Agenda item

To determine the application

Hayleigh Parker-Haines presented the report to members.

Members received a presentation, in accordance with the public participation procedure, from Shanna Penney, the agent. Ms Penney stated that the application is for an occupational dwelling, which supports a long established and multi-generation local business operated by the Humphrey family for over three generations. She continued that it is a business that is not only viable, but, in her view, one that provides an essential and often urgent service to Fenland District Council, Cambridgeshire County Council and the wider community.

Ms Penney stated that Mr Humphrey is the principal call out for the Council when buildings are damaged, unsafe or require emergency works to prevent injury or potential loss of life, with his presence and rapid response being often critical. She expressed the opinion that this is not a business that operates during normal working hours, with call outs occurring at any time, often late at night, when immediate action is needed.

Ms Penney expressed the view that the nature of the work means that Mr Humphrey must be able to arrive on site without delay, collect plant and equipment and respond instantly to dangerous situations and living on site is not a convenience but essential to the functioning of the service provided. She continued that security is another key factor as it is a business that relies on heavy valuable machinery and specialist equipment and there have been repeated break ins and attempted thefts at the yard, all occurring at night, with CCTV showing vehicles entering the yard stealing significant quantities of goods and causing damage.

Ms Penney stated that these incidents have been formally reported to the Police and to the local authority and demonstrate a clear and ongoing security risk. She added that to effectively run the business and maintain the safety of the site Mr Humphrey and his family currently rent a dwelling to the north of the yard, however, this house is not tied to the business, is accessed separately and offers no direct surveillance of the yard or entrance and importantly it is rented meaning that the family has no long term security and cannot remain here indefinitely and when the lease ends their ability to run this essential service will be, in her view, seriously compromised.

Ms Penney expressed the view that a dwelling on the application site would allow proper oversight of the business, immediate response to security incidents and the ability to react quickly to emergency call outs, which she feels is a practical proportionate solution that supports community safety, reduces crime risk and enable the business to continue operating effectively. She expressed the opinion that the proposal is entirely in line with decisions the Council has previously made, with there being several clear precedents within the District for dwellings tied to essential local businesses, such as Sims Contract Furniture, Prospect House on Burrowmoor Road and Horse Creek Farm in Coldham, with in each case the Council recognising that certain businesses require a permanent onsite presence for operational or safety critical reasons and these circumstances align closely with those in this application.

Ms Penney stated that this is a genuine need from a family run business that has served this District Council for decades, with the proposal not only safeguarding the livelihood of the Humphrey family but will ensure the Council continues to receive rapid vital assistance for emergency works that protect public safety. She expressed the view that the dwelling is modest, justified and essential, ensuring security and supporting the emergency response service and enables a long-standing local business to remain viable in the long-term.

Ms Penney expressed the opinion that support for the principle of this development allows for the sequential test to also be passed. She requested that planning permission be granted.

Members asked questions of Ms Penney and Mr Humphrey as follows:

·       Councillor Mrs French stated that she has visited the site and noticed that one dwelling had one of the businesses’ trucks in and across the road there was another dwelling with a truck in it. She asked which dwelling does Mr Humphrey live in? Mr Humphrey responded that he lives in the one the same side of the road as the proposal and the one across the road belongs to his parents.

·       Councillor Mrs French asked approximately how many times he has been called out in the night over the last 12 months? Mr Humphrey responded that he does not have an exact figure but it is nearly every week as he does not just cover Fenland but also Breckland and Norfolk Councils.

·       Councillor Connor referred to Mr Humphrey mentioning that he lived nearly opposite and his father lives opposite and asked approximately how many metres away would this be from the entrance of the proposed development site? Mr Humphrey responded around 150 metres. Councillor Connor questioned that it is being said that he is unable to get to the site, with there being surveillance equipment there and 150 metres does not seem far for him not to arrive very quickly, within a couple of minutes. Mr Humphrey agreed, he is able to get to the site quickly at this present time but the problem he has is the property he lives in currently is not his property, it is rented and it is going to be shortly sold off with no option of him buying it with it being such a substantial amount of money. He added that out of that area there is nowhere else close by for him to respond to these situations.

·       Councillor Connor asked how long Mr Humphrey had left on his tenancy agreement? Mr Humphrey responded that he has not got a specific date, but the owners are looking within the next six months.

·       Councillor Benney stated that there is the driveway into the industrial units at the back and asked if the house Mr Humphrey is living in is the one at the front with a big garage to the left of it? Mr Humphrey confirmed this to be correct. Councillor Benney asked if the house was ever part of the estate where the industrial units are? Mr Humphrey responded that originally the house was his grandfathers, who started off as a farmer and there used to be an old Nissen hut where the garages are now, which was passed down to his father who built the garage and since then 14 industrial units have been built on the land. Councillor Humphrey asked if the freehold of that property is still within the Humphrey family? Mr Humphrey confirmed that it was still owned by the Humphrey family.

·       Councillor Mrs French stated that she did notice from the site visit that the garage was being used either as offices or as a dwelling because there are items that make it look like somebody is living here. Mr Humphrey responded that it is a rented annexe, which is rented by someone who works locally.

·       Councillor Marks asked if the family has other rental properties within the local area, within a 2-mile radius? Mr Humphrey responded that they did not.

·       Councillor Connor referred to the agent intimating in her presentation that there had been lots of break ins and asked if Mr Humphrey had any crime numbers? Mr Humphrey responded that he does but not to hand today and stated that he was broken into again on Friday. Councillor Connor asked, to Mr Humphrey’s best estimation, how many times in 12 months has he called the Police and got the relevant crime numbers? Mr Humphrey responded that in the last 12 months he has probably called them 4-5 times, but it gets to a point where they give up because a crime reference number is just a waste of time to them.

·       Councillor Connor asked what sort of things are stolen? Mr Humphrey responded that there has been a range of things, batteries off vehicles, diesel, valuable scrap metal, valuable attachments around £40,000 stolen of the end of his demolition machines and previously, in the past 5-6 years, lorries.

·       Councillor Marks asked for clarification around the £40,000 attachments. Mr Humphrey responded that on the end of demolition excavators there are different attachments for cutting down steel building, grabs, steel shears, concrete pulverisers, which cost £40,000 upwards.

·       Councillor Connor referred to Mr Humphrey mentioning that he only lived 150 metres away from the premises and, in his view, it does take a while to load scrap metal or take batteries off vehicles and it concerns him that only living 150 metres away why he cannot get to the site quicker, especially if there are dogs and surveillance equipment, and they cannot be intercepted. Mr Humphrey responded that he can be there to intercept them and they do try but some of these people are not people you want to be intercepting, they have been caught in the act and in the yard but they will push you out of the way or drive past you and it does not take any time to steal something that is a valuable piece of equipment or scrap metal.

·       Councillor Connor stated that having been in the scrap metal trade for many years, he can understand what they do and when he had his yard he had a night watchman on site in a mobile, which stopped 99% of every crime that he experienced. He asked if this had been considered? Mr Humphrey responded that he has considered many options, but they have not had anyone be a night watchman in the yard, but they have had night watchman out on sites. He referred to a site in Wisbech where they had a night watchman who got assaulted trying to stop someone stealing items, so he does not like going down the route of putting someone in danger.

·       Councillor Purser asked if Mr Humphrey had CCTV cameras? Mr Humphrey responded that he does have CCTV across the yard, but it makes very little difference because all that happens is that the thieves put balaclavas on. Councillor Purser acknowledged that there may be balaclavas etc but they might be recognised from their health or the way they walk and also questioned about number plate recognition of vehicles. Mr Humphrey stated that they do have ANPR and the last vehicle that came into the yard was checked and had no MOT, no insurance and was not registered so all these things you can have as a deterrent is just another time resource and a way for the thieves to get around. Ms Penney added that security is just one aspect of the need, the principal reason is to get on site quickly to get the machinery to carry out the business.

·       Councillor Benney asked, if this application is approved today, how much closer will this property be than where he is living at the moment? Mr Humphrey responded that this property would be within approximately 15 metres of the main yard entrance.

·       Councillor Connor stated that the difference will be 135 metres but asked Mr Humphrey what the difference will be, when he has said he does not want to tackle these people, living closer if they are still not going to be challenged? He feels it would be better if he had hypothetically lived 4-6 miles away because then it could be said if he had been closer, he would have gone out and challenged them. Ms Penney responded that having an 24/7 on-site presence is a deterrent in its own right but the key issue is that being on site to be able to respond to these emergency services immediately and that is notwithstanding that the current property is not a permanent solution because it is rented.

·       Councillor Marks requested clarification that there is a tenant that lives on site and asked if he is not a deterrent because he lives on site. Mr Humphrey responded that the property is a house with an attached garage annexe, which is not owned or rented by him, and that will be sold along with the house.

Members asked questions of officers as follows:

·       Councillor Benney stated that he has looked at the site history because of the industrial units that are there and they are all purpose agricultural buildings and he cannot see any change of use to industrial on this site. He asked whether he had missed it or whether it exists? David Rowen agreed that it is one of those sites that was originally more agricultural in its nature and has gradually morphed over time into something more commercial and there is an application for a Certificate of Lawful Use in 2001.

·       Councillor Mrs French acknowledged that a sequential test has been undertaken but in the officer’s report it says it is not sufficient and asked what is missing from it? Hayleigh Parker-Haines responded that the justification for the development was that it could not be located in another location in terms of the functional need, so officers have deemed that there is insufficient evidence to support that functional need. She added that it fails the Exceptions Test, which is the wider public benefits of the scheme which is referenced within the report.

·       Councillor Mrs French referred to there being a question over ownership certificates, but she does not understand why that was in the report because ownership of the land is not a material consideration, especially as in another application on the agenda it is saying this issue is a civil matter. David Rowen responded that ordinarily land ownership is not an issue and officers would not report on these issues of whether certificate A or B has been served, but in this instance the confusion over who owns the site did cast a bit of doubt over the functional link that is being put forward by the applicant and this is why it was referenced within the report.

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

·       Councillor Mrs French expressed the view that this is a difficult decision, it is a business and not a yard that can be located in the middle of Wisbech or similar, but it is difficult to justify a dwelling next to a very vulnerable business due to thefts and break ins.

·       Councillor Connor expressed the opinion that it is imperative to live close to a business, but he would have liked to have seen the Police referrals because they would have been absolute proof that there is a business need, but he does have sympathies with the applicant.

·       Councillor Marks stated that living on site would be far better for the business than travelling but he is concerned that the applicant already lives within 150 metres yet he has had break ins so if he lives within 15 metres what is going to be the difference, especially as the applicant has said he probably would not go out and challenge these people and he does not want to station a night watchman, which he does understand. He made the point that plant machinery does not get loaded in 30 seconds, it is a 10 minute job minimum and he feels sorry for the applicant that these thefts are occurring but he thinks that better security as in better steel doors/gates is far better than putting a building there when the applicant has said he would not go out to challenge. Councillor Marks stated that he currently supports the officer’s recommendation. 

·       Councillor Benney stated that he had the same view as everyone else that has spoken and he believes the house the applicant lives in belongs to his uncle and he has a tenancy agreement from his uncle, which if you take this away and it is still in the family makes there no need for this proposal. He made the point that the Council supports business, and members always say that the best security is someone living on site, he had thought before committee that officers had got the recommendation right but having listened to what has been said he has had a change of heart. Councillor Benney referred to a similar application at Manea, with the applicant living up the road from that business and he was given permission for a dwelling on site and as far as he is aware he has not had any break ins. He expressed the view that having a house on site does bring a lot of security and there appears to be a lot of industrial units, the applicant is trying to run a business and committee has supported other businesses and feels this could be supported as the applicant needs security to safeguard his equipment and stock, which gives longevity to that business and supports local rates that the Council receives from businesses within that site.

·       Councillor Marks stated for clarity that the application at Manea the main reason for living on site was because he had a potato store and needed to be in there during the night because of the refrigeration and whilst there was a security issue it was mainly due to the potato store.

·       Councillor Purser stated that he came to committee open minded but has remembered other applications which were for security so believes it might be beneficial to live here.

·       Councillor Murphy stated that he was talking to someone this last weekend and they had the same sort of problems as this applicant does, they built a place and it has stopped the issues immediately, with it being no good relying on the Police as they do not want to confront thieves either.

·       Councillor Connor stated that he has always been an advocate for having business security and you cannot beat living on site and as intimated earlier he had a night watchman but wished he had a property on site. He made the point that Fenland is Open for Business and committee needs to be consistent having approved numerous others where security has been taken into consideration and he used to have a cleaver and grab and they are expensive and there is always a market for them somewhere. Councillor Connor stated that he would be going against officer’s recommendation.

·       Councillor Benney made the point that committee supported the woodyard at Wisbech St Mary and various other businesses throughout the District and he came to committee thinking no but now really feel this is worthy of support and wishes the applicant well with his business, with it being tough enough already being in business. He stated that he will be supporting this application.

·       David Rowen advised that security is not a significant material planning consideration, there are other means of securing sites, such as CCTV, stronger more effective gates, etc. He highlighted a slight inconsistency in some of the arguments being put forward by members when citing some of the other examples of similar applications that have been granted and to the best of his knowledge most of those applications involved a dwelling being built within the industrial curtilage whereas here it is clearly a site which is divorced from that industrial curtilage, sitting in a separate parcel of land on the opposite side of the access track from the wider site and that wider site is effectively in operation 24/7, with there being no restrictions on the independent units that are operating within that. David Rowen expressed the opinion that there is a significant difference between the actual site specifics of this application relative to the other examples that have been cited by members. He added that the officer’s report is clear as to what the considerations are and if members wish to go against those considerations, then that is the decision of committee.

·       Councillor Marks asked for clarity that if approved this could be built tomorrow and then the applicant can build it but does not like it for whatever reason, it could be sold separately because it is not tied into his business. David Rowen responded that it is something that could be conditioned but the point he was making was that it is a different set of circumstances in terms of how effective this dwelling would be relative to security. He stated that given that the employment land is within land edged in blue within the application then potentially the dwelling could be tied to that but the further away the property is the more tenuous that argument becomes in terms of the reasonableness of the condition. Councillor Marks stated that the argument has been put forward that the applicant needs this property for security and also quick call outs associated with his business so tying it into his business seems appropriate. He feels that a guarantee is missing that the applicant could build a house but does not like it so sells the house but the business would still be there and he could have already taken measures by putting extra security in place or alternatively buying the other rented property, which does concern him.

·       Councillor Connor agreed that it could be conditioned because it has happened on another application for Mr Sharman.

·       Councillor Marks made the point that was within the grounds of the business and it would be hard job to split that, but this property stands alone away from the actual business, there is a roadway between the two and this could be easily sold off separately. He feels members need to be very wary that they could be giving permission for a property that is not actually connected directly to the business. Matthew Leigh stated that normally from his recollection over the last 18 months when members have gone against officer’s recommendation there has been a very clear direct relationship between that dwelling and the business, which allows for interaction, engagement, etc. He added that when this happens it is quite reasonable to impose a condition restricting the occupation and tying it to the business as there is a clear relationship and it meets all the tests. Matthew Leigh stated that, as David has said, due to the separation of this it gets more difficult to defend it so a condition could be imposed but if the applicant chose to appeal the condition the Inspector may say due to the remoteness of the building in relation to the industrial area that the condition does not meet the test, potentially less likely if it was to be appealed straight away. He continued that the ability to be comfortable this will be retained in perpetuity on something like this is a lot lower than it would be on a normal situation and it is difficult for officers to give a definitive answer because this would come down to an Inspector’s decision at appeal and it would not be clear on defending an appeal to remove the condition. David Rowen added that there is also greater potential in several years’ time that this dwelling gets built and then for whatever reason the business use gets separated out because of the separation that exists the linkage could also be very difficult to resist in future. Matthew Leigh expressed the view that the future occupant also does not own the business anyway but is a relative so that would make it potentially even more difficult to tie it in because it is an employee, permission would not be given in theory to the owner but to an employee which adds another layer of difficulty to the question of whether it is reasonable to impose a condition on this because in theory someone is being allowed to build a whole dwelling but they cannot control whether they are employed by the business, which adds another layer of complexity and difficulty in planning and why it is recommended for refusal as it does not fit how a workers dwelling should be.

·       Councillor Marks referred to Charlemont Drive, which is a dwelling with an industrial unit beside and it used to be that you had to run a business from there if not you had to move but the Inspector said that was not fair and gave a three year period to start the business where it has now become residential because the Inspector took the view that it was being unreasonable. He feels that this proposal could be in the same area that the Inspector looking at it in 2-3 years time could just say no, how can it be connected to the business because of the roadway.

·       Councillor Mrs French stated that she would be happy to support this application if it could be conditioned but having listened to the Head of Planning, she feels it would be a waste of time imposing that condition and she supports the officer’s recommendation.

·       Councillor Benney stated that he feels uncomfortable just granting it because of where it is but it is part of the Humphrey farm and business and whilst it might be a weak link it is a link if a condition is imposed. Matthew Leigh stated that he does not like to give out advice that he is not 100% confident in and this is what this application comes down to, a condition can be imposed but if it was appealed he cannot say the Council would definitely win it and that is why he would not encourage members to go down that route because if an Inspector found this was not a reasonable condition they could appeal that tomorrow and have it removed and it becomes just a building block in a rural area. He continued that it is members’ gift to come to the decision they want to but officers’ advice would be that it has potential to be challenged and for that to be successful.

·       The Legal Officer agreed with the comments of the officers and as a matter of law whether a condition meets the relevant tests there is a strong element of planning judgment there and he feels it is arguable that a condition of that nature could be imposed but he also agrees there are planning merit arguments against it and, therefore, such as condition could be vulnerable to appeal. He continued that there is no strict legal hard no to why committee cannot impose a condition but is just on the balance of planning arguments that there is some vulnerability.

·       Councillor Connor stated that the business has been operating for 30-40 years and is in its third generation and he feels that everyone is vulnerable to risks, it may well split but it may well go on to the applicant having a family and going to another generation.

Proposed by Councillor Mrs French, seconded by Councillor Marks that the application be refused as per the officer’s recommendation, but this was not supported on a majority vote.

Proposed by Councillor Benney, seconded by Councillor Connor and agreed that the application be GRANTED against officer’s recommendation, with conditions delegated to officers to apply, in consultation with Councillors Connor and Benney, to include a condition tying the dwelling to the business.

Members do not support officer’s recommendation of refusal of planning permission as they feel that the dwelling needs to be in this location where the business is, to provide good security being on site is essential and it is not considered detrimental to area.