Matters raised by Members of the Committee:-

Officer’s response thereto:-

What date did it become apparent to the Planning Department that the building was not being built within the spirit/intention of the planning permission given?

Officers cannot give an exact date, it was around the beginning of October, the Council’s Enforcement Team visited the site around that time. December 23^rd was when the application was then submitted.

Would advice have been given to the applicant from Planning Enforcement as to what to do to rectify this situation and what was that advice?

The Enforcement Team was spoken to and at the time, the advice that was given to the applicant was to stop work. The applicant was told that a planning application would be submitted and therefore it was not appropriate for the Council to issue a stop notice. The advice given was that the applicant was doing the work at their own risk.

If Councillor Jo Henderson had not called this application in, would the Planning Committee have seen this application?

No, the application would not have come to the Planning Committee.

Would Officers say that the fencing as a composite is acceptable or would have the Officer recommended a different material?

The fencing is standard, but the issue is what is sitting underneath the fencing. The materials itself are not inappropriate. Whether the degree of the extent of materials is in debate as acceptable or whether and if it contributes to a harm to amenities, that is a judgement for Members going forward. If Officers were saying that the boundary treatment in itself was a sole reason for refusal, Officers have not put that in front of Members. Officers are recommending that this is acceptable.

Who would own and have to maintain the fencing?

The ownership would be the future occupants.

To reach what is in front of Members here, Members are looking at something that is being artificially built up at that level at the top of the sleepers, is that correct?

Yes, the green line is what the original ground levels were, and the above line is the difference which is the artificial increase.

Does this application set a precedent?

Retrospective applications in planning law are acceptable; Officers cannot treat them any differently to one that is not retrospective. In terms of setting a precedent, every case is case-by-case and Officers would have to assess that when the cases came in, but it would not be suggested that going through this process and risk of refusal would set a precedent.

Is what Members saw, the same fencing but at different stages of structure?

The bit underneath the fencing was already there.

Could Members have guidance from the Legal Officer on whether this application would be setting a precedent or not?

Each case is looked at on its own merits and facts. When dealing with works that have been carried out in breach of planning control (whether that is without permission or breach of a condition) every case that would be looked at by the Enforcement Officer has to be guided by the Local Development Plan Policy to determine whether it is something that might have been granted permission had it been an application and not being looked at retrospectively. Officers would also have to look at the National Planning Policy guidance which has particular guidance on enforcement, and Officers would also consider the National Planning Policy framework. Each case is individual; there may be factors about the amenity or duties that apply in planning law at times. This case would not set a precedent because it is not an unusual thing for an unauthorised development to take place. Officers are saying in the Officer report that it is in accordance with the Local Development Plan Policy and other material planning considerations. As Members of the Committee, Members will need to look at all of the planning considerations and decide for themselves whether retrospective permission can be granted in this particular case. 

If this was a fresh application starting from scratch, advice from Essex County Council would be expected in terms of drainage, there is nothing mentioned in the Officer report about this, can Officers tell Members what ECC advice has been given?

The original application was for 5 dwellings and that did not reach the threshold of being a major development so Officers would only consult them at the time of a major development. On the original application it was proposed to connect to the existing mains. With this current application, Officers have not consulted ECC because it is a variation but the original application, they would not provide comments because it is a minor development.

Are Officers saying that Members do not have that information about the potential damage this application could do to the surrounding buildings because of the original sustainable drainage scheme was not kept to?

There was no original sustainable drainage scheme because this application was underneath the threshold consultation on that basis. Essex County Council will not look at anything unless the development is 10 houses or more. This was an additional section of 5 houses so therefore they are not involved and not commented on the original application either. It does get covered by building regulations.

So, Members do not know what the effect of this development will be regarding the drainage?

In terms of where the water goes, without getting building control records up, no, Members do not have that information as a planning authority.

When this was originally built, were the properties supposed to be so high?

Within the original application, there was no mention of an increase in ground levels at all so Officers were approving based on what was there previously. Officers assumed that it would be built on the green line. During construction the ground levels have been raised and that is essentially what Members are dealing with today.

So, the developers must have thought something was wrong to increase the grounds levels?

Officers cannot answer as to why the ground levels were increased as that is not a material planning consideration.

Are building control happy with the very high fencing and the wall to retain the soil?

Officers do not know if the wall/fence itself is part of the building control application. Members are dealing with a different regime, and Members have to deal with the planning application that is here today.

If this application went to appeal, do Officers think the Council would win the appeal and do Officers think costs would be given to the Council?

The recommendation before Members is for approval, on that basis, Officers have considered partly whether the Committee were to refuse the application. In the report, it has been debated the degree of harm but the weight that Members apply to that judgement is for Members to decide. As long as Members adequately explain their judgement of refusal then there should not be much risk of costs.

It is a matter of planning judgment and as long as Members are exercising their view of whether there is harm. Harm has been identified. If Members were to refuse today and this application went to appeal, the planning inspector would exercise their judgement as well. Cost liability comes in when the decision maker has been acting unreasonably such as taking something into account that they should not have done or that there is no evidence to support refusal. Costs do not come into it when it is an exercise of planning judgement which is reasonable. 

In respect of the building total, are there any provisions for soakaways?

Soakaways are not before Members. Building control have looked at this and it is presumed they are okay with this as it is connected to the mains and Officers could not consult Essex County Council as it is not a major scheme.

Are the trees to the rear cutting out any light to the properties?

The trees are in the neighbouring boundary; there will be a degree of sunlight loss but not a significant amount. The site does have permission for 5 dwellings regardless of how Members determine the variation.