FULL COUNCIL
22 FEBRUARY 2012
Agenda Item No___22________
Development Committee - Application PF/09/1270
Summary:
To consider the financial implications of an appeal arising from
the decision of the Development Committee re - Planning
application PF/09/1270: Installation of buried electrical cable
system in connection with off-shore wind farm; land from
Weybourne to Great Ryburgh for Dudgeon Offshore Wind Ltd
Conclusions:
-
Recommendations:
The Council is asked to consider the financial implications of this
matter and the possible impact on the Council’s budget.
Cabinet member(s):
Ward(s) affected:
All
All
Roger Howe/Steve Oxenham, ext 6016/6135
Contact Officer, telephone number,
and e-mail:
Roger.howe@north-norfolk.gov.uk
Steve.oxenham@north-norfolk.gov.uk
1.
1.1.
Introduction
This application was for planning permission for the construction of an
underground cable system from Weybourne to Great Ryburgh, as part of the
connection of the proposed Dudgeon Offshore Wind Farm to the national
electricity distribution network. Some 27.7 km of the proposed cable route
passes through North Norfolk from the coast at Weybourne then through the
parishes of Kelling, Salthouse, Cley, Letheringsett with Glandford, Field Dalling,
Brinton, Thornage, Gunthorpe, Hindringham, Thursford, Fulmodeston, Stibbard
and terminating at the boundary between North Norfolk and Breckland in the
parish of Great Ryburgh. Breckland District Council has granted planning
permission for the proposed cable route in its area to the site of a proposed substation at Little Dunham. However, although that part of the cable route has
planning permission, Breckland refused planning permission for the proposed
sub-station. The applicants appealed against the refusal of the sub-station
application and that appeal was dismissed by the Secretaries of State for
Communities and Local Government and Climate Change. The appeal decision
is now subject to a legal challenge listed for hearing in the High Court in March.
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22 FEBRUARY 2012
1.2.
The application for the cable route in North Norfolk has been considered by the
Development Committee (formerly the Development Control Committee) on a
number of occasions in the period July 2010 - January 2012.
1.3.
Determination of this application was originally deferred at a meeting on 8 July
2010, following the resolution of the Committee to be minded to refuse the
application on grounds of loss of amenity, possible risk to health, inadequate
mitigation measures to address all of the environmental impacts which have been
identified, significant adverse impact on the landscape and environment and long
term adverse impact on a significant amount of agricultural land.
1.4.
The reason for deferral at that time was in order for Officers to obtain expert legal
advice on the possible reasons given for refusal and also to explore with the
applicants the possibility of an alternative offshore route. A written opinion was
obtained from Counsel upon those possible reasons for refusal and the
applicant’s Solicitors’ submissions, and this was reported as an item of Private
Business to the Development Control Committee on 21 October 2010.
1.5.
The application was referred back to a meeting on 18 November 2010 when
determination of this application was also deferred in view of 16 letters and
emails of objection being received in the two days before the meeting. These
submissions raised issues which required further time to consider, and required
further expert and legal advice and responses from the applicant.
1.6.
The application was reported back to the Development Committee on 14 July
2011 when it was resolved to defer determination for the following reasons:
1.
2.
3.
4.
5.
6.
To await the outcome of the inquiry in respect of the Little Dunham substation.
To seek the applicants’ views as to whether they are willing to delete stage
2 from the current application.
To request the applicants to reconsider the precise route at Westwood
Farm, Great Ryburgh.
To seek further information on the short-term impact on tourism and
agriculture.
To seek the applicants’ view as to the use of horizontal directional drilling
across the Rivers Stiffkey and Wensum.
To seek further information in respect of soil heating.
1.7
The application was taken back for consideration by the Development Committee
on 12 January 2012. The officer report to the Committee set out updates on the
matters listed above and concluded (as had the report to the Committee on 14
July 2011) with a recommendation by the Head of Planning and Building Control
that the application be approved, subject to the imposition of appropriate
conditions as detailed in the report.
1.8
The minutes of the Committee meeting held on 12 January 2012 will be received
under item 16 of the agenda for this meeting. It will be noted (minute (187)) that
the Committee resolved that the cable route application be refused on grounds
“that the proposal would have a detrimental impact on the landscape and a
detrimental impact on the local agricultural economy".
FULL COUNCIL
22 FEBRUARY 2012
2.
The appeal
2.1
The formal notice of refusal of the application has been issued. The applicant
has now appealed against that decision and has asked the Planning Inspectorate
for the appeal to be heard at a public inquiry. This is likely to be scheduled in the
months of April, May or June, and the appellant has suggested that six days be
allocated to the inquiry. Confirmation that the appeal has been validated is
awaited from the Planning Inspectorate.
2.2
It is therefore necessary for the Council to determine how the case for refusal of
the application will be presented at the inquiry. In circumstances where an
application for planning permission has been recommended for approval but
refused for reasons which the Council’s Officers are unable to support, it is usual
for external professional witnesses to be appointed to present the Council’s case
on appeal. However no budgetary provision exists for the appointment of
external consultants and it is therefore necessary to determine how to proceed in
this case.
2.3
Given the officer recommendation to the Development Committee to approve the
application Planning Officers are unable to support the reasons for refusal as the
Head of Planning and Building Control and his senior colleagues are members of
the Royal Town Planning Institute and bound by the RTPI’s Code of Professional
Conduct. This states that by virtue of the Code “Members shall not make or
subscribe to any statements or reports which are contrary to their own bona fide
professional opinions and shall not knowingly enter into any contract or
agreement which requires them to do so.”
2.4
The options for the Council in defending this appeal are therefore for the Council
to appoint appropriately qualified witnesses to defend each of the Committee’s
stated reasons for refusal or for the issue of the representation of the Council to
be remitted to the Development Committee for further consideration.
2.5
If the Council wishes to appoint a professional team this should comprise
Counsel, a landscape consultant, an expert to explain what physical impact(s)
the scheme would have on the agricultural performance of the farms through
which it passes, an expert to explain what economic harm that impact would
cause (i.e. an expert in the financial viability of farm enterprises and the
agricultural sector generally) and a planning consultant to explain why the harm
caused would bring the scheme into conflict with the development plan and to
explain why that conflict is not outweighed by other material planning
considerations. Based on previous experience of other major planning appeals it
is expected that this may cost up to £100,000. There is no budgetary provision
for this level of expenditure and the decision of the Development Committee on
12 January post-dates the preparation of the budget for 2012/13 which Full
Council will be asked to approve at this meeting.
3.
Financial implications
3.1
The financial implications of the appeal against the Council’s refusal of the cable
route application may also include the potential costs which the appellant may
seek to claim against the Council. At the inquiry the Council will have to
demonstrate why the proposed development is unacceptable. It is open to the
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22 FEBRUARY 2012
appellant to seek an award of costs against the Council on the grounds of
unreasonable behaviour if the Council cannot produce evidence to substantiate
the refusal reasons. It will be necessary to make provision for a contingent
liability in respect of these potential costs.
3.2
The Council is asked to consider the financial implications of this matter
and the possible impact on the Council’s budget.