Agenda item

To determine the application.

David Rowen presented the report to officers.

Members received a presentation, in accordance with the public participation procedure, from Shanna Jackson, the agent, and Kenny Shepherd, the applicant. Mrs Jackson stated that the application seeks planning permission for a single dwelling, it is submitted in outline with all matters reserved and is before committee with support from Chatteris Town Council and 13 members of the community, being located at Second Drove, Chatteris within a cluster of existing buildings. She made the point that the proposal has been recommended for refusal in terms of principle stating that the scheme is contrary to Policy LP3, with Policy LP3 being a directional housing policy which steers new development to town and village centres and the supporting text at 3.3.11 of LP3 states that ‘it is Government policy that the countryside be recognised for its intrinsic character and beauty while supporting thriving communities within it’ and further states that ‘by identifying the settlement hierarchy and distinguishing between settlements in the countryside the policy restricts development in the countryside’, which indicates to her that the aim of Policy LP3 is to protect the countryside and to prevent merge between countryside and defined settlement.

Mrs Jackson drew members attention to the location of the site, it is positioned within the centre of a cluster of existing buildings and, in her view, is effectively infill development and would in no way result in encroachment of the countryside. She expressed the opinion that whilst the site may not be within Chatteris Town Centre it is within a small satellite community and for this reason she suggests there is no conflict with the overarching aims of Policy LP3.

Mrs Jackson stated that concerns have been raised with regards to the sequential test and she referred committee to Paragraph 175 of the NPPF which states that the sequential test is not required if a flood risk assessment demonstrates that the site is safe and, in her opinion, their Flood Risk Assessment does confirm the site is safe from flooding and she would argue that the sequential test is not necessary. She stated that for completeness she can advise that the sequential test has been addressed in the submitted Flood Risk Assessment, which concludes that the site is technically safe from flooding given the excellent flood defences within the area, therefore, the actual risk of flooding is low and, in her view, the site can be considered as being in a sequentially preferable location.

Mrs Jackson expressed the opinion that, with the passing of the sequential test, the exception test must be applied in accordance with Paragraph 178 of the NPPF and on the basis that the Flood Risk Assessment demonstrates that the proposal is technically safe from flooding and as it will result in new housing which will support an existing community she would argue that there are benefits to be had by the proposal which satisfy the requirements of the exception test. She notes the concerns with regard to the access and she highlighted that this is an outline application with all matters reserved, with access not committed for consideration at this stage.

Mrs Jackson understands the comments from the Highway Authority and there is a technical design solution for the access which they would be happy to include in any reserved matters application, making the point that the access does already serve 2 other dwellings so she sees no reason why it could not accommodate another single property safely. She expressed the view that there are no policy conflicts with the proposal and it would provide a new dwelling reinforcing the local community in this location without encroaching on the open countryside.

Mr Shepherd stated that whilst there is a fence and a pad there as shown on the photos he did not realise he needed planning permission, with the site previously having been a dumping ground, with rubbish being burnt and numerous complaints to the Council and he has cleaned it up. He stated that he is looking to build a house for his nephew and his girlfriend so they can move back home and be close to family.

Members asked questions of Mrs Jackson and Mr Shepherd as follows:

·         Councillor Marks referred to the highways and he has travelled the road numerous times over 50 years and he has never seen an accident along that piece of road, it is dead straight. He asked Mr Shepherd if he is aware of any accidents? Mr Shepherd responded that he does know of accidents along this road but not in this location.

·         Councillor Mrs French asked Mr Shepherd if he had recently purchased the land as it has had 8 approvals on it. Mr Shepherd responded that he knew it had previous approvals and this is one of the reasons why he brought the land as he thought it had a good chance of obtaining permission.

·         Councillor Benney asked if the access problem can be addressed? Mrs Jackson responded that Highways want tracking information to show that the access can be achieved and she believes there is a technical solution to this but as the application is in outline it was not provided. She made the point that there are also 2 other dwelling using the access safely.

·         Councillor Connor asked Mr Shepherd that, as he has a background in construction, if he was going to self-build the property? Mr Shepherd responded that he is going to do most of the work himself, apart from the electrics and plumbing which need to be signed off, and once built his nephew is going to live there.

Matthew Leigh stated that policies are as they are written, with the agent trying to present the situation that looks much deeper and beyond what the policy states which should be given limited weight and this is not the way that officers have dealt with any of the policies since he has been in post. He referred to the comment on the sequential test, the NPPF is clear that if an area is at a risk of flooding a sequential test is needed to say that and because it is protected now from existing defences that it does not need to be sequentially tested is flawed.

Members made comments, asked questions and received responses as follows:

·         Councillor Marks stated that he does not see highways as an issue, the Forty Foot Bank if members have driven it will know that it is a 50 mph along here but if you can do that speed you would be doing well as it is an awful road and it also has speed cameras along it. He added that he has driven past this site many times, it is not eye appealing and anything that happens to clean it up will benefit the area and not detract from it. Councillor Marks referred to flooding, making the point that there is a river bank the other side and the IDBs do a good job and whilst he appreciates the point about undertaking the relevant tests, he has not seen that site being a wetland.

·         Councillor Benney agreed with the comments of Councillor Marks, he stated that he travels this road twice a day and does not consider it to be an elsewhere location with there being houses on two if not three sides of the site so it is infill. He feels that if the agent is correct in what she says about the new NPPF and questioned if this is not current yet. Matthew Leigh reiterated that the sequential test is not ignored by the fact that there are existing flooding defences that is not what the NPPF says and is quite clear in an area that is at risk of flooding now or in the future which is what the higher flood zones are they need a sequential test. Councillor Benney stated that in Paragraph 175 it states that the sequential test should be used in areas known to be at low risk now or in the future from any form of flooding. Matthew Leigh agreed this was correct, flood zones 2 and 3. Councillor Benney asked is there not a Flood Risk Assessment here that says it is a low risk of flooding? Matthew Leigh responded that as the agent explained there is a Flood Risk Assessment that says if you take into account existing defences it is at a low risk of flooding but that is not what the NPPF says as if those flood defences go which they may then it would be at risk of flooding in the future and just because there are flood defences does not mean it skips the sequential test otherwise that would mean most of the District would not need a sequential test. He stated that in policy terms the site needs a sequential test.

·         Councillor Marks made the point that if this site floods then most of the area will be under water and looking now not only at flooding but what happens if the flood defences break and he feels reality needs to come into it.

·         Councillor Connor stated that he has never seen flooding in this area. He acknowledges what Matthew Leigh is saying but feels there needs to be a semblance of normality as it has not flooded and is not likely to. Matthew Leigh stated that applicants have the right to have the same experience and if the Council has a stance that says because a site has never flooded it is going to be OK or a sequential test is not required that goes against Government guidance and would mean that this would need to be replicated on every decision. He made the point that the need for a sequential test is fundamentally required, it may be passed and that reason for refusal would fall away but at the moment there is nothing in front of members to base that decision on and that is what that reason for refusal is based on is lack of information and as decision makers, either officers or committee, assumptions should not be made and if it is ignored on this application why is not going to be ignored on every application.

·         Councillor Imafidon stated that an application was approved in 2016 and asked what has changed? Councillor Connor responded that it was not approved, this is an error in the report as it was refused.

·         Councillor Mrs French expressed concern at this and questioned how members are supposed to believe what is written if they are now being told there are errors. Councillor Connor referred to David Rowen’s presentation where he stated that it was approved in the planning history which is contrary to what it says further in the report and he did raise this at his briefing. David Rowen apologised to the committee for the error in the background section but Section 9 of the report is clear that nothing has changed since 2016 in terms of the policy situation.

·         Matthew Leigh referred to applications that were approved on the site historically pre-2005, making the point that in 2009 PPS 25 was published which was the first time that flooding became an issue for planning so prior to this even if the site was going to flood it was not a consideration.

·         Councillor Connor asked how many reasons for refusal are there on this application? David Rowen responded that there are 3 reasons for refusal; the first one is conflict with the settlement hierarchy of the Local Plan being an elsewhere location; the second reason is the lack of a sequential test; and the third reason is the lack of evidence concerning the safe and adequate access to the site.

·         Councillor Marks stated in relation to elsewhere location, looking at that whole river bank all the way up to the Puddock Bridge road there are between 15-20 properties including barn conversions that sit mostly against the road so he does not see how it can be said it is an elsewhere location as it this proposal sits within other properties along here. He made the point that this is the Fens and the Fens always has properties built beside roadsides and he believes it is not an elsewhere location. Councillor Marks stated he does not know how the flooding one can be overcome but he has not seen the site flooded and feels sensibility needs to be taken into account.

·         David Rowen made the point that Matthew Leigh has given members strong advice to where the policy situation is in relation to flooding. He added that whilst individually members may not feel it is an elsewhere location in terms of the wording of LP3 it is as the site is not within one of the listed settlements, therefore, it must be elsewhere and it cannot be anything other than elsewhere and due to this unless it is a justified development it should be refused.

·         Councillor Benney stated that Swingbrow is always included in Chatteris and it is always Swingbrow, Chatteris but if it is not part of Chatteris and the sequential test requires to be undertaken would that sequential test only apply to Swingbrow. David Rowen responded that under the Council’s adopted approach if the site is within an elsewhere location then it is District wide area of search for the sequential test.

·         Matthew Leigh read out what Paragraph 175 of the NPPF 24 states and explained that this means that when there is a site specific flood risk assessment that shows within the specific topography or something within the site or adjoining the site that this piece of land actually will not flood and not because of other defences, which is a material difference and he believes the agent has confused members on this and is different to what they have said.

·         Councillor Benney expressed the view that if this approach was taken that anything in the future would ever flood then you could not do anything as everything could flood and many things do not flood. He made the point that there were areas of March that flooded badly in 2020 but have not flooded since so how can it be predicted what will and will not flood.

·         The Legal Officer stated that if Paragraph 175 is interpreted in the way that Councillor Benney suggests then it would be very straightforward for any application within Flood Zone 3 just to simply demonstrate that it is going to raise a building to a sufficient height not to be flooded and the whole point of the policy would be negated.

·         Councillor Benney stated that he fully respects the officers but he does not read the policy this way and, therefore, he does not accept this.

·         Councillor Marks agreed with Councillor Benney, he believes it is interpretation and this is the Fens. He asked Matthew Leigh to read the first paragraph of the policy again. Matthew Leigh read out “the sequential test should be used in areas known to be at risk now or in the future from any form of flooding”. Councillor Marks referred to the use of the word known as the Fens floods so does this apply to all the Fens and he has never seen flooding on this side. Matthew Leigh stated that Flood Zone 3 by the Environment Agency map is how it is judged and it is not based on personal experience. Councillor Marks referred to an incident in Manea and asked if this is localised flooding and why is this going to flood at this proposal’s site. David Rowen responded that the flooding in Manea was not Flood Zone 3 flooding, it was drains backing up and not doing the job that they were supposed to do and it is a completely different form of flooding to Flood Zone 3.

Proposed by Councillor Benney, seconded by Councillor Marks and agreed that the application be GRANTED against officer’s recommendation, with authority delegated to officers to apply conditions in consultation with the Chairman and Councillor Benney.

Members do not support officer’s recommendation of refusal of planning permission as they feel that the proposal is within Chatteris and not an elsewhere location, it is infill as there are houses surrounding the site, they interpret Paragraph 1.75 of the NPPF 24 differently so that the sequential test does not need to be undertaken and due to local knowledge this part of Chatteris does not flood and a transport assessment can be undertaken as part of a reserved matters application.

(Councillor Benney declared, in accordance with Paragraph 14 of the Code of Conduct on Planning Matters, that he is a member of Chatteris Town Council but takes no part in planning)

(Councillor Marks declared, in accordance with Paragraph 14 of the Code of Conduct on Planning Matters, that he attends Chatteris Town Council meetings as a District Councillor for Chatteris but takes no part in planning)