to introduce an total embargo on the development of garden areas but was introduced in order to allow Councils to have more control, particularly over those suburban garden areas in larger town and cities areas where the character of an existing residential area was in danger of being eroded through overdevelopment. In this case, though forming part of a residential garden, it is not thought that its development with two houses in the manner proposed would be out of keeping with or have a harmful effect on the visual amenities of the surrounding area or that it would adversely affect the character of the settlement as a whole.

3.8.4 Although the occupiers of Brooklyn, the neighbouring detached bungalow to the north east, raise issues in respect of overlooking, Brooklyn stands at higher level than the application site and perpendicular to it. The nearest of the two houses proposed would be situated about 16m from Brooklyn at its nearest point with no direct window to window interface. Though there would be some opportunity for increased overlooking of the rear garden the situation is not dissimilar to the relationships of other properties elsewhere within the village and in this case the rear garden area is already open to view from the public highway, when viewed across the application site, and there would be nothing to prevent the occupiers of the adjacent property from erecting additional screening along their own boundary to safeguard their interests in this regard. It is not therefore thought that the amenities of the occupiers of the neighbouring property could be said to be affected to an unacceptable degree under such circumstances.

4 Policy Framework

4.1 The Council has four corporate priorities which are: Housing Quality Environment Economic Vitality Quality Council

4.2 This report meets the Housing, quality Environment and Economic Vitality corporate priorities.

4.3 This report addresses the strategic action in the Corporate Plan. 4.4 This report helps to meet the adopted Planning Policies of the Council. 4.5 Relevant Local Plan Policies:

4.5.1 Core Strategy Policy: CS1 - Sustainable Development Principles CS3 -Rural Settlements and Rural Areas CS7 - Principles for Housing CS10 - Affordable Housing

CS18 - Design of New Development

5. Implications

5.1 Legal

REPORTS FOR DEBATE

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5.1.1 There are none arising directly from this report. 5.2 Financial

5.2.1 Any decision to reduce or increase resources must be made within the context of the Council‟s stated priorities as set out in its refreshed corporate plan.

5.2.2 There are no proposals in this report that would reduce or increase resources. 5.3 Equality and Diversity

5.3.1 There are none arising directly from this report. 5.3.2 The Council has to have regard to the elimination of unlawful discrimination and

harassment and the promotion of equality under the Equality Act 2010 and related statutes.

5.4 Environmental

5.4.1 There are none arising directly from this report. 5.4.2 The Council has to have due regard to conserving bio-diversity under the Natural

Environment and Rural Communities Act 2006. 5.5 Crime and Disorder

5.5.1 There are none arising directly from this report. 5.5.2 Under the Crime and Disorder Act 1998 the Council has to have regard to the need to

reduce crime and disorder in exercising any of its functions. 5.6 Children

5.6.1 There are none arising directly from this report. 5.6.2 Under the Children Act 2004 the Council has to have regard to the need to safeguard

and promote the welfare of children in the exercise of any of its functions. 5.7 Risk Management

5.7.1 There are none arising directly from this report.

6. Reasons for Decision/Recommendation

6.1 The proposal is for the erection of a pair of houses on land located within an identified Local Service Centre which are of a design and scale which is considered to be sympathetic to the local vernacular and which will not adversely the character of the settlement or the amenities of neighbours to an unacceptable degree.

Gwyn Clark


Governance Checks: Background Papers: Contact Officer: Tony Ryniejski Telephone Number: (01768) 212367

Checked by or on behalf of the Monitoring Officer √

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APPENDIX 3

Report No: CD32/14


Planning Committee 13 March 2014

Planning Application No: 13/0521

Erection of 5 Dwellings and Formation of Access

At Icold Barn, Icold Road, Greystoke

For Mr N Richards


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1 Purpose of Report

1.1 To allow Members to consider further this planning application and to agree the terms of approval should they continue to be minded to approve this application.

2 Recommendation:

Either:

That the proposed planning application as set out in this report be refused for the following reasons: 1. The proposed development would result in the creation of residential

development located outside of a Key or Local Service Centre with no overriding or exceptional need being demonstrated, contrary to the provisions of policies CS1, CS2, CS3, CS7 and CS9 of the Core Strategy DPD, Policy NE1 of the Eden Local Plan and guidance within the NPPF.

2. The proposed development is outside of the adjacent settlement of Greystoke, does not relate well to other built development and represents an incongruous and harmful intrusion into the open countryside. If approved, the proposal would result in inappropriate development in the countryside contrary to guidance within the NPPF, Policy NE1 of the Eden Local Plan and policies CS1, CS2, CS3, CS7, CS9 and CS18 of the Core Strategy DPD.

Or:

Should Members remain minded to approve the application, that delegated powers be given to the Head of Planning Services to grant planning permission subject to a Section 106 legal agreement being entered into to the absolute satisfaction of the Director of Corporate and Legal Services and the Head of Planning Services requiring the provision of (in accordance with the Core Strategy and the Housing SPD) an affordable dwelling house and the Council‟s reasonable costs being paid in relation to that Section 106 agreement, and subject to the following conditions: 1. The development permitted shall be begun before the expiration of three years

from the date of this permission. 2. The development hereby granted shall be carried out strictly in accordance with

the details and plans hereby approved (drawing no‟s 113-166-01B, 113-166-03A, 113-166-04A, 113-166-05A and 13-166-06A received 25 February 2014 and 113-166-02 received 21 January 2014) and shall not be varied other than by prior agreement in writing by the Local Planning Authority.

3. The „mews court‟ access/parking areas etc shall be designed, constructed and drained to the satisfaction of the Local Planning Authority and in this respect full engineering details shall be submitted for approval before work commences on site.

4. No dwelling shall be occupied until its vehicular access and parking facilities have been constructed in accordance with the approved plan. These facilities shall be retained and capable of use at all times thereafter and shall not be removed or altered without the prior consent of the Local Planning Authority.

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5. Samples of the materials to be used for the external surfaces of the development shall be submitted to and approved in writing by the Local Planning Authority prior to its use on site, and this condition shall apply notwithstanding any indications as to these matters which have been given in this application. Development shall be carried out in accordance with the approved details.

6. No development shall take place until full details of both hard and soft landscape works, including a phased programme of works, have been submitted to and approved in writing by the Local Planning Authority and these works shall be carried out as approved prior to the occupation of any part of the development or in accordance with the programme agreed by the Local Planning Authority. Any trees or other plants which die or are removed within the first five years following the implementation of the landscaping scheme shall be replaced during the next planting season.

7. No development shall take place until there has been submitted to and approved in writing by the Local Planning Authority, a plan indicating the positions, design, materials and type of boundary treatment to be erected. The boundary treatment shall be completed before the buildings are occupied or in accordance with a timetable agreed in writing with the Local Planning Authority. Development shall be carried out in accordance with the approved details.

8. Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any subsequent equivalent legislation) no development falling within Schedule 2, Part 1, Classes A – E and Part 2, Class A of the said Order shall be carried out without the prior written permission of the Local Planning Authority.

Reasons:

1. In order to comply with the provisions of the Town and Country Planning Act 1990.

2. To ensure a satisfactory development and to avoid any ambiguity as to what constitutes the permission.

3. To ensure a minimum standard of construction in the interests of highway safety. 4. To ensure a minimum standard of access provision when the development is

brought into use. 5. To ensure that the materials harmonise with the locality. 6. To ensure that the development is landscaped in the interest of the visual

character and appearance of the area. 7. To ensure adequate and appropriate treatment to all boundaries. 8. To prevent the overdevelopment of the site and to safeguard the living conditions

of adjoining properties and the visual appearance of the building.

3 Report Details

3.1 At the Planning Committee meeting on 17 October 2013 Members were recommended to refuse the application for the erection of 5 dwellings and the formation of an access at Icold Barn, Icold Road, Greystoke. Members however, unanimously determined that they were minded to approve the

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application as they considered the site to be within the village, however they wished to see and amended layout and design.

3.2 Since consideration of the application by Members at the October 2013 meeting of the Planning Committee, the applicant and their agent has had discussions with Officers as to an appropriate design solution. Amended plans were submitted on 21 January 2014 and consultation on these has been undertaken. Following comments by Officers, further amended plans were submitted on 25 February 2014 which resolved their concerns. The scheme continues to show five dwelling proposed; a terrace of four two storey, two and three bedroom properties and a large detached two storey, three bedroom property with an attached double garage. One of the terraced properties is proposed as being affordable. The buildings will be clad in stone and will be roofed in a grey/blue natural slate. Each of the terraced properties will have two car parking spaces, provided in either the communal courtyard area or a car port to the end terraces. The residential development proposed extends beyond the footprint of the existing agricultural building by approximately 13.5 metres to the south and 19.5 metres to the north and 12 metres to the east. The terrace of houses will however be set back from the road by approximately 7.5 metres (at their closet point), whereas the existing agricultural building abuts the road.

3.3 The Council‟s Conservation Advisor continues to have concerns with the proposal. He considers that the design of both buildings is based loosely on the form of traditional stone agricultural buildings; however the terrace of properties “is not based closely on vernacular models found in the Cumbria region”. The properties are now to be clad completely in stone and the Conservation Advisor has acknowledged that this “will assist in mitigating some of the visual harm that would occur to the setting of that heritage asset.” He does however continue to have concerns “over the perceived scale and volume of the larger building and believe that the pronounced symmetry and use of prominent cat-slide roofed projections contribute to this perception.” He has further advised that he considered that the application will “cause some harm to the setting of the Grade II* listed building but this is considered to be less than substantial.” He goes onto to say that “while it is recognised that the removal of the current agricultural shed on the site represents a valuable public benefit, I remain to be convinced that this is sufficient to outweigh the adverse pact of the proposal on the setting of the listed building, because of the scale and volume of the proposed building.” English Heritage has however advised that the proposals are of a more sympathetic character to the setting of the listed building and have recommended approval.

3.4 Officers are still of the opinion that the proposal would represent the creation of residential development located outside a key or local service centre with no overriding or exceptional need being demonstrated and would not relate well to other built development. In addition they consider that the proposal would represent an incongruous and harmful intrusion into the open countryside. Should the site ultimately be deemed outside the village, then the applicant can still pursue a residential proposal on this site, but as an exceptions site under CS9which would require the provision of 100% affordable housing to meet the needs of the local community. Members will recall the recent development proposal also outwith a Local Service Centre

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at Catterlen (13/0830), for the development of 6 dwellings. In this instance a financial viability assessment confirmed a requirement for four affordable houses, cross subsidised with two market led dwellings, which may suggest a similar ratio of affordable and market led development could be achieved on the current site. Conceding that the site falls within the village, in the absence of any evidence to the contrary, would be a lost opportunity to secure a significant proportion of affordable housing in this countryside location. The provision of affordable housing remains the corporate priority of the Council.

3.5 Officers previously recommended that the application also be refused on design grounds. The amended scheme is a significant improvement on the previous scheme and better reflects traditional agricultural buildings. Whilst the Council‟s Conservation Advisor has raised concerns with the development, English Heritage supports the application. It is considered that the design of the proposal, whilst extending beyond the front print of the existing agricultural building, is an improvement on the scheme considered by Members previously sufficient for this reason for refusal to be withdrawn. The two other reasons for refusal remain.

3.6 One email of objection has been received (in addition to the objections previously received and previously reported to Members) which raises the following issues:

The development is beyond the natural boundaries of the village

The site being significantly separate from existing dwellings

The access being at a point entering the village where traffic is very often travelling too quickly having come down the hill from Motherby

The terraced properties will back onto Icold Road unlike all the other properties on Icold Road – will be oddly inconsistent and cause the development to stand out

There does not appear to have sufficient consideration of parking space – this is likely to lead to vehicles being parked on Icold Road

3.7 No objections have been raised to the proposal by the Highway Authority. No comments have been received from the Parish Council at the time of writing the report. Any comments received will be verbally presented to the Planning Committee.

3.8 Should Members continue to wish to approve the application, on the basis that they consider the group to lie within the village, Core Strategy Policy CS10 requires 30% of the units (1 of the units) to be affordable. It is therefore considered that the approach set out above to agree that delegated powers be given to the Head of Planning Services to grant planning permission subject to a Section 106 legal agreement being entered into requiring the provision of an affordable dwelling house is considered appropriate. It is also considered that the conditions as set out above are appropriate. These relate to the construction of the car parking and access to ensure that they are constructed to an acceptable standard and prior to the occupation of any of the dwellings, and requiring samples of the materials, landscaping details and boundary treatment details to be submitted and agreed by the Local Planning Authority given the sensitive location of the site and the potential

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impact on the setting of the grade II* listed building. It is also recommended that permitted development rights relating to extensions and other alterations, alterations to the roof of the properties, structures and buildings within the curtilages and the erection or construction of gates, fences and walls due to the orientation of the properties with prominent rear gardens highly visible from the road and works to the front elevations having the potential to affect the setting of the listed building.

4 Policy Framework

4.1 The Council has four corporate priorities which are: Housing Quality Environment Economic Vitality Quality Council

4.2 This report meets housing and corporate priorities. With regards to quality environment, Members are satisfied that the

application protects the unique natural and built environment. With regards to economic vitality, Members are satisfied that the application

add to the growth of the economy by way of supporting a local business. 4.3 This report addresses the strategic action in the Corporate Plan. 4.4 This report helps to meet the adopted planning policies of the Council.

5 Implications

5.1 Legal

5.1.1 Decision-makers may be required by either statute or planning policy to give particular weight to certain material considerations.

5.1.2 Given that the development proposal is overall in conflict with the development, the legal test laid down in section 38(6) of the Planning and Compulsory Purchase Act 2004 (which gives the development plan enhanced status) means that the starting point is refusal unless other material considerations outweigh that refusal (see section 70(2) of the Town and Country Planning Act 1990).

5.1.3 Section 38(6) of the 2004 Act makes no mention of weight merely that „…the determination must be made in accordance with the plan unless material considerations indicate otherwise.‟

5.1.4 Provided that the Committee recognises the enhanced status afforded to the development plan by section 38(6) of the 2004 Act, the weight to be attached to any material consideration is a matter of planning judgment for the Committee as decision-maker provided that it acts rationally on the evidence. This is the normal situation but there are exceptions.

5.1.5 There is a relevant exception in this application to the Committee‟s discretion to attribute weight because the setting of a listed building is involved. Parliament has made the power to grant planning permission having regard to material considerations in section 70(2) of the 1990 Act expressly subject to section 66 of the Planning (Listed Buildings and Conservation Areas) Act

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1990 which imposes a general duty as respects listed building in the exercise of planning functions.

5.1.6 Section 66(1) of that Act states: „In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.‟

5.5.7 The courts have made abundantly clear that in order to give effect to the statutory duty under section 66(1) of that Act the local planning authority is required to accord “considerable importance and weight” to the desirability of preserving the setting of a listed building when carrying out the balancing exercise. Members cannot downplay this requirement. The concept of „preserving‟ means doing no harm (see South Lakeland District Council v. Secretary of State for the Environment [1992] 2 AC 141 per Lord Bridge at page 150). So “considerable importance and weight” must be given to the desirability of doing no harm to the setting of the listed building i.e. the Church.

5.5.8 The Court of Appeal in Barnwell Manor Wind Energy Limited v. East Northamptonshire District Council [[2014] EWCA Civ 137 affirmed Lang J‟s conclusion that: “In order to give effect to the statutory duty under section 66(1), a decision-maker should accord considerable importance and weight to the “desirability of preserving …the setting” of listed buildings when weighing this factor in the balance with other „material considerations‟ which have not been given this special statutory status. Thus, where the section 66(1) duty is in play, it is necessary to qualify Lord Hoffman‟s statement in Tesco Stores v. Secretary of State for the Environment & Ors [1995] 1WLR 759 at 780F-H that the weight to be given to a material consideration was a question of planning judgment for the planning authority.”

5.5.9 Planning policy in the National Planning Policy Framework (12. „Conserving and enhancing the natural environment‟) specifically requires the decision-maker to give “great weight” to conservation and any harm or loss should require “clear and convincing justification” (see, in particular, paragraph 132 of the NPPF).

5.5.10 If Members wish to approve, Members must therefore be able to state what material consideration(s) exist for this development proposal in this location to outweigh refusal, what weight is being attached to such considerations and why and to provide the supporting evidence (as distinct from mere assertion) for any such material consideration(s). Where Members have discretion, such discretion is required to be exercised rationally in accordance with the law laid down by Parliament. Any decision must be within such constraints.

5.5.11 Parliament‟s concept of „Localism‟ embodied in the Localism Act 2011 did not replace the statutory tests laid down by Parliament in section 38(6) of the 2004 Act and section 70(2) of the 1990 Act as qualified by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. The test is thus not that of the perceived popular opinion of any local residents. It has to be decided on the planning merits in accordance with the proper legal tests.

5.2 Financial

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5.2.1 Any decision to reduce or increase resources must be made within the context of the Council‟s stated priorities as set out in its refreshed corporate plan.

5.2.2 Under the New Homes Bonus scheme the government pays a grant of on average £1,040 per annum for each of six years for each new home built. There is also an annual bonus of £280 if a home is affordable.


5.3.1 There are none arising directly from this report. 5.3.2 The Council has to have regard to the elimination of unlawful discrimination

and harassment and the promotion of equality under the Equality Act 2010 and related statutes.

5.4 Environmental

5.4.1 There are none arising directly from this report. 5.4.2 The Council has to have due regard to conserving bio-diversity under the

Natural Environment and Rural Communities Act 2006. 5.5 Crime and Disorder

5.5.1 There are none arising directly from this report. 5.5.2 Under the Crime and Disorder Act 1998 the Council has to have regard to the

need to reduce crime and disorder in exercising any of it functions. 5.6 Children

5.6.1 There are none arising directly from this report. 5.6.2 Under the Children Act 2004 the Council has to have regard to the need to

safeguard and promote the welfare of children in the exercise of any of its functions.

5.7 Risk Management

5.7.1 There are none arising directly from this report.


6.1 The application is recommended for refusal on the basis that the site lies outside the village boundary where any residential proposal should be considered under Core Strategy policy CS9, requiring the provision of 100% affordable housing and to deviate from this policy in the absence of any material evidence, would be considered a lost opportunity to secure the required affordable housing to meet local need, which is the corporate priority of the Council.

6.2 However, should Members remain minded to approve the application, they must be clear as to their reasoning as to why they consider the site lies within the village, contrary to the officer view. If they remain of the view that the site is within the village, it is recommended that delegated powers be given to the Head of Planning Services to grant planning permission subject to a Section 106 legal agreement being entered into to the absolute satisfaction of the Director of Corporate and Legal Services and the Head of Planning Services requiring the provision of (in accordance with the Core Strategy and the Housing SPD) an affordable dwelling house and the Council‟s reasonable

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costs being paid in relation to that Section 106 agreement is considered appropriate and the conditions set out above are considered to be reasonable.

Gwyn Clark Head of Planning Services

Governance Checks: Background Papers: Contact Officer: Aimee Richardson Telephone Number: 01768 212486

Checked by or on behalf of the Monitoring Officer

planning practice guidance and affordable housing committee...2015/03/19 · planning permission...

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