Agenda item

Proposed demolition of former livestock building and replacement with a two bedroom bungalow (in lieu of Prior Approval for conversion of building into a dwelling subject of application 21/00460/COUNOT). Resubmission of application 22/01052/FUL.

 It was reported that this application had been referred to the Planning Committee at the Director of Planning’s discretion in light of the recent planning history of this site and due to the fact that planning application 22/01052/FUL for the proposed demolition of former livestock building and replacement with a two bedroom bungalow (in lieu of Prior Approval for conversion of building into a dwelling subject of application 21/00460/COUNOT)  had been previously refused by the Planning Committee following an Officer’s recommendation of approval.

Members were informed the  purpose of this application was the demolition of a former livestock building and its replacement with a two bedroom bungalow (in lieu of Prior Approval for conversion of building into a dwelling subject of application 21/00460/COUNOT). This application was therefore effectively a resubmission of application 22/01052/FUL. This proposal would conflict with the requirements of the Development Plan, principally Policies SP3 and SPL2 of the Tendring District Local Plan 2013-2033 and Beyond, being located outside of any Settlement Development Boundary.

Members of the Committee were told that the Officer’s considered view was that the lawful ability to undertake the extant Prior Approval conversion scheme under 21/00460/COUNOT was now highly unlikely and that the weight that  could be attributed to the so called ‘fall-back position’ was much further reduced whereby the further deteriorated condition of the building as seen on site for the current resubmission application since the refusal of application 22/01052/FUL was such that the possibility of compliance with the General Permitted Development Order (as also already previously sited for refusal reason No.1 for refused planning application 22/0152/FUL) was highly unlikely also. For this reason, the proposal was considered by Officers to fail the second element of the legal fallback test where there was no likelihood or real prospect of such a lawful event occurring as set out in the explanatory paragraph 6.16 of this report regarding the fall-back position.

The Committee had before it the published Officer report containing the key planning issues, relevant planning policies, planning history, any response from consultees, written representations received and a recommendation of refusal.

At the meeting, an oral presentation was made by the Council’s Planning Officer (CT) in respect of the application.

An update sheet had been circulated to the Committee prior to the meeting with the following details: -

• “Members should be aware that an email dated 26th June 2023 has been received by the Council from a person stated to be acting as Local Power of Attorney (LPA) on behalf of Mr Graham John Stevens, stated owner and proprietor of The Willows (7 Acre Farm) and applicant for the above planning application in which it is stated that there is currently a dispute over land ownership between two parties. The Council has been made aware (through the contact from the LPA referred to above) that this dispute is currently in the hands of solicitors acting for both parties concerned.

• This information (referred to above) provided to the Council has raised an ownership issue that potentially needs to be addressed before the issue of any decision notice.

RECOMMENDATION

• The Officer recommendation of refusal remains unchanged.  However, final issuing of decision is to be fully delegated to officers and subject to resolution of the correct serving of the certificate as may be needed.”

The Head of Planning addressed Planning Committee in respect of the ownership confirming that as a precautionary measure Members were advised not to access the site and view from public areas only.  Member should consider that they have sufficient understanding of the site and proposal to make a reasonable judgement.  The matter of ownership is not a determining factor for planning judgement and the Head Of Planning outlined the provisions of Article 14 of the Development Management Order 2015.  However, he noted that the agent had already helpfully been in touch and provided additional supporting information likely to make this matter resolved and avoid any delay.     

Following discussion by the Committee, it was moved by Councillor Placey, seconded by Councillor Wiggins and unanimously RESOLVED that the Head of Planning be authorised to refuse permission for the development for the following reasons:-

1.     Policy SP3, Section 1 of the Tendring District Local Plan 2013-2033 and Beyond sets out the spatial strategy for North Essex and directs growth towards existing settlements, whilst Policy SPL2, Section 2 of the Local Plan has similar aims and objectives specifically to Tending District. The application site lies outside of any defined Settlement Development Boundary in the 2013-2033 Local Plan. The proposed development would therefore extend beyond the area planned to provide growth.

In view of its favourable housing land supply position, the Council does not need to look beyond identified settlements to meet its housing requirement. The proposal therefore gives rise to harm through failing to comply with a statutory plan-led approach to the location of future housing. In view of this, the proposal's conflict with local plan policy gives rise to a significant degree of harm. The spatial strategy of Policy SP3, Section 1 also reflects the National Planning Policy Framework (2021) sustainable development objectives and the proposal's policy conflict with this policy in this context is given full weight. The principle of development is therefore not acceptable in this location. Consideration has been given to the proposed scheme as a self-build proposal, although limited weight is afforded to this possibility due to the scheme being contrary to the self-build eligibility criteria of Policy LP7 of the Tendring District Local Plan 2013-2033 and Beyond relating to self-build schemes proposed beyond the Settlement Development Boundaries.

The availability of a building subject to an approved Prior Approval for Class Q is acknowledged and given weight (21/00460/COUNOT), but given the poor condition of the building and its subsequently further deteriorated state since the determination of planning application 22/01052/FUL resulting in its partial collapse, it is the Council’s assertion that the lawful ability to undertake the extant Prior Approval conversion scheme under 21/00460/COUNOT is now highly unlikely and that the weight that can be attributed to the so called ‘fall-back position’ (R v Secretary of State for the Environment and Havering BC (1998) EnvLR189) is much further reduced as such that the possibility of compliance with the General Permitted Development Order (as also already previously cited for refusal reason No.1 for refused planning application 22/1052/FUL) is highly unlikely also. For this reason, the proposal is considered to fail the second element of the legal fallback test where it is considered that there is no likelihood or real prospect of such a lawful event from occurring.

2.     Under the Habitats Regulations, a development which is likely to have a significant effect or an adverse effect (alone or in combination) on a European designated site must provide mitigation or otherwise must satisfy the tests of demonstrating 'no alternatives' and 'reasons of overriding public interest'. There is no precedent for a residential development meeting those tests, which means that all residential development must provide mitigation. Policy SP2, Section 1 of the Tendring District Local Plan 2013-2033 and Beyond states that financial contributions will be secured from development towards mitigation measures in accordance with the Essex Coast Recreational Disturbance Avoidance and Mitigation Strategy 2018-20238 (RAMS), whilst Policy PPL4, Section 2 of the Tendring District Local Plan 2013-2033 and Beyond has a similar contributions requirement.

The application scheme proposes a new dwelling on a site that lies within the Zone of Influence (Zol) being approximately 4,152 metres from the Hamford Water SAC and Ramsar. However, new housing development within the Zol would be likely to increase the number of recreational visitors to Hamford Water and, in combination with other developments, it is likely that the proposal would have significant effects on this designated site. Mitigation measures must therefore be secured prior to occupation.

The RAMS contribution is to be secured by way of Unilateral Undertaking to be completed prior to determination of an application and for the contribution to be paid prior to commencement of development ensuring there will be certainty that the development would not adversely affect the integrity of European Designated Sites in accordance with Policies SP2 a PPL4 and Regulation 63 of the Conservation of Habitat and Species Regulations 2017. A Unilateral Undertaking has been submitted for the application proposal. However, this has yet to be finalised at the issue date of this decision notice and as such the proposal fails to comply with the aforementioned policy requirements of Policy SP2, Section 1 and PPL4, Section 2 of the Tendring District Local Plan 2013-2033 and Beyond.

3.     That the Head of Planning be authorised to issue the decision notice once the issues surrounding the correct serving of the ownership certificate have been resolved.