Minutes:
BURES ST MARY
Application No DC/18/00929/FUW Paper PL/18/6 – Item 1 |
Full Application Without Compliance of Condition – Application under Section 73 of the Town and Country Planning Act – erection of 6 two-storey dwellings, following demolition of existing commercial buildings and hard standing, construction of private access driveway (scheme to utilise existing vehicular access to public highway) – Variation of condition 2 of planning permission B/14/1103 as amplified by submission of covering letter from agent dated 26/3/18 and annotated Proposed Setting Out and Landscaping Plan (1471.21E) and Existing Site Survey Plan (1471.06) all received 26/3/18. As further amended by submission of revised layout plan 1471/21F and additional cross-section plan 1471/22, The Slaughter House and Land Adjacent, Cuckoo Hill. |
The Case Officer, John Davies, had just started his introduction to this item, at which point Councillor Kemp arrived. The Chairman asked the Case Officer to return to the beginning of his introduction so that Councillor Kemp was present for the whole item, together with the other Committee Members.
The Case Officer included reference to the Addendum, which contained additional representations and amendments, and to the Petition as reported in Minute No 20 above. He took Members through the history of the site as set out in the report, and its relevance to the current position and the officer recommendation of refusal for the reasons given.
At the conclusion of the objector speaking and responding to Members’ questions and prior to the Applicant’s Barrister, Mr Kevin Leigh, addressing the Committee, Ian de Prez, Legal Adviser to the Committee, referred to the Opinion given by Mr Leigh which had been received late the previous day in the form of an email to the Chairman, Vice Chairman and officers. The Opinion addressed various points including a request from the Applicant for consideration of the application to be deferred. Mr Leigh was present at the meeting to speak on behalf of the Applicant.
Mr de Prez informed Members that he had spoken to Mr Leigh briefly before the start of the meeting about the legal issues raised in the Opinion. Mr de Prez suggested that, with the consent of the Chairman, he would report key sentences from the email to the meeting. This was agreed by the parties and extracts were read out in which the following points were made.
· the officers have failed to identify the legal meaning of the planning permission and what it would permit. A court would look at the drawings and conditions. There are no slab height or finished ground level or ridge height conditions.
· [making reference to the Tables in the survey] The drawings are to be measured on their face. ….. the underbuild should be excluded from the calculation of the ridge height because the site was sloping on several sides.
· Mr Leigh had dealt with a number of appeals on this topic and always won, including a number of them in Essex.
· the differences even on the Council’s best case are, in the circumstances of this site, so marginal that Mr Leigh would be surprised if an Inspector found them harmful
The Chairman advised Members that he and the Vice-Chairman of the Committee had considered the Applicant’s request for deferral but concurred with the officer view that there was nothing new put forward and that there was sufficient information before Members to enable them to continue.
In response to a Member’s question, Mr de Prez confirmed that he had considered whether reading from the Barrister’s Opinion would give the Applicant an unreasonable advantage procedurally but had decided that it should be treated in the same way as other late written comments and that it was desirable that all Members as well as the Chairman and Vice-Chairman should be made aware of its contents.
Members then heard from Mr Leigh who referred to his suggested options for the Committee either to make a split decision and grant permission for Plots 1 – 4, or if minded to refuse, to defer for one month to enable the Applicant and the Council to agree the disputed measurements on site and avoid a possible appeal and the consequent delay in achieving a resolution of the issues.
After Members had questioned Mr Leigh and considered the relative merits of deferral or proceeding, a motion to defer was put forward, but was lost on being put to the vote. Following further discussion, the officer recommendation of refusal, having been proposed and seconded (with appropriate amendments to the recommendation to reflect the new NPPF document which had been published the previous day, as reported by Steven Stroud, Strategic Projects and Delivery Manager) was carried unanimously on being put to the vote.
It was RESOLVED
That authority be delegated to the Corporate Manager – Growth and Sustainable Planning to refuse the Section 73 Application for the following reasons, with appropriate amendments to reflect the new NPPF:-
In determining this planning application the Council has not only had regard to the NPPF and its own Adopted Core Strategy and Policies but has been able to experience its physical impacts by virtue of the fact that it has been largely constructed. The retrospective nature of the application has afforded the unusual opportunity to gauge such impacts not theoretically from drawings but from seeing the development ‘as built’ within the context of surrounding existing development.
In assessing that impact the Council has concluded that the application would not have been approved in the form it has now been built had a planning application for a development in this form been submitted ahead of construction.
In determining this application, the Council has noted and had full regard to the earlier planning permission [ref; B/14/14/01103] granted on 13 February 2015. That development was not implemented in accordance with the approved drawings and it is the current application that seeks to regularise that breach.
The Council finds the current application unacceptable and consequently refuses it for reasons that will now be explained.
In summary the two storey detached houses as built on plots 5 and 6 and as shown on drawing number 1471/21G and 1471.22 are unacceptable for the significant harm they cause to:
(i) the residential amenity enjoyed by the property known as White Horse House immediately to the south; and
(ii) the character of the Conservation Area; and,
(iii) the setting of the adjacent Grade II listed building – ‘White Horse House’
Specifically:
Harm to Residential Amenity
As a result of:
(a) the ground level on plot 6 being raised beyond those previously approved; and,
(b) the consequent rise in finished floor level of the plot; and,
(c) the overall increase in height of the buildings on plots 5 and 6 beyond that previously approved.
The house on Plot 6 as well as Plot 5 immediately to the east now have an unacceptably overbearing and over-scaled relationship with the adjacent modest-sized traditional vernacular property ‘White Horse House’. They now loom over White Horse House and result in a significant and unacceptable level of harm to the outlook experienced from the rear of that property and its associated private garden space. The increase in height of the position of first floor windows to the rear of the house on plot 6 now results in an unacceptable perception from White Horse House of being overlooked and of the privacy of its amenity space being infringed.
The unacceptable harm identified above is contrary to paragraphs 17, 56, 57 and 64 of the NPPF in so far as the houses on plots 5 and 6 as built [in the opinion of the Council]:
· does not secure high quality design and a good standard of amenity for all existing and future occupants of land and buildings; does not contribute positively to making the place better (Paragraph 56)
· has not achieved high quality (Paragraph 57)
· does not establish a strong sense of place, streetscapes and building to create attractive, and comfortable places to live, work and visit (Paragraph 58);
· does not respond to local character and history, and reflect the identity of local surroundings and materials (Paragraph 58)
and therefore, as advised in Paragraph 64 the Council is refusing the development on the ground, inter alia, of poor design that fails to take the opportunities available for improving the character and quality of an area and the way it functions.
The development is considered to be contrary to saved policies CN01, CN06, CN08, HS28 of the Babergh Local Plan (Alteration No.2) 2006 and Policy CS15 of the Babergh Core Strategy and Policies (2014).
Failure to preserve or enhance the character of the Conservation Area
The house on plot 6 when viewed from Cuckoo Hill is unduly prominent within the street scene rising as it does above White Horse House which forms part of a charming group of properties within the heart of the Conservation Area. In addition, the houses on plots 5 and 6 will be even more prominent and intrusive during the autumn and winter months when the trees that in part currently soften its impact are bare. This level of visual dominance harms the character of the conservation area which currently can be defined as comprising predominantly small scale linear frontage development on Cuckoo Hill.
The unacceptable harm identified above is contrary to Paragraph 131 of the NPPF in so far as the houses on plots 5 and 6 as built in the opinion of the Council:
· do not sustain and enhance the significance of the heritage asset that is a Conservation Area; (Paragraph131)
· do not make a positive contribution to local character and distinctiveness. (Paragraph 131)
In carrying out the balancing exercise under Paragraph 134 of the NPPF it is considered that the increased height and oppressive relationship of Plot 6 and Plot 5 to the street scene in Cuckoo Hill and wider area are such as to outweigh the public benefits of the development.
The development is considered to be contrary to saved policy CN08 of the Babergh Local Plan (Alteration No.2) 2006 and Policy CS15 of the Babergh Core Strategy and Policies (2014).
Harm to the Setting of the listed White Horse House
White Horse House is a 2 storey C17-C18 timber -framed house, formerly a public house, with an asymmetrical plain tile roof. The roof to the rear has a long raking sweep from the ridge reflecting the fact that it has its eaves over the single storey element.
The house on plot 6 has been constructed in ways described in (a) – (c) [incl.] above that have resulted in significant and unacceptable harm being caused to the setting of the adjacent listed building as a result of the new houses unduly overbearing scale and juxtaposition in relation to White Horse House. Whilst intimate relationships between buildings can be found in the conservation area these tend to be visually harmonious. In this particular case the new house dwarfs the older listed building significantly detracting from its place in the street disturbing and disrupting the composition of the properties that line Rd in the heart of the Conservation Area. This dominance is something that would not have been an issue with the previously approved scheme where the relationship between it and its listed neighbour had been carefully considered when approving that scheme.
The unacceptable harm identified above is contrary to paragraphs 131 and 134 of the NPPF in so far as the house on plot 6 as built in the opinion of the Council:
· does not sustain and enhance the significance of the heritage asset that is the Grade II listed building – White Horse House (131)
· does not result in sufficient public benefits to the overall housing stock in Babergh District and the regeneration of a former commercial site to outweigh the less than substantial harm caused to the setting of the Grade II listed White Horse House particularly noting that considerable importance and weight should be given to the desirability of preserving the setting of a listed building when carrying out the balancing exercise.
The development is considered to be contrary to saved policy CN06 of the Babergh Local Plan (Alteration No.2) 2006 and Policy CS15 of the Babergh Core Strategy and Policies (2014).
Supporting documents: