Case Officer:
S Bottomley
Site:
Marjorie Kelly Way, Ivybridge
Application No:
27/0364/01/O
Date Received:
1st March 2001
Agent:
Foot Anstey Sargent 21 Derry's Cross Plymouth Devon PL1 2SW
Applicant:
Mr R L Sweet
Development:
Outline application for the erection of three dwellings
Hall
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Scale 1:1250
For internal reference only – no further copies to be made
27
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This map is reproduced from the Ordnance Survey material with the
permission of Ordnance Survey on behalf of the Controller of Her
Majesty's Stationery Office © Crown copyright. Unauthorised
reproduction infringes Crown copyright and may lead to prosecution
or civil proceedings. South Hams District Council. LA 079391. 2001
Policies
Ivybridge Development Boundary
Local Plan Policy IP5(3) River Erme Park Extension
Consultations
Devon County Council
No objections in principle
South West Water
No comments received
Environment Agency
Comments awaited
Environmental Health Section
Leat on boundary ownership and future maintenance
Town
Ivybridge Town Council make the following observations:
Objection – prefer to see site as open space in line with Local Plan
Case Officer Report
The application site and the proposal
The application site comprises 0.35 hectares (0.86 acre) of overgrown garden land
formerly belonging to Garden Cottage, Fore Street. There are several semi mature trees
growing on it. It has been severed from Garden Cottage by Marjorie Kelly Way which is
the inner relief road for Ivybridge. There is no vehicular access from Marjorie Kelly Way
only a pedestrian gateway through a close boarded fence. Marjorie Kelly Way is at a
higher level than the site. It runs along an embankment past the site before it crosses a
bridge over the river.
The site fronts onto the River Erme. There is a narrow strip of land within the application
site which runs alongside the river, which is wooded and forms part of the natural
riverbank vegetation, being divided from the remainder of the site by a low stone wall.
The riverside strip and approximately one third of the site closest to the river are liable to
flooding.
Along the north west site boundary runs a leat which serves the former water mill at
Waterside House. Beyond the leat is Keaton Road which is a predominantly residential
street.
The application is for outline planning permission for the erection of three dwellings.
Details of the access onto Marjorie Kelly Way forms part of the application and access is
not one of the reserved matters.
Policy
The site lies within the development boundary of Ivybridge.
It is identified in the Local Plan as a proposed extension to the River Erme Park. The text
of the plan at para 1.71 states: ” The plan proposes an extension to the River Erme Park
across the river to include the strip of land south of Garden Cottage. Such an extension to
the existing park would provide a valuable recreational facility to the people of
Ivybridge, but the Council will not pursue this proposal unless the landowner is in
agreement.” The relevant Local Plan Policy is IP5 (3) “ The Council will plan for an
extension to the River Erme Park”.
Background
On 22nd November 1999 a Certificate of Appropriate Alternative Development for
residential development of the site was granted on appeal by the Secretary of State
(application ref:27/1288/98/13). CAADs are decisions under the Land Compensation Act
1961 and are a means whereby land which is identified for a public purpose in a local
plan can be valued. Decisions are made on the basis that the proposed land use identified
in the local plan must be ignored and the land use applied for is then considered against
normal planning, highway and other material considerations. The Council’s sole
objection to the CAAD was that a satisfactory access onto Marjorie Kelly Way could not be
achieved. This argument was lost on appeal.
In the Spring of 2000 the site was advertised for sale as residential building land and
offers in excess of £200,000 were invited. Prospective purchasers were advised at that
time by the planning officers that the site did not have the benefit of planning permission
for residential use and that the Local Plan policy would be applied to any planning
applications.
In the Autumn of 2000 the Council was served with a Blight Notice under Sections 149 –
150 of the Town and Country Planning Act. A Counter Notice was served by the Council.
The grounds for the Counter Notice included firstly the reference in the Local Plan to the
fact that the proposed extension to the River Erme park would not be pursued unless the
land owner is in agreement; secondly that the Council do not propose to acquire any part
of the site nor had it any further interest in the land; and thirdly that no planning
application had been submitted for the residential use of the land.
The implications of the Counter notice for the present application are referred to later in
the report under the Analysis heading.
At the meeting on 5th September this application was deferred in order to investigate the
flooding issue raised by the Environment Agency.
Analysis
Trees
A Tree Preservation Order has been served on individual trees; groups of trees; and the
riverside woodland on the site. The site is large enough to permit development of three
dwellings without damage to the protected trees and there is no intention to build on the
riverside woodland. The access road comes close to a number of trees included in the
Order but the tree and wildlife officer has negotiated its position so that the trees are not
threatened subject to appropriate planning conditions to protect them during
construction of the access road.
Wildlife
The presence of otters on the riverside frontage has been investigated on behalf of the
applicants. Their presence has been confirmed and the riverside strip has potential lying
up sites or dens, but there is nothing to suggest that the site is of particular importance to
them. The tree and wildlife officer is satisfied that the presence of otters would present no
overriding reason for refusal but recommends a condition for the management of the
riverside strip to conserve the habitat during development and subsequently.
Highways
The County highways authority has previously accepted that an access onto Marjorie
Kelly Way is acceptable. The road into the site will be a private, non adopted road. The
submitted details are acceptable.
Flooding
The Environment Agency has identified the area of the site which is liable to flooding in
extreme conditions. Negotiations between the applicant’s architect and the Environment
Agency have identified a contour line across the site within which no building should take
place. The architect has produced a plan which forms part of the application which
provides for a swale to be excavated within the flood contour line to increase the flood
capacity of the site. This swale will not affect the trees on the site. Conditions can be
attached to require the provision of the swale as part of the development; to prevent
either the houses or any future outbuildings or impermeable fences being built within the
flood contour; and to establish house floor levels above the flood event level.
Planning Policy
The residential development of the site conflicts with the current local plan. Members
could refuse planning permission on this basis. This is likely to be the only reason for
refusal as all the other matters identified in this report are likely to be resolved with
appropriate planning conditions.
If a refusal of the application on policy grounds is made, in all likelihood an appeal will
follow. The weakness of the Council’s case on appeal is that the Local Plan policy relies on
the willingness of the landowner to agree to the proposed extension of the River Erme
Park. The plan expressly states that the Council will not pursue this proposal unless the
landowner is in agreement. Clearly the landowner is not in agreement. Furthermore, in
the Counter Notice to the Blight Notice it has been confirmed that the Council does not
propose to acquire any part of the site nor has it any further interest in the land. This
background would mean the prospects of successfully defending any appeal would be
very unlikely. Further, there is the prospect of an award of costs against the Council
should any appeal be upheld.
An alternative to retaining the whole of the site as open space would be to permit
residential development on the bulk of the site whilst securing the riverside woodland
strip for public use and access for the public from Marjorie Kelly Way across the
residential part of the site. The Parks Officer considers that this would be an ideal site of
tranquillity and passive recreation and would link into land owned by the Council at the
rear of Waterside House which is little used at present.
This alternative has been pursued through negotiation but the applicant’s position on the
riverside strip is as follows. He does not intend to fell any of the riverside trees. Nor does
he intend to dedicate this land to public ownership with access. The riverside strip will be
owned jointly by the future owners of the houses. It will not be physically subdivided nor
would any buildings be erected on it. It would be expected to remain in its current
unmanaged state. There is therefore no prospect of securing any of the land for public
open space without compulsory purchase and compensation. This is an option available
to the Council albeit that in the Counter Notice to the Blight Notice we have said that we
do not propose to acquire any part of the site nor have we any further interest in the land.
The conclusion which your officers have reached is that as there is now no interest in the
Council acquiring the site for public open space, to refuse the application on the basis of
conflict with the Local Plan would be unsound. Therefore, the crucial requirement for the
planning application is to ensure that the environment of the site is protected and in
particular that the riverside woodland strip is protected as a wildlife and amenity margin
to the River Erme. This has already partly been secured by the imposition of the TPO on
the trees on the site. Conditions to protect trees during the course of the development are
also recommended. Also conditions are recommended to prevent buildings or fences on
this part of the site which would otherwise be ‘permitted development’ and to ensure the
proper management of this area as a wildlife and environmental area.
Human Rights Act
The development has been assessed against the Human Rights Act, and in particular the
applicant’s rights as property owners. These rights have been balanced against the wider
community interests expressed through the Development Plan policies which for the
reasons stated earlier in this report, support the recommendation.
Recommendations
The officers recommendation to the Committee is that planning permission be
GRANTED subject to Conditions.
Because this is a departure from the Local Plan and it has been advertised as a
departure application, it is to be determined by Full Council.
Conditions
1 - NS03 (Standard NS3)
2 - NB02 (Outline NB2)
3 - NB04 (Parking NB4)
4 - NE05 (Protection of Trees NE5)
5 - NE04 (Ground Level NE4)
6 - Non Standard
Management of riverside strip
7 - Non Standard
No Development within flood area
8 – Non Standard
Exclusion of G.D.O within riverside strip
9 - NE01 (Landscaping NE1)
10- Non Standard
Ground level changes within flood area
11- Non Standard
Exclude GDO rights within flood area
12- Non Standard
Floor levels
DC0901MW