OFFICERS REPORTS TO
JOINT MEETING OF DEVELOPMENT CONTROL COMMITTEE (EAST & WEST)
16 MARCH 2006
Each report for decision on this Agenda shows the Officer responsible, the recommendation
of the Head of Planning and Building Control 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 - ITEM FOR DECISION
1.
NORTH WALSHAM – 20051482 – Conversion and extension of buildings to
provide 12 holiday units together with communal recreation facilities and car
parking; Ebridge Mill, Happisburgh Road for Tritec Synergy Limited
To consider whether to grant planning permission for the conversion and extension
of a redundant former mill building to provide twelve holiday units.
Background
The application was considered at the meeting of the Development Control
Committee (East) on 9 February 2006, when it was resolved to grant permission
subject to no objections being received from outstanding consultees, the modification
of a legal agreement revoking permission for an adjoining haulage use and the
imposition of conditions including restriction to a holiday use only. It was agreed that
the application should be referred to the Joint Committee for final determination as
the proposed scheme involves a significant element of new building. A Joint
Development Control Committee site visit was to be held on 14 March 2006.
A copy of the report to Development Control Committee (East) held on 9 February
2006 is attached as Appendix 1.
Key Policy Issues
1. The extent of new building in the Countryside policy area.
2. Character and appearance of the site.
Appraisal
The site lies approximately 1 mile to the east of North Walsham in an area
designated as Countryside where Polices 5, 29 and 126 of the North Norfolk Local
Plan are relevant to the proposal. Ebridge Mill is a sizeable complex of traditional
and more recent, poor quality industrial type additions and buildings which are a
prominent feature within the landscape.
The principle of conversion of the building to holiday accommodation has been
established by the granting of outline permission in September 2004. However, the
current proposal involves both the conversion of the traditional building and the
demolition of the more modern industrial structures being replaced with new-build
holiday accommodation of a similar footprint and volume.
Local Plan Policy 29 resists the conversion of buildings in the Countryside which
involves a significant element of new build and therefore the proposal is contrary to
this requirement. However, a Design Statement and Commercial Viability Report has
been submitted which seeks to justify the making of an exception to the current policy
requirement.
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16 March 2006
The submitted scheme indicates a high quality development that demonstrates that
both the existing building and the new element would maintain its character.
Moreover, the demolition of the unsightly buildings and cessation of commercial use
would greatly improve the appearance of the area and the amenities of local
residents affected by commercial traffic.
English Nature has commented on the submitted Ecological Survey raising issues in
respect of the timing of the survey work and the need for additional information. The
applicants are considering these requirements and an update on this matter will be
given at the meeting.
In conclusion it is considered that the element of new build is similar in scale and
mass to the existing dilapidated building and that the proposed replacement
represents a significant enhancement of the site and, in this instance, justifies an
exception to the adopted policy of the Development Plan.
RECOMMENDATION OF THE DEVELOPMENT CONTROL COMMITTEE (EAST):Approval, subject to conditions and the modification of the legal agreement
revoking the planning permission for the adjoining haulage use.
RECOMMENDATION OF THE HEAD OF PLANNING AND BUILDING CONTROL:Delegated approval subject to no objections from outstanding consultees,
modification of the legal agreement and the imposition of conditions in respect
of materials, landscaping, land decontamination, archaeological survey,
drainage, wildlife mitigation, flood protection and holiday use only.
Source: (Paul Took, Extn 6098 - File Reference: 20051482)
PUBLIC BUSINESS - ITEM FOR INFORMATION
2.
TETRA MAST AT NORTH WALSHAM POLICE STATION, YARMOUTH ROAD,
NORTH WALSHAM
HIGH COURT CASE
PENNINGTON –v1) THE FIRST SECRETARY OF STATE
2) NORTH NORFOLK DISTRICT COUNCIL
3) AIRWAVE MM02 LIMITED
This report updates the Committee on recent developments in the High Court case
relating to the Tetra mast at North Walsham Police Station.
Appeals were made to the Secretary of State against the refusal of planning
application 01 20030864 PF for the installation of an 0.8m extension to an existing
telecommunications tower, 3 x omni-directional antennae, 2 x 0.6m radio dishes and
an equipment cabin and also against the related Enforcement Notice issued by the
District Council. By virtue of the Inspector’s decision letter dated 17 January 2005
both appeals were allowed, the Enforcement Notice quashed and planning
permission granted.
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16 March 2006
The appeal decisions are the subject of a legal challenge by way of a claim to be
heard in the High Court Queens Bench Division. The claim has been made on behalf
of Henry Pennington, a child by his next friend Matthew Pennington, and the claim
has been made against the First Secretary of State, North Norfolk District Council
and MM02 Airwave Limited. The Council is named as a Defendant in this case as a
legal formality.
The claimant’s ground of appeal is that the Inspector erred in considering only the
public anxiety caused by perceived health effects resulting from the presence and
operation of the mast. It is asserted that there was evidence before her of actual
health effects which was plainly more than “anecdotal” and which she should have
considered as such and not simply as an aspect of public anxiety.
The Court is asked to quash the decision because of the alleged failure of the
Inspector to take into account material considerations.
This matter has been listed for hearing in the Administrative Court in London on 3
April 2006 with a time estimate of 2 days. Although the District Council is named as
second Defendant in these proceedings, the District Council will not be represented
at the hearing. This is because the legal challenge is against the decision made by
an Inspector appointed by the First Secretary of State upon appeals relating to an
Enforcement Notice issued by the Council and against the decision of the Council to
refuse planning permission. The Court has been informed that it is self-evident that
the District Council opposed the grant of permission and is therefore not aligned with
the First Secretary of State.
As at the date of preparation of this report the current position on this case is that the
Secretary of State (the First Defendant) has indicated that he is willing to submit to
judgment. The reasons for this, as set out in the formal Consent Order, are
“The First Defendant concedes that the said decision should not be allowed to stand
because it involved breaches of procedural fairness which prejudiced the Claimant’s
father (Mr Pennington). Mr Pennington submitted his representations within the time
allowed by the written representations procedure, by letters dated 1 June 2004 (in
the planning appeal) and 8 August 2004 (in the enforcement notice appeal). The
representations made by the Third Defendant on alternative sites changed
significantly from those appearing in their initial grounds of appeal dated 16 April
2004 (in the planning appeal) and 7 June 2004 (in the enforcement notice appeal) to
those advanced in additional representations made by the Third Defendant were
made after the deadline for Mr Pennington’s written responses had expired, when Mr
Pennington was under the impression that the appeal procedure afforded him no
further opportunity to make representations to the Inspector.”
The Court office has been informed that the Council is also willing to submit to
judgment. Airwave’s position as Third Defendant is unclear as at the date of
preparation of this report. By letter dated 28 February their Solicitors stated that their
clients have a conference with Counsel on 8 March and will notify other parties in this
case of their position after that date.
If Airwave does submit to judgment the consequence is that the appeals against the
refusal of planning permission and the enforcement notice are remitted to the
Secretary of State for reconsideration. The enforcement notice will, as was the case
during the course of the previous appeals, be live but in abeyance until the new
appeals are determined. Officers are considering the implications for the validity of
the Stop Notice previously served in relation to this development.
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If, on the other hand, Airwave do not agree to submit to judgment the High Court
case will proceed on 3/4 April as a contest between the Claimant (Henry Pennington)
and the Third Defendant (MM02 Airwave Ltd.).
RECOMMENDATION:The Committee will be updated orally in relation to any developments in this
case.
Source: (Roger Howe, Extn 6016 – File Reference: Tetra)
PUBLIC BUSINESS - ITEM FOR DECISION
3.
Development and Flood Risk – Applying the Sequential Test to Planning
Applications – Consultation on Planning Policy Statement 25
This report considers the need to revise the Council’s current approach with regard
to considering development proposals within areas subject to flood risk following the
publication of draft PPS25 and new advice from the Environment Agency.
Background
The issue of flood risk is a significant material consideration in both formulating
planning policy and determining planning applications. Over the years the
Government has issued a succession of guidance to Local Planning Authorities
regarding development and flood risk. In conjunction with this guidance the
Environment Agency (EA) is the body responsible for providing Local Planning
Authorities (LPA’s) with expert advice on issues relating to flood risk. The EA has
been responsible for providing (and refining) maps which indicate those areas which
are subject to both fluvial (rivers) and tidal (sea) flood risk.
Prior to the adoption of the North Norfolk Local Plan (1998) the EA issued indicative
flood risk maps for the District. These areas were shown in the draft consultation
version of the Local Plan but omitted from the adopted version. More recently the EA
issued revised maps dividing the District into three flood risk zones (high, medium
and low risk).
Local Plan Policy 46 states that “Development proposals will not be permitted where
it is considered by the Council, in consultation with the Environment Agency, that
there would be a significant increase in risk to life or property from the effects of
flooding”.
In the aftermath of some serious floods during the 1990’s the Government, in July
2001, issued PPG25, ‘Development and Flood Risk’. In December 2005 the
Government issued a consultation on PPS25 which is intended to supersede PPG25.
Significant areas of North Norfolk lie within the high flood risk zones. These areas
affect a number of settlements wholly or partly, specifically in the south-eastern part
of the District (Sea Palling, Eccles, Hickling, Sutton and Potter Heigham) and along
the low lying coast in the west of the District, including Salthouse, Cley and Wells.
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The Council’s Approach to Development and Flood Risk following publication of
PPG25
Following the publication of PPG25 a report was submitted to this Committee in
November 2001. The purpose of the report was to seek a way forward for
determining planning applications in light of the new guidance and in particular those
development proposals which lie within both high risk flood areas and Local Plan
settlement boundaries.
Paragraph 30 of PPG25 states that it “expects Local Planning Authorities to apply a
risk-based approach to the preparation of Development Plans and their decisions on
Development Control through a sequential test”. The sequential test places the onus
upon LPA’s, when allocating land in Development Plans or deciding applications, to
demonstrate “that there are no reasonable options available in a lower-risk category,
consistent with other sustainable development objectives”. In other words the order
of favourability should be low risk zones first and high risk zones last. Within high
risk zones PPG25 makes a distinction between (a) ‘Developed’ and (b) ‘Undeveloped
and sparsely developed areas’. It states that whereas in (b) residential, commercial
and industrial development is generally not suitable, in (a) it may be suitable provided
the appropriate minimum standard of flood defence can be maintained for the lifetime
of the development.
The resolution of this Committee at its meeting in November 2001 was made subject
to receiving the views of the EA and referral to the Council’s (then) Executive
Committee. The resolution included the proposal to treat land within high risk zones
and defined settlement boundaries (except for Eccles-on-Sea and Sea Palling) as
‘developed areas’ for the purpose of interpreting the advice in PPG25. A copy of the
Committee report and minute is attached in Appendix 2.
The matter was referred to the Council’s Executive Committee on 15 July 2002 (see
copy of report in Appendix 3). Following the receipt of comments from the EA and
concerns raised by Sea Palling Parish Council it was decided to include Eccles-onSea and Sea Palling along with other defined settlements in the Local Plan as
‘developed areas’ in terms of PPG25. The minute of the Executive Committee
meeting (Appendix 4) represents the interim Development Control policy which has
been in place up to the present in terms of supplementing Local Plan Policy 46 and
determining planning applications. Generally speaking it has been the practice to
grant planning permission for new development (in the main small-scale residential
schemes) within development boundaries of settlements which are subject to high
flood risk, provided that a satisfactory flood risk assessment has been agreed by the
EA.
Draft PPS25 and the Sequential Test
As mentioned previously the Government’s advice to LPA’s in PPG25 has always
been to apply a sequential test in terms of flood risk when either allocating or
permitting sites for development. Draft PPS25 expands upon this requirement. The
main text of PPS25 and Annex D which refers to ‘The Sequential Test and Exception
Test’ is copied in Appendix 5. The aim of the sequential test is to steer new
development to areas with the lowest probability of flooding. The exception test is
only justified where the former is not possible and in exceptional circumstances
where it is necessary to meet the wider aims of sustainable development.
Table D1 of PPS25 refers to the characteristics of the various flood zones (low,
medium, high, etc) and their appropriateness or otherwise for different types of
development. Table D2 categorises different types of development into varying
degrees of vulnerability to flood risk (highly vulnerable/more vulnerable/less
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vulnerable/water compatible). Thus, for example, Table D1 makes it clear that highly
vulnerable developments (e.g. hospitals) should not take place in a high risk flood
zone. Dwelling houses (more vulnerable) should only be permitted in this zone if the
Exception Test is passed.
The Exception Test is only applicable where it is not possible for the development to
be located in zones of lower probability of flooding. Even in these circumstances
there have to be sound sustainable reasons to permit such development. An
example would be the development of brownfield land which would make a positive
contribution to the sustainability of a community and where a flood risk assessment
demonstrates that this issue could be satisfactorily managed.
PPS25 makes it clear that the Exception Test should primarily be applied to the
allocation of sites as part of the Local Development Framework or in the drafting of
criteria based policies, since ‘this will minimise the need to apply it to individual
planning applications’.
Would the Exception Test ever be applicable to applications for planning permission
in North Norfolk? The conclusion has to be that it is very unlikely, certainly so in the
case of residential development. Whilst flood risk is a significant issue in some parts
of the District, the majority of North Norfolk is within the low risk flood zone.
Therefore there is no problem in being able to steer the majority of new development
to areas of low flood risk. Furthermore, those settlements which are within high risk
flood zones are constrained by tightly drawn development boundaries. Consequently
there are little or no opportunities for new developments (certainly in the case of
residential proposals) which would make any significant contribution to the
sustainability of these communities.
The Change in Advice from the Environment Agency with regard to the Sequential
Test
As stated previously the EA has in the past tended not to object to new development
proposals within settlements subject to high flood risk, subject to the submission of a
satisfactory flood risk assessment. Such assessments would, for example, propose
minimum ground floor levels and measures to protect the building in the event of
flooding. The approach is consistent with the Council’s resolution back in 2002.
More recently, however, there has been a significant change in consultation
responses received from the EA with regard to proposals for new residential
developments within settlement boundaries subject to high flood risk. These
responses have included the following statement:“To date we have received no information to demonstrate that the Local Planning
Authority has applied the sequential test from PPG25 para.30 to the application. This
states that those responsible for the decision to allow development within a flood
area, in the case the Local Planning Authority, must establish that ‘… there are no
reasonable options available in a lower-risk category’. Until we are satisfied that the
sequential test has been applied we will OBJECT to the proposal.”
Earlier this year Officers met with representatives of the EA to establish their reasons
for this change in response. Following the meeting the EA has written to the Council
explaining their reasoning. A copy of that letter is attached in Appendix 6. The letter
makes it clear that “It is primarily the publication of draft PPS25, and an increased
awareness of the sequential test through evolving policy which has resulted in the
recent objection to planning applications on these grounds …”.
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The Degree of Weight to be attached to Draft PPS25 and the Sequential Test
Draft planning policy statements are subject to consultation and potential amendment
prior to becoming formal statements of Government policy. Consequently caution
has to be taken as to the level of weight to be attached to such statements,
particularly when determining planning applications. This said, the sequential test as
referred to in PPG25 is a well established principle of Government policy regarding
flood risk, which PPS25 merely expands upon. Accordingly, it is considered that
significant weight may be attached to the advice regarding the sequential test in
PPS25.
Changes to Local Planning Policy regarding Flood Risk
Members will be aware that the issue of flooding is being considered as part of the
Local Development Framework process and specifically the North Norfolk Core
Strategy Development Plan Document: Preferred Options Document which is to be
subject of a public participation process in September this year.
The Council’s Cabinet on 6 March 2003 agreed a policy approach regarding flooding
to be subject to this public consultation process. The preferred approach is that, in
view of guidance in PPG25 and draft PPS25 specifically regarding the sequential
test, allocations for new development will not be made in flood risk zones 2 or 3
(medium/high risk) and existing settlement boundaries will be redrawn to exclude
these areas.
If such an approach is finally adopted then the determination of planning applications
should be more straightforward on the issue of flood risk. In the interim, however,
there needs to be an agreed approach by the Council as to how planning
applications are determined within existing settlement development boundaries which
are subject to high flood risk.
The Suggested Way Forward
In the light of PPG25 and draft PPS25, and their combined advice regarding the
sequential test, and the views now expressed by the EA (Appendix 6), it is no longer
considered that the interim Development Control policy adopted by the Council in
July 2002 (Appendix 4) should continue to apply in the determination of planning
applications. Instead it is recommended that the sequential test is applied to
development proposals within medium and high flood risk areas in conjunction with
the advice contained within PPG25 and draft PPS25, together which the views of the
EA. One consequence of this will be that it is unlikely any planning application for
new residential development within existing settlement boundaries and within these
flood zones will be recommended for approval.
If this approach is agreed there remains a question as to how to deal with a small
number of currently undetermined planning applications, which fall within the above
circumstances. In these cases the applicants have gone to the effort and expense of
commissioning flood risk assessments on the understanding that if these are
technically acceptable then, subject to other planning considerations, planning
permission would be granted.
The Environment Agency have accepted that in these cases their initial advice to
applicants in providing advice with regard to the submission of a flood risk
assessment has not included reference to the sequential test. Hence it can be seen
from their letter (Appendix 6) that it is now their intention to provide a standard
paragraph in their responses advising of the sequential test.
Given the few current cases involved it is considered fair and reasonable not to make
these proposals subject to the sequential test.
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RECOMMENDATION:That this Committee refers the following revised interim Development Control
Policy to the Council’s Cabinet for adoption, pending the adoption of the Local
Development Framework:1) That the sequential test is applied to all planning applications within medium or
high risk flood zones (including within existing defined settlement boundaries)
having regard to the advice contained in PPG25 (PPS25) and the comments of
the Environment Agency.
2) Development proposals which do not satisfy the sequential test will normally be
refused planning permission unless an overriding case is put forward as an
exception (this would be assessed under the ‘Exception Test’ referred to in
PPS25).
3) That in cases where the sequential test is satisfied, planning permission is only
granted where (if required) a satisfactory flood risk assessment has been
submitted, having regard to the advice in PPG25 (PPS25) and the views of the
Environment Agency.
4) That this interim policy (in terms of the sequential test) does not apply to current
proposals where flood risk assessments have been submitted in consultation with
the Environment Agency and where the applicants were not initially advised of
the sequential test.
Source: (John Williams, Extn 6163 – File Reference: Flood Risk)
PUBLIC BUSINESS – ITEM FOR DECISION
4.
North Norfolk District Council Local Development Framework Statement of
Community Involvement
This report updates the Committee on the outcome of the Hearing concerning the
Statement of Community Involvement and the handling of planning applications in
particular. It raises issues which require further consideration by the Committee.
Introduction
Members will recall discussing the Statement of Community Involvement which is a
statutory document that outlines the Council’s approach to involving the community in
the preparation and revision of Local Development Documents and, more
particularly, in the consideration of planning applications.
The SCI involved widespread public participation in its preparation and was subject
to independent examination by a Government Inspector in January 2006. As part of
the examination an Informal Hearing was held on 24 January 2006 to hear the views
of Martin Robeson Planning Practice (MRPP), agents for Tesco, who had submitted
representations on the section of the SCI dealing with planning applications.
The Inspector’s report has been received and his binding recommendations are to be
considered by the Cabinet at its meeting on 3 April 2006 with a recommendation that
the contents be adopted by the Council.
In respect of the section of the document relating to community involvement in
planning applications the Inspector considered that the SCI adequately sets out the
Council’s publicity and consultation arrangements. However in terms of encouraging
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16 March 2006
developers to undertake pre-application consultation the Inspector found that limiting
this to ‘major applications’ is somewhat restrictive as it depends on scale, whereas
there may be a need for pre-application discussions on developments not meeting
the scale criteria but which may generate considerable controversy. The Inspector
recommends widening the definition to include ‘any other applications which in the
opinion of officers are likely to give rise to issues of significant impact in terms of
planning considerations ….’
The SCI originally set out specific further consultation requirements that developers
should undertake when proposing major applications for residential, retail, community
facilities or infrastructure projects. In response to MRPP’s representations, the
Inspector agreed that a more flexible approach should be adopted which gives
discretion in terms of the applications to which the further requirements apply and
what further consultation arrangements are required. The further steps now apply as
follows:“For major developments that are a departure from the Development Plan or those
that may give rise to local controversy or are on sensitive sites, further consultation
(such as a public meeting, exhibition or other means of engaging with the local
community/interest groups) will be required, the details of which will be agreed with
the planning officer”.
In response to MRPP’s representation that issues of commercial confidentiality were
not properly recognised, the Inspector recommends that an additional sentence be
added to the paragraph that discusses disclosure of pre-application discussions with
planning officers; “unless the harm/prejudice likely to arise from disclosure would
outweigh the public interest in making the information available”. And “The precise
timing of the pre-application consultation will be agreed with the planning authority,
and will need to strike a balance between involving the community at an early
enough stage to be relevant while respecting issues of commercial confidentiality that
may arise when developers are involved in site acquisition”.
A copy of the revised version of that part of the document concerning community
involvement in planning applications is attached at Appendix 7.
The changes made by the Inspector therefore leave scope for interpretation to
officers in respect of a number of matters, as follows:1. The definition of major applications.
2. Details of further consultations to be undertaken for major developments that are
a departure from the Development Plan or those that may give rise to local
controversy or on sensitive sites.
3. The precise timing of pre-application consultation taking into account issues of
commercial confidentiality as balanced against early involvement of the
community to enable relevant consultation to be undertaken.
Officers are giving further consideration to the practical application of these issues
and will make oral recommendations as to how these matters should be progressed.
RECOMMENDATION:An oral recommendation will be made at the meeting.
(Source: Steve Oxenham, Extn: 6135 - File Reference: SCI)
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