Agenda item

To determine the application.

Kimberley Crow presented the report to members.

Members received a presentation, in accordance with the Public Participation Procedure, from Rebecca White, the agent. Mrs White stated that the proposed development is situated on a brownfield site which was previously occupied by a sewerage treatment plant which was decommissioned in 2010. She added that it is common for abandoned brownfield sites to become overgrown, and she disagrees with the Planning Officer’s comment where they state that this leads to the site blending into the surrounding landscape.

Mrs White explained that the site is unkempt and is an eyesore at the end of Crown Avenue and she does not believe that the dense vegetation changes the classification of the site. She explained that the ground asset and boundaries are still present on the site albeit obscured by the overgrowth and if the site was cleared to clearly show its brownfield elements it would then become a magnet for anti-social behaviour due to its accessible but hidden location as well as a financial burden on the Council to keep it maintained.

Mrs White stated that location of the site behind 8 Crown Avenue classifies it as back land development rather than the residential infilling under policy LP3 and the existing access is located beside 8 Crown Avenue and although the new dwelling is situated towards the rear, it remains visible from the street due to the sites constraints and the necessity of keeping it within Flood Zone 1. She stated that the application proposes the development of a brownfield site within the village settlement to provide a new home and thereby positively supporting community growth which is supported by the Parish Council and also responds to a national pressure to provide new housing.

Mrs White explained that whilst Crown Avenue predominantly features two storey semi-detached homes by proposing similar properties on the site would be inappropriate due to the harm and impact of overlooking and reduction of privacy for neighbours, with the proposal being for a single detached two storey house with reduced eaves to mitigate the concerns. She added that unlike the first two reasons that the officer is recommending the application for refusal, the third reason was not addressed or brought to her attention during the application, and it did not form part of the previous application either.

Mrs White explained that contrary to the statement indicating that the site is in a high-risk flood area, a Flood Risk Assessment was submitted in support of the application, and it concluded that due to the benefits of the defences the provide protection the site is not at risk. She explained that it is her understanding that the planning flood maps do not account for the existing flood defences which effectively protect this area.

Mrs White made the point that the strategic Flood Risk Assessment maps for Kings Lynn and West Norfolk Borough Council demonstrate that the site is not at risk during the 0.5% annual probability tide event with climate change or the 1% annual probability fluvial event with climate change and furthermore the site will remain safe during a breach of the defences. She stated that it is important to acknowledge that the new proposed dwelling is all located in Flood Zone 1, and it is only part of the access route that passes through Flood Zone 2 as does the end of Crown Avenue.

Mrs White stated that it is recognized that there are settlements within the district with potential development sites in Flood Zone 1 and it should also be noted that these areas in Flood Zone 1 often represent dry islands which are often surrounded by Flood Zones 2 and 3. She made the point that when considering access routes on a broader scale it can be argued that most sites have access routes within flood zones due to the low lying land which surrounds the settlements and when considering the Fenland landscape, in her view, it would be unreasonable for a development to fail the sequential test solely due to having part of an access route in Flood Zone 2.

Mrs White expressed the view that as a result the application site is considered to pass the sequential test and she added that from her understanding of the Local Plan, a separate sequential test was not submitted but could be if needed. She added that the application will not only rejuvenate an used overgrown brownfield site but will also enhance the areas safety and aesthetics, as well as reducing maintenance costs for the Council and provide much needed housing which will make a positive contribution to the area and she asked the committee to consider the broader benefits and support the application.

Members asked Mrs White the following questions:

·         Councillor Mrs French stated that reference was made to the fact that the Council obtained the land in 2020, and she queried why the land was still in the Council’s ownership when they sold their housing stock in 2009. Mrs White stated that she did not know the answer to that.

·         Councillor Mrs French stated that with regards to flooding issues and the absence of a sequential test she notes the points made by Mrs White, but she will ask questions of officers.

·         Councillor Marks questioned whether the site was previously or has ever been connected as a garden to the property in front of it? Mrs White confirmed that is the case.

Members asked officers the following questions:

·         Councillor French asked whether the application is an invalid application due to the absence of the sequential test. David Rowen stated that it is the view of officers that there is no adequate sequential test submitted with the application, hence the third recommended reason for refusal. He added that whether that classes the application as being incomplete is down for the committee to decide, however, in the view of officers it is sufficient for a reason for refusal.

·         Councillor Marks stated that the applicant has stated that they are happy to come forward with a sequential test and he asked whether it would be beneficial for the application to be deferred in order to allow that sequential test to be provided.

·         Councillor Connor stated that he visited the site, and it is a brownfield site and the NPPF states that brownfield sites should be used in the first instance and, in his opinion, it is a brownfield site, and he will be supporting the application. He added that it makes a positive contribution to the village.

·         Councillor Marks stated that he asked officers during the Chairmans briefing for clarification as to when a greenfield site becomes a brownfield site and then goes back to being a greenfield site.

·         David Rowen referred members to the glossary in the NPPF which contains advice and guidance and it states that the definition of previously developed land excludes land which was previously developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape. He made the point that as far as he is aware in this case, there are no buildings left on the site and any structures or remains of the previous operation are very much at ground level. David Rowen referred to the presentation screen and highlighted a photograph where it can be seen that the site has blended. He added that in terms of the wider issues about the acceptance or otherwise of it being brownfield land and he explained that the Council refused an application previously for development of the land and the condition of the land has not changed significantly since then. David Rowen added that with regards to the wording of the NPPF and giving weight towards developing brownfield sites, that has not changed either and if members were minded to grant the application, there would need to be an explanation with regards to what has changed from the previous refusal and, in his opinion, there does not appear to be any change.

·         Matthew Leigh stated that with regards to the issue of abandonment it is not a simple choice to make with regards to whether when first looking at the site is it brownfield previously developed land or is its greenfield land. He added that it is acknowledged that there has been historic development on the site, and it has been determined by the planning courts what is abandonment and whether the benefit of being previously developed land has fallen away. Matthew Leigh explained that the courts have determined that there were four tests to use when considering whether a site benefits from abandonment or whether it benefits from a lawful use, and he added that there will always be a planning judgement requirement. He explained that the four tests are made up of condition of the building including whether the physical structure of the buildings have been removed which would suggest that abandonment had taken place. Matthew Leigh added that the second test would be for the period of non-use, and he added that 15 years is not an extensive period, but abandonment has been proved when there has been a far shorter period. He explained that another consideration is whether there have been any other uses and to his knowledge in this case there has been no other uses on the site and the fourth consideration is to consider the owners intentions and, therefore, steps need to be taken to look back to the original owners use of the site and in this case the original owners used the site as a storage area and treatment works which was moved to the site next door. Matthew Leigh added that the owners have not used the site since that period of 15 years ago and there appears to be no intent to carry on using it lawfully. He explained that the current owners irrespective of who they have never intended to use it for the lawful use and, therefore, in his opinion, it does lean to abandonment. Matthew Leigh  stated that if members are looking to defer the application for the purposes of the sequential test then it may be worth a summary being provided to members with regards to abandonment in order that an informed judgment can be made.

·         Councillor Marks questioned that if the present owner were to tidy up the site and started to use it would they need planning permission to use it as a yard or does the current planning permission that it had cover it even 15 years later? Councillor Marks added that he knows farmers who leave fields for 15 years so that could be classed as abandonment. Matthew Leigh stated that agriculture is not development and, therefore, it would not matter as planning permission is not required for anything that is agricultural. 

·         Matthew Leigh stated that this is where the four tests come into consideration, and he would suggest that if the application is going to be deferred then the detail surrounding abandonment can be incorporated within the officer’s report for members to gain a better understanding.

·         Councillor Mrs French expressed the opinion that it would only be right for the application to be deferred.

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

·         Councillor Marks expressed the view that something does need to happen to the site and the question is what would be the best use for the site as it is currently redundant, and he does not see how it can be backland development as the site has its own roadway down there. He stated that if the bushes were removed, he is confident that there would be concrete underneath which, in his opinion, would mean that it was a brownfield site still although it has not been used for 15 years.

·         Councillor Connor stated that he called the application back under the scheme of delegation and he discovered it is a brownfield site. He expressed the opinion that just because the site has not been used for 15 years does not mean that it has been abandoned and he is convinced that it is a brownfield site, and, in his view, it will make a positive contribution to Christchurch and to Crown Avenue. Councillor Connor expressed the view that although he will accept a deferment, he would rather have his comments taken into consideration and for the application to be approved.

·         Councillor Imafidon asked whether the deferment of the application is going to be based on the absence of a sequential test? Councillor Connor stated that is the case.

·         Councillor Connor made the point that if the application were deferred it would not be an issue, however, in his personal preference it would be approved as it meets all the criteria, and the agent has agreed to undertake a sequential test.

·         The Legal Officer explained that, with regards to the sequential test, the committee needs to be really clear that the outcome of the sequential test needs to be a predetermination issue, it is not something that can be addressed through conditions and it is not lawfully open to the committee to grant consent subject to the applicant carrying out a sequential test at a later date. She stated that the committee either need to be satisfied that a sequential test is not required and, in her view, given that the access to the site is within Flood Zone 2 that is a difficult conclusion to reach on the facts of the site or the committee need to defer in order to allow the applicant to carry out a sequential test and then come to the committee with that evidence to then decide whether they are satisfied either that the sequential test can be passed or that the sequential test fails but consent can be granted nevertheless by applying the exemption in the NPPF. The Legal Officer stated that her strong advice to the committee would be that if they have questions with regards to the validity of the need for a sequential test and the committee are minded to require the applicant to provide one to satisfy them then, in her view, the committee cannot grant but require a sequential test and they would have to defer in order for the applicant to bring the application back again.

·         Matthew Leigh stated that if the committee seek to defer the application then the applicant is going to be asked to undertake a sequential test. He added that if members agree then officers can also seek to ascertain from the applicant whether they have any evidence to clarify the point concerning previously developed land. Matthew Leigh made the point that the applicant may have further information to assist both officers and members which goes above and beyond the information held and he would recommend that course of action to the committee.

·         Councillor Connor stated that he has listened to the advice provided by the Legal Officer and would be happy for the application to be passed and deferred only on the grounds of the sequential test.

·         Councillor Marks stated that the committee are of the opinion that the application passes everything apart from the sequential test. He added that regardless of whether the site is a greenfield or brownfield site, the only thing that the committee have concerns with is the sequential test and that is the only element that the applicant needs to come back with.

·         Matthew Leigh stated that this course of action will make the decision-making process quite awkward when the application comes back before the committee as membership of the committee maybe different and members thought processes may alter.

·         The Legal Officer stated that it is quite difficult to establish the principle of development on all other grounds apart from the sequential test, however, the sequential test goes itself to the principle of whether this development is acceptable on this site or not. She added that she does not believe that members are straying into the area of illegality, but it is a very difficult decision to rationalise, and, in her view, it is a slightly unnecessary decision to rationalise. The Legal Officer added that if the committee consider that the sequential test if required then lawfully the committee cannot grant planning consent now as they have formed the view that the test is required and she fails to see why the committee would risk fettering its discretion at the next committee or to seek to determine some elements of the scheme. She added that it is difficult due to the fact that the application needs to be considered against the development plan as a whole and members of the committee need to be satisfied that the whole application on the site is compatible with the development plan and is it difficult to start to pick and choose elements of a scheme which are acceptable and for those which are not. The Legal Officer state that she would strongly advise the committee to take no decision on any of the merits of the application until the evidence required on the sequential test. She stated that if the committee want to be satisfied as to the brownfield or not question with regards to the land then that information can also be obtained and then the committee can reconvene at a future meeting and have regard to all of the material considerations and they can all be considered in the relevant balance and be considered against the development plan as a whole and reach a determination at that point.

·         Councillor Mrs French stated that she has listened to the advice of the Legal Officer and agrees that it would not be sensible to split the elements of the application. She added that the long-standing councillors on the committee know that it is a brownfield site, and she explained that she has been elected since 1999 and knows that the housing stock was sold in 2009 and questioned how the Council acquired it in 2010. Councillor Mrs French expressed the view that full information is required including when they acquitted the site and then the application can be determined in its entirety, rather than in small elements as it does not look professional for the committee or for officers.

·         Councillor Marks made the point that he believes applications have been determined in a similar way previously, however, he will agree that a deferment is the correct way to proceed. He made the point that whilst he will support a deferment, in his view, it will just mean that the applicant will be able to provide further information which will mean there is further information for the committee to consider rather than just the one element. Councillor Marks added that the committee are of the opinion that the site is a brownfield site, and he questioned why time is being wasted ascertaining whether it is or is not and the only outstanding matter is the sequential test.

·         Councillor Connor concurred with the point made by Councillor Marks and he added that in his view the application will make a positive contribution to the village and the street scene.

·         The Legal Officer stated that because the committee do not have the evidence to know whether the sequential test is going to be satisfied or not. She added that members may find that once the evidence has been gathered and is brought back to the committee then it may be apparent that there is the need to turn to the exemption test because if the development cannot pass a sequential test because there were lower risk alternative sites, the committee may find that they need to make an evaluation of the flood risk of the site and whether it is safe against flooding for its lifetime. The Legal Officer stated that then it will be necessary to weigh that with the benefits of the scheme and by having some really clear compelling evidence and a clear steer on whether the site is previously developed land, whether that be brownfield or not, might be relevant to how the committee carry out the balancing exercise under the exemption test. She added that whilst the committee might be satisfied with their own knowledge that it is a brownfield site, when it comes to considering how the flood risk will be dealt with at the committee next time, the committee may choose to determine whether they may be able to still grant consent notwithstanding the site failing the sequential test that evidence might also be quite helpful to weighing how the committee feel about the balance required under the exemption test. The Legal Officer explained that is why she provided members with caution that it is all connected even when it does not necessarily seem to be at first.

·         Matthew Leigh stated that he agrees with the points made by the Legal Officer and the need to balance the application and, in his view, it would be far better for the application to come back in its entirety.

Proposed by Councillor Mrs French, seconded by Councillor Marks and agreed that the application be DEFERRED in order to receive further information from the applicant and for a sequential test to be undertaken. 

(Councillor Mrs French declared in accordance with Paragraph 14 of the Code of Conduct on Planning Matters that she is a member of Cabinet but has not been involved with this application)

(Councillor Benney declared he is the Portfolio Holder for Assets and took no part in the discussion and voting thereon)