Agenda item

Proposal:	Discharge of Conditions Application seeking approval of details reserved by Condition 4 - External Materials Schedule and samples, 7 - Construction Method Statement, 8 - Surfacing for driveways/access points, 10 - Vehicle parking and turning, 11 - Access details, 12 - Cycle storage, 13 - Refuse storage and 15 - Boundary hedge of planning permission reference 16/02529/OUTD.
Location:	Land Adjacent To Summerfield, The Ridge, Cold Ash, Thatcham, Berkshire
Applicant:	T A Fisher and Sons Ltd
Recommendation:	DELEGATE to the Head of Development & Planning to make representations at appeal to recommend a SPLIT DECISION comprising part approval and part refusal.

 

(Councillors Adrian Abbs, Carolyne Culver and Howard Woollaston declared a personal interest in Agenda Item 4(4) by virtue of the fact that they had been lobbied on the application. As their interests were personal and not prejudicial or a disclosable pecuniary interest, they determined to remain to take part in the debate and vote on the matter.)

1.         The Committee considered a report (Agenda Item 4(4)) concerning Planning Application 18/01657/COND1 in respect of details reserved by Condition 4 - External Materials Schedule and samples, 7 - Construction Method Statement, 8 - Surfacing for driveways/access points, 10 - Vehicle parking and turning, 11 - Access details, 12 - Cycle storage, 13 - Refuse storage and 15 - Boundary hedge of planning permission reference 16/02529/OUTD. The application was brought to Committee as a result of ward member’s call-in.

2.         Simon Till introduced the report to Members, which took account of all the relevant policy considerations and other material planning considerations. In conclusion the report detailed that the proposal was acceptable in parts, but not in others.

3.         Officers recommended the Committee to delegate to the Head of Development and Planning to make representations at appeal to recommend a split decision comprising part approval and part refusal.

Removal of Speaking Rights

4.         As resolved at the Extraordinary Council meeting held on 29 April 2020, public speaking rights were removed for virtual Council meetings. This right was replaced with the ability to make written submissions. This decision was made in accordance with The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panels Meetings) (England and Wales) Regulations 2020.

5.         The above changes to speaking rights were subsequently amended at the Council meeting on 10 October 2020. It was agreed that parties making written submissions in relation to a planning application would be invited to attend the Remote Meeting of the Planning Committee to answer any questions that Members of the Committee might wish to ask in order to seek clarification on any part of their statement.

6.         In accordance with the Extraordinary Council resolution, written submissions relating to this application had been received from Cold Ash Parish Council (Bernard Clark), Mr Simon Vanstone, objector, and Ms Katherine Miles (Pro Vision) agent.

7.         The written submission from Cold Ash Parish Council was read out by the Clerk as follows:

Parish Council’s Representation

In the view of Cold Ash Parish Council (CAPC), the ‘Discharge of Conditions’ you are being asked to consider is legally questionable and flies in the face of the decision the WAPC took on 20th May 2020 and the timing seems inappropriate. Both the Reserved Matters and Discharge of Conditions are now the subject of Appeals with the Planning Inspectorate (APP/W0340/W/20/3257645 and APP/W0340/W/20/3256565).

The most notable condition to be discharged is Condition 11. Access. West Berkshire Planning Officers had vigorously denied that Access was still an issue, verbally and also in writing. In the advice to Councillors for the meeting on 20th May 2020, the Planning Officer wrote the following:

6.33. In relation to objectors concerns that the proposed vehicular access arrangements are still for consideration as part of this Reserved Matters application, officers consider access was a matter approved at the Outline Stage under application reference 16/02529/OUTD dated 24 October 2017. The finer details of access relating to surfacing and construction detail are secured via planning conditions (no’s 8 and 11). In other words, access is not consideration as part this Reserved Matters application

Now, Councillors are being asked to agree ‘Access’.

If Access really ‘was a matter approved’ on 24th October 2017, why is Access now ‘a matter to be approved’? Answer, it never was approved. At this current meeting, Councillors are being asked to agree to something that has never been agreed, on the basis of council officers’ reports that appear to be economical with the facts.

This is important because the Developer’s preferred Access arrangements would destroy an ‘Important’, Historic and ‘Protected Hedgerow’, which is actually owned by West Berkshire, who are also the Custodians of Protection of the hedgerow.

In conclusion, CAPC can do no better than quote our now Ward Councillor, Hilary Cole, to Councillors and witnessed by Bernard Clark, at the site visit for the discharge of conditions on 25th October 2018. “I don’t see the point of approving conditions, when we don’t know what houses will be built.”

This is echoed in the minutes of the WAPC meeting of the 31st October 2018, in which Hilary Cole seconded a motion to defer, until Reserved Matters had been agreed.

This seemed like a wise observation then, and if anything, circumstances make it even more obviously sensible now. So CAPC ask for this application to be denied or deferred.

Member Questions Relating to the Parish Council’s Written Submission

8.         Councillor Dennis Benneyworth asked Bernard Clark to expand on the statement that access had not been agreed.

9.         Bernard Clark indicated that he had taken legal advice on the matter which had confirmed this. He also highlighted Condition 11 associated with this planning application, which indicated that access was ‘yet to be determined’. He noted David Pearson’s comments that access had now been agreed, but the Parish Council’s legal advice was clear that it had not. He expressed the hope that Members would not approve Condition 11 and suggested that it would be difficult for Members to decide on access, without knowing where the houses were going to be.

10.      Councillor Hilary Cole asked Bernard Clark if he understood that the Committee was being asked to make a recommendation with regard to a representation at an appeal, and not a decision on a particular application. She indicated that the application would be heard at appeal regardless of the Committee’s decision. She suggested that the Committee’s decision could add more weight to the planning Inspector’s determination.

11.      Bernard Clark confirmed that he understood and had taken legal advice from Landmark Chambers, a top planning consultancy, who had confirmed that access had not been agreed. He again urged Members not to agree Condition 11.

12.      The written submission from Mr Simon Vanstone, objector, was read out by the Clerk as follows:

Objectors’ Representation

To ask the Planning Inspectorate to discharge the conditions adopted when the Outline Planning Permission was granted, regardless of whether the houses themselves are accepted or refused, makes no sense and serves no desirable purpose. The rationale for having conditions is to protect. Discharging the conditions would remove the possibility of protecting the site and could conceivably result in inappropriate development.

On 20th May 2020, the WAPC voted 7 councillors to 2, to reject the proposed houses citing the following grounds:

i)          inappropriate height and mass,

ii)         lack of sympathy to neighbouring low-rise properties,

iii)        discord with the existing fabric of housing,

iv)        urbanisation of the eastern gateway to the village of Cold Ash.

To ensure that whatever is built on this sensitive site is sustainable, it is essential that a set of plans formulated for an inappropriate housing development are NOT adopted through the back door.

In the situation where the conditions are discharged, but the houses are refused, the critical evaluation of any future planning application is potentially compromised and undermined by a set of discharged conditions that are inconsistent with the then proposed houses.

It is only when both the conditions and the houses themselves are considered together that officers and members can be expected to make an informed and measured assessment.

Consider the following scenario. Reserved Matters are refused by the Planning Inspectorate, the Outline Planning Permission expires on the 24th October 2020, and the developer is required to submit a FULL application. Such an application may well include a single-access driveway and low-rise dwellings. Being required to reduce the height and mass of the housing, it is also likely that the footprint of the houses and the site layout will change. Provision of bungalows or split-level dwellings might, for example, require entirely different footprints. Given the very real prospect of such material changes, the Construction Method Statement (Condition 7), Vehicle Parking & Turning provisions (Condition 10), Access Details (Condition 11), in addition to the External Materials Schedule (Condition 4) and Cycle Storage (Condition 12) might also be subject to change. Similarly, a change to the houses may precipitate a change to the soft and hard landscaping design and provisions (Conditions 8 and 15).

An almost identical attempt was made by this same developer to push through the conditions attached to the then refused Reserved Matters plans (18/01977/REM) at the WAPC on 31^st October 2018. Again, a split-decision was proposed, however, members quickly recognised the incongruity and resolved that the Head of Development and Planning be authorised to defer the application until the Reserved Matters had been agreed. The motion was proposed by Councillor Paul Bryant, and seconded by Councillor Hilary Cole.

Residents once again respectfully ask members to exercise caution and sensibility, and reject the proposed discharge of the conditions, or any part of them.

Member Questions Relating to the Objectors’ Written Submission

13.      Members did not have any questions relating to the Mr Simon Vanstone.

14.      The written submission from the agent, Ms Katherine Miles (Pro Vision),  was read out by the Clerk as follows:

Applicant’s Representation

As stated in the Committee report, the power to determine this application rests with the Planning Inspectorate as an Appeal against non-determination has been made given the failure of the Council to reach a decision on this application.

The Appeal relates to an application for the approval of technical details reserved by conditions attached to the Outline Planning Permission.

Outline Planning Permission was granted for “The erection of 5 detached dwelling houses with ancillary garages, access, parking, landscaping” in October 2017. An appeal against the Council’s refusal of the Reserved Matters has been conjoined with the non-determination appeal in respect of the planning conditions.

The information submitted in respect of Conditions 7, 8, 10, 11, 13 and 15 of the Outline permission is deemed acceptable, and Officers recommend approval. It would be reasonable for the Committee to confirm to the Inspectorate that it would have had no objection to the approval of the details in respect of those conditions.

In respect of Condition 4, Officers advise the proposed mix and palette of materials is appropriate within the context of materials found within the wider village, yet this condition is not recommended for approval because the “appearance” of the dwellings has not been approved through Reserved Matters.

Condition 4 was imposed to ensure materials used in the development are appropriate to the character of the area. The Council has before it a schedule of materials which it confirms is appropriate to the character of the area. It follows that those details should be recommended for approval.

In approving Condition 4, the Council is stating that a dwelling constructed using those materials would be acceptable in this area having regard to Policies CS14 and CS19 of the Core Strategy, Policy HSA7 of the DPD and Guideline SDM2 of the Cold Ash Village Design Statement which requires good quality materials appropriate to the character of the area to be used in new developments.

The Committee should confirm that it would have had no objection to the approval of the details in respect of Condition 4.

Condition 12 requires details of cycle storage to be approved. Officers state this condition cannot be approved as the “appearance” and “scale” of the garages has not yet been approved.

Policy P1(iv) of the HSADPD states “Garages will not be counted as a parking space”. The Council’s ‘Cycling and Motorcycling Advice and Standards for New Development’ states that garages can be used for cycle storage.

The outline permission includes garages. A garage will be provided for each property, and can be used to store cycles. The Council should confirm that it would have had no objection to Condition 12 being approved on the basis that a garage for each dwelling will be provided.

The Council will subsequently be able to determine if the garage (typically 3m x 6m) is appropriately scaled having regard to the area.

In summary, there is no reasonable basis to refuse this application for approval of technical details relating to an outline planning permission.

Member Questions Relating to the Agent’s Written Submission

15.      Members did not have any questions for Ms Katherine Miles (Pro Vision).

Ward Member Representation by Councillor Garth Simpson

16.      The Chairman noted that Councillors Hilary Cole and Garth Simpson had requested to speak, and because they had differing views, they were each been allocated five minutes.

17.      Councillor Simpson in representing the Committee as Ward Member made the following points:

·         This was the second attempt to discharge conditions attached to the outline planning consent and the second time that officers had proposed a split decision.

·         Members had previously voted to defer until the reserved matters were approved.

·         Concerns had been expressed by the Committee, Cold Ash Parish Council, Simon Vanstone (as the lead residents representative), and Bernard Clark, as well as Councillor Simpson.

·         He commended the residents’ eloquent representation as to the practical consequences of supporting the split decision.

·         It was risky for officers to propose to discharge conditions when the houses were not considered acceptable by Members.

·         Bernard Clark had indicated that the application was of dubious legality.

·         Cold Ash Parish Council had only had four working days’ notice and had not had the opportunity to properly examine this.

·         The principle of five houses being built on land adjacent to Summerfield had been accepted by the Parish Council and residents of Cold Ash.

·         The proposed split decision was a subversive attempt by officers, and a reversion of Members’ refusal of 19/00832/REM on 20 May 2020.

·         The recommendation was designed to deal with as many conditions as possible and to prop up the notion that access had been properly dealt with. Cold Ash Parish Council’s representation illustrated that this was not the case.

·         Access was the root cause of why this application had been the subject of so many appeals, with non-determination by the developer being the third.

·         He had hoped that Councillor Hilary Cole would have supported the Parish Council and recommended refusal.

·         He urged Members to reject the proposal to discharge conditions by refusing the recommendation of officers.

·         Appeals arose because of real differences of opinion and the Inspector should provide guidance as to the next steps.

Member Questions of Ward Member Councillor Garth Simpson

18.      Councillor Dennis Benneyworth asked Councillor Simpson to expand on the statement that access was the root of the problem.

19.      Councillor Simpson explained that the planning work stretched back five years. He suggested that officers’ critique had failed to reconcile matters of planning policy and natural town and planning guidance. He indicated that access issues were a common thread through the following, which were debated in May 2020:

·         Up to five houses with gross external area of 300 square metres coherence with vernacular architecture;

·         Retention of the historic hedge and its important role as a transition from rural to semi-rural countryside;

·         Retention of gaps between the houses (a feature of the Housing Site Allocation Development Plan Document (HSADPD));

·         Avoidance of ‘urban slap syndrome’; and

·         Required minimum highways visibility splays.

20.      Members had previously raised concerns about inappropriate height and mass, and lack of sympathy to neighbouring low-rise properties.

21.      Councillor Simpson also suggested that the visibility splay calculations by Highways were incorrect and would result in the loss of 70% of the hedge. He concluded that the access was a fundamental problem along with scale and massing.

Ward Member Representation by Councillor Hilary Cole

22.      Councillor Hilary Cole in representing the Committee as Ward Member made the following points:

·         She noted that the application had received a good airing in May and was now the subject of a planning appeal.

·         The site already had outline permission.

·         Although not a fan of the split decision, she could see no alternative in order to direct the position the Council would adopt at appeal.

·         Although the application had attracted many letters of objection, many were from residents who lived a considerable distance from the site and were not directly affected by the development, so the Committee should not give weight to many of these objections.

·         It would be foolish to ‘go round the block again’ with this application.

·         Developers had gone a long way to address the concerns of affected residents.

·         She urged the Committee to approve the officer recommendation and highlighted the conditions on page 159 of the agenda.

·         She suggested that the 18 October 2018 decision was irrelevant as the current application was different and so comments made should be discounted.

Member Questions of Ward Member Councillor Hilary Cole

23.      Councillor Howard Woollaston noted that the original application had been refused for reasons relating to the hedge and massing of buildings. He asked if by approving this application, the Committee would be endorsing access to the proposed development.

24.      Councillor Hilary Cole suggested that the Council would be in a better position by discharging these conditions than if it were left to the planning Inspector. She indicated that discharging these conditions would give an indication of what the Council desired at this site. She acknowledged that the boundary hedge was a matter of contention, but reminded Members that the Tree Officer did not consider it an ancient hedgerow, and there was no great merit in protecting it.

Questions to Officers

25.      Councillor Carloyne Culver asked if it was putting the cart before the horse to approve certain conditions without knowing the outcome of the reserved matters appeal. For example, if the appeal determined that there should be one access, why should the Council discharge a condition that referred to places (plural)?

26.      David Pearson noted that there was confusion about what was agreed at the outline stage in 2016. He indicated that the principle of having three accesses to the site had been set as part of the outline permission.  He noted that the reserved matters appeal was not dealing with any matters relating to access, just scale, appearance and landscaping. He disagreed with Cold Ash Parish Council and confirmed that the access had been consented. He explained that the condition was not about the principle of having three entrances, but was about the technical specification of the accesses in terms of the visibility splays, corner radii and surfacing.

27.      Councillor Culver asked if there was a precedent for an appeal on reserve matters and on conditions, where Members were asked to give a view to an Inspector. She queried whether this would influence the Inspector’s decision.

28.      David Pearson confirmed that the Council was asked to state its case at every appeal and that it was normal for the Council to make its views known. He suggested that the biggest risk to the Council was that it would be asked to pay costs because it had been unreasonable, and that this risk was increased if the Council did not respond and give its views. The Committee’s decision provided an indication of what the Council would do if it was able to discharge the conditions. He confirmed that such a decision would have been made by Committee rather than delegated to officers.

29.      Councillor Culver asked if the Committee was allowed to propose a different split in the conditions. David Pearson confirmed that it was up to Members to decide on the most appropriate split.

30.      Councillor Andy Moore highlighted a disagreement between the applicant and officers in relation to the inclusion of garages as part of Condition 12. He also asked whether garages were considered suitable for cycle storage.

31.      David Pearson indicated that officers disagreed with the applicant, because whilst layout had been agreed at the outline stage, scale, appearance and landscaping had not. As Members had refused the reserve matters application, officers had tailored the recommendation to take into account that decision. Officers considered that Condition 12 would be dealt with by the Inspector when dealing with the reserved matters appeal.

Debate

32.      Councillor Clive Hooker noted that the Committee was only making a recommendation, rather than a decision and therefore if members had any objections to going straight to the vote.

33.      Councillor Hilary Cole confirmed that she was happy to go straight to a vote.

34.      Councillor Bennyworth indicated that he would abstain because he had temporarily lost access to the virtual meeting and had not heard the item in full.

35.      Councillor Abbs indicated that he wished to debate the item.

36.      The Chairman again asked all members if they wished to debate the item. As there were three votes in favour and three against, Kim Maher advised that there needed to be a short debate.

37.      Councillor Abbs noted that lots of time and energy had gone into developing the conditions and could not understand why some seemed to be important than others. He suggested that the recommendation to the Inspector should be that all conditions stay intact.

38.      Councillor Culver agreed with the points made by Councillor Abbs.

39.      Councillor Hilary Cole proposed to approve the officer recommendation.

40.      Councillor Woollaston seconded the proposal.

41.      The Chairman invited the Committee to vote on the proposal by Councillor Hilary Cole, seconded by Councillor Woollaston to accept Officer’s recommendation to delegate to the Head of Development and Planning to make representations at appeal to recommend a split decision comprising part approval and part refusal. At the vote, the motion was carried by four votes to three with one abstention.

42.      RESOLVED to delegate to the Head of Development and Planning to make representations at appeal to recommend a split decision as follows:

1. Details pursuant to Conditions 7, 8, 10, 11, 13 and 15 of Planning Permission 16/02529/OUTD can be approved subject to full implementation in accordance with the details submitted and wording of each condition;

and

2. Details pursuant to Condition 4 (Materials) and Condition 12 (Cycle Storage) are refused as these elements are integral to matters of ‘Appearance’ and ‘Scale’ considered most recently under reserved matters application 19/00832/REM which was refused on 22 May 2020 and is currently subject to planning appeal under appeal reference APP/W0340/W/20/3256565*.

*The Planning Inspectorate have been invited to consider both planning appeals together