Agenda item

To receive the report of the Head of Development Services.

NOTED

 

1.         The three applications concerning the site at 110-112, Aldermans Hill listed on the agenda for this meeting would be discussed together, then considered in sequence.

 

2.         The introductory statement of the Planning Decisions Manager, including the following points:

a.  Apologies for the late item TP/07/1560/NM1 circulated on Supplementary Agenda No. 2, with the agreement of the Chairman. Due to the level of interest in the two applications reported on the main agenda, it was felt that this item should also be considered by Planning Committee in the interests of openness.

b.  In October 2007 planning permission was granted for the demolition of the existing nursing home and erection of a 2-storey block of 10 x 2-bed self-contained flats with accommodation in roof space, front, side and rear dormers and parking to the rear.

c.  The first reason for the decision to grant permission was that “the demolition of the existing building and the construction of a block of ten self-contained flats, by virtue of its external design and siting and the internal layout, would be in keeping with the existing street scene and the residential character of the surrounding area”.

d.  Neither the permission or conditions formally specified the plan numbers.

e.  The site previously contained a pair of 2-storey semi-detached Edwardian style buildings. The Character Appraisal for the Conservation Area described the original buildings as having a positive contribution to the character and appearance of the area.

f.  When the Conservation Area was designated in February 2010 the requisite notices were published and letters sent out by recorded delivery, the letter for this site being returned undelivered.

g.  A Section 80 counter notice under the Building Act was served to the Council and demolition took place in April 2010 and the site was now vacant.

h.  The designation of the Conservation Area had placed a statutory requirement on the developer to secure Conservation Area Consent for the demolition of the original building.

i.  The design of the replacement building accepted in 2007 was not of the standard required had the Conservation Area designation been in place at the time.

j.  Amendments had been proposed to the design which significantly improved the development and which officers considered to have an acceptable form and appearance which would make a positive contribution to the character and local distinctiveness of the historic environment.

k.  Concerns had been raised in relation to the Council’s failure to prosecute the developer over the breach of planning control. Officers wished to advise that the issue had not been ignored and no decision had been taken at this time. There was no evidence that the breach was a deliberate act and it was important to take all factors into account, including the willingness of the developer to enter into dialogue with the Council.

l.  The Conservation Area designation did not invalidate the planning permission granted in 2007, and that permission carried considerable weight.

m.  Legal Counsel had confirmed that the gain in the replacement building was legitimate in this instance.

n.  The three applications must each be considered in turn in the order TP/07/1560/NM1; TP/07/1560/MM1 and lastly CAC/10/0007, which was dependent on the acceptability of the replacement scheme.

o.  Concerns of local residents had been taken into account, as well as the opinion of the Council’s Conservation Team and the Conservation Advisory Group.

p.  Counsel had been consulted on the procedure adopted and merits of prosecution and their view was one of support for the Council’s approach.

q.  If the three applications were agreed this evening, the option of implementing the scheme agreed in 2007 would be removed.

 

3.         The advice of the Legal representative, including the following points:

a.  A written “Advice Note to Committee Members on the Non Material and Minor Material Amendment Applications” had been circulated.

b.  The procedure to be adopted took account of recent changes in legislation.

c.  The “first application” (TP/07/1560/NM1) was for the insertion of an additional condition listing the approved drawing numbers upon which the original permission was granted.

d.  The “second application” (TP/07/1560/MM1) was to effectively replace the condition mentioned in the first application with a fresh condition requiring the external appearance and precise siting of the development to be constructed in accordance with a number of new plans which showed the developer’s amended scheme.

e.  The “third application” (CAC/10/0007) was a retrospective application for demolition of an existing building (the former nursing home) in connection with approved redevelopment of the site.

f.  He reassured Members that the procedure was entirely lawful and was supported by guidance produced by the Department for Communities and Local Government. Also, opinion was sought from leading Counsel on the procedure and he has confirmed that the Council is taking the appropriate route.

g.  The demolition of the former nursing home without Conservation Area Consent did not invalidate the original permission and unless it was amended, the Council could end up with a development that was undesirable in the Conservation Area. The approach being followed by the Council would ensure that the only implementable permission which could be built out was the amended 2010 development.

h.  It was crucial that the three applications were determined in the correct order consequentially. If Members were minded not to accept the officers’ recommendation for the first application then the second application would fall away and likewise for the third application if Members did not accept the recommendation in respect of the second application.

i.  The first application was made pursuant to Section 96A of the Town and Country Planning Act 1990 and sought to insert an additional condition to the original permission listing the drawing numbers which formed part of the original application. Officers’ opinion was that such an application could be considered as a Non Material Amendment since it inserted a condition that was already arguably part of the permission itself and reflected what were known to be the relevant drawings at the time. Members were advised that the acceptability of the scheme contained in the second application was not to be considered here. If Members were minded to accept the officers’ recommendation the Committee would move on to consider the second application.

j.  The second application was made pursuant to Section 73 of the 1990 Act and could only be made as a consequence of the condition, which was the subject of the first application, being inserted in the original permission. Applications under Section 73 could only be made if there was a suitable condition which could be varied to achieve the aim of the Minor Material Amendment. This application, if approved, would have the effect of attaching to the original permission a condition which listed revised plans for the amended scheme. This would mean that the development would be built out with an external appearance that officers considered to be appropriate in the Conservation Area. It was considered that the amendment was one whose scale and nature resulted in a development which was not substantially different from the one already approved.

k.  It was highlighted that the Council carried out consultation on a much wider basis than required in respect of the second application. This was considered appropriate given the level of public interest in this application.

l.  Only if Members were minded to accept the officers’ recommendation in respect of the second application, would the Committee be able to move on to consider the third application. This was because the application for Conservation Area Consent has been made on the basis of the revised 2010 scheme coming forward.

 

4.         The Chairman had agreed that a deputation and response limited to a total of five minutes each would be accepted in relation to the three applications being considered in conjunction.

 

5.         The deputation of Mr Andy Barker of the Fox Lane and District Residents’ Association, and Mr David March of Improving Our Place Group, including the following points:

a.  Fox Lane and District Residents’ Association represented over 530 household members, and had submitted a 126 signature petition of objection.

b.  The Residents’ Association had worked for many years towards obtaining Conservation Area designation, and felt that it had been destroyed within two months.

c.  Residents were pressing the Council to prosecute the developers who were riding roughshod over the rules.

d.  It was important that the Council showed it was committed to dealing with such breaches in a professional way to maintain the confidence of residents.

e.  Residents considered the consultation period to have been too short.

f.  Mr March, a qualified architect, highlighted that it was a criminal offence to demolish a building in a Conservation Area without having obtained Conservation Area Consent. It was also necessary to obtain a Section 80 ‘counter notice’ under the Building Act.

g.  The Planners were told of the risk of demolition of these houses by a local resident on 30 March, via email.

h.  The response on 7 April failed to note that Conservation Area Consent was needed for demolition; only that planning permission had been granted in 2007.

i.  The Planners were told, by phone and email, when demolition started on 20 April, yet neglected to send an Enforcement Officer. On 30 April, following the intervention of the Director of Place Shaping and Enterprise, officers agreed that Conservation Area Consent was needed and the Enforcement Officer was sent.

j.  Residents were advised by the Council that the demolition could not be stopped in law.

k.  The application for retrospective Conservation Area Consent for demolition is deficient as no Design and Conservation Statement has been submitted; a national requirement.

l.  The officers’ report is deficient because it contains no explanation of the circumstances of the demolition of the buildings; there is no architectural description or assessment of the design of the buildings that existed on the site; and it does not refer to the statement in the Conservation Area Character Appraisal for the area the “No site within the Conservation Area is currently subject to development proposals, or vacant and available for development”.

m.  The Committee was urged to defer consideration of the application, pending a full report into the circumstances of the demolition and the submission of a Design and Conservation Statement.

n.  However, if Members were minded to grant Conservation Area Consent, there should be a S106 agreement to keep the hoarding free from signage and graffiti until the development is completed.

o.  On 27 May the Director of Place Shaping and Enterprise advised him that officers had informed the developer that the 2007 planning permission had fallen away. Yet, officers approved details of the 2007 scheme under delegated powers on 27 August, despite requests that all the applications should be reported together to the Planning Committee.

p.  Officers were rushing the new design through the ‘minor material amendment’ procedure, when Government advice states that it is intended for dealing with minor changes only.

q.  The changes are not minor and amount to a new scheme for which a full planning application should be required and could be challengeable. There is no Design Statement, which is challengeable in law. The building has been moved and breaches the Derwent Road building line – a major change. The external design is unrecognisable from the 2007 scheme.

r.  The new design should be as good as the buildings that were illegally demolished. The proposal is not. The revised design is missing: the four ground floor bay windows; the first floor corbelled brick panels; and the step in the roof profile. Also: the corner turret, front window openings and oriels don’t match the originals; a ‘scraped’ white render is not appropriate; and the dormers do not match the originals. This gives the building a pastiche-like appearance.

s.  In addition: off-street parking for 10 cars is inappropriate; the front garden wall should match no. 120, Aldermans Hill; the refuse store should be relocated; all eaves lines should follow the main eaves line of the building; the two original front doors openings of the houses should be reinstated; and the proposed conditions were not tight enough to control the detailed design of the elevations.

t.  The Committee was requested to defer the application and instruct officers to negotiate further revisions as above.

 

6.         The statement of Councillor Martin Prescott, including the following points:

a.  He appreciated the efforts made by all parties in the last few weeks, but this was “shutting the stable door after the horse had bolted”.

b.  The demolition was an unlawful act, and the Council was very slow in doing something about it.

c.  It was accepted that once demolition had started, it could not be halted as the building would be left unsafe, but it should not have been demolished in the first place. The paperwork which should have been submitted in law was not done.

d.  It was not possible to determine one application without considering the others, and he suggested deferring any decision until the Council had the opportunity to ensure that everything was being done in accordance with the law.

 

7.         The response of Mr Dean La Tourelle, Curl La Tourelle Architects, the Agent, including the following points:

a.  They and the applicant had worked very consistently with officers towards the amendments to the development and felt this was a satisfactory solution to an unusual problem.

b.  He could understand the anxiety and anger of the local residents, but it was important to understand other factors of this situation, particularly the developer’s intentions. They would be very good neighbours; one of the applicants will live in the accommodation and 60% would be held in trust for the applicant’s family.

c.  They were doing everything possible to build what would meet the neighbours’ and Council’s aspirations.

d.  Demolition had been carried out to stop squatters occupying the vacant building; not to frustrate the Council’s plans for the Conservation Area, and planning permission was already granted.

e.  It was only after the demolition was done that the Council told them the site was in a new Conservation Area. Immediately on realising that a Conservation Area had been designated, the applicant recognised that raised new issues and worked with officers who took advice from the Conservation Advisory Group and objectors regarding the new appearance. Features from the former nursing home and house facades had been incorporated to make a positive contribution to the Conservation Area.

f.  He urged the Committee to accept the applications and achieve a positive resolution to the building in the Conservation Area.

 

8.         The Planning Decisions Manager’s response to points raised, including:

a.  New guidance had been issued this year so that the requirement for a Design and Access Statement under Section 73 of the Town and Country Planning Act 1990 was lifted.

b.  He understood concerns raised in relation to the Minor Material Amendment process, but could not ignore the material weight of the 2007 planning permission, which must influence the Council’s approach. Legal Counsel also agreed that the procedure being followed was appropriate.

 

9.         Tony Dey spoke on behalf of the Conservation Advisory Group (CAG) to amplify their comments set out on page 77 of the agenda pack. CAG deplored the unauthorised demolition of the building and was very concerned about any unauthorised demolition in Conservation Areas, but was grateful for the efforts of the Conservation officers in this situation. CAG was supportive of the proposed replacement building as it closely replicates the original and reflects the style of its robustly designed neighbours.

 

10.       The comments of Mike Brown, Team Leader Conservation, including:

a.  The loss of the original buildings was regrettable, however it was accepted from a number of negotiations with the developers that this was a mistake and not a malicious act.

b.  A number of new Conservation Areas had been designated and in every instance there were applications that pre-dated the designation and which had involved difficult decisions which the Council had to accept.

c.  He acknowledged the efforts made by the developer and agent, and advised that the solution put forward this evening was satisfactory to all concerned; discharged the statutory duty to preserve or enhance the Conservation Area; was supported by most professionals; and was appropriate for the Council to support. He hoped it would then be possible to move on and that the Lakes Estate would go on to happier times.

 

11.       In response to Councillor Hurer’s queries, the Planning Decisions Manager confirmed that the email of 30 March referred to by the deputee was received by the Planning Policy section, but his department was not made aware. He confirmed that procedures had now been changed so that messages were copied to the Planning Department to enable them to assess planning implications. The Chairman emphasised his hope that the measures put in place would ensure a similar situation would not happen again.

 

12.       In response to Councillor Hurer’s query whether that applicant was notified at the time of demolition that this was a Conservation Area, the Planning Decisions Manager advised that notification letters were returned from the address, which was understood to be squatted at the time.

 

13.       Councillor Hurer referred to the deputees’ request regarding measures to ensure the hoarding was kept free from signage and graffiti. Planning officers advised that any conditions needed to be enforceable by the applicant and in this situation they had no control over third parties. However, an arrangement could be agreed whereby the applicant would be notified and the hoarding cleaned within a set timescale.

 

14.       Councillor Hurer suggested that the decision whether to proceed with a prosecution would be up to the Enforcement team and that objectors may wish to liaise with them. The Assistant Director, Planning and Environmental Protection, advised that a range of factors must be taken into account when considering whether prosecution was right and proper. He was not able to say anything at this meeting that may fetter the Council in its decision regarding any prosecution and could not give any indication at this stage what the Council’s position would be.

 

15.       Highlighting the objectors’ concerns, Councillor Hurer asked about the merits of deferring any decision to discuss improvements to the design and consult further on the most recently revised plans. The Planning Decisions Manager advised that on the basis of the original plans for application TP/07/1560/MM1, CAG had raised no objection to the amendments. Concerns raised by residents had been picked up and the applicant had made further amendments. Officers considered that these had improved the scheme, and there was no requirement to consult further as they had improved the position.

 

16.       In response to disruptive behaviour, the meeting was adjourned for five minutes then reconvened to continue in an orderly fashion.

 

17.       In response to Councillor Lemonides’ concern that this situation may set a precedent, the Head of Development Management drew attention to the extant planning permission, and that the Conservation Area designation did not invalidate the original permission. The scheme approved in the 2007 planning permission was not sustainable or of sufficiently high quality. The minor material amendment was a better scheme which would enhance the Conservation Area.

 

18.       In response to Councillor G. Savva’s further queries regarding any advantage which may be gained by deferring a decision, the Conservation Team Leader advised that Members may wish to propose a deferral to seek further improvements to the scheme. However he would recommend that the amended design was now acceptable, and advised that refusal would be unlikely to be supported by the Planning Inspectorate and would lead to more difficulties. There was extant planning permission and a potential danger of a break-down of the negotiated position with the developer, incurring the risk of implementation of the 2007 scheme. Therefore he recommended that the Committee did not defer a decision, and recommended that this solution was satisfactory.

 

19.       The Head of Development Management highlighted that the first issue to resolve was in relation to the additional condition, as ratified by Counsel advice, and then Members would be able to go on to consider the acceptability of amendments to the scheme.

 

20.       Further to this advice on the procedure, Councillor Hurer confirmed that he may put forward a proposal for deferral in due course but not at this stage.

 

21.       Members voted unanimously in support of the officers’ recommendation.

 

AGREED that the proposed non material amendment be agreed and the additional condition specifying the original plan numbers be inserted as follows:

 

The development hereby permitted shall be carried out in accordance with the following approved plans: 794/PL 002 Rev A, 794/PL 004 Rev B, 794/PL 006 Rev B, 794/PL 007 Rev A, 794/PL 008 Rev A, 794/PL 009 Rev A, 794/PL 010 Rev A and 794/PL 011 Rev A.

 

For the reason set out in the report.