Agenda item

To determine the application.

Tom Donnelly presented the report.

The Legal Officer provided an update on the habitat considerations and the relationship with Natural England. She stated that the Council is subject to a duty to consider the impact of the development on two special protection areas (SPAs) which are close to the application site though not within it. The Legal Officer added that the applicant has commissioned and submitted a shadow habitats regulations assessment and the Council shared that with Natural England in its capacity as a statutory consultee. She feels the applicant would take the view that this shadow habitat regulations assessment shows that this development would not have an adverse effect on either of the nearby SPAs but Natural England appears to have taken a slightly different view and is of the view that more information is needed for the Council to be fully satisfied that the application will not have an adverse effect on these two SPAs. The Legal Officer continued that given Natural England’s particular specialism in habitats and species and in nature conservation more generally, committee should show reasonable deference to their opinion and are required to give considerable weight to their advice but nevertheless the decision is not Natural England’s, the decision is for the committee to make and it is entitled to depart from Natural England’s advice as long as there is cogent and compelling reasons for doing so. She referred to case law on cogent and compelling reasons and she is aware that there is a 2024 outline permission for a similar scheme on this site and it might be tempting to treat that as establishing the principle of development on this site and to a certain extent it does but drew members attention to a recent court of appeal case where it said where you have what might be considered a multi-stage consent that local planning authorities need to think about habitats impacts and the assessment of those impacts at each stage of the process, although this case law is being appealed. The Legal Officer stated that she is giving committee a little caution about relying too much on the 2024 fallback position outline consent and she feels that the recommendation should be amended slightly to include a delegation to the Head of Planning to satisfactorily address the outstanding request for further information to satisfy the Council that a habitats regulations assessment can be passed before granting planning permission.

Members received a presentation, in accordance with the public participation procedure, from Roman Falinski, a supporter to the proposal. Mr Falinski explained that he has followed the application and its history over several years, with him currently residing in Coates and has regularly walked his dog around the area. He made the point that he has never seen any sort of habitat in that area, and added that when he previously lived in Whittlesey, there was a development which was due to be built and, in his view, that had even more reasons to have its planning permission refused but it was subsequently approved.

Mr Falinski explained that the application site did have all sorts of different habitat in the field and made the point that he does not see that as a reason in this case where Natural England have said for it to be looked at this site again as the local residents will state that there is nothing in the field and there never has been. He stated that he is interested in the application because he is looking to purchase a plot of land on the site subject to it being approved and it will be a self-build where he can employ local tradespeople from the area and he is looking for quality craftmanship similar to the Phase 1 development which is, in his view, outstanding compared to anything else in the area and he asked the committee to support the proposal. 

Members received a presentation, in accordance with the public participation procedure, from Peter Webber, a supporter to the proposal. Mr Webber explained that the reason that he is interested in the development is because there are bungalows and single storey dwellings and as he has recently undergone a kidney transplant, he is looking to move into the area and there are very few types of those dwellings being built. He stated that he had hoped to have been able to purchase a dwelling on the adjacent site but was unable to and added that he used to work in Perkins in Peterborough and he has known the area for the past 30 to 40 years.

Members received a presentation, in accordance with the public participation procedure, from Gordon Smith, the agent. Mr Smith explained that whatever he had prepared to read in order to address the committee has been turned upside down by the most advanced information given by officers concerning the habitats assessment. He added that to attend a Planning Committee and be advised of something quite major is inhibiting any approval of the development.

Mr Smith stated that the outline permission took four years before the legal agreement was signed, following the approval given by the committee, and the delays were not because of the Council but were because of the County Council who did not have a solicitor or officers to deal with it. He referred to the habitats assessment and stated that he perceives that as being an incredible delay to the delivery of the site.

Mr Smith stated that Postland Developments have delivered Minuet Paddocks immediately to the east and it is a quality, interesting scheme, and something to be proud of. He made the point that with regards to the habitat assessment what is being asked for is the best part of a year of studies and the cost implication is tremendous and that a subplot here is a viability of the scheme and the cost to the developer in terms of delay as they are a small builder.

Mr Smith explained that committee have been advised that the decision is down to them providing that they have cogent and compelling reasons and by considering the objection which has been put forward from Natural England, with, in his view, the compelling and cogent reasons would be that there is a fallback outline planning permission which deals with the principle of putting a development on the site. He explained that he has also produced his own shadow habitat assessment, and his own ecologist was surprised that he had undertaken an assessment for a site such as this which is on the edge of a built-up area, with the habitats which would be looked at would be swans and geese and whether they land here and whether the development would inhibit that behaviour.

Mr Smith stated that as the outline permission has already been granted, in his view, it is something that has already been dealt with and it is a matter of principle. He asked the committee that when determining the application that there are compelling and cogent reasons to grant planning permission based on fallback outline permission, the fact that a habitat assessment has been produced and that there are no objections from the Council’s Wildlife Officer.

Mr Smith stated that the developer, Postland Developments, are a local company based in Coates and who operate in Fenland and South Lincolnshire, with them building about a dozen small sites at a time and employ local people, purchase materials from local suppliers and purchase British products, making the point that they are locally engaged and are not a remote regional or national company. He added that they will build a quality scheme which is evident from the scheme built out next door and the scheme will help the custom build market due to the fact that four of the units will be for custom build, two will be in the outline part of the site and two have been designed.

Mr Smith explained that a fifth of the houses are for the custom builder and the developer does not land bank and they will develop the site as they have a development team and have employees as they need to keep working as soon as they lose their skilled workers, they then have to go to the contract market and in that case, they do not get the same quality of worker. He stated that the developer can deliver promptly and with regards to the length of time a legal agreement can take, which was four years from the outline permission, he would hope that was an unusual case, but he does not think that it is, with if the committee choose to delay the application then that could be five years for the developer, and he would hope that the legal agreement would be faster this time.

Members asked Mr Smith the following questions:

·         Councillor Mrs French asked Mr Smith if he could explain to the committee the delays caused with the previous legal agreement which took four years where he was proportioning the blame to the County Council due to there being lack of a solicitor. Mr Smith stated that he does not know what the issue was as there were no staff there at the time but the application came to the committee in 2020 and four years later the legal agreement was received. He explained that part of the legal agreement meant that it had to go to the County Council as the Highway Authority needed to agree to their issues being covered in the legal agreement and despite him providing the information there were no answers provided. Councillor Mrs French stated that she is still baffled and after being a County Councillor for eight years she can assure Mr Smith that there are numerous staff and legal staff at the County Council. She added that she is unsure why the Legal Agreement had to be signed by the County Council as that normally comes with the reserved matters under Section 278 for highways work and she added that she is still not satisfied.

·         Councillor Mrs French stated that with regards to Natural England they are a statutory body, and the committee do consider the views of statutory bodies. She expressed the opinion that it would have been beneficial for members of the committee to have had the statement provided in writing which was read out by the Legal Officer as it has come as a surprise to everybody.

·         Councillor Mrs French made reference to lack of Section 106 contributions regarding education, with the development could having up to 30 children who will reside there and she questioned where those children will attend school and why is it felt acceptable that there are no contributions towards education for them? Mr Smith explained that the whole issue concerning the Section 106, and the viability is being dealt with regards to what the scheme can afford and what there is in the scheme. He added that from the developer’s point of view the scheme based on the current planning viability practice is unviable and that is if the whole offer is sought. Mr Smith explained that a long period of discussion has taken place including valuers on the Council side who are independent of the developer and independent of the Council officers’, who exchanged reports and concluded that a fair sum was £133,000 for all Section 106 contributions whereas the original amount was £300,000. He made reference to the legal agreement and explained that the education authority was also party to that legal agreement too and, therefore, the lapse was not just down to the Highway Authority.

·         Councillor Gerstner stated that he would like clarity with regards to the Section 106 monies and the viability study. He added that there was an agreement in place on the previous application for £300,000 and this was less than a year ago and he would like to know what has changed since that point in time. Mr Smith explained that the applicant would be able to provide a more detailed explanation, however, he believes that is down to construction costs which have vastly increased, and lots has changed with regards to the viability of the scheme. He added that the previous legal agreement which went on over a long period of time would have proceeded through various development cycles and the frustrating issue when dealing with viability is that it is at a point in time and currently that is what the values are based on sales price, construction cost and how it balances out. He added that is what the valuers would have looked at. Mr Smith explained that with regards to what has changed there are elements which change all the time and aspects are still changing and it will be very different next year too.

·         Councillor Gerstner stated that being a former Coates resident he knows the area well, the White Cross Stone is going to be protected and is going to have a plaque on it, asking if this was correct? Mr Smith responded that this was correct, it is on the plan and they know about it. Councillor Gerstner asked that it is being protected during the construction period because it sits right at the entrance? Mr Smith indicated that it would.

·         Councillor Gerstner referred to there being some difficulty selling some of the phase one housing. Mr Smith responded that the difficulty in selling often depends on the price and the prices anticipated for this site have now dropped from the first developer assessment, with prices changing all the time.

·         Councillor Benney expressed his surprise at the information committee has been given last minute and asked at what point was he made aware of Natural England’s standpoint on this application? Mr Smith responded that they knew about it as soon as it came in as they observe the Council’s website and they tried to contact Natural England to review what they really meant but it is very difficult for them to get hold of. He stated that they took action rapidly and reluctantly produced a report that they thought was unnecessary, the shadow habitats assessment, it is something he believes the Council should do but they undertook it. Mr Smith made the point that they took action, it took a time to get a reply and they tried to point out to Natural England the circumstances of this site, it is on the edge of a built up area and based on their own studies so far there are no known impediments to development but they have stuck to their guns and want a further assessment. He added that this report will cost thousands of pounds and add another year to the development. Councillor Benney stated his question has not been answered, the fact that it appeared on a website does not tell him at what point they became aware. Mr Smith responded that the case has gone for a fair period of time and he does not have that date with him but believes it went on the website about a year ago.

·         Councillor Marks referred to the roads on the site itself and asked if they are going to be adopted? Mr Smith responded that the grey area on the plan at the top of the site is the only area that the County want to be adopted but the rest of the development has been designed to adoptable standards and it is a point to be clarified as to whether that is to be adopted or left as a private road. He added that the recommendation covers the issue from the point of view of a scheme for refuse collection and asks them to resubmit all their drainage information. Councillor Marks stated that Fenland is plagued with private roads that have been built allegedly to adoptable standards and on previous applications committee has asked that for example the last 3 houses until the road is brought up to adoptable standard cannot be lived in. Matthew Leigh stated that committee has imposed conditions similar to this but it is site specific and it does depend upon the scale of the scheme and he would suggest that 3 would be comparable for a scheme of this size. Councillor Marks asked if they would be prepared to accept this as a condition? Mr Smith indicated that this would be acceptable.

·         Councillor Gerstner stated that the A605 is a very busy road and asked if there would be some sort of refuge coming out of the site to help people cross the road to access the footpath on the opposite side. Mr Smith responded that refuges in themselves can sometimes be a hazard but it is down to Highways who will look at detail at any precise geometry to the road that needs to be altered but what they know at the moment is that they are probably going to have to relocate the speed limit sign so this part of the road becomes part of the 30mph. He added that major crossings, islands etc has never been discussed, which he thinks is due to the nature of the road. Councillor Gerstner stated that he is not talking about a major crossing, just a small refuge where people can stand and has a good splay so they can see either direction as is if there is no refuge at the end of the road to cross over it could be a concern. Mr Smith responded that current behaviour needs to be observed with the 14-house site next door and having sat there for a long time at busy times people do want to turn right but the visibility is such that people see that vehicle as there is clear visibility. He feels that Highways are well versed in doing whatever they can to improve safety but does not think it is necessary for the Council to instruct on this other than to raise it as an issue for the County to scrutinise.

·         Councillor Marks referred to construction and it being a busy road and asked that a road sweeper be put in place from day one? Mr Smith confirmed that it would and were the issue to arise they would be compelled to build a hardstanding as a drop zone for debris so that is the bit of road that would be cleaned not the public highway. He added that if there is debris on the road the County Highways could compel them to clean it up under their powers. Councillor Marks hoped that they would clean it up before Highways get involved and have a sweeper on site from day one as there has been numerous sites where there has been mud on the road and numerous issues so he would request this being part of this application.

·         Councillor Marks referred to Natural England’s comments and presumes the developer is the same developer who built the site next door and asked if Natural England responded on that application? Mr Smith confirmed that they did not.

Members asked questions of officers as follows:

·         Councillor Mrs French asked why it has taken 4 years for a Section 106 as she has never known one to take this long and she does not accept it being lack of County Council officers. David Rowen responded that it is not material to the determination of this planning application, it relates back to the previous application on the site, however, the Section 106 Agreement did take an inordinately long period of time, there were delays with the County Council end in terms of their legal team turning around the agreement but there were also some delays on the applicant’s side as well. He feels it is unfair to completely attribute the blame for that delay to the County Council, for example during the process of the Section 106 Agreement several of the plots on site were sold off so there were more signatories required.

·         Councillor Benney made the point that committee have never received a legal warning like this before on an application and listening to the agent this was a year ago now. He puts faith in officers and there are sometimes incomplete applications with minor issues but something like this is a major thing from what committee has been told. Councillor Benney expressed the view that the fact the application has come before committee today he feels that officers would not have sent an application to committee with a major fault. He asked for officers’ opinion on this and can a decision be reached today with the amendment to the wording as suggested by the Legal Officer and to get the wording right from the Head of Planning so a decision can be made on this today. He made the point that legal advice is advice and it is up to the individuals whether any notice is taken or not and from an officer’s perspective this application has been looked at, it has been submitted for some time and again requested their opinion, does it change the recommendation or is it still for approval. Matthew Leigh responded that as explained by the Legal Officer this is a relatively new piece of case law, it was the Legal Officer that raised it with officers and if officers had been aware of this before the agenda was published he would have been very reluctant for members to grant this as the recommendation. He continued that in relation to delegating the decision to officers, this is proposed to be delegated in relation to the Section 106 at the moment and there will still be a time if members were to grant it today for the decision to be issued and they would envisage that these could run in tandem with the additional information required. Matthew Leigh stated that it is important to note that it is not necessarily an objection regarding lack of information and engagement and there is confidence that there is a potential to overcome this, if there was not then the recommendation would be one of refusal but it is felt there some level of safety in moving it forward and it is within members’ gift to delegate this issue to officers to resolve prior to determination. He stated that there is not a risk and it is not an unreasonable approach to dealing with the application. Councillor Benney clarified that the recommendation still stands to grant planning permission so long as authority is delegated to the Head of Planning to make sure that the paperwork trail is completed and ready. Matthew Leigh indicated this to be the case.

·         Councillor Benney made the point that this issue is a big thing to be dropped on committee without any prior notification. He added that there is also an appeal on this decision which could be thrown out or be upheld and if that is hanging in the balance then this application is also, but the wheels of democracy should not stop because of an appeal case nor does it and, therefore, making a decision today is the right thing to do giving delegated authority to officers. Councillor Benney asked if he was correct in his way of thinking? The Legal Officer apologised to committee for springing her advice on them today and appreciates that committee did need prior warning of this. She made the point that officers work incredibly hard to get their papers together and circulated in good time and she did not forewarn them early enough that this issue needed to be addressed so the fault lies with her and not officers. The Legal Officer hoped that the compromise position being proposed gives the committee some comfort and that the principle can be established and it be resolved to grant subject to the delegations, which is not dissimilar to the position that officers originally recommended. She stated that there is no legal barrier to proceeding with resolving Natural England’s questions on the HRA simultaneously with the Section 106 and she would hope that it would not protract the time between the resolution to grant and granting, although from her experience the Section 106 would probably take longer than this. Councillor Benney reassured the Legal Officer that it was not a criticism as they get updates the day before the meeting but it is quite significant due to the fact that it was a lengthy update with the consequences and the remedy to it, which carries weight and any judicial review will look at the process of arriving at the decision and that is why he required the sound advice.

·         Councillor Mrs French referred to previous incomplete applications and feels this application is not complete as the relevant information has not been received.

·         Councillor Gerstner stated that it appears the applicant was aware of this change a year ago. He referred to the Section 106 that has been put in place over 12 months, he appreciates that agreement has been concluded but he is uncomfortable with developments like this that all of sudden have a viability concern, these are good high-end developments, the developer has a good name and they can and do fetch a premium, with house prices in Coates not being the most expensive but they are in the premier division. Councillor Gerstner would have thought it would have attracted, especially on the education side, a lot more 106 money. Matthew Leigh responded that the policies set within the Local Plan require affordable housing, infrastructure contributions such as highways, NHS, education, etc., and they work with statutory consultees and the Council’s own independent consultant to understand what the need is. He stated that planning requires at a starting point that an application should reflect the harm of the development, such as education as an example, but unfortunately Fenland does struggle with viability and viability is a material consideration in the determination of a planning application. Matthew Leigh added that the previous permission would not have been policy compliant per se in relation in every aspect but they have come forward with a viability report with this application stating that there is only a certain amount of excess money that is to be shared out. He continued that this report stated a figure, it was independently assessed, the Council take the advice provided but it is not the Council’s consultant and this required an uplift in the figures because the consultant found there was more money than had been stated, however, it is significantly short. Matthew Leigh advised that the recommendation takes into account the planning history, provision of dwellings and viability, with the shortfall in policy being acceptable but viability is a material consideration and if members feel that this is an issue then committee has the gift to refuse if harm can be demonstrated. He stated that the NHS consultation response clearly explains why they need their contribution, education is normally a little more difficult as to some extent there is a spreadsheet and they give you a figure and if members were to refuse it officers would have to work very hard with education for evidence and there is also an under provision of affordable housing so if members are not happy with this it can be a reason for refusal.

·         Councillor Marks stated he has undertaken a quick maths calculation and it seems to be £200,000 short on the 106 money, going from £350,000 down to £133,000 and when listening to what the agent said some of the properties have already been sold and asked would that have been taken into consideration at the time the viability was undertaken as if people are already buying them there has to be viability in the price being asked. David Rowen responded that he cannot vouch for how the independent consultant has undertaken the assessment, however, as part of that assessment property prices would have been submitted and the assessor should have looked at those property values assessing whether they were realistic and accurate.

·         Councillor Murphy stated that, having been on the committee for a long time, he has never seen anything like this happen before and he cannot see where the outcome is going to be any better, with if it carries on for another year it is going to be even worse. He asked if officers can see how anything better can be achieved than is on the table now? David Rowen responded that as the agent indicated viability is a snapshot in time and nobody can predict the future, all the committee can base its decision on and accept is the information that has been submitted and the assessment that has been undertaken. Councillor Murphy expressed the opinion that committee would be better accepting it now than it will in a year’s time. Matthew Leigh clarified that it is not known.

·         Councillor Benney stated that has been much talk about viability, there are companies that make a living out of challenging viability and local authorities know that there can be legal challenges to 106 agreements and if it is not a viable site and cannot make he thinks a 12% profit they cannot borrow the money and then build and, therefore, there could be no housing, which is not what the committee is here for and one of the Council’s responsibilities is to deliver housing. He made the point that there has been inflation of 10% over the last two years and house prices have not risen that much to match that level of inflation so there is the fact that house prices have not gone up to match the viability that is there, build costs and materials have significantly increased and that reduces the number down so if the numbers do not work and committee goes against it, it could end up with a legal challenge. Councillor Benney continued that the Council has to defend all its decisions so it has to be realistic in expectations and in terms of the NHS it is the national health service and if people move here they are moving from somewhere else in the country which just means it is down to the NHS to move that service from one place to another so, in his view, if the money is not available for this it is down to Central Government. He asked if what he was saying was right and there is also a point that the land values part of the viability calculations use London land value as a benchmark for undertaking a viability report? Matthew Leigh responded that he would say no on mostly all of it, his understanding is that Government’s published land values figures are used and they reflect each district and base figures are used as a benchmark for the value of properties in an area. He referred to the point regarding challenge, he stated it would not be a legal challenge, if members or the Council refused based around viability that would be an appeal rather than a legal challenge and this all comes down to evidence, a shortfall in provision can be clearly demonstrated and that would not be issue to show evidence so he believes there would not be a risk of costs at appeal but whether or not the Inspector would agree with the Council that a shortfall in affordable housing, education and NHS contributions was enough to dismiss the appeal it not known, it is a balancing exercise. Matthew Leigh reiterated that viability is a struggle in the district but matters in relation to NHS are material consideration as the Council has a policy and Government’s guidance is clear that a development should reflect this and could be a reason for refusal as it could be putting people in a situation where there is a struggle or inability to have access to a doctor as the two surgeries in close proximity are at capacity but officers have undertaken an assessment and said it does not warrant a reason for refusal but it is a material consideration for the committee and the responsibility of the applicant to negate harm. Councillor Benney expressed the opinion that this differs slightly to what his predecessor told members and thinks training on Section 106 might be a good thing for committee to ensure it is clear on policies and how it works. The Legal Officer stated that viability is incredibly challenging in lots of places and particularly in this District but at the same time committee will be aware that Fenland is in a relatively positive position of having a 5-year housing land supply and that does impact how viability is weighed along with other material considerations in the balance. She continued that  because it can be demonstrated 5-year housing land supply the presumption in favour of sustainable development and tilt balance does not apply so there is more discretion here than many other local authorities who cannot demonstrate that 5-year housing land supply to weigh contributions to infrastructure, open space, services in the balance in a fair and equal way. The Legal Officer stated that committee is entitled to and may weigh viability and the contribution towards mitigating the harm of the development against the benefits of the development and that is a weighting exercise for the committee. She does not feel that the committee is in the territory of tipping into legal error, this is very much a matter of planning judgement where so long as committee does not act irrationally it has a significant amount of discretion. The Legal Officer brought to the committee attention, on the issue of NHS contributions, to the fact that there was a significant case about 18 months ago with NHS funding and the position generally is that the NHS should fund its own revenue costs, which is funded out of general taxation and generally Section 106 contributions or developer contributions should not sought towards NHS revenue and running costs, but what is sometimes needed is the delivery of physical infrastructure and capital expenditure, such as a new GP practice to support a new community, the NHS should pay the doctors and nurses to work in the surgery and fund the medicines and bandages but it is not unreasonable to ask the development to make a contribution towards the capital cost of building a new GP practice which the NHS will then take the costs of running. Councillor Benney stated that this clarifies it and agrees that developers should pay for infrastructure but there are times when it has been looked at before and committee was told it could not go against it because in the emerging Local Plan there was a viability report that came back and said anything below the A47, £2,000 per unit and above that nothing to pay and thinks this is the most recent document there is in planning. He appreciates that although this is not a live document it is appearing in the paperwork and is what committee has been told but it also comes back to this legal challenge again on viability and whilst he would love to obtain more from this scheme, it needs to be balanced against the delivery of homes, which are needed. Matthew Leigh agreed that there was a document in existence about 5 years ago that looked into viability for the District, which was given material consideration at the time, but things have changed significantly and now since November last year the Council is asking for site specific viability on all applications.

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

·         Councillor Mrs French expressed the opinion that there is lack of Section 106 and she does not know where developers think the money is going to come from. She made the point that there is a new infrastructure plan reform on the horizon and this is one thing that has been highlighted repeatedly, developers obtain their outline planning application, promise the world and then when it comes to reserved matters or a full application they backtrack. Councillor Mrs French referred to the agent saying that it is up to Highways to clean road and she disagrees it is up to the developer to clear the highways and developers need to realise if they do not they are going to get fined because councillors will push for them to be fined. She stated that herself and the Chairman have gone through various developments and had to get the Highways involved to clean the roads. Councillor Mrs French expressed the view that she is not convinced that she can support this proposal yet.

·         Councillor Marks stated he echoes Councillor Mrs French’s feelings.

·         Councillor Gerstner expressed the view that there is an application before committee that is not quite complete and in all his life living in the area he has never seen a swan or goose in that field, although it may be on the flight path but he does not know. He feels that every development in that zone surely would be subject to the same rule and how come all of a sudden this rule has arisen from the authority and the site adjacent was not subject to it and it is lack of consistency. Councillor Gerstner expressed the opinion that it has to be accepted, although he does not like it, how the independent consultant has come up with the viability. He feels it is a quality development, it is not going to land banked and the Nene and Ouse Washes are some considerable way away and he cannot understand how this issue has arisen.

·         Councillor Marks agreed it is a quality design, however, questioned how they have got it so wrong with the figure for the Section 106 money, which to him is a concern.

·         David Rowen stated in response to Councillor Gerstner’s comments this is legislation that has only come in over the last few years so some of the older permissions that have been granted were not subject to this and some of the other applications in the vicinity, such as the Drybread Road application in the last 12 months, there was a requirement for that assessment to be carried out, which was undertaken. He feels the confusing factor here is that the site has got a planning permission in place as set out in the officer’s report and it was considered that because of that fallback position that superseded the request that Natural England had submitted, however, as the Legal Officer has explained there is now this new emerging piece of case law that sets out that is not the correct approach to take.

·         Councillor Gerstner clarified that what is being said is that a proper report is undertaken and if that report is running it would delay the granting of the application but as the Legal Officer stated the committee can give powers to the Head of Planning to implement that condition and irrespective of the inconvenience to the applicant, committee could pass this except for the issues around the Section 106 money and put conditions in place to satisfy Natural England. David Rowen responded that is the recommendation that officers are now looking to put in place as they are not seeing, particularly given that some of the other sites which have probably more closely related to the Nene Washes have been dealt with in terms of this legislation, anything here that is a showstopper in terms of progressing this application, it is purely getting the information to address this issue and it is hoped that information could be submitted to run concurrently with the legal agreement meaning there will be very limited further delays to being able to determine the application positively should the committee resolve to grant the application.

·         Councillor Mrs French suggested that the application could be deferred or refused because it is incomplete.

·         Councillor Benney stated that he puts his faith in the officers, they have given committee a recommendation, with the Section 106 and the numbers being what they are and members are not qualified to challenge them. He feels with the Legal Officer’s recommendation to change the wording of the recommendation gives the officers the authority to make sure everything is correct. Councillor Benney expressed the view that the officer has undertaken a good job on the application, the development next door is an excellent development and he is sure these will be nice houses when they are built. He feels the officers are the experts and there is a recommendation to approve with the amendments highlighted by the Legal Officer and it should be approved.

·         Councillor Mrs French stated that she does not disagree with what Councillor Benney has stated but she would certainly not want to see this application approved unless there are strong conditions attached to it and one being the maintenance plan instructing that this busy road is cleared. She referred to the agent blaming County Council officers and officers in this authority too which she takes exception to, that type of discussion should not be brought into the public domain. Councillor Mrs French stated that it has taken x amount of years to get to this Section 106 and if this is not resolved within 6-9 months for example, it comes back to this committee or officers just flatly refuse it.

·         Councillor Benney stated that he agrees with Councillor Mrs French but equally to put a time limit on this is unfair, there are applications that take years especially with Section 106 agreements as it is a complicated document and they do take time. He feels that officers will know if it is not progressing and can bring it back to committee with another recommendation, if 6 months is given it might take 7 and all that work that officers have put in will have to be started all over again if it is resubmitted.

·         Councillor Marks clarified that he has spoken to the Legal Officer and a time limit can be applied should it be felt necessary to do so.

·         Councillor Benney made the point that committee have been told that it could take a year to resolve the Natural England issue, if it takes two years it is not ideal and he would like it to be signed and started tomorrow but a lot of work is put into this and some of time lag is attributed to people not answering e-mails and waiting for things to happen and the agent is not in charge of that, with it sometimes being how busy other people and other consultees are and putting a time limit on it could be counterproductive.

·         Councillor Mrs French disagreed with Councillor Benney, it can be time limited but the agent did refer to the fact that he did not think he should have to undertake it and Natural England should do it but this is nonsense, with Natural England being an important statutory consultee, especially with biodiversity net gain. She stated that she will support the application but only on the understanding of a 12-month limit because then the developer and agent will get their act together and get the information back to Natural England that is required.

·         The Legal Officer stated that the committee can recommend that the delegations to officers are time limited and would expire after a certain period but that does create some legal risk as there may a position where it needs to come back to committee and a fresh decision made, either on the application or whether to extend the time limit, which may lead committee into slightly murky territory in a year’s time if it is not quite there but committee may take the view that is a problem for a year’s time and deal with it at that time. She continued that the alternative is that the committee could agree that they want officers to report back to them on Natural England and the Section 106 within 12 months and then committee is not calling into question the substance of the recommendation or the resolution to grant but making it clear that committee wants more democratic oversight.

·         Councillor Mrs French asked if this satisfies the officers? Matthew Leigh responded that if that is the gift of the committee officers will support the committee where it can.

·         Councillor Mrs French asked for a 10-minute recess for officers to come up with the conditions to be applied to this proposal. Matthew Leigh stated his understanding that it was only in relation to the construction environmental management plan for which there is already a condition suggested and the standard condition in relation to adoptable standards for the roads and access ways prior to the occupation of the last three dwellings so feels there is nothing much further to discuss but does agree that legally officers are able to do what she has suggested. Councillor Marks expressed the opinion that the wording needs to be correct for Natural England so that is worth a 10-minute break to get the correct wording.

·         David Rowen expressed confusion about the need for a recess for the wording in relation to Natural England, the Legal Officer read that out earlier and that will be what goes verbatim into the recommendation section of the minutes in terms of delegating to the Head of Planning to satisfactorily resolve that and it is part of the process, which he believes Councillor Mrs French was in the process of making, to capture that committee wish for this matter to be reported back within 12 months for a progress update report. Councillor Marks made the point that there has been a lot of wording sprung upon committee from Legal and he would like to understand what that wording is and committee needs to be clear on it.

·         Following a 10-minute recess, Matthew Leigh read out the new wording of the recommendation. Councillor Marks stated that the only other items are for the three houses  not to be occupied until the road is brought up to adoptable standards, the road sweeper during construction but believes this will already be included, and Councillor Mrs French wanted it brought back to committee after 12 months for a progress report.

Members agreed that authority be delegated to satisfactorily address the matters under the habitat regulations and to finalise the terms and completion of the Section 106 legal agreement and planning conditions to the Head of Planning and, following the satisfaction of the requirements under the habitat regulations and the completion of the Section 106, the application be APPROVED subject to the draft planning conditions.

Furthermore, authority is delegated to refuse the application in the event that the applicant does not satisfactorily address the matters under the habitat regulations and/or does not agree any necessary extensions to the determination period to enable the completion of the Section 106 legal agreement or on the grounds that the applicant is unwilling to complete the obligation necessary to make the development acceptable, or that the applicant is unwilling to agree to any necessary pre-commencement conditions associated with the FULL element of the permission, as per the requirements of S100ZA of the Act.

(Councillor Gerstner declared, in accordance with Paragraph 14 of the Code of Conduct on Planning Matters, that he is a member of Whittlesey Town Council and occasionally attends Planning Committee meetings but this application has not been on the agenda at any meeting he has attended)

(Councillor Sennitt Clough was not present at the start of this application and took no part in the discussion and voting thereon)