Agenda item

To determine the application.

Gavin Taylor presented the report.

Members received a presentation, in accordance with the public participation procedure, from Chirs Walford, the agent and Angie Stewart, the applicant. Ms Stewart stated that she was pleased to see the changes that were recognised by the Planning Officer for two of the three reasons for refusal from the previous application have been addressed and are no longer an issue. She added that the current proposed site is located within Flood Zones 2 and 3 and the officer’s report refers to the Flood Risk Assessment which states that there is a low risk of flooding.

Ms Stewart made the point that the Council has stated that they have no strong objection to the proposed development on flood risk grounds, explaining that if the application is approved then flood risk mitigation measures will be implemented which have been suggested by the officer which will include finished floor levels to be set no lower than 300mm above ordnance data and the development should here at least two storeys and any future occupants would be requested to sign up to the Flood Line warnings direct and flood resilience and resistant measures to be incorporated into the proposed development. She explained that the reason for refusal for the current application is that the proposal does not pass the sequential exception test and she added that, with regards to the sequential test, officers identified four plots which are currently available within Tydd St Giles village boundary, but it is her understanding that three of the plots are not available, referring to F/YR23/0280/F, which is not on the market and maybe developed by the original applicant, F/YR23/0920/O which has been withdrawn following a Planning Committee refusal and F/YR22/0374/O which was an application which gained planning permission at appeal and has been sold subject to contract.

Ms Stewart advised that with regards to F/YR24/0030/O the application gained planning permission at committee and the land is currently for sale, but the plot has been recorded as being located beyond the built form of the settlement and is, therefore, an elsewhere location. She made the point that the Cambridgeshire Flood and Water Supplementary Planning Document alongside the Council’s approach to the sequential test for housing states that the sequential test should be applied on a district wide basis, and she added that it for this reason that she questions how the two plots can be sequentially compared.

Ms Stewart referred to the NPPF and made the point that it states that development should create spaces that are safe, inclusive and accessible and the plot has access to sustainable footpaths leading to village amenities including a school, park, pub, village hall and golf course. She made the point that as the applicant she has personal experience of specific housing needs that some people have such as wheelchair users, neuro development disorder or parents of children with special educational needs or life limiting illnesses.

Ms Stewart added that this is something that is quite dear to her and it is through this experience that she has come to realise that the plot whilst centrally located offers a safe quiet haven off the main road with plenty of space to make appropriate adjustments to make space for a wheelchair user to get from their car to indoor and a quite low stimulus environment for people with autism and the opportunity to install kitchen work tops at the appropriate height. She stated that this is the reason why she feels that the plot will provide an inclusive housing opportunity in Tydd St Giles.

Members asked the following questions:

·         Councillor Mrs French stated that she notes that the site is located in a great crested newt amber zone, and she asked what steps would be taken to relocate the newts if approval is given for the application. She added that she notes from the application site history in 2013 an appeal was won, in 2017 the application was granted, and she asked why development did not take place at that time. Ms Stewart stated that with regards to the newts an assessment was undertaken, and she explained that she would agree to the recommendations given as part of that survey. Councillor Mrs French asked what those recommendations were, but Ms Stewart was not able to provide that level of detail at the current time but added that the persons undertaking the survey did not foresee a problem with the development of the plot. She added that in 2013, it was the previous owners who put forward a planning application.

Members asked officers the following questions:

·         Councillor Mrs French stated that in 2023, there was a refusal and she questioned what the difference between that application is and the one before the committee at the present time. Gavin Taylor explained that the actual design of the dwelling has altered, with previously the siting of the dwelling being further north, and it has been brought back into the build line and is now seen to be more appropriate for the location. He added that the design and the location of the dwelling has changed, and the flood risk status of the site has not and the sequential test for flood risk has determined that there are other sites which are deemed to be more appropriate as they are located in areas of lower flood risk. Gavin Taylor stated that with regards to the applicants concerns raised when outlining a site which was deemed as outside of the settlement, however, the committee approved that site recently and deemed that it was inside the settlement and, therefore, on that basis the Council has made the decision that the site is inside the settlement and arguably is a better site for developing out because it is in a lower area of flood risk. Councillor Mrs French asked whether there is any significant change? Gavin Taylor stated that there is no significant change in terms of flood risk and officers consider that there is sufficient change to overcome those further two reasons for refusal.

·         Councillor Imafidon asked for clarification when Cirston House was approved, and it was confirmed it was 2017. He questioned what the difference is between Cirston House and the other development as it appears to be just located on the other side of the road? Councillor Imafidon made the point that members are told to be consistent in their decision making and asked for an explanation with regards to why the proposal is recommended for refusal if Cirston House was approved. Matthew Leigh stated that he agrees that there is a need for consistency and applications need to be determined in accordance with the development plan unless material considerations indicate otherwise. He added that the site has been granted planning permission over 7 years ago and since that the National Planning Policy Framework has been updated at least twice in relation to flood risk by including more stricter and more of a difficult test to pass. Matthew Leigh explained that a year ago a piece of case law was introduced with regards to the sequential test and how that should be approached and how it should be taken into consideration and for those matters the situation in planning terms and the landscaping plan has significantly changed when it comes to flood risk in 2017. He added that there is a need for consistency and that consistency is only if everything is the same and in the case of the application there is now a difference.

·         Councillor Booth stated that the main issue with the application appears to be with regards to the sequential test and it is different if it is in the settlement or if it is in the open countryside and he asked officers to confirm whether they consider the application site to be located in Tydd St Giles or the open countryside? Gavin Taylor confirmed that officers consider the application to be located within the settlement. Councillor Booth referred to the other sites which the applicant had made reference to and it appears that most of the sites are not actually available. Gavin Taylor explained that the site which has been identified as potentially available was deemed by the committee a few months ago as to being located in the settlement and is, therefore, on the same level playing field as the proposed site would be and officers would not determine it to be in an elsewhere location. He explained that in terms of both sites being in the settlement that is the starting point for the sequential test in terms of settlement and the scope of settlements, there has been a site identified which is available and at a lower area of flood risk that could accommodate the development in the settlement. Matthew Leigh stated that when it comes down to the sequential test it is not about individuals and, therefore, just because you do not have access to the site it does not mean that it does pass the sequential test. He added that consideration needs to be given as to whether the site has the potential to come forward as a development and the sites referred to have been given planning permission and, therefore, they are likely to come forward for development and in planning terms they are in front of this application proposal for delivering housing. Matthew Leigh made the point that Fenland are well in excess of their five-year land supply.

·         Councillor Benney stated that one of the sites which is making the current proposal fail the sequential test was approved by the committee quite recently and he asked officers to clarify that if that previous application had not been approved would it now mean that the application before the committee today would have passed the sequential test. Gavin Taylor confirmed that it would have passed the sequential test.

·         Councillor Benney stated that when both of the applications were submitted then either of them could have passed the sequential test. He made the point that this has happened previously and in some ways this can be attributed to the speed of the Planning Department and, in his view, it seems very unfair to penalise the applicant due to the fact that her application has come in a month or two later than the other proposal where they both appear to have started on an even playing field.

·         Victoria Searle, the Legal Officer, stated that regardless of members views concerning the fairness of the sequential test and whether they may yield fair or unfair outcomes, the sequential test is laid down in the NPPF and is supported by the adopted Local Plan and policies, with there being significant case law which reinforces its application in practice. She advised members to act with caution when making value judgements on which parts of national planning policy it considers are right or wrong and correct or incorrect. The Legal Officer explained that as members of the committee they should be making decisions in accordance with the Council’s development plan, Local Plan and NPPF where the sequential test is robustly fixed. She made the point that great care needs to be taken with regards to the fairness of the national polices when decision making as material planning considerations.

·         Matthew Leigh stated that planning applications need to be determined with the information which is front of members. He added that the application was held back due to the need for a bat survey to be undertaken and applications have to be determined with the information now, with it being inappropriate to try and factor in other considerations and tests which do not follow legislation or case law and he advised members that they need to determine the application with the circumstances as they are now and whether or not members consider it as unjust that the application only fails the sequential test due to the delay in the application but that is the way the planning system operates.

·         Councillor Booth stated that he takes on the board the points made and agrees that the planning system is not necessarily fair, and the committee are here to abide by planning policies and legislation, however, there is a role for the committee to take when determining applications. He added that he is also concerned with the fact that the application is recommended for refusal because another application came in first. Councillor Booth stated that with regards to the planning history on the current site and that of the adjacent sites which have granted in the past, in his view, that it a material consideration if it went to appeal. He expressed the view that one of the sites has been through the appeal process previously and he asked officers to explain how that is factored in if was to go before the Planning Inspectorate. Gavin Taylor explained that the house to the left Cirston House of was originally granted in 2013 and predates the Local Plan and the NPPF updates. He added that because that was allowed in 2013 a subsequent application was submitted at a time when it was still a live extant permission and, therefore, it was granted under the Local Plan with significant weight given to essentially a fallback position that it could come forward as a dwelling. Gavin Taylor explained that since that time a Local Plan has been adopted and there have been numerous updates to the NPPF in terms of flood risk, with the Local Plan forming a development plan under which members are legally obliged to determine a planning application unless material considerations state otherwise. He stated that if the members feel that the fact that there is a house next door is a material consideration which outweighs the clear conflict of the policy then that is a consideration for the committee, however, in the view of officers in order to deliver sustainable forms of development and avoid flood risk in the first instance it is considered that they take precedence over the material considerations.

·         Councillor Booth asked how it would be viewed if it went to appeal? Matthew Leigh stated that there have been significant changes to the guidance provided by Central Government in relation to delivering housing and, in his view, that would be given significant greater weight by any Planning Inspector than they would of a historic planning decision made seven years ago which was made under a different set of guidance.

·         Councillor Booth stated that with regards to the sequential test and the five year land supply, the Government are considering new targets for areas which means that the Council’s five year land supply could potentially be reduced and he questioned whether if that is the case could it mean that the application could be approved. Matthew Leigh stated that when considering the suggested figures, Fenland will still have a five-year land supply when the outlined changes are implemented. He added that the NPPF is clear that not having a land supply does not relieve the need for a sequential test and it is not automatically passed if there is not have a five-year land supply. Matthew Leigh made the point that consideration should be given at putting houses into areas which are at lower flood risk than the site being determined today before any consideration is given with regards to granting planning permission for housing in flood zones.

·         Councillor Marks asked what proportion of the site is located within Flood Zones 2 and 3? Gavin Taylor stated that the Flood Risk Assessment which has been submitted identifies an area of land which the red line does not fully portrays exactly where the house is going. He referred to the presentation screen and pointed out to members that Cirston House is in Flood Zone 2, and he explained that if a line was drawn southeast from there it would show the footprint of the proposed dwelling. He pointed out that where Cirston House terminates the area then falls into Flood Zone 3 immediately.

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

·         Councillor Benney made the point that the Local Plan is very out of date, and he expressed the view that the applicant has listened to what they have been told and have moved the proposed dwelling as a result of that advice and if the other application had not been passed in recent months then the application before the committee today would have passed the sequential test. He expressed the view that he can see a lot of reasons to approve the application as mitigation on flood issues can be achieved and, in his view, the applicant has been advised to move the dwelling forwards which they have listened to. Councillor Benney made the point that he feels as a committee decisions are made based on policy but equally as the human face of the Council to work with policy and to take mitigating circumstances into consideration too, adding that the applicant has been led to submit a further application and that has been delayed whilst a bat survey was undertaken which has then led to the application being recommended for refusal which, in his opinion, is very unlucky and that is where the human element of the committee is triggered. He made the point that the committee need to be consistent with their decision making and as the committee approved the application only very recently, he is minded to support the scheme before the committee now.

·         Councillor Imafidon stated that there are many areas in Wisbech which fall into Flood Zone 3 and there is still development which takes place in that area. He added that consideration needs to be given to the human element and whilst there has to be consistency, and he appreciates that Cirston House was approved in 2017, there have been other sites where approval has been given far more recently and he will be looking to approve the application.

·         Councillor Booth asked officers to clarify how much does the Code of Conduct on Planning Matters allow for the human element when determining applications and also when being consistent there is the need of being consistent with the current policies, making the point that whilst he appreciates that policies do change that would mean that committee would need to change their approach on different applications. He stated that he has heard what other members of the committee have said and he expressed the view that the reason that the NPPF has changed is to try and reduce the mitigation of people being flooded. Councillor Booth added that Councillor Imafidon has mentioned Wisbech, however, in the current Local Plan Wisbech has been given special designation so that development can take place in Flood Zone 3, however, that may be reconsidered in the new emerging Local Plan so based on the information which has been provided, he is unsure whether he can support the proposal. He added that he would like to gain a better understanding of the human factor and how that relates to the role of the Planning Committee and the Code of Conduct.

·         The Legal Officer stated that within the Code of Conduct there is a section which deals with approval of applications which have previously been refused as that appears to be relevant to the position members find themselves in with the application before them. She added that the refusal last year was on three grounds of which officers are recommending that two have been resolved but one matter has not. The Legal Officer added that the Code of Conduct borrows and distils from key ombudsman and court findings on these proceedings, and it states that there is perversity and maladministration of a local planning authority which approves an application which has previously been refused where there has not been a significant change in the planning circumstances. She added that as a committee, members need to consider the test of significant change in the planning circumstances and the officer’s recommendation is that there has been some significant change of circumstances in respect of the two previous reasons for refusal, but they do not consider that there has in terms of the sequential test. The Legal Officer added that the Code of Conduct also states that the perversity of approving a planning application which has been previously refused where there has been no significant change in the planning circumstances is maladministration if either insufficient weight has been given to officer’s recommendations and to Central Government guidance and/or there is a failure to give and record reasons for the authority’s change of mind. She advised that the committee need to consider the weight that they give to officer’s recommendations particularly in respect of the sequential test and members need to consider the weight that they are going to give to the national policy around the sequential test and how they apply that. The Legal Officer made the point that if members feel that there are still reasons for taking a different decision this time to that of the decision taken last year, there have to be very clear reasons given as a committee on what the reasons for that decision are. She explained that the Code of Conduct states that this is an area where there is a significant risk of challenge if there is a failure to give and record clear and convincing planning reasons which are proper material planning considerations and not immaterial considerations. The Legal Officer stated that the committee are entitled to make their own decision, having considered those factors, however, she urged caution when deciding on what their reasons might be from departing from the previous decision that they made and also from departing from the officer’s advice.

·         Councillor Booth stated that the Code of Conduct does not appear to allow for the human face per se as it appears to state that committee need to allow the policy and it appears to him that the sequential test appears to have been strengthened since the last decision.

·         Matthew Leigh stated that since 2017 the sequential test has been strengthened and the case law introduced is after the decision. He added that members have stated that they have allowed development against the sequential test previously and he reiterated to the committee that this should not be a reason to go against Government guidance and applications should be determined in accordance with the development plan. The Legal Officer concurred with that fact.

·         Councillor Mrs French stated that she has listened to other members, and she expressed the view that fairness is not a material consideration when determining applications. She added that she does not see a way to overcome the issue surrounding the sequential test and the application site has the potential of flooding and, in her view, the officers have made the correct recommendation, and she will fully support them.

Proposed by Councillor Mrs French, seconded by Councillor Purser and agreed that the application be REFUSED as per the officer’s recommendation.