Agenda item

To determine the application.

Alan Davies presented the report to members.

Members asked questions of officers as follows:

·       Councillor Marks referred to the mention of the exceptions test for flood risk results in conflict with national and local flood policies and stated that Turves lies all within Flood Zone 3 so how can anyone go against this policy if they wanted to build in Turves as it means that no more building will ever happen in Turves. Matthew Leigh responded that each application is determined upon its own merits, and the exception test is clear that there needs to be public benefits that outweigh the harm and that housing as a principle alone is not public benefit. He referred to the first application, where approval was recommended based on the exception test because of the benefits of the scheme was the quantum of affordable housing units, the provision of older people’s housing and the provision of single access accommodation that would be able to accommodate wheelchair users so there needs to be a selection of ‘goodies’ so that the benefits outweigh the harm. Matthew Leigh continued that these benefits could be ecological benefits, renewable energy and it is about providing a mix but this application apart from housing is providing no real benefits and, therefore, the exceptions test would be very difficult to pass.

·       Councillor Marks stated that in a local area bringing three more families into the area when there is a pub that is trying to remain open is that not a benefit and then three more properties in Fenland that people are paying rates for. Matthew Leigh responded that people paying rates is not a material planning consideration but also the guidance from Government is clear that housing alone is not something that passes the exceptions test irrespective of what someone’s personal opinion is. He added that the exceptions test has been looked at as detailed in the officer’s report, the various benefits have been looked at and they are not considered to outweigh the harm.

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

·       Councillor Mrs French stated that she agrees with officers on this application.

·       Councillor Marks stated that Fenland villages have always had houses built initially on the side of the road, this proposal is not looking to build behind other houses but on the roadside. He referred to Flood Zone 3, which means that there will no further building in Turves so there would be a problem keeping the pub open and other services such as the bus service if people are not allowed to build. Councillor Marks made the point that there is already an approval for three on the land adjacent, this was also in Flood Zone 3 and there was obviously a need for these, and, in his view, there is a need for these three as well as if not the developer would not been bringing them forward. He stated that across the road there are all new properties or they have been built within the past 10-15 years and the issue of loss of view is looking at a railway track, he lives next door to a railway track and it is an attractive view so whilst one person may not want live here another one will. Councillor Marks reiterated that this is a Fenland village and if properties such as these are not allowed to be built these villages will die.

·       Councillor Connor made the point that approximately three years ago this committee passed three next door and there are no infill sites available in Turves without building in the open countryside. He feels that if these three houses are not allowed it will be a contradiction, and Turves will die without further housing as they are fighting to keep the pub open and trying to obtain a village shop and this applicant would not be proposing another three houses if he did not believe he could sell them. Councillor Connor stated that he called this into committee as he felt this had some merit and he is in support of this proposal, with if it is not supported it being in conflict with the decision taken three years ago and putting another ‘nail in the coffin’ of Turves.

·       Councillor Mrs French referred to the third reason for refusal in that insufficient information has been submitted so, in her opinion, this is an incomplete application so how can approval be recommended but it could be a deferment.

·       Matthew Leigh stated that it is a valid point made by Councillor Mrs French as the appropriate legislation that sits alongside planning in relation to ecology matters and protected species says that scheme cannot be approved without being confident that there will not be any harm. He expressed the view that if members had sympathies with the application he would have significant concerns in approving it at this time because of reason for refusal 3 and it would be better to defer to allow the applicant opportunity to provide those surveys that are missing as an application should not be approved without cast iron guarantee that protected species are safeguarded.

·       The Legal Officer agreed, the Conservation of Habitats and Species Regulations impose much stricter restrictions on Local Planning Authorities than authorities are accustomed to under the planning regime and other contexts. She fully supports the advice the committee has received from officers that if the committee were minded to approve subject to the resolution of ecological concerns it would be appropriate to defer to allow that work to be completed before it comes back to committee.

·       Councillor Mrs French stated that she sits on many IDBs and there are many discussions on badger setts, with it being a criminal offence to disturb a badger sett and to undertake a survey and move a badger sett costs in the region of £30,000 so she would not agree to an approval without this proper survey been undertaken but would go for a deferral rather than a refusal.

·       Councillor Marks stated that having listened to what has just been said he would be more minded now to support a deferral. He expressed the view that they will have undertaken these tests 2-3 years ago on the field next door but accepts that badgers do move.

·       Councillor Benney stated that if it is deferred then it is deferred only on refusal reason 3 as it is reasonable request to receive this report.

·       Councillor Murphy expressed the opinion that it is getting to a state now where ecology is looked at more than anything else and whilst he loves animals they will move elsewhere and building and housing is required.

·       Councillor Imafidon stated that it needs to be borne in mind that as much as houses are needed there are policies and laws in place for a reason, so it has to be abided by. He made the point that he was originally going to say ‘why don’t we just be consistent, it is not an elsewhere location and let’s approve this’ but after listening to Councillor Mrs French’s argument he feels that deferral is better in this situation.

·       Councillor Mrs French stated that this is a new law, it is against the law to disturb badgers and was not in existence when the other application was determined so the committee cannot go against the law.

·       Councillor Connor made the point that the present Government are looking to review some of these policies. The Legal Officer clarified that there are prospective reforms coming to some of these requirements through the Planning and Infrastructure Bill but this is still a bill and still at the report stage in the Lords at the moment, there are amendments being made still by Government and by members of the House of Lords. She stated for the purposes of determining applications today any prospective legislative changes and reforms that might come through the bill are not material considerations.

·       Councillor Mrs French stated that this is information that came from DEFRA a couple of months ago through the IDB, with the IDBs having great expertise on this and they know exactly where these badger setts are so the applicant may want to contact the IDB.

·       Matthew Leigh made the point that members cannot pre-determine what the future committee might say but it can be deferred to allow the applicant to provide additional information in relation to that reason for refusal.

·       Councillor Mrs French stated that the committee has undertaken this course of action previously. Councillor Connor agreed.

·       The Legal Officer stated that it is difficult as the third reason goes to the principle of development or whether development is acceptable or not, except that the third reason for refusal stands as the applicant does not satisfy the ecological requirements then as a matter of principle the development is unacceptable and the development cannot be granted. She feels it is better that the committee not seek to fetter its future discretion to consider the application and since there has been quite some consideration during the course of committee around reasons for refusal 2 in particular on flood risk if the purpose of deferral is to obtain more information from the applicant the applicant may during that deferral period wish to submit further information in relation to flood and other matters. The Legal Officer stated that the committee has to not tie its hands or fetter its discretion in future and clearly committee has formed some views around the other reasons for refusal but a deferral is just that and the committee does not take a decision at all at this stage.

·       Councillor Connor questioned that the committee should refuse the application just on that condition? He made the point that other applications have been deferred and been resubmitted on just one reason. Matthew Leigh stated that members have the ability to defer the application to seek additional information and what has happened before from his experience is that officers have brought back reports, sometimes that reason’s concerns have fallen away and sometimes they have not and other times a reason for refusal has been progressed, then members have then approved it. He added that members should not be fettering their discretion as they will not be determining the application until it comes back, but if it is refused it is just refused so his advise is to defer it subject to additional information being received.

·       Councillor Marks referred to the planning laws possibly changing and a lot of decisions may be undertaken by officers and not committee so asked if this application will come back to committee if it is deferred today, for example in 6 months time, and would not become an officer’s decision? He added that going forward when the date is reached when the Government change the laws he is concerned that if this is deferred today that committee may not reconsider it due to a change in the law. The Legal Officer responded that this is wandering into the territory of other matters rather than consideration of this specific application but there are provisions in the Planning and Infrastructure Bill which would implement a national scheme of delegation which may change the balance between where applications are considered between officers and members and committees but these changes are prospective currently but she would be very surprised given that primary legislation very rarely has retrospective effect for good reason if any changes that may ultimately be brought about in future would apply retrospectively to applications that have already been submitted and committees have already considered once and deferred. She feels there is no harm if committee is minded to defer that it is deferred on condition that officers bring it back within a finite period if that would give committee more comfort so it could be a deferral for a maximum of 3 months with an instruction for officers to bring it back within that period whether or not the additional information requested by committee is approved or not. The Legal Officer stated on the issue of deciding some issues in principle and deferring others her advice is that is tricky and problematic, where issues go to the principle of whether development is acceptable or not it is very difficult to make an in principle decision on some elements and some considerations which go to that determination without reaching a final determination on all of the issues that are relevant. She continued that there is a risk in fettering a future committee’s discretion to determine an application but the committee’s decision and determinations of applications are always evidence based and made on the basis of the local development plan, other material considerations and the application documents and if talking about a short deferral, the Local Plan will not change in that time, there may be new material considerations that need to be taken account of but the same evidence will be before members and given the importance of consistency in decision making a committee presented with the same evidence in the same policy context with the same Local Plan with no other change in material considerations would reach the same conclusion on the some of the points that committee has debated today. The Legal Officer stated that she would recommend a straight deferral of the application, but it could be a time limited deferral.

·       Councillor Marks asked for clarification that if this application is deferred today, even with the changes that it is believed are going to happen, this will still come back to committee and prior to the cut off date those applications submitted will still come to committee and not be delegated to officers? The Legal Officer stated that is her understanding, the bill itself is still in the Lords’ stage, it still needs to go through ‘ping pong’, achieve royal assent and then certain provisions will need to be commenced so this will take a number of months as a minimum and possibly longer before there is any change.

·       Councillor Murphy asked what happens in two or three months time and the animals have moved so it could be approved but if they have not moved then it cannot be approved? Matthew Leigh responded that the surveys have not been undertaken so it is not known definitively if there are animals there but it is possible in most instances to relocate them or do something to overcome the harm but that then needs to be part of the application submission of the reports and how they are going to deal with this. He added that it is no different to most applications, but this has not been undertaken in advance where normally it has been and members are able to consider these matters comfortably.

·       Councillor Connor summed up that deferral is probably the best answer with officers requested to bring this back to committee within 12 months as 3 months, in his view, is not long enough to be able to do anything.

·       Councillor Marks suggested that it be 3 months but be prepared to extend to 6 should it be required?

·       Matthew Leigh stated that if there are to be reports and surveys undertaken, they do take time and they will need to be written up by the ecologist and submitted to the Council for consideration then consultation will be needed so would suggest 3 months is too short. He continued that if members said 12 months it would be brought back in that time, but it is within members’ gift.

·       Councillor Benney made the point that if it comes back in three months and it turns up at committee without the report it can be deferred again for another time period. He feels that it should be three months and if it is not where it should be it can be deferred again but it gives the applicant some impetus to get on with it.

·       Councillor Mrs French agreed with 3 months as if the applicant is serious then they will find someone to do it in a timely manner.

Proposed by Councillor Mrs French, seconded by Councillor Marks and agreed that the application be DEFERRED for three months for additional information to be submitted in relation to ecology.

(Councillor Connor stated that he did have a brief conversation with the applicant when he contacted him but did not discuss the application with them and is not pre-determined and will consider the application with an open mind)