APPLIC REF NO 2012/292/NT
CASE OFFICER Michael Avery
WARD Market Warsop
APPLICANT MR R EDEN
DATE RECEIVED
DATE OF EXPIRY
WARD COUNCILLOR
25/06/2012
20/08/2012
John Kerr
LOCATION AND DESCRIPTION OF PROPOSAL
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FORMER WOOD BROS TIMBER YARD MANSFIELD ROAD
SPION KOP NG20 0EG
VARIATION OF THE SECTION 106 AGREEMENT DATED 24TH
AUGUST 2011 (RELATING TO APPLICATION 2011/0318/NT)
TO INCREASE THE NUMBER OF SELLABLE PROPERTIES
FROM 29 TO 44 BEFORE THE CARE HOME IS BUILT TO A
SHELL FINISH
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RECOMMENDATION: APPROVE VARIATION OF SECTION 106 AGREEMENT
DESCRIPTION OF PROPOSAL AND APPLICATION SITE
Planning permission was granted for the erection of 58 residential units and a forty bedroom care home on land at the Former Wood Brothers Timber Yard,
Spion Kop in August 2011. The majority of the site is allocated in the adopted
Local Plan for employment development and is on the edge of Spion Kop, a settlement located north of Mansfield Woodhouse off the A60 set outside of the defined urban boundary. The development of 58 residential units was considered to be acceptable on the site in order to deliver the proposed care home (an employment generating use). The quantum of residential development was fully assessed by the Valuation Office (VO), instructed by the District Council, and the advice provided to the Local Planning Authority was that the approved level of residential development was required in order to make the care home viable and in order to provide the required planning obligations.
Following the Council’s resolution to grant planning permission, the applicant entered into a Section 106 Agreement which includes obligations in relation to the following matters:-
1. Affordable housing, 20% on site provision (12 units) or an affordable housing contribution up to £300,000 or a combination of both.
2. On site public open space (£57,200) and maintenance (£47,840) thereof
3. Phasing of the development - to permit the occupation of no more than
29 dwellings prior to the completion of the care home

The applicant has now made significant progress with the development on site. Three dwellings are now complete and a further 38 are at various stages of construction. The proposal seeks to vary the phasing of the development in order to enable the applicant to permit the occupation of up to 44 of the approved 58 dwellings prior to the completion of the care home.
The applicant has provided a statement in support of the proposed amendment to the Section 106 Agreement and in summary includes the following:-

The current economic climate is having a major impact on property due to the difficulty in achieving bank finance;

Twelve months ago there was still finance available within the care sector but unfortunately bank policies have changed and like the housing market it is very difficult to get finance for new care homes.
This has resulted in a potential operator having to withdraw from the scheme.

The only way to move forward is with self funding

A substantial amount of money has already been spent on the care home to date and it has been built to the ground floor level;

The increase in the number of units is crucial in terms of safe guarding jobs and providing much needed bungalow accommodation;

The development to date has been very successful and has received praise from visitors, including a Councillor;

The majority of clients are elderly and are desperate for bungalow accommodation;

The design and construction of nursing homes is rapidly changing making the completion to shell stage at this time without an end user very precarious. Internal layouts, including structural walls that will need to be put in situ to achieve completion to shell stage may well have to be moved to accommodate an end users requirement. It would not be economically viable to change these once built and if they are already in place; it may deter a potential end user from taking on the care home;

If there had been a client in the market place, it would have been completed by now.
The proposal has been referred to the Council’s Planning Committee as the decision was previously made by the Committee.
RELEVANT SITE HISTORY
2012/0034/NT – Variation of condition 2 of planning permission 2011/0318/NT to amend the design of the care home, make minor amendments to the design of various dwellings to take into account ground levels and amend windows / doors on three plots - variation of the condition was granted on 27
March 2012.

2011/0318/NT
– Mixed use development comprising of 1 No. 40 bedroom care home and 58 No. dwellings together with access, landscaping and public open space – granted planning permission on 24 August 2011.
2011/0048/NT – Application to replace an extant permission (2007/1041/NT) in order to extend the time limit for implementation – residential development of 35 No. dwellings with office buildings comprising 14 offices within
– withdrawn 09 May 2011 as a commencement (drainage works) has been made on site and all planning conditions had been discharged.
2007/1041/NT
– Residential development of 35 No. dwellings with two office buildings comprising 14 offices within – granted planning permission on 28 th
April 2008.
2007/0118/NT- Residential development of 59 dwellings, including 4 live/work units and a village hall -refused 01/05/08. The proposal was considered to be contrary to Local Plan Policies E4, E5(H), H3, ECH1, BE1 and DPS2.
Furthermore, the principle of residential development was considered to be at variance with regional policy and national level guidance.
2007/0113/NT- Class B1 employment development
– outline permission granted 01/05/08.
2000/732/ET
– JTF wholesale unit, 10 B2 units and right turn lane – granted
18/5/01
2004/10320/ET – Residential development of 65 dwellings – withdrawn
30/3/05
2005/825/NT – Residential development of 49 dwellings and a village hall – resolution to grant by Planning Committee; however was withdrawn by applicant whilst awaiting the call in inquiry.
OBSERVATIONS RECEIVED
Throughout this report observations received in respect of each application are presented in summary form. The full letters and consultation responses received, including details of any non-material planning observations, are available for inspection both prior to and at the meeting.
Anyone wishing to make further comments in relation to the application must ensure these are received by the Council by 12 noon on the last working day before the date of the Committee.
Members of the Public
Letters of objection have been received from the occupiers of Nos. 6 and 8
Muirfield Way, Mansfield Woodhouse in relation to the following summarised matters:-


The Section 106 Agreement should not be changed as it is the only means that gives any guarantee to the residents of Mansfield that the development will be completed as planned. Amendments to the agreement will undermine trust.

A change can only benefit the developer and weaken the position of the Council

The Local Government Ombudsman will not entertain any changes to a
Section 106 Agreement as the developer has already agreed to the contract;

The completion of the nursing home foundations does not mean that the developer will complete the care home.

The existing agreement must be enforced.
POLICY & GUIDANCE
National Planning Policy
National Planning Policy Framework (NPPF) 2012
– The NPPF replaces the
Planning Policy Statements and Guidance. This national policy document advises that applications should be considered in the context of presumption in favour of sustainable development.
Paragraph 203 advises that local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions or planning obligations. Planning obligations should only be used where it is not possible to address unacceptable impacts through a planning condition.
Paragraph 204 advises that planning obligations should only be sought where they meet all of the following tests:

necessary to make the development acceptable in planning terms;

directly related to the development; and

fairly and reasonably related in scale and kind to the development.
Paragraph 205 of the National Planning Policy Framework (NPPF) advises that where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled.
ISSUES
The key issues in relation to the proposed Section 106 amendment relate to the following matters:-
1. The delivery of the care home
2. Other matters

1. The delivery of the care home
The key reason for approving the 58 residential units on the site was to ensure that the employment allocation was delivered in accordance with the saved site specific policy in the Mansfield District Local Plan and advice contained in PPS4 which provided a much more flexible definition of employment (PPS4 has now been superseded by the NPPF).
The purpose of restricting the occupation of the residential units on the site was to ensure that the applicant / developer provided the care home and the ongoing employment in connection with such a facility. Restricting the development so that only 29 units could be occupied prior to the completion of the care home was considered to be reasonable in terms of allowing the developer to sell half the houses in order to fund the construction of a care home which, as a stand alone development, is not economically viable.
In a supporting statement, the applicant has outlined that due to changes in bank policies brought about by a continued period of economic uncertainty; their care home operator has withdrawn from the development due to the inability to raise the necessary finance. The developer has therefore requested that the phasing of the development be amended in order to continue their self financing of the development and to enable the care home to be further marketed. The developers’ preference for this approach is due to the changing requirements of care home operators and to negate the need to undertake further uneconomical works to the internal aspects of the shell of the building, should it not meet the requirements of the a new operator.
Viability is a material planning consideration and advice issued by the Chief
Planning Officer at the Department for Communities and Local Government
(CLG) encourages Local Planning Authorities to understand the impact of planning obligations on the viability of development. Furthermore Paragraph
205 of the National Planning Policy Framework (NPPF) advises that ‘where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned deve lopment being stalled’ .
Having considered the advice issued to Chief Planning Officers by CLG, the requirements of the NPPF and the statement provided by the applicant, I am of the opinion that the proposed amendment to the Section 106 Agreement to allow 44 of the 58 residential units to be occupied prior to the completion of the care home shell is flexible and would not prejudice the Council’s reason for granting planning permission for the enabling residential development, given that the last 14 dwellings (approximately 25% of the development) could not be occupied.
2. Other matters
Two letters of objection have been received from members of the public in relation to the variation of the S106 Agreement. Objection is raised on the

grounds that the amendment of the agreement will undermine trust, changes will benefit the developer and weaken the Council’s position, the Local
Government Ombudsman would not accept such changes, the nursing home will not be completed and the existing agreement should be enforced.
Firstly, it is not accepted that the variation of the S106 Agreement will undermine public trust. The amendment to the agreement has been fully advertised (site notice and postal consultations sent to all members of the public who have previously made comments) and referred to Planning
Committee for consideration. It is accepted that the amendment will benefit the developer and will result in the care home being delivered later, however the amendment will still ensure that the care home is delivered prior to the occupation of the remaining 14 dwellings on the site and therefore it would not be in the interest of any developer to construct houses where occupation is not permitted until the care home is complete to a shell finish. Furthermore as detailed in section 1, the proposal is considered to be in accordance with the
NPPF.
Secondly, in respect of the comments made in relation to the role of the Local
Government Ombudsman (LGO), the role of the LGO is to impartially investigate complaints made in respect of a range of public services, including planning. It is not a matter for the LGO to determine the decision which should be made by a Local Authority in relation to the variation of a S106
Agreement.
CONCLUSION
Having fully considered the supporting statement provided by the applicant and having assessed the grounds of objection raised by members of the public, I am of the opinion that the amendment to the Section 106 Agreement would still ensure that the care home is delivered, albeit following the occupation of further dwellings, in accordance with the Council’s reasons for granting planning permission in August 2011.
It therefore recommended that:-
Recommendation – a) That delegated Authority be granted to the Head of Planning and
Regulatory Services to approve a deed of variation to the Section 106
Agreement dated 24 August 2011 relating to application 2011/0318/NT to increase the number of dwellings which can be occupied from 29 to 44 before the care home is built to a shell finish.
SUMMARY OF REASONS FOR DECISION
In the opinion of the Local Planning Authority, the variation of the Section 106
Agreement relating to the phasing of the development will not compromise the purpose of the planning obligation or the reasons provided for granting planning permission reference 2011/0318/NT. Having considered the supporting statement

provided by the applicant, the proposal is considered to be in accordance with
Paragraph 205 of the National Planning Policy Framework (NPPF).
Summary of relevant policies
National Planning Policy Framework (NPPF) 2012
– The NPPF replaces the
Planning Policy Statements and Guidance. This national policy document advises that applications should be considered in the context of presumption in favour of sustainable development.
Paragraph 205 of the National Planning Policy Framework (NPPF) advises that where obligations are being sought or revised, local planning authorities should take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled.