Agenda item

This matter is brought before the Planning Committee, as an urgent item, in order to meet the Planning Appeal timetable relating to the current Public Inquiry pertaining to the refusal of application 18/01779/FUL - Land to the North of St Johns Road, Clacton on Sea (St Johns Road Nursery). Appeal Reference 20/00051/REFUSE.


This matter was brought before the Planning Committee, as an urgent item, in order to meet the Planning Appeal timetable relating to the current Public Inquiry pertaining to the refusal of application 18/01779/FUL - Land to the North of St Johns Road, Clacton on Sea (St Johns Road Nursery).  


The reasons for bringing this item before the Committee were approved by the Planning Committee Chairman.


The Committee was asked to consider the following resolution:


“That under Section 100A(4) of the Local Government Act 1972, the press and public be

excluded from the meeting during consideration of Agenda Item 10 on the grounds that it

involves the likely disclosure of exempt information as defined in paragraph 5 of Part 1 of

Schedule 12A, as amended, of the Act.”


Following discussion by the Committee, it was moved by Councillor Alexander, seconded by Councillor Codling and RESOLVED that the public be exempt from this item.


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


Robin Green, the Barrister associated with this case, participated in the meeting.


A summary of the legal advice was received providing the following recommendation in respect for each reason for refusal:


i)              The first reason for refusal, on grounds that the proposed development was out of character with its surroundings, it was considered defendable.


ii)             The second reason for refusal related to highway safety.   It was considered that he Highways reasons would not be defendable unless the Council could specifically identify shortcomings in the applicant’s Transport Assessment or road safety audit.  As noted from the original committee report, the findings and solutions set out within the reports were considered and supported by Essex County Council Highways.  


Following submission of the appeal the Council appointed an external highways consultant to appraise these documents and the proposed highway arrangements. It was their professional opinion that there was no positive evidence to show that the proposed access was unsafe or contrary to highway design standards, or that traffic from the appeal site, in conjunction with traffic from the Rouses Farm development, would have a significant impact on the highway network.   Although additional evidence in relation to visibility splay length may be required in terms of evidence this had not been raised as an objection by the Highway Authority.  


There was a ‘possible’ deficiency in the modelling of the interaction between traffic queuing on St Johns Road to gain access to Rouses Farm and the operation of the proposed access in to the appeal site.  The Councils highway consultant however did not consider that based on the evidence supplied there was likely to be an issue.


In summary the legal advice suggests that the second refusal reason on highway grounds was not supported by evidence and the Council was at risk of costs should that reason be pursued  


iii)           Refusal reason 3 related to the loss of privacy between existing residents fronting St Johns Road and the proposed development.   As noted in the original committee report at paragraph 6.76, reference was made to the Essex Design Guide which notes that a minimum of 25 metres between the backs of houses may be acceptable.  It continued stating that in the case of existing dwellings then they can expect a greater degree of privacy and new dwellings should not encroach any closer than 15 metres from the existing shared boundary.   In this case all of the proposed dwellings were at least 15 metres from the boundary with many of the existing gardens enjoying garden depths in excess of 40 metres.  


Counsel advised that in these circumstances they did not consider that the Council could reasonably assert that existing residents would suffer an unacceptable loss of privacy in their rear gardens.   In fact Counsel state that the position in their opinion was unarguable and there was a risk of a costs award against the Council.


iv)           Reasons 4 and 5 specifically referred to the requirement for various matters to be secured by way of planning obligation under s106 of the Town and Country planning Act. Although these matters may have been secured as the appeal progresses the reasons for refusal are not unreasonable.


Given the above advice, that the Council was at risk of a costs award in relation to reasons for refusal 2 and 3, it was recommended that these reasons for refusal were not defended at the appeal and that the Appellant and Planning Inspector are informed of the Councils position.


Following discussion by the Committee, it was RESOLVED that; the report be agreed subject to the below recommendation:


Members agreed not to defend refusal reason 3 at the forthcoming Public Inquiry.   Officers are instructed to work with the Councils external planning and highway consultants to further consider the defence of reason for refusal 2 (highway matters) and bring an updated report to a special meeting of the Committee for further discussion and consideration.