OFFICERS' REPORTS TO
DEVELOPMENT COMMITTEE - 19 MARCH 2015
Each report for decision on this Agenda shows the Officer responsible, the
recommendation of the Head of Planning and in the case of private business the
paragraph(s) of Schedule 12A to the Local Government Act 1972 under which it is
considered exempt. None of the reports have financial, legal or policy implications save
where indicated.
PUBLIC BUSINESS - ITEMS FOR DECISION
1.
Planning Application ref: PO/14/0283 - Residential development for a maximum
of 126 dwellings; Land South of Cromer Road and East of Grove Lane for
Endurance Estate Strategic Land Ltd and Greshams School („Site 1‟)
Planning Application ref: PO/14/0284 - Residential development for a maximum
of 19 dwellings; Land South of Cromer Road and West of Grove Lane for
Endurance Estates Strategic Land Ltd and Greshams School („Site 2‟)
Planning Application ref: PO/14/0274 - Residential development for a maximum
of eight dwellings; Land north of Grove Lane for Endurance Estates Strategic
Land Ltd and Greshams School („Site 3‟)
This report concerns three outline applications for residential development in Holt
on land associated with Greshams Schools. These applications were previously
considered on 21 August 2014 but are being referred back to Committee for
reconsideration.
Background
These three planning applications were considered by this Committee on 21 August
2014. All three applications were recommended for refusal on development plan
policy grounds (see reports in Appendix 1). Members however resolved to approve
the applications in view of the facilitating benefits which would accrue to Greshams
School and in turn to the wider economic benefits of Holt. This resolution to approve
was subject to a number of matters being delegated to the Head of Planning (see
minutes of 21 August 2014 in Appendix 2).
Whilst these applications were delegated to the Head of Planning to determine in
accordance with the Committee resolutions, concerns have been raised in relation to:
(i)
A challenge by another applicant in relation to the Appropriate
Assessment under the Habitats Regulations 1994 which implemented
Article 6(3) of the European Habitats Directive 92/43/EEC relating to the
applications listed above.
(ii)
Receipt of a pre-action protocol letter raising procedural issues.
The referral of these applications back to Development Committee remedies the
procedural aspects raised in relation to the previous Committee hearing. These
procedural issues do not constitute material planning considerations, and are
therefore not a matter for Development Committee to consider in determining these
applications.
Development Committee
1
19 March 2015
Other outstanding matters, including reference to (i) above, issues previously
delegated to the Head of Planning and additional information submitted in support of
the applications are addressed below.
Progress on Matters Delegated to the Head of Planning
The Section 106 Agreement
Members may recall that at the time of the Committee meeting in August last year
the applicants had prepared an initial draft Agreement. Since then there has been
considerable discussion and negotiation between officers and the applicants'
representatives on the form and detail of the Agreement. The Agreement is
particularly complex given that it relates to three different sites and applies to both
the applicants as recipients of the proceeds of the land sales as well as to future
developers of the sites.
Members will recall that the applications propose only 10% of the combined total of
dwellings to comprise of affordable dwellings (all to be provided on one site (Site 1).
A significant element of the Section 106 Agreement relates to potential financial
'uplift' contributions towards the provision of affordable housing in the district.
The Committee resolution referred to six specific matters which the Agreement
should include. These (along with an accompanying commentary) are as follows:

Amended uplift clause (to reflect the Council's standard uplift) - This
relates to an equal share of any developer profit (in excess of 20%) between
the developer and the Council. The Council contribution is to be used towards
the provision of affordable housing elsewhere. The draft Agreement now
complies with this requirement.

Amended affordable housing terms to reflect the Council's Standard
Terms - The draft Agreement also now complies with this requirement.

Satisfactory time scales for completion of the enabling works including
the construction of the 6th form block - The facilitating case put forward
by the applicants was that the land receipts from the application sites would
be able to finance a new 6th form building and refurbish existing school
boarding houses, hence the importance of securing these works in the event
of granting planning permission. The way in which this has been agreed with
the applicants is that the receipts from the land sales (minus certain
deductions) can only be spent on the 'approved projects' (i.e. the 6th form
block and boarding house refurbishments). In addition these monies have to
be spent on the 6th form building within 3 years of final receipt and on the
boarding houses within 5 years of final receipt. If the receipt the School
receives (after the deductions) exceeds the agreed cap on the costs of the
works to the 6th form centre and the boarding houses, this excess is to be
paid to the Council as an additional contribution for affordable housing1.

Amended triggers to ensure that detailed information is submitted at the
reserved matters stage This relates to the timing of submission of
detailed schemes for affordable housing and public open space. The draft
Agreement now complies with this requirement.
1
The total financial contributions potentially payable to the District Council towards affordable housing shall
not exceed the equivalent of 45% affordable housing of the total number of dwellings proposed.
Development Committee
2
19 March 2015

Phasing mechanism to ensure the provision of affordable housing on
site 1 in advance of the completion of development on site 2 and site
3
- The intention of this was to hasten the provision of the affordable
dwellings on site 1 (which is to provide all the cumulative 10% amount of
affordable housing) and to avoid priority being given to the development of
sites 2 & 3 instead. The applicants are however unwilling to accept any
mechanism in the Agreement which would make the progression of
development on one site dependent upon the progression of another. This is
because the sites could be sold to different developers. Instead it has been
agreed that on the sale of sites 2 & 3, equivalent sums to the provision of two
affordable dwellings (in the case of site 2) and one affordable dwelling (in the
case of site 3) will be placed in a separate bank account (an 'escrow' account)
and in the event of the equivalent number of affordable dwellings not being
available for occupation on site 1 within a set timescale, the 'escrow' account
money will be paid to the Council as an additional contribution towards
affordable housing provision elsewhere. Such payments would be over and
above the eventual 10% affordable housing provision on site 1 and any
monies received for off-site affordable housing through the other provisions of
the Agreement.

All other commuted sums referred to in the Heads of Terms - The
Agreement includes the provision of all these payments (i.e. towards
education, libraries, healthcare, transport, public open space and visitor
impacts).
The content and detailed wording of the draft Agreement has now been agreed
between Officers and the applicants should the Committee resolve to grant planning
permission.
Referral to the Secretary of State
Sites 2 & 3 involve land currently in use as school playing fields. In accordance with
the Town and Country Planning (Consultation) (England) Direction 2009 the Council
was required to consult with Sport England. Sport England objected to both planning
applications and consequently, as required by the same Direction, the Council
referred both applications to the Secretary of State. In separate written responses to
both planning applications the Secretary of State has decided "...not to call in the
application. He is content that it should be determined by the local planning
authority".
Grove Lane / Cromer Road Link
The Committee resolution to approve application ref: PO/14/0274 (site 3) included
the following: "That Officers use their best endeavours to negotiate a link between
Grove Lane and Cromer Road, with a one-way system being introduced on Grove
Lane". This arose from a proposal made by a local member. The local member has
since met with officers and explained that his proposal would be for such a link road
to form a junction with Grove Lane at the western end of site 3, forming a straight
route through to Cromer Road. Subsequent discussions have taken place with the
highway authority. The highway authority has advised that it is currently considering
options to provide a footway along one side of the western end of Grove Lane (which
has no such provision at present). One option would make this end of Grove Lane
one-way for traffic (in an easterly direction). The highway authority has not
discounted that such a link road could be technically feasible and has observed that
whilst it would not be a requirement in the event of Grove Lane becoming partially
one-way, it would reduce the length of detour that residents would need to do. The
cost of such a link road would not be publicly funded.
Development Committee
3
19 March 2015
In a written response the applicants have stated that for a number of reasons they
are not willing to provide the link road. These reasons are provided in the letter
attached in Appendix 3.
Planning Conditions
The Committee resolutions delegated the imposition of planning conditions 'as
considered appropriate by the Head of Planning'. Draft decision notices for each
application have been prepared and shared with the applicants. These are attached
in Appendix 4.
Challenge in relation to the Appropriate Assessment
Following the receipt of a letter detailing a potential challenge by another applicant in
relation to the Appropriate Assessment under the Habitats Regulations 1994 which
implemented Article 6(3) of the European Habitats Directive 92/43/EEC relating to
these applications, the Council has reviewed the Appropriate Assessment..
The full report is attached as Appendix 5, and
.
 Addresses the concerns raised by Pegasus Group in their letter dated
30th September 2014;
 Provides clarification on the terminology and the justification behind the
appropriate assessment for the residential development of up to 153
dwellings in Holt, „the project‟;
 Updates the appropriate assessment for the project to include the incombination effects of the proposed development for the erection of 170
dwellings on land south of Lodge Close, Holt;
 Provides a further update on the appropriate assessment for the project
to incorporate the information and advice received following the
completion of the initial appropriate assessment in August 2014.
This constitutes a comprehensive Habitats Regulations Assessment for the project
as required of the Competent Authority, that being North Norfolk District Council.
North Norfolk District Council concludes that the project will not adversely affect the
integrity of the North Norfolk Coast European Sites or the Norfolk Valley Fens
European Site either alone or in-combination with other plans or projects.
Given the potential challenge, following the review of the Appropriate Assessment
(referred to above), external legal advice was sought from Counsel, this concludes:
“In my view, the way in which the Council has addressed each of the issues
raised by the Pegasus Group, combined with the review conducted in the
Landscape Partnership Report, result in a much improved position for the
Council. The previous vulnerability to challenge via judicial review has been
significantly reduced. The planning judgement of the Council, as exercised
by the Development Committee when the Applications are re-considered later
this month, will be informed by a clearly articulated position in relation to incombination effects arising from the proposed Gladman development,
bolstered by an independent review. As long as the Development Committee
properly takes these matters into account, the prospect of a successful
judicial review based on flaws in the appropriate assessment is much
reduced”
Development Committee
4
19 March 2015
Assessment of Economic Benefits
The previously minuted reasons of this Committee in resolving to approve the three
applications (Appendix 2) were on the basis of the wider economic benefits of
securing the facilitating developments to the School. Whilst the original submissions
with the applications made reference to these economic benefits the applicants have
recently submitted a more detailed analysis of these economic benefits. The report
„Assessment of Economic Benefits Associated with Greshams School‟ is attached in
Appendix 6.
Certificates accompanying application for Site 1
Following consideration of the applications by the Committee in August of last year, it
came to light that a small strip of land within Site 1 may not be within the ownership
of the School or any parties notified of the applications. The relevant Development
Order requires an applicant for planning permission to give notice to any person
other than the applicant who is an owner of the land to which the application relates.
Where (as may be the case in respect of the small area of land concerned) the owner
of the land cannot be ascertained, it is necessary for a notice of the application to be
published in a local newspaper. Such a notice has been published and the
appropriate certificate (“certificate C”) provided by the applicants.
This did raise a question as to the possible legal consequences of the late
submission of certificate C and Counsel was asked to consider this point and to
advise. In brief summary Counsel has considered the relevant case-law and
concluded that “a late certificate C can properly be fed into the process before the
applications are determined. An application for judicial review by someone not an
owner of the land in issue, based on the initial erroneous certificates, would have little
if any prospect of success.”
Site 1 – Landscape issues
One of the recommended reasons for refusal of application ref: PO/14/0283 was as
follows: Contrary to the objectives of Core Strategy Policy EN 2, the applicants have
failed to demonstrate that the proposed development would not result in an adverse
impact upon the character and appearance of the rural fringe to Holt, and in particular
the approach into the town along the A148. (Appendix 1)
In part this reflected concerns expressed by both the Town Council and this Council‟s
Landscape Officer relating to the need for significant landscaping treatment to the
boundary of the Site 1 with the A148.
Following the August Committee resolution a draft list of planning conditions was
shared with the applicants. These included a requirement for a detailed landscaping
scheme which should include the provision of a minimum 10m wide landscaping belt
along the boundary with the A148.
In response to this the applicants have recently submitted a Landscape and Visual
Impact Assessment, undertaken by The Landscape Partnership dated February
2015. This study is compliant with recognised methodology (GLVIA, edition 3) and
includes detailed analysis of the impact of the development on the local landscape
character and of the predicted visual effects.
This Assessment concludes that given the contained nature of the site by virtue of
the mature woodland surround, the effects on the local landscape character would be
limited. By Year 10, the significant visual effects would be limited to the public
footpath and one residential property (82 Grove Lane) along the west boundary.
Development Committee
5
19 March 2015
The Landscape Officer remains concerned with regard to the high density on this
rural fringe site at the edge of the settlement within the Wooded with Parkland
Landscape Type, as defined in the North Norfolk Landscape Character Assessment
(SPD June 2009). The working up of any detailed layout must ensure a strong
landscape planting structure throughout the development site to complement the
existing landscape character, relying on the mature woodland surround to the site to
provide the landscape framework would not be acceptable.
The Assessment also includes detailed analysis of the efficacy of the screening effect
of the landscape planting along the length of the A148 by-pass in order to justify the
assertion that a 7m wide planting belt along the southern boundary of the site will
provide sufficient screening, rather than a 10m belt as proposed by the Council.
On balance, it is considered that the 7m wide belt with mixed planting comprising
stands of pine, blocks of deciduous trees and a native shrub understorey, planted on
a 1.5 high bund is acceptable, given that this will supplement the existing planting
alongside the main road and along the disused railway line. To this end Condition 3
as proposed can be amended accordingly, as is included in Appendix 4.
RECOMMENDATION
As referred to in the reports to this Committee on 21 August 2014 all three outline
planning applications represent a departure from the development plan. Planning law
requires that applications for planning permission must be determined in accordance
with the development plan unless material considerations indicate otherwise. It has
been acknowledged previously that any public benefits perceived to arise from the
proposed housing developments, as facilitating developments, can be treated as a
material consideration. The question is what degree of 'weight' should be attached to
such facilitating development? It remains the view of officers that the case for the
facilitating developments does not outweigh the extent to which these proposals
depart from development plan policies, and accordingly the recommendation on all
three applications remains one of Refusal.
However the Committee previously resolved to approve the applications for the
reasons set out in the minutes of the meeting held on 21 August 2014.
In the event that the Committee resolves once again to approve the applications it is
recommended that this is subject to the formal completion of the S.106 Agreement
and to the conditions specified on the draft decision notices attached in Appendix 4.
As was the case at the August 2014 meeting, the Committee is advised that is
appropriate to consider the three applications together, but must make separate
resolutions.
Planning Application ref: PO/14/0283 - Residential development for a maximum
of 126 dwellings; Land South of Cromer Road and East of Grove Lane for
Endurance Estate Strategic Land Ltd and Greshams School („Site 1‟)
Planning Application ref: PO/14/0284 - Residential development for a maximum
of 19 dwellings; Land South of Cromer Road and West of Grove Lane for
Endurance Estates Strategic Land Ltd and Greshams School („Site 2‟)
Planning Application ref: PO/14/0274 - Residential development for a maximum
of eight dwellings; Land north of Grove Lane for Endurance Estates Strategic
Land Ltd and Greshams School („Site 3‟)
Development Committee
6
19 March 2015
2.
CHANGES TO CONSTITUTION AND SCHEME OF DELEGATION
Purpose of this report
A review has been undertaken of the Sections of the Constitution that relate to
Development Committee (Part 5, Chapter 3) and the Default Delegations to the Head
of Planning (Part 6, paragraphs 6.2-6.4). This report makes recommendations as to
changes these sections of the Constitution.
These are intended to clarify and consolidate the Council‟s current practices,
processes, and procedures and where changes are proposed this are clearly
highlighted in the appendices as matters for consideration by the Committee and
approval by the Constitution Working Party.
In addition, the report includes a more detailed list of the delegated duties and
legislation under which the Head of Planning, and officers authorised on her behalf
are authorised to act.
Background
It is important that the link between the Council‟s Constitution, Scheme of Delegation
and the decisions that Officers make is clear. This could became a serious issue
should the Council proceed with any legal action, or be challenged in respect of our
decision making process. This matter was highlighted in a recent legal case
Pemberton International Limited v London Borough of Lambeth.
The observations that the judge made on the council's constitution, including
its scheme of delegation, will be of interest given his criticism that they were
not well structured or clearly drafted. Further he considered the documents
failed to provide for a clear and comprehensible allocation of functions
between bodies and to identify which bodies, officers or groups of officers
were authorised to exercise particular functions. In his view, amending and
improving its constitution, would minimise the risk of further challenges to the
legality of the council's decisions.
EWHC 1998 (Admin) (18 June 2014)
In this respect, it is considered that further clarification is required in terms of role of
Development Committee, the delegation to the Head of Planning and the
authorisations given to other Officers.
Proposed Changes to the Development Committee Terms of Reference
Appendix 7 sets out the current relevant provision of the Constitution and alongside
it the proposed changes.
The key changes proposed here are:
1. Clarification as to what is covered by Item 1 to include „all statutory
functions of the Council acting as Local Planning Authority, including …..
2. Delete item 2, as integral part of reaching a planning decision, there is no
need to make specific reference to this within the Constitution
Development Committee
7
19 March 2015
3. Delete item 3. This does not need to be included in the Constitution. The
Committee receives information regularly on performance for information
purpose
4. Item 4 – additional information included for clarification purposes.
5. Item 5 changes are proposed in this this is amended such that where the
Committee is minded to determine an application contrary to the Officers
recommendation and in the view of the Head of Planning (or senior
representative at the meeting)it would have major implications for
planning policy or be a significant departure from the Development Plan
without sound reasons for doing so, or would fail to observe the proper
principles of planning decision, the resolution is that the Committee is “
MINDED TO” ….., and the matter is brought back to the Committee with a
„risk report‟ outlining the implications should members wish to make such
a recommendation.
This an approach adopted by other authorities and attached for member
information as Appendix 8, is an extract from Plymouth City Council
outlining how this would operate.
6. Item 7 – add the work „Working Parties‟ – for clarification purposes.
7.
Wording of footnote to be amended for clarification purposes.
Proposed Changes to the Default Delegation to Head of Planning
Delegation to Officers is set out in Chapter 6 of the Council‟s Constitution.
Paragraph 5.4 of the Constitution specifies:
Head of Service shall have full delegated powers to undertake the function
relevant to their office. However, these general delegation powers shall not,
unless specifically provided, be taken to include any power reserved to the
Council or given to a Committee by the Council‟s Terms of Reference nor any
Conditional or Default Delegated power contained in Section 6 below.
The second sentence of paragraph 5.4 is confusing, as for the development
management part of the Head of Planning‟s role, this conflicts with the terms of
reference for Development Committee. It is therefore recommended that the second
sentence is deleted, and paragraph 5.4 amended to read:
“Head of Service shall have full delegated powers to undertake the function relevant
to the their office”
In terms of day to day operation, it means that the Officers would continue to
undertake the functions listed in Appendix 9. Appendix 10 is the list of legislation
under which the Head of Planning and other Officers are authorised to act.
The key changes include:
1
Recommending that Certificate of Lawfulness be dealt with, following
consultation with Head of Legal Services
2
Enforcement – this is part clarification and part changes. To clarify that
work required in investigating a breach is delegated to the Head of
Planning, new in respect of:
a. To service Section 2015 to address Untidy Land
Development Committee
8
19 March 2015
b. Temporary Stop and Stop Notice are recommended to be delegated
as taken in response to extreme situation, where action is required
immediately
c. The decision to terminate an investigation where it is not
expedient/appropriate to take enforcement action
d. When Member authorise the serving of Enforcement Notice, it will
include authorisation to prosecute if the notice is not complied with
e. Any decision to take Direct Action remains a decision of the
Development Committee
The changes proposed to Chapter 6, Conditional and Default Delegation are set out
in Appendix 11.
With regard to the Note 4 attached to 6.2 which specifies:
“Applications submitted by or on behalf of the District Council and applications for
wind turbines and solar farms may be determined under delegated powers with the
agreement of the Local District Councillor(s) and the Chair or Vice Chairman of the
Development Committee.”
It would appear that this was introduced following a decision by full Council on 24
October. The relevant extract from the minutes specify:
RECOMMENDATION FROM DEVELOPMENT COMMITTEE 18 OCTOBER
2012
ITEM 11: WIND TURBINE APPLICATIONS AND SCHEME OF
DELEGATION.
This item was presented by the Chairman of the Development Committee.
She explained that, at its meeting on 18 October, the Development
Committee had agreed to recommend to Council that the Scheme of
Delegation within the Constitution be amended to allow applications for wind
turbines or for solar farms to be determined under delegated powers with the
agreement of the local District Councillor(s) and the Chairman or ViceChairman of the Development Committee, with the proviso that this matter be
reviewed after 6 months. This change would therefore allow additional
scrutiny of these applications above and beyond that presently applying to
other types of development under the Scheme of Delegation.
RESOLVED that
a) The Scheme of Delegation within the Constitution be amended to allow
applications for wind turbines or for solar farms to be determined under
delegated powers with the agreement of the local District Councillor(s) and
the Chairman or Vice-Chairman of the Development Committee.
b) This matter be reviewed after 6 months.
It does not appear that a review of the matter was undertaken after 6 months,
therefore Members are asked to consider this matter now.
It is suggested that this Notes in the Constitution remains unaltered, except for
clarification as to what constitute a solar farm. In this respect it is suggested that this
relates to solar farm in excess of XXXXXX.
Development Committee
9
19 March 2015
Proposed Changes to Part 3 Statutory “Proper Officer” Functions which are
allocated to Officers
This section of the Constitution includes a list of the statute,
role/function/responsibility/ Proper Officer. At the moment this list includes in relation
to Planning the following:
Statute
Planning (Listed Buildings
and Conservation Areas)Act
1990 Part 1
Town and Country Planning
Act 1990
Sections 197-214
Tree Regulations
Role/Function/Responsibility Proper Officer
Protected Buildings
Head of Planning
Matters relating to Tree Head of Planning
Preservation Orders and tree
in Conservation Area
It is suggested for clarification purposes this is amended as shown below:
Statute
Planning (Listed Buildings and
Conservation Areas)Act 1990
(as amended) – All Parts
Town and Country Planning
Act 1990 (as amended) – All
Parts
Town and Country Planning
(Control
of
Advertisement)Regulations
1992 (as amended)
Planning
(Hazardous
Substances)Regulations 1992
as amended
Role/Function/Responsibility Proper Officer
All functions
Head of Planning
All functions
Head of Planning
All functions
Head of Planning
All functions
Head of Planning
Recommendations
That Development Committee resolve to:
Recommend to the Constitution Working Party to approve the changes to
the Constitution in relation to the terms of reference and conditional and
default delegation
(Source: Nicola Baker, Head of Planning ext 6135)
Development Committee
10
19 March 2015