Agenda item

Proposal:	Demolition of existing house, garage and outbuildings, erection of one new house and detached open carport.  Section 73 application to vary condition 2 (approved plans) of approved planning permission 20/02001/FULD.
Location:	Redwood Burnt Hill Yattendon Thatcham West Berkshire RG18 0XD
Applicant:	Mr Justin Knott
Recommendation:	Grant planning permission subject to conditions

 

The Committee considered a report (Agenda Item 4(1)) concerning Planning Application 21/01645/FULD in respect of the demolition of existing house, garage and outbuildings, and the erection of one new house and detached open carport. This was a Section 73 application to vary condition 2 (approved plans) of approved planning permission 20/02001/FULD.

Michael Butler (Principal Planning Officer) introduced the item and highlighted the key points within the report. The recommendation was to grant conditional planning permission. The reason for the application coming before Committee was because in excess of ten objections had been received to the application.

The applicant sought to include a single storey side extension to include a plant room, a rear single storey conservatory/rear extension, and the enlargement of the carport from a single to a double carport. There had been a considerable planning history for this application with a number of appeals made as referred to in the agenda pack. No Environmental Impact Assessment had been required and the application had been publicised in the normal way. Ashampstead Parish Council and Yattendon Parish Council both strongly objected to the application; the Highways Officer had no objections and no objections had been received from the technical consultees. 19 objections had been received from members of the public, as set out in the report, and all were considered to be reasonable planning considerations.

The Committee was asked to appraise this application in terms of the decision-making context, the character and appearance of the site and any impact on neighbouring amenity and highway safety. The report set out in detail exactly what comprised a Section 73 application and it was considered to be the appropriate legislative vehicle for the Council to consider this particular application. In terms of character and appearance, given the application was a variation of the original application, rather than a householder application, the relevant principal policy was Policy C7 (Replacement Dwellings) rather than Policy C6 (Extensions). Officers considered that the application followed the criteria set out in Policy C7 with the overall size of the dwelling taken to approximately 260sqm still within the bounds of being proportionate in relation to the existing dwelling, as demolished, and therefore not so harmful as to merit rejection. In addition, Officers did not consider it would harm the character of the wider AONB. The site was extremely well screened by mature trees which were the subject of a TPO. In terms of the impact on neighbouring amenity, Officers considered the impact would be minimal and therefore in the planning balance and conclusion, as set out in the report, felt the application should be approved.

Mr Butler guided Members to the update sheet in which Ashampstead Parish Council had raised further, legitimate, concerns about the way the builder was developing the current site, for which enforcement Officers had been notified. However, Mr Butler strongly recommended to Members they should only assess the physical merits of the application and not the merits of the builder.

With regard to conditions, Mr Butler advised that Condition 2 would need to be revised as the existing dwelling had already been demolished and he read out the proposed rewording of the condition.

In accordance with the Council’s Constitution, Councillor Alex Dick, Parish Council representative, Councillor Anne Harris, adjacent Parish Council representative, Mr David Soanes, objector, and Mr Tony Thorpe, agent, addressed the Committee on this application.

Parish Council Representation:

Councillor Dick, in addressing the Committee on behalf of Ashampstead Parish Council, raised the following points:

·           Councillor Dick was disappointed that Officers had recommended approval of the application as the Parish Council believed the application was in direct contradiction to the conditions placed upon the developer on the existing, approved application which the Parish Council had supported.

·           The proposal would be an overdevelopment of the site and would revert it to a similar size and scale of application that had previously been refused. The Parish Council therefore asked what had changed to now make this application acceptable.

·           The Parish Council disagreed in the strongest possible terms with the comments in the planning statement that stated the extensions would have no additional effect on the character and appearance of the surrounding area, the AONB or the site’s relationship with neighbouring residential properties, for the following reasons:

o    The approved plans saw an increase of 100% in the internal area measured against the original property which stood on the site.  Whilst these proposals would add a further 10% to the allowed internal area, it was effectively a further increase on the original property.

o    The proposal to bring the development closer to the neighbouring properties reduced the openness of the site which clearly had an impact on the opposite properties and spoilt the rural character of this part of the AONB.

o    The proposed sunlit dining room added considerable depth to the development and due to the rising ground, created much more of a massing effect when viewed from Thee Oaks (the neighbouring property). 

o    Condition 23 of the previous planning decision was specifically applied in order to prevent overdevelopment but now appeared to be ignored altogether. Allied to that, the concern was that if planning permission was granted for this application, it might lead to an attempt to increase the property size even further.

o    It appeared to the Parish Council that the developer was using every loophole and excuse to get a larger built area established. For the developer to refer to “predictable extension requirements and the need for plant rooms and sunlit rooms” now when there was not one previously, showed a degree of ineptitude at best or, as felt by the Parish Council, a desire to ‘play the system’.

·           Councillor Dick said he hoped Members had seen the significant engineering and earthworks across and beyond the site for which there was no planning permission and which could potentially destabilise the adjoining road and land and raise ground levels significantly, which the Parish Council believed was the case. It appeared the purpose for doing this was to bury the old house to save having to dispose of it and it was a concern as to what would happen with the significant amounts of soil which had been brought onto the site and added to the soil created from digging the huge hole to bury the old house.

·           The previous decision specifically noted that spoil would only be generated by the digging of foundations, trenches and service ducts, all spoil to be back-filled with any surplus used to build up and level the frontage parking area. The builder appeared to be spreading a compacting soil which had not arisen from the digging of this and had significantly changed levels for which he did not have planning permission to do. In fact, there was a condition specifically designed to prevent this which was a clear area of concern for the Parish Council, accepting the fact that this related to the previous application.

·           There had already been significant movement and storage of materials beyond the planning red line and the tree protection area which the Parish Council believed could cause damage to the existing trees and hedges, including those on the adjoining properties. This was in direct contradiction to the approved plans.

·           The Parish Council saw themselves as a group willing to work with individuals putting in applications and only rarely made objections and indeed had approved the existing proposals for this property. However, it was clear to the Parish Council that the developer was now trying to achieve, through creeping development and the barrage of applications, a larger built area.

·           The Case Officer had recommended approval but it was a view that, with respect, the Parish Council disagreed with and as such urged the Committee to reject this application.

Adjacent Parish Council Representation:

Councillor Harris, in addressing the Committee on behalf of Yattendon Parish Council, raised the following points:

·           Councillor Harris advised Members that she lived in Burnt Hill diagonally opposite to the site in question. She agreed with the points raised by Councillor Dick from Ashampstead Parish Council.

·           Having had eight applications and two Appeals over a three year period, and now an application under Section 73, which was thought to be for minor alterations to an accepted plan, there was now an attempt to put two extensions onto the property and to double the size of the carport. Councillor Harris said that none of those who objected understood how this could be classed as a minor alteration and regarded this as an attempt to get round the planning system and to build a property that was much bigger than was given permission for.

·           The site was in an AONB and this plan would fill up the whole road sight way so that you could not see through. This was not in keeping with the rural area.

·           It was noted that, on the new plans, there seemed to be very little in the way of planting; previously there had been a lot of trees and shrubs shown and whilst they had been specified they appeared to be conspicuous by their absence, which was felt to be very disappointing.

·           Councillor Harris questioned how the adjustments to the plan were suddenly a necessity of modern family life when a few months ago they were not needed at all.

·           It was felt by the community that this developer was yet again trying to use the system for his own ends and continued to completely ignore the local community and the way things should be done.

Member Questions to the Parish Council:

Councillor Law said that at the site visit, Councillor Harris had pointed out the fact that the ground sloped down from the road and she had mentioned that when there was heavy rain the road flooded at the bottom and the water ran down and flooded both sides of the road. Councillor Law wanted to raise this as SuDS Officers had not made a response to this application and he wondered why this was the case.

Objector Representations:

Mr Soanes, in addressing the Committee on behalf of Burnt Hill objectors, raised the following points:

·           Mr Soanes advised Members that he lived in Burnt Hill and was representing the views of 19 objectors from 30 households. There had been a wide range of opinion, for which there were three main areas of concern:

1.     The development was overbearing for its location.

2.     The development would occupy a great part of the road frontage.

3.     The development would overlook the immediate neighbour at Thee Oaks, particularly from the glazed rear extension.

·           The application was originally for a building that would replace the demolished 114 sqm with 228 sqm, so a 100% increase had been approved. This had not been objected to by the local residents because the applicant had previously applied four times for either one much larger property or two smaller properties. The last three applications had been for individual properties at just under 400 sqm.  Therefore, the residents had been quite pleased that permission had been granted for a property of 228 sqm which had received only four objections.

·           The Section 73 added a further 30 sqm of space which, based on the new approved footprint, represented a 26% increase of this footprint. Added to this was the carport which was proposed to be doubled in size.

·           The residents were left wondering whether there was a ‘back door’ method of getting a larger property without going through the planning process and led to a general concern of overdevelopment.

·           There were two extensions to the existing application, one being a slightly larger rear extension. This rear extension was actually four times the size of the extension on the left hand side. Technical objections would not be expected to this development because it was a one for one, the house stayed the same.

·           It had been mentioned that the site was well screened but this was not the case as it was only well screened to the rear, to the farmland.

·           Whereas there were other large houses opposite in an area called North Gardens, these were not on Scratchface Lane and were inside a separate gated community.

·           Section 73 was not specific about whether this was a minor or major addition of space, however, a 29% increase of ground floor accommodation must be considered a major addition. 

·           The Applicant’s Planning Consultant had made the point that they did not think it would be attractive to a buyer without this additional space – but this should have been considered before the purchase of the plot. Speculative building carried risk and it was hoped that on this occasion sense would prevail and the development would be limited to the actual application already approved.

Member Questions to the Objector:

With reference to the rear extension being four times the size of the side extension, Councillor Bridgman asked Mr Soanes how he had arrived at that proportional difference as his own figures differed from this. Mr Soanes said he had measured using a scale rule, albeit the plans had unusually been drawn to a 1:200 scale which made the building look a lot smaller than it actually was. Mr Soanes thought the side extension – the plant room – came to 5.6 sqm and the rear extension came to 19 sqm, amounting to a total of 25-26 sqm. 

Agent Representations:

Mr Thorpe in addressing the Committee raised the following points:

·           The application for amendment was a householder application for single storey side and rear extensions that would normally be Permitted Development (PD). The proposal made no change to the roof height or the width of the approved principle front elevation that was currently under construction.

·           The Officers had attached a standard condition to the original planning approval that took away PD rights. As the same condition was applied, virtually without exception, to every single new house approved in the district, so the removal of PD rights was normal and did not suggest there was anything special or unusual about the application or the site.

·           The Government’s generous PD relaxations were that 50% of the garden area could be built on and rear extensions up to 8 metres in length for detached houses could be built without requiring planning permission. It was important to note that the proposed extensions were nowhere near as large as those allowed by the Government. The single storey side extension was two metres wide, was set back from the frontage by three metres which had been done to break up the building line and did not make the frontage look any wider.

·           The single storey rear extension projected four metres which was only half of the Government allowance. It was inset by one metre on one side, 4.5 metres on the other so it was screened from public view behind the approved house and additionally screened by the already approved frontage landscaping (a beech hedge).

·           The carport was proposed to be doubled in size but was a lightweight, see through structure on a plot with a 46 metre wide frontage, equivalent to the width of seven 6 metre car lengths. It would have little impact on the street scene because it lay below street level since Scratchface Lane was on a hill and the carport was further screened by the approved beech hedge frontage landscaping.

·           The single storey side extension was needed to house noise-generating plant associated with the required air source heating system. If the plant were outside it would significantly increase noise levels to the neighbour.

·           The dense laurel hedge along the side wall of the neighbour’s house was not only as tall as the proposed extension but there was also a 6.5 metre gap between the extension and next door.

·           The rear extension was more or less parallel with the rear of the neighbour’s house so it could not be seen from inside his house; only the top section could be glimpsed from his back garden over the retained dense laurel hedge.

·           There was an 11 metre gap between the extension and the neighbour’s garden which was the same Policy length required for a full length new residential rear garden so it ensured there was no overlooking, overshadowing or loss of privacy to neighbouring properties.

·           The already approved rear patio was in fact closer to the neighbour’s garden than the proposed single storey rear extension so from that patio you would see more than from the windows of the proposed brick walled rear extension.

·           As the Planning Officer’s report highlighted, the proposals were proportional, they added little to the overall scale, bulk or massing of the approved dwelling and they were not harmful to the character of the area or the AONB.

·           In terms of the AONB, the site lay within the settlement, it was enclosed on three sides by residential development and the fourth side adjoined the field to the rear whose view was blocked by a significant full width copse of tall TPO trees. 

·           Since the proposal did not affect openness, local character, the AONB, or affected amenities and privacy of surrounding dwellings it might be difficult to formulate a defensible reason for refusal.  It was respectfully requested that Members gave the amendments favourable consideration.

Member Questions to the Agent:

Councillor Macro asked who owned the tall laurel hedge between the site and Thee Oaks. Mr Thorpe said the hedge was on a shared boundary but was under the control of the applicant.

Councillor Bridgman said he found it difficult to gauge the plans as they did not have actual distances along the walls, but were set to scale, so he asked for dimensions of the house for which planning permission had been granted. Mr Thorpe said the scaling of plans and the way plans were presented were in accordance with Government guidelines and that local authorities received guidance on what was and what was not acceptable and these plans were in accordance with those guidelines. Councillor Bridgman said he understood that but would have to work off what he had scaled them to which was the original house for which planning permission had been granted as 11 x 11 sqm and the original carport as 5.8 x 3.4 sqm; the new rear extension as 6.5 x 4.2 sqm, the new side extension as 5 x 2.4 sqm and new carport as 6 x 7.5 sqm. Councillor Bridgman said he accepted these as the footprints that he had scaled from the plans Members had been provided with.

In relation to PD rights, Councillor Bridgman said the site was in the AONB, as was the vast majority of West Berkshire, and the Government had limited PD rights so it was therefore not true to say that if this were a householder application for extensions to an existing property it would have PD rights. Mr Thorpe said if there was not a condition taking away the PD rights then this would not require planning permission.

With regard to the air source heating system unit, Councillor Bridgman asked whether the original permission that had already been granted included this air source heating. Mr Thorpe said this was a new Government proposal (introduced subsequent to the previous approval) which no longer allowed gas central heating, so the developer had had to consider what he should use within the building and that requirement was to have an air source heating system. The best place to house the unit was within the building where it would be quieter than if it was located outside where the noise generated by the fans might cause annoyance to neighbours.

Councillor Law said that Mr Thorpe had said it was quite normal for most houses in West Berkshire, particularly in AONB, to have PD rights removed but that was not the case. Councillor Law said it was not unusual to take PD rights away but it was not the norm as had been stated. Mr Thorpe said he had been working in Planning in the local area for 40 years and the majority of the approvals he received from West Berkshire did have a condition taking away PD rights.

Ward Member Representation:

Councillor Alan Law, in addressing the Committee as Ward Member, raised the following points:

·           Councillor Law said looking through the report he could not find the on balance view with regard to character and appearance and would be seeking clarification on that.

·           As seen from the history, there had been eight applications on this site since 2018 with several of them being refused and two going to appeal with the decisions of the Council being upheld at appeal. The application that was approved in 2020 was for a smaller property. It was understandable that the Parish Councils, local objectors and neighbours had concerns that this had been approved and then within a few months of approval, proposed additions were made.

·           Councillor Law said Section 73 clearly stated minor variations only but the proposals to his mind were not minor and he wanted to understand why they were classed as such.

·           With regard to flooding in the area, Councillor Law asked why SuDS were not asked to give a response to this application.

·           Ashampstead Parish Council had referred to what they believed to be breaches of conditions on the approved application and whilst there was sympathy with that view, Councillor Law reinforced the Case Officer’s point that that was not relevant to the application being considered, but was an enforcement issue.

Councillor Pask thanked Councillor Law and directed him to paragraph 5.20 of the report which set out the on balance view in regard to character and appearance. 

Member Questions to Officers:

Councillor Law had two questions; why were the proposed variations to the property considered minor and why were SuDS not asked to give a response to this application. Mr Butler was unable to advise why SuDS had not given a response but they had been consulted on the case. With regard to the proposed variations to the property, Mr Butler said Officers considered Section 73 to be the correct vehicle for this application because, as the report clearly stated, there was no statutory definition of what was minor or not. Therefore, the development needed to be seen in the context of the overall permission.

As the Agent had stated, if PD rights had not been removed from this development in the existing permission, then once the dwelling was occupied, and not before, then PD rights came into play and the extensions could have actually been built. Mr Butler said he had dealt with much larger variations of existing permissions, relatively, than this under Section 73.

If the Council decided to issue consent then that would be a free standing fresh permission on which the Committee could apply the variation to the plans but it was open to the Committee to apply other conditions as they saw fit. The only condition that could not be varied was the time condition though that was irrelevant now because the development had already commenced. Councillor Law asked why PD rights had been removed on this application. Mr Butler said he did not know for certain the reason as he was not the case officer and had only had recent involvement, but could only assume it was because it was not in a settlement area as, in terms of policy, it was in the countryside and was AONB.

Councillor Bridgman said with regard to Section 73, a decision had been taken in the England and Wales Court of Appeal that had found in favour of the judge in the Taunton Deane case that it was a question of planning judgement. As a result, Councillor Bridgman felt this gave the Committee some scope to decide its planning judgement in this case. The scale of additions to a property that already had planning permission and which had had PD rights removed and therefore either required a Section 73 or a fresh planning application to increase the site, was a matter of planning judgement in the context of this Committee. Mr Butler agreed it was a matter of planning judgement and said the professional technical advice by Officers for this application was acceptable on balance. If Members wished to take a different view that was entirely legitimate and they had the right to do so. Sharon Armour said that Section 73 could go beyond a minor amendment and Members needed to look at the permission as a whole and whether the terms were still the same.

In terms of the appeal that had been turned down, the question of scale and bulk was of importance, in light of which Councillor Bridgman asked Mr Butler if he agreed with his calculations for the two new extensions and the increased size of the carport. Mr Butler apologised that he did not have a scale rule with him but that from his reading of the plans – and 1:200 was an entirely recognised planning scale – the rear extension was no more than twice the footprint floor area of the side extension and to bear in mind they were both only single storey.

Councillor Macro said at the site visit he had noticed the very tall laurel hedge between the site and Thee Oaks which the agent had said was in the control of the applicant. Councillor Macro asked whether the hedge was on the landscaping proposals for the previous application and if not, was there a way of protecting the hedge so it could not be cut down. Mr Butler said he did not know if the hedge was specifically protected under the existing landscaping conditions and he would need to know whether that hedge was within the red line of the application site and therefore could be conditioned under control of the applicant. Mr Butler was able to clarify that the hedge was not subject to a TPO.

With regard to the red line, plans showed a black dotted line and Councillor Mayes asked if that was the limitation of the site. Mr Butler’s assumption was that the black dotted line did represent the red line, in which case the laurel hedge was outside the line and therefore could not be conditioned. The agent was able to clarify however that the hedge was in the ownership of the applicant and therefore could be conditioned.

Councillor Somner said to Mr Butler that what was being considered were additions to an approved application and he would have thought that the primary requirement for a response from SuDS would have been for the main application and main dwelling and that potentially the additions would not have a material impact on the previous SuDS outcome. Mr Butler felt that was a reasonable assumption and drew attention to the wording of Condition 14 of the report in that the original permission was now under construction. Therefore, the sustainable drainage measures had already been approved under that discharged condition. Mr Butler added that any further built form would impact slightly upon SuDS but would not be a material impact because if it was completely material and substantial it would not have been accepted under Section 73.

Councillor Linden referred to the point the agent had made about the air source heating system, the Government had indicated they no longer wanted gas boilers, but he did not believe they had legislated it was illegal to put a gas boiler in a new build. Mr Butler said he did not know the answer to that as he was not a building regulations expert but it was entirely legitimate for the applicant to take on these sustainability measures for a dwelling which would be there for perhaps 100 years so it would certainly not be discouraged.

Councillor Bridgman asked if the application under Section 73 failed and therefore the side extension which would house the heat source unit could not be built, would the applicant be able to install such a unit in the garden of the building rather than inside the building as permitted under PD. Mr Butler said this would not be allowed as under the existing permission the PD rights had been removed for all outbuildings so the applicant would then have to come back for Section 73 or a householder application for approval.

Debate:

Councillor Bridgman said he had serious difficulty with Section 73 and the word minor. He accepted what Mr Butler had said and that it was open to this Committee to grant this application under Section 73. It was also open under planning law on planning balance for Committee to refuse the application. Councillor Bridgman said the original building on the site with the garage was just under 65 sqm footprint and whilst accepting that the appeal referred to the height of the building and the bulk of the building, he felt that the footprint did give a measure of what the Committee was dealing with. The replacement dwelling that was proposed had a ground floor footprint of 105.8 sqm. The extant permission the Committee was now dealing with was for a house that was approximately 121 sqm and a carport approximately 20 sqm, a total of 141 sqm of development. What was proposed was an increase with the rear and side extensions of just under 40 sqm taking it to about 180 sqm. Adding the carport took it to over 200 sqm. Councillor Bridgman reminded Members the Appeal was on 185 sqm. Looking at Policy C7, which was referred to in the report at point 5.11:

Policy C7 states that there will be a presumption in favour of the replacement of an existing dwelling of permanent construction. A replacement dwelling will be permitted providing that: i. The existing dwelling is not subject to a condition limiting the period of use as a dwelling; and ii. The replacement dwelling is proportionate in size and scale to the existing dwelling….

Councillor Bridgman felt this resultant development was not in proportion in size and scale and that PD rights were removed for a very valid reason. On this basis, Councillor Bridgman intended to propose refusal of the application.

Councillor Law said he was very much in agreement with the approximation of the scale and sizes that Councillor Bridgman had calculated and had also arrived at approximately the same figures. Looking at the plant room on the plans, it was clearly slightly more than twice as broad as it was deep which differed to what the agent had stated. With regard to SuDS, it was absolutely correct that if this was a variation Section 73, then SuDS was done on the previous application, but Councillor Law’s contention was that this should never have been a Section 73 as the variations were more than minor and if the Officers had decided this should have been a new application then there would have had to have been a new SuDS report. Councillor Law said he was convinced that if these plans had been submitted back in 2020 it would have been refused due to the impact on AONB and possibly overdevelopment of the site. What was before Members now were approved plans with a few substantial additions on it which took it over the limit. Councillor Law said when Councillor Bridgman made his proposal for refusal he would be happy to second it.

Councillor Somner explained his considerations. He was in support of air source heating and he hoped a lot more developers would look to it as a solution. He felt it had not been helpful for Members to look at pictures for which they made their own interpretation as to sizes which had not been stated. Under the circumstances, Councillor Somner questioned why the sizes had not been made available on the plans. Constant reference had been made to initial refusals and the combined sizes of the development and what was being looked at now and what was most recently approved. Councillor Somner felt this was ‘mission creep’, which in these circumstances was disrespectful to residents, to Officers and to Members of the Committee. Officers were in a very difficult position as they were looking at what was in front of them for a current application and when you looked at a current application you made a decision based on that, and that alone. This application was felt to be too soon after the previous application for it not to be a consideration.

Councillor Macro said he was in agreement with Councillors Law and Bridgman. He said the plans showed the outline of the previous dwelling and when compared to the outline of what was being proposed it could not be said that the resultant dwelling would be proportionate in size to the original with the addition of the two extensions.

Councillor Bridgmanproposed refusal of the application on the grounds that on planning balance and as a matter of judgement the Committee considered that the application was not a minor variation to the previous planning permission and that it should be the subject of a full planning application if the applicant wished to continue with it. Mr Butler stated that this was not a valid reason for refusal. The reason for refusal must demonstrate material planning considerations such as overdevelopment, harm to the AONB, disproportionality contrary to policy, etc.

Councillor Bridgmanamended his proposal to state that if the application was granted there would be overdevelopment of the site within the AONB and was outside of the settlement boundary.

Councillor Law seconded Councillor Bridgman’s amended proposal to refuse the application on the basis of overdevelopment and its overbearing and negative impact on the character of the AONB. 

Councillor Macro proposed a further reason for refusal being that the application was contrary to Policy C7 in that the resulting dwelling would be disproportionate in size to the original dwelling. Councillor Bridgman said he would be happy to include this reason within his proposal and this was seconded by Councillor Law.

Mr Butler clarified the reasons for refusal as overdevelopment, contrary to Policy C7, disproportionality and overbearing/negative impact on the AONB. 

RESOLVED that the Head of Development and Planning be authorised to refuse planning permission for the following reasons:

·           Overdevelopment

·           Contrary to Policy C7

·           Disproportionality

·           Overbearing/negative impact on the AONB