Agenda item

To determine the application.

Matthew Leigh and David Grant presented the report to members and drew attention to the update report that had been circulated.

The Legal Officer advised that the thrust of the contemplated challenge and of the advice received is that there are particular matters that committee now needs to turn their minds to when it comes to making a final decision, with some matters already having been carefully considered by committee. She stated that the particular issue which needs to be addressed is the importance and materiality of the Inspector’s decision when he dismissed the appeal against the enforcement and upheld the Council’s previous enforcement action.

The Legal Officer stated that members will be aware that generally planning applications should be determined in accordance with the development plan unless material considerations suggest otherwise and officers have set out their view on the extent to which this application accords with the development plan and in particular on the issues of the impact on the character and appearance of the area and also on the impact of residential amenity for neighbouring properties. She made the point that when the appeal went before the Inspector, the Inspector gave clear views on those matters and he felt that the application was contrary to the Local Plan policies on these two particular issues of character and residential amenity.

The Legal Officer stated that when the committee considered the application previously they appeared to form a different view but did not directly address enough the Inspector’s findings at the time, how material they are to the committee’s deliberations now and what has changed in terms of the material considerations between the Inspector’s earlier decision and today. She continued that is the framework that matters should be considered today and when members are thinking about the report that they have received from officers, asking questions of officers and the debate it would be worth reflecting on the Inspector’s consideration of those issues, when and in what context that the Inspector’s findings were made, what has changed since then both in terms of the scheme proposed as there have been changes to some of the buildings, the massing and extent of some of those buildings which may be material considerations and there have been further documents submitted by the applicant which may influence the thinking particularly around landscaping where members may want to explore with officers to what extent that there have been changes.

Members asked questions of officers as follows:

·       Councillor Mrs French referred to landscaping and asked for direction as she knows the building is large but if there is a condition that there has to be landscaping and it overcomes the concerns of the neighbours then, in her view, landscaping is the way forward. Matthew Leigh responded that members are aware of the appeal decision and the Inspector did not consider that landscaping would be acceptable to overcome the harm, however, members indicated at the previous meeting when this was considered that there was potential for this to mitigate the harm. He stated that some guidance has been provided regarding landscaping in the appendices and members are aware of the 6 tests of necessary, precise, reasonable, relevant to planning, enforceable and reasonable in all other respects, with officers having considered the potential for landscaping in this context, with the site and area available for landscaping being quite small and they have spoken to their arboriculturist who has indicated there is the potential to purchase and put in trees that would screen the site, however, they would require extensive support in relation to water, nutrients and maintenance in the long term to retain their health. Matthew Leigh continued there would need to a lot of trees, which would be a significant cost and what that results in is advice from officers that the cost, whether the applicant’s is willing to enter into it or not, sit with the land in perpetuity and the ongoing maintenance would probably mean that it was not reasonable in planning terms. He added that furthermore disease could happen and there would need to be replanting costs, the potential trees would have to be TPOed so they are protected and there would still be, rather than being a blank wall, a lot of something at the end of the boundary and officers consider this would have some impact on the amenity, not as bad as a built form but still oppressive and unneighbourly to have that level of vegetation on the boundary. The Legal Officer added that the issue of reasonable is challenging, there would need to be a clear mechanism for enforcing such an extensive amount of landscaping which could be undertaken through a planning obligation or condition and in terms of future management or maintenance there are mechanisms that could be used, there could be some form of security or bonds to protect against this in future so there are legal mechanisms by which what is proposed could be secured. She expressed the opinion that it is an extensive undertaking for a scheme of this size and scale and that does raise questions around whether the 6 tests can be satisfied which the committee will have to have regard to. The Legal Officer feels in particular the requirement that any condition is reasonably related in scale and kind to the development because it is a very significant amount of landscaping for a relatively small development. She made the point that this application is retrospective in a context where a enforcement notice has been served and, therefore, what the applicant may be willing to do in these circumstances may be different than if it were a fresh application coming before committee for new development which has not previously been undertaken and the applicant is always free if he considers that these conditions are too onerous to come forward and make a fresh application for a slightly different scheme that might reduce the extent of the landscaping conditions or obligations which the committee would need to seek because it has made other alterations to the design which also helped to mitigate the amenity impact on the two dwellings most severely impacted. The Legal Officer feels there are a range of views that the committee could take and a range of factors which might be material that the committee might wish to have regard to.

·       Councillor Marks questioned where this landscaping would be, where the green hedge is now is the only bit being looked at for shielding so it is a metre on the boundary between the properties and it is not looking to go anywhere else just one side of the shed/building and then along 6A and 6B. He asked if a measurement is known between the two properties? David Rowen responded that it is set out in 5.2 of relevant appendices, 1-1.2 metres from the boundary fences of 10A and 10B.

·       Councillor Marks questioned that within that area something like a leylandii could be planted which grows to 20 plus feet so there is a way of putting planting in that will grow quickly and shield from the building. David Rowen responded that in terms of actual species he does not think that leylandii given that 1-1.2 metres distance is probably not quite wide enough to get reasonable size leylandii in and also leylandii need significant maintenance to keep them down. He referred to the point regarding reasonableness and leylandii are notorious for their amenity harm in their own rights so effectively it would be going from a wall of a building to a wall of greenery. Matthew Leigh clarified that 5.6 of the relevant appendix advises that it would be Beech trees which are ones that are trained to grow across a trellis, there are limited options on evergreen ones, but they do exist.

·       Councillor Mrs French stated that she has lots of leylandii and they do take a lot of maintenance. She feels there are some fantastic trees available that screen, such as Red Robins, which whilst expensive is not a consideration for the committee.

·       Councillor Marks made the point as you go to Milton Keynes you see the big warehouses that are now four or five different variations of blue because they blend in to the countryside so could this building be painted a slightly different colour and with the other mitigation with the landscaping you would look through the bushes to a blue background as opposed to green, which some people may feel is a bit stark. David Rowen responded that having experience of and dealing with developments of a similar nature the purpose of having different colours is to mitigate the longer range views and here is a view of several metres away and whether there is an expansive wall that is one colour or another it is that visual impact from such a short distance that is the problem.

·       Councillor Connor expressed the view that landscaping seems to be the preferred option here.

The Legal Officer stated that the first thing is for the committee to form a view on whether the Inspector’s previous decision on the appeal finding is a material consideration in this decision now and if it is then to attach some weight to that. She continued that committee has received legal advice that is appended to the report, and she feels it is difficult to see how it is not a material consideration albeit there has been a passage of time and some changes since which may impact on the weight that committee attaches to it. The Legal Officer requested that committee form a view on the materiality of the previous Inspector’s decision first.

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

·       Councillor Marks expressed the view that committee debated this greatly at the previous meeting and came to a conclusion then, recognising that a letter has now been received saying that somebody is upset, but there can be mitigation from this such as planting trees, but equally the person whose shed it is is looking after a very expensive item, which is a hobby, not a business taking place 24 hours, 7 days a week, which is a steam engine which needs this size building. He recognised that the works have been undertaken before obtaining planning permission but, in his view, there are two sides to this, needing to be mindful of the residents and attempting to find a solution for them but also there is a need for this building.

·       Councillor Connor agreed with Councillor Marks, a significant building is required to put the steam engine in and it needs to be close by for reasons of security, with the curtilage of the applicant’s property being the best way. He continued that he is not going to alter his thoughts about whether the right decision was made previously or not because, in his view, it was the right decision, but some mitigating landscaping would be favourable.

·       The Legal Officer summarised that there are some similarities with the Inspector’s reasoning when mitigation is talked about through landscaping or some other way so recognition that there is harm to the character of the area and the amenity of neighbouring residents. She feels that members share some of the Inspector’s finding, which would make sense since this is the same application site, the same surroundings properties and at least a similar application so, in her view, the committee accepts that the Inspector’s prior decision is a material consideration and the committee attaches some weight to that but following the questions, further documents obtained and some changes made, significant weight but not overriding or substantial weight.

·       Councillor Marks stated that at least 4 of the committee members sat on the previous committee when the house itself was determined, where members were told it was overbearing and too tall and that has since diminished in significance and members are now dealing with a building but everything does tend to match in over a period of time. He acknowledges that there is a building at the bottom but if it can be mitigated against by putting trees there questioned what else can committee do. Councillor Marks stated that there have been some changes to the Inspector’s findings and feels he would have to come back with other reasoning now so feels that members can go round and round in circles but believes there is a need for this building and trying to come up with reasoning to make it acceptable but if it was an agricultural building would committee even be here debating it.

·       Councillor Benney stated that committee did make a decision, which he felt was a compromise because this is looking at taking concrete up and taking a bay down, with the enforcement being undertaken quickly, there never was any consultation and maybe the applicant could have worked with officers to do that, but his attention would be focused on this. He referred to Councillor Marks stating previously to not take the concrete up, it will make more dust and more trouble, but this proposal would need to take the concrete up and if he wants to keep the concrete there has got to be a regularisation of that concrete so there would need to be another application. Councillor Benney expressed the opinion that if the Council had not been so zealous in the way of undertaking the enforcement and actually worked with the applicant may be more compromise could be found. He made the point that committee needs to temper the needs of residents both sides of the fence and shielding has been discussed but he feels it needs another application but this has been pushed through at the ‘speed of light’ and there has not been enough time for consultation and there was a time where the Council would not accept an application to try and regularize what is going on. Councillor Benney stated that he stands by the decision he made previously, with the compromise being that the concrete is not taken up because that will make more dust and noise than leaving it there and there is a bay of the shed being removed, whilst it is one end it was adamant at one point that it had to come down because it was on agricultural land and if there was another application that allowed this to be moved further down that would resolve the issue for all parties but this is something that needs another application to regularise what is being undertaken, what was suggested last time at committee and the need to find a compromise between two neighbours. He reiterated he stands by the decision he made previously but the shielding should be looked at for mitigation and requests that officers and the applicant/agent work together to come up with something better than what is before members now.

·       Councillor Marks agreed with the comments of Councillor Benney as he cannot understand why concrete is being taken up as, in his view, that will cause more hassle, mess and noise and it has been seen that there is a good drainage system in place and the neighbours have not complained in relation to drainage. He made the point that disharmony between neighbours nobody wants but equally ‘one man’s house is his castle’ and the applicant is keeping a very expensive item in that shed. Councillor Marks stated that if the applicant submits another planning application committee will take it on its merits, but feels this is as much as they can do.

·       Councillor Connor stated that he is going to stick by his original decision and, in his view, the concrete does not want to be disturbed as it will upset the drainage, which he suspects has been undertaken correctly as the applicant would not put his property in jeopardy. He expressed the opinion that the application should be granted giving a little weight to the Inspector’s decision but the applicant be asked to enter into a planting scheme which is more than adequate, which although not perfect will address the situation.

·       Councillor Marks stated that he is not changing his decision from previously, however, he has not seen this traction engine on the road so is the reasoning behind the concrete because he has to have an HGV low loader on the site which will need a turning circle, so if this is required there is a need for the concrete. He continued that if the applicant takes the engine to shows, he will take this by low loader and a low loader needs a good turning circle and he believes there is mitigation in leaving that concrete.

·       Councillor Connor stated that he gives weight to the committee’s decision made on 30 April to keep the concrete, there was a good debate on the proposal last time and he cannot see anything further to add apart from a tree planting scheme be implemented and officers work with the applicant to get it undertaken as soon as possible.

·       The Legal Officer referred to the comments made by Councillor Benney in respect of new applications and how they might play into this, if the committee is coming to a view that it would like to explore conditioning the grant so as to require work to be undertaken on a landscaping scheme to see if the applicant is willing and appropriate experts can agree a scheme that would mitigate the harms identified by the committee and the previous Inspector’s appeal decision. She stated that if that does not work and the parties cannot reach agreement or it cannot be agreed on a form of mitigation which is reasonable to all parties and which addresses the harm arising from the development then at any time the applicant is free to make any alternative application and the committee would need to consider that on its merits. The Legal Officer continued that if a point is reached where the Council’s experts can recommend a landscaping scheme that would address the harm and the applicant felt that was too expensive, disproportionate or not reasonable he could either take his scheme down as the enforcement action requires him to do or he can submit an alternative scheme which proposes some other way of mitigating the harm identified in relation to the character of the area and the impact on neighbouring amenity.

·       Councillor Mrs French stated that she will support this application on the proviso that officers do speak with the agent and applicant to obtain a sensible landscaping scheme. She made the point that this application has been talked about for around 18 months to 2 years, if the applicant and the agent do not come up with something it will need to be looked at differently but they should be given the opportunity to come up with some scheme although she recognises that trades are expensive.

·       Councillor Connor expressed the opinion that committee seems to be in agreement that they are not going to change their views and it is the recommendation that a landscaping scheme be implemented where the agent/applicant can work together with officers and feels it should be given 6 months to come to some agreement. He expressed the view that there needs to be another condition that if any of the trees die there needs to be replanting at the soonest time in the prescribed season.

·       Councillor Marks referred to height as there has been mention of shadowing and this landscaping is to shield the building not to keep growing maintenance wise 60-70 feet so it also needs to be stated the height goes to either the apex of the building or the side of the building to shield this and not be allowed to keep growing.

·       Councillor Connor agreed this was a relevant point but also a condition could be applied regarding future maintenance.

·       Councillor Marks stated that it is going to be two different heights so would have thought officers would need to agree some height restrictions along the boundaries. Matthew Leigh stated that officers have suggested that in the mitigation consideration be given to trees growing along a trellis. Councillor Marks responded that the heights still need to be agreed because where are the two heights going to be taken from, the back of a building which is 20 feet whereas 6A, 8A and 8 do not need that shielding.

·       Matthew Leigh stated that the report only relates to 10A and 10B, all the other issues are not for debate although there has been mention of them in the debate, and there may need to be some other landscaping but that would be separate to the bespoke condition that would be required. He suggested that it would not be a particularly bespoke condition but a relatively standard retrospective condition suggesting approval through Circular 1195 requiring a scheme of landscaping to be submitted to the Council within a reasonable period, therefore, the applicant and their agent can go away and come up with something rather than put it onto officers as it is not officers responsibility. Matthew Leigh added that there would need to be some form of legal agreement to be submitted as part of that for ongoing maintenance.

Proposed by Councillor Mrs French, seconded by Councillor Marks and agreed that the application be GRANTED, with authorisation delegated to officers to apply conditions including a mitigation landscaping scheme, with the committee to be sent the conditions prior to issue.

Members do not agree with officer’s recommendation of refusal as they stand by their decision made previously and feel that the objections can be mitigated by landscaping and this is a compromise position between two neighbours that disagree.

(Councillor Benney declared that he knows the applicant as when he was Portfolio Holder for Assets he had several dealings with him but no longer has dealings with him, but is not pre-determined and will consider the application with an open mind)

(Councillor Connor declared that he knows the applicant as he owns a scrap metal recycling yard and he used to own one but has since retired but he has never had any business dealings with him or socialised with the applicant. He further declared that he did meet with the applicant along with Councillor Marks on another matter. He stated that he is not pre-determined and will consider the application with an open mind)

(Councillor Marks declared that he met with the applicant once along with the Chairman but the meeting was not in relation to planning and he has had no other dealings so is not pre-determined and will consider the application with an open mind)

(Councillor Murphy declared, although he had left the meeting, that he was not present when this application was considered previously so would not be taking any part in the discussion and voting thereon)