Agenda item

To determine the application.

David Rowen presented the report to members and drew attention to the update report which had been circulated.

The committee had regard to its inspection of the site (as agreed in accordance with the Site Inspection: Policy and Procedure (minute P19/04)) during its deliberations.

Members received a presentation, in accordance with the public participation procedure, from Peter Humphrey, the agent. Mr Humphrey expressed the view that this is a non-controversial application, amendments were made with a previous officer and since then everything has been acceptable. He stated that the only thing he would like to make a point of is that the application has taken 86 weeks for a 12 weeks application and whilst he knows that there is negotiation and officers are busy he has still got to wait to get the approval and clear conditions, which might be another 12 weeks before they can start.

Members asked questions of Mr Humphrey as follows:

·       Councillor Benney asked why there is no Section 106 Agreement on this application? Mr Humphrey responded that if you sat in his position a Section 106 would not be offered as if the Council have not asked for one they are certainly not going to offer one but the viability does show that nothing can be offered. Councillor Benney expressed the view that on the number of houses being proposed here it is unsatisfactory that the Council is not getting any money out of it and asked if a Section 106 was asked on this proposal? Mr Humphrey responded that not that he is aware of. Councillor Connor agreed with the comments of Councillor Benney.

·       Councillor Mrs French asked if the applicant had any money that could be applied to a Section 106? Mr Humphrey responded no but made the point that the application stands as it is without any Section 106 contributions.

·       Councillor Connor made the point that it is within his gift to say that he could. Mr Humphrey responded that it is if the client instructs him to do so.

·       Councillor Mrs Mayor asked if Mr Humphrey was prepared to make a Section 106 contribution towards the NHS? Mr Humphrey responded that it depends upon how much the request is. Councillor Mrs Mayor referred to Page 56 where it mentions £15,500. Mr Humphrey responded that he is sure the client would pay that.

·       Nick Harding asked for an apology stating that the application was submitted with a viability assessment so given that was submitted in the first place and it was checked to see whether it was all right and proper, why would officers ask for a Section 106 Agreement given that officers were satisfied with the results so he believes the agent has been misleading. Mr Humphrey agreed that the viability assessment was submitted with the application which said there was no money available which is why he answered Councillor Mrs French in the manner he did and it was asked again by another councillor and the viability shows there is no money available to make any contributions at all. Nick Harding asked if Mr Humphrey was going to apologise or not as, in his view, he cannot stand there as an agent not being untruthful to committee. Mr Humphrey apologised to the Head of Planning.

Members asked questions of officers as follows:

·       Councillor Benney asked why no money was requested under a Section 106, although he can see that a viability report was submitted but it is only £2,000 a unit for March and why is this money not being asked for from developers. David Rowen referred to Section 5.15 of the report, which he read out, and as Mr Humphrey alluded to viability information has been submitted that has been assessed and the conclusion of that is that the application for development cannot deliver any Section 106 contributions. Councillor Benney acknowledged this but stated that it does seem wrong.

·       Councillor Cornwell wondered whether there were lessons to be learnt from this so that if an applicant comes and proves that there is no money available the Council goes back to them and asks if they are 100% certain because it looks as if in some instances there is money available so there could be something wrong with the Council’s viability checks.

·       Councillor Mrs Mayor referred to 5.15 of the report and made the point that this was stated on 5 May 2022, which is 50 weeks ago and things could have changed since then. David Rowen responded that in reference to things changing since May last year, build costs have gone up considerably so he does not believe there would be any real change in the viability situation.

·       Councillor Sutton made the point that the agents have a process to go through that is nationally agreed and officers check this and this should go to an independent to check these figures but it does seem rather odd that on a development of 18 dwellings £2,000 per dwelling cannot be managed. He stated that he knows of a development that did a viability assessment and the selling price in the assessment was £156,000 per dwelling and when the properties got built some of them sold for £250,000 so he is wondering whether there should be some kind of timeline in place whereby if they are not built out in a certain time then that viability is reassessed because on that development of around 15 dwellings the selling price was very much different to the viability test result and whilst he understands that is more work for officers the area needs to be getting as much free infrastructure as it can, although, in his view, £2,000 is too low but he is sure there is room in the system to challenge it more robustly. David Rowen responded that the review of build costs and sales values is done as part of the viability assessment so if the sale value that has been quoted for a certain property is well below market value that is the issue that should be getting picked up as part of the assessment review. He stated that in terms of putting review mechanisms in place that is very difficult to do where there is an application saying it is unviable as why would the Council and the applicants enter into an agreement to review something that has already been assessed as being unviable, however, a review mechanism can be incorporated where you have got a viability where there is a Section 106 Agreement which may have demonstrated for example that only 10% affordable housing could be delivered and this may need to be reviewed 5 years down the line potentially on larger schemes to see whether 15% or 20% could be delivered.

·       Councillor Skoulding expressed the view that from the comments it looks like this application might be rejected and asked if there is any chance that the agent can be asked to come back and to ascertain whether he would submit a Section 106 as he has already waited a long time for this application to be determined. David Rowen responded that the agent indicated that his client may be willing to pay the £15,000 NHS contribution but ultimately if it is the resolution of the committee to go down that route then committee can propose this, with the usual caveat that if a Section 106 Agreement is not progressed within a certain period of time then it is potentially refused. The Legal Officer added that committee need to be careful to distinguish between as what may be offered as a ‘gift’ and what may be required to remediate the effects of the development so if officers have looked into the viability and concluded there is no legal requirement for payments to be made, members cannot then go to the agent and say yes we will have your £15,000 extra that you have offered unless officers are satisfied that £15,000 is necessary to enable the development to proceed but reading the report the officers have assessed it on the basis that they cannot require any payment to mitigate the development so it would be contrary to the CIL regulations for the Council to accept this extra money as things currently stand. Nick Harding stated that if members forget the viability situation for a moment, consultation was undertaken with a number of statutory consultees who came back and said they need x amount of money to mitigate the development and here is our evidence to justify that request so in normal circumstances those asks would be included in a Section 106 Agreement but in this particular application it is a situation whereby the applicant has submitted the site specific viability exercise which has concluded that no contributions of any sort can be provided and then today the agent has said that a hit would be taken on the profit in order to make a £15,000 contribution to spend on the NHS or anything the committee chooses it be spent on provided that it is asked for by the consultee identified in the report and from that point of view he would consider this passes the CIL regulations.  The Legal Officer agreed that, what has been said is that notwithstanding that the scheme is not viable, therefore, no payments can be justified the applicant offers to pay a contribution towards a necessary mitigation and it is regarded as such then it probably can be accepted.

·       Councillor Cornwell queried that as a committee the Portfolio Holder could be asked to revisit the whole question of viability and comes back to the committee at a later date as he does not think anything can be done about this application and feels the committee is going around the houses.

·       Councillor Mrs French agreed with the comments of Councillor Cornwell, making the point that this application is for 18 dwellings which equates to 50-60 people who are all going to need doctors and she thinks without contributions for developments over 9 dwellings it is going to be a mockery and the district is going to end up with no contributions at all. She feels that committee needs to be very careful that this is not setting a dangerous precedent for the future.

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

·       Councillor Sutton stated that he has no problem with the development in principle but share members concerns about the viability and he cannot see where there is anything specific to this site that would increase the costs such that nothing can be offered when just an hour ago there was lots on offer on another application, although it remains to be seen whether that will be delivered. He made the point that Councillor Mrs Mayor asked a direct question of Mr Humphrey on whether the £15,552 could be found and he replied in the affirmative that he believes his client would do this so he believes it would be remiss of the committee to not at least try to get that contribution, which he assumes would be to approve subject to either a unilateral agreement or a Section 106 Agreement, with a unilateral agreement being quicker and Mr Humphrey did express his disappointment with the length of time taken to determine this application and it is known that the planning department is not in the best health due to various reasons.

·       Nick Harding stated that in regard to the Section 106 he would ask that flexibility is included in that agreement given his experience of how well things work out when it comes to draw downs and requests for money to go towards health service improvements so that if a health service improvement proposal that is acceptable does not come forward in a timely manner then that money can be diverted to any of the other asks that are listed in the committee report.

Proposed by Councillor Sutton, seconded by Councillor Mrs French and agreed that the application be APPROVED as per officer’s recommendation, subject to entering into a Section 106 Agreement for a contribution of £15,552.

(Councillors Connor, Mrs French, Purser and Skoulding declared, in accordance with Paragraph 14 of the Code of Conduct on Planning Matters, that they are members of March Town Council but take no part in planning)