Agenda item

Note:              Councillor D. Cotton left the room at 8.24pm and returned at 8.26pm

 

The next application was introduced by the Chairman. Planning application number 143367, seeking permission for erection of 1no. dwelling being variation of condition 3 of planning permission 141174 granted 17 September 2020 - amendment to plans, on land between Elizabeth Close and Hawthorn Close, Glentworth, Gainsborough. The Planning Officer explained that there had been further representations received from number 16 Hawthorn Close. These were received beyond the consultation date and summarised as follows.

 

“The submitted plans may or may not be to scale. The applicant has significantly underestimated the size of the plot for the sole purpose of this work proposed. The watercourse has been moved entirely beyond the red boundary. Not all information has been provided in the Officer’s report. From a site meeting that took place, a conversation hasn't been reported between Witham Internal Drainage Board and Lincolnshire County Council flood team regarding some information it said if it had come forward, we would have asked for the boxes to be set further back. The LCC flood team and Witham Internal Drainage Board have not provided any evidence to prove the alterations to the watercourse will not cause surface water flooding.”

 

Note:              Councillor I. Fleetwood declared a non-pecuniary interest as he was a member of the Witham Third Drainage Board but had held no conversation regarding the application.

 

The Chairman stated there were three speakers, the first of whom had submitted a statement to be read aloud and he asked the Democratic Services Officer to do so.

 

The statement from Glentworth Parish Council was read as follows.

 

“Introduction

 

This statement is being made to request that the Planning Committee either refuse the application or defer a decision on the basis that the proposed development, even with the suggested alterations, is of an inappropriate scale for the site; the plans in front of the Committee are inaccurate and not to scale; there is an unknown risk in respect of surface water flooding as a result of work already done; and that the proposed solution to stabilising the bank of the watercourse is inappropriate.  It is worth noting here that at the site meeting referenced in the report, the representative of the IDB stated that had an application for the works undertaken and proposed been made originally, or the original application referred to them, it would ‘likely have been refused’.  The site meeting is mentioned on p130 of the report but there is no reference to this comment, although it was made in front of several witnesses.

 

All of these are material consideration that the Planning Committee should take into account and whilst the report addresses some aspects, it is the view of the Parish Council and the residents that the assurances of the developer and his agent are insufficient.

 

Background

 

Members of the Committee will be aware from the report and the comments on the Planning Portal of the strength of feeling this development and application has generated.  On behalf of the Parish Council, I understand that many of the issues raised are not material in the context of the TCPA, but they do reflect the significant detrimental impact on local residents that the work done to date has had and ongoing concerns about the site.  What is pertinent and material is that the need for this application supports the original contention that the site is not suitable for the proposed development.

 

The Parish Council, of course, understands that regardless of the decision in respect of this application there is an extant consent for a dwelling, that cannot be withdrawn.  However, we would recommend that this application provides the Planning Authority with the opportunity to ensure that how that extant consent is implemented is appropriate for the location and minimises any further harm to the immediate surroundings of the site.

 

Specifics in the report

 

We should like to draw attention to some specific issues mentioned in the report, that are also referenced in comments you have received.

 

Plans not to scale – evidence has been supplied that both the overall site plans and the specifics in relation to the gabion baskets are not to scale.  We note that the applicant’s agent has provided statements to the effect that the plans are accurate and that the totality of the development is within the ownership of the applicant. However, we believe it is incumbent on the LPA to assure itself of these issues, not to solely rely on one parties statement, particularly when it relates to the matter of flood risk and when there is evidence to the contrary;

 

Watercourse alterations – as the report states (penultimate para on p135), some work to the watercourse has already been made but it inaccurately states that this is limited to the placing of gabion baskets in the watercourse.  Significant photographic evidence has been submitted to demonstrate that the line, width and quite probably depth of the original watercourse has been changed – none of this work was authorised (or requested) within the original consent.  The sole purpose of this work has been to extend and alter the size and shape of the development platform – photographic evidence showing the pegging out of the site and how that relates to the watercourse has been submitted, reflecting that the submitted plans are not an accurate reflection of what has been done.

 

Underground services – as with the comments from residents and the Parish Council to the original application, the question of the location of underground services and the impact of the development on these has not been adequately addressed.  It came as little surprise to residents that at an early stage of the initial works the rising main was damaged, resulting in sewage spilling onto neighbouring properties and an extended period of disruption and pumping out by Anglian Water.  We do not believe that this application should be granted or any further work should progress until the issue of underground services, easements and the impact on neighbouring properties is fully understood.  It is worth noting that one of the reasons this site was not developed by Ben Bailey when the rest of Hawthorn Close was built was the understanding that there are extensive underground services.

 

Ecological Survey – the Parish Council notes and is pleased to see that Conditions 8 and 9 of the original consent are being retained.  However, these are now broadly meaningless as the work done already has caused significant damage to the ecology of the area.  Ass already mentioned, the unauthorised alterations to the watercourse will have caused significant damage to animal and plant life living in and adjacent to the watercourse.  Additionally, as the Parish Council have pointed out to the Planning Enforcement Officer, the work done on the North bank of the watercourse (on land outside the development area and not in the applicant’s ownership) may have caused severe damaged to trees, contrary to what the Ecological Survey stated.”

 

The five minute time limit was reached and so the Chairman requested the Officer cease reading. The next speaker, Sarah Pickering-Patterson was invited to address the Committee. She made the following statement, during which slides she had provided were shown to the Committee.

 

“This statement is being made requesting that the Planning Committee refuse the application.

 

The Planning Officer states in the report, the applicant’s agent has provided statements that the site plans are accurate, and the entirety of the land and development is within the ownership of the developer which includes a signed Certificate A. However, Official copies of the HM Land Registry Title Deed Plans for 16 Hawthorne Close and for the development plot show otherwise. The agent and developer have made false declarations, even if unknowingly, the planning consent is invalid.

 

The Title Deeds in comparison with the site plan show parts of the development land encroaching on other people’s land towards the Southern, Northern and Eastern boundaries marked in red. Part of the land on the southern boundary belongs to me. No notice has been served to me.

 

In terms of a legal position, Article 12 of the Town & Country Planning (Development Management) Procedure Order 2010, imposes a requirement, that all applications for planning permission must be accompanied by the correct certificate. This process has not been followed properly by the developer and Certificate, B, C or D should have been submitted, rendering this application and the original planning permission consent, invalid whether planning permission has been passed or not. This is not a boundary issue; this is a planning issue due to certificate A being signed. Even if unknowingly the permission consents are invalid.

 

Section 65(5) of the Town & Country Planning Act 1990 says that a local planning authority shall not “entertain” any application for planning permission where these requirements have not been satisfied. Signed Certificate A cannot lawfully be determined as the developer does not own all the land within the red line of boundary of the site plans.

 

The site plans are annotated ‘Do no scale, work only figured to dimensions. This means regardless of any information on the plans, they are not drawn to scale, are indicative only, and are subject to verification by a full site survey. This gives the developer room for manoeuvre to put the dwelling and the gabion wall exactly where they want to. If a complaint was raised that the gabions were larger, or the dwelling was built in the wrong place potentially breaching the plans, the LPA cannot establish this using these drawings. To ensure the development and gabion wall is built in accordance with the plans, adequate scale drawings are needed.

 

The applicant has significantly underestimated the size of the plot and the sole purpose of this work, has been to extend and alter the size and shape of the development platform, in order to fit the dwelling on the plot. The 2 pictures on the screen in front of you, show just how much land the developer has taken to extend the plot. You can clearly see the watercourse and the gabion wall are well beyond the red boundary line which is out of their ownership. There have also been trees cut down and damage to the vegetation on the northern boundary where he has breached the conditions in the original consent relating to the Ecological Survey. This is supposed to be protected but it’s been destroyed.

 

The photograph and HM Land Registry Title Plans on the screen, shows how the developer resized the plot. The developer pegged out the house but it didn’t fit and the back of the house overhung the watercourse. This proves that the watercourse and the gabion wall are beyond the red boundary line on the site plans.

 

As evidenced in the timeline of the photographs on screen, the watercourse has been moved in its entirely beyond the red boundary line on the site plans. The developer extended the plot by digging out the ground from the other side of the watercourse, dragging the soil forward to make the plot bigger. This is land beyond the red boundary line on the site plans. 

 

The watercourse is a vital piece of infrastructure that carries away the surface water from Glentworth. The watercourse has been made much narrower from 2m to 6 inches in places, as evidenced in the photos on the screen.

 

At the site meeting, Witham IDB stated had an application been made before the works were completed, it would ‘likely have been refused’. This was made in front of several witnesses. There is no reference to this in the report.

 

I sent evidence to the Planning Officer via email of Witham IDB stating to LCC Flood Team “It is not good and if it had come forward for consent, we would have asked for the front of the gabions to be set further back”. There is no reference to this in the report.

 

Conclusion:

 

I therefore ask that the Planning Committee refuse this application based on all the facts evidenced, but in particular, that signed Certificate A cannot lawfully be determined, because the developer does not own all the land within the boundary of the site plans invalidating all of the planning permissions.”

 

The Chairman thanked the speaker for her time and invited the final speaker, Councillor P. Howitt-Cowan, speaking as Ward Member, to address the Committee. Councillor Howitt-Cowan made the following statement.

 

“Thank you for allowing me to speak this evening in the light of your crowded agenda. The last two speakers have provided you with some very concerning details, and in my humble opinion, this retrospective planning application is possibly the worst one I've ever come across. It is from beginning to end a dangerous cocktail and a textbook case for planning training.

 

Let's together look at the very beginning. The builder purchased a piece of land avoided by previous developers to build a dwelling and not carried out the measurements and discovers the dwelling this committee approved will not fit the piece of land. The land is too small for the substantial dwelling he proposes. He has already advertised it for sale because he has built it and he has a huge problem. He therefore identifies the southern boundary where a stream runs and without permission sets to with gabions to claim land in order for his proposed dwelling to fit. This is encroachment but others would use another term to describe this kind of action and this has deliberately interfered with a watercourse.

 

He is then forced to apply for retrospective planning permission. And you have heard that had he applied originally, he would most likely not have been granted permission. Therefore why grant it retrospectively? Flooding is an important consideration due to climate change and we were told that the water course was only assessed for its current flow and not for the future problems that could arise potentially so there is room for significant flooding possibly in the future.

 

But this stream is an important conduit of flood water in this village. The excavation of the stream has affected its ecology, damaging animal life, plant life and even the trees on the north side of the stream, which is outside our remit. We should be better stewards of conserving not vandalising it.

 

Moreover, more seriously, we have heard doubt cast on the paperwork for this application. It appears that it has been taken at face value. Official copies of Her Majesty's land registry title deeds plans for 16 Hawthorn Close and for the development plot reinforce doubt the agent and developer have, it is alleged, made false declarations even if unknowingly, the planning consent is invalid. False application by default invalidates all applications. The process the applicant has followed may be fundamentally flawed because of the questions about land ownership. Apparently he has declared he owns all the land but there is very strong evidence he does not. The certificate A submitted with the original application may well be wrong, which would mean the original consent is invalid. For the LPA, you'll appreciate this could have serious consequences and suggest deferral to check this property, would be the minimum outcome of this meeting.

 

Where may we go with this one? Defer for future investigation, or refuse outright retrospective planning permission, which would mean that the builder would have to reapply for a dwelling with the correct measurements that would fit the piece of land he has purchased, subject to all his paperwork being in order and thereby not interfering with the stream. Thank you”

 

The Chairman thanked Councillor Howitt-Cowan for his time, and, before opening the floor to comments, noted that there had been several mentions of incorrect certificates and whether the application was valid for the Committee to determine. He enquired of Planning Officers to clarify.

 

It was explained that the site had extant planning permission that would not be superseded. The Committee was being asked to look at a variation of the conditions and the original planning permission would stand. With regards to comments from the drainage board, they did not grant panning permission, their comments would not relate to the granting or otherwise of planning permission. In relation to land ownership, it was noted that permission could be sought for land outside of an individual’s ownership and the concern as to whether the title deeds were accurate was an administrative matter outside the remit of the Planning Committee. It did not affect the decision making considerations of the Committee. These comments were echoed by the Legal Adviser and the Chairman opened for comments from the Committee.

 

There was considerable discussion as to the sizing of the property, the question over the land ownership and the comments regarding the alteration of the watercourse. The position of the Committee, in considering the application for variation of conditions, was reiterated. A Member of the Committee quoted the comments from Lincolnshire County Council, where there were no issues raised, and it was confirmed that the purpose of gabion boxes was to shore up the banks of the watercourse.

 

There was further discussion regarding the concerns raised by both the Parish Council and the objector, however, on citing the purpose of the application, there was acceptance amongst some Members of the Committee that such concerns did not impact the decision to be made by the Committee.

 

Having been moved and seconded, the Chairman took the vote. With a majority vote it was agreed that permission be GRANTED subject to the following conditions.

 

Conditions stating the time by which the development must be commenced:

 

1. - Void

 

Conditions which apply or require matters to be agreed before the development commenced:

 

2. - Void

 

Conditions which apply or are to be observed during the course of the development:

 

3. With the exception of the detailed matters referred to by the conditions of this consent, the development hereby approved shall be carried out in accordance with the following drawings: ZD/G/21 and ZD/G/P2 received 1st September 2020 and ZD/G/21P1 Rev b dated 1/11/21. Works shall be carried out in accordance with the details shown on the approved plans.

 

Reason: To ensure the development proceeds in accordance with the approved plans and to accord with policies LP17 and LP26 of the Central Lincolnshire Local Plan and the National Planning Policy Framework.

 

4. The facing materials specified in the Materials Sample Board document received 29/1/21, and approved under application 142367, shall be used in the construction of the dwelling.

 

Reason: To ensure the use of appropriate materials to accord with policy LP17 and LP26 of the Central Lincolnshire Local Plan and the National Planning Policy Framework.

 

5. The scheme for the disposal of foul and surface waters shall be carried out in accordance with the approved details under application 142367, and with the relevant consents from the water board.

 

Reason: To ensure adequate drainage facilities are provided to serve the development in accordance with Policy LP14 of the Central Lincolnshire Local Plan.

 

6. - Void

 

7. All planting or turfing shown on plan ZD/G/21P1 Rev b dated 1/11/21 must be carried out in the first planting and seeding season following the completion of the development, whichever is the sooner; and any trees or plants which within a period of 5 years from the completion of the development die, are removed, or become seriously damaged or diseased must be replaced in the next planting season with others of similar size and species, unless the Local Planning Authority gives written consent to any variation. The landscaping should be retained thereafter.

 

Reason: In the interests of visual amenity and nature conservation to accord with the National Planning Policy Framework and local policy LP21 of the Central Lincolnshire Local Plan 2012-2036.

 

8. The development hereby approved must only be carried out in accordance with the recommendations set out in section 5 (pages 21-22) of the preliminary ecological appraisal survey completed in August 2020 by Whitcher Ecological Consultants Ltd.

 

Reason: In the interest of nature conservation to accord with the National Planning Policy Framework and local policy LP21 of the Central Lincolnshire Local Plan 2012-2036.

 

9. The development must be completed in accordance with the tree protection measures identified within the arboricultural method statement by AWA Tree Consultants dated May 2020. The approved protection measures must be installed prior to commencement and retained in place until the development is completed.

 

Reason: To safeguard the existing trees on the site during construction works, in the interest of visual amenity to accord with the National Planning Policy Framework and local policy LP17 and LP21 of the Central Lincolnshire Local Plan 2012-2036.

 

Conditions which apply or relate to matters which are to be observed following completion of the development:

 

10. Notwithstanding the provisions of Schedule 2 Part 1 (including Classes A, B, C, D, and E) of the Town and Country Planning (General Permitted Development) (Amendment) Order 2015, or any Order revoking and re-enacting that Order, the dwelling hereby permitted shall not be altered or extended, no new windows shall be inserted, and no buildings or structures shall be erected within the curtilage of the dwelling unless planning permission has first been granted by the Local Planning Authority.

 

Reason: To enable any such proposals to be assessed in terms of their impact on the resulting amount of space around the dwelling and to safeguard the character and appearance of the building and its surroundings.