Agenda item - BH2018/00329 - 67 Falmer Road, Rottingdean - Removal or Variation of Condition

Application for variation of condition 2 of application BH2015/02049 allowed on appeal (Demolition of existing house and garage and erection of 9no four bedroom houses) to permit amendments to the approved drawings including landscaping, elevations and boundary treatments.

RECOMMENDATION - GRANT

Application for variation of condition 2 of application BH2017/00994 (Application for variation of condition 2 of application BH2015/02049 allowed on appeal (Demolition of existing house and garage and erection of 9no four bedroom houses) to allow amendments to the approved drawings too permit amendments to the approved drawings including landscaping, elevations and boundary treatments.

 

Officer introduction

 

(1)          The Principal Planning Officer, Gareth Giles, introduced the application and gave a presentation by reference to plans, elevational drawings, photographs and floor plans. A previous application for demolition of the existing house and garage and erection of 9 no. four bedroom houses had been allowed on appeal after initially being refused. He stated that the main considerations in determining the application related to whether circumstances, policy or practice had changed sufficiently enough for the extant permission and the Inspector’s comments on the prevailing character, design and neighbour amenity to no longer apply. Four letters of objection had been received and Councillor Mears had objected to the scheme in her capacity as a Local Ward Councillor.

 

(2)          The Planning Officer stated that an additional late representation had been received objecting to the development and that the County Ecologist’s had raised no objection to the application but their comments had been omitted from the report in error.

 

Public speakers

 

(3)          Mr Duncan Howie spoke in his capacity as a local resident objecting to the application. He stated that the developer had built plans outside of the permission already having failed to obscurely glaze front facing windows which overlooked neighbours and had been originally shown as obscurely glazed. The developers had stated that the need to vary the application was to accommodate disabled access something which according to the Developer the original proposal already allowed. The developer had either breached or not yet shown compliance with any of the conditions attached to the extant permission. He called on the Committee to refuse the application and stated that the Planning Inspector had placed conditions on the permission for a reason and the Developer should not be allowed to pick and choose which to comply with.

 

(4)          Councillor Mears submitted a written representation objecting to the application:

 

“As a ward councillor for Rottingdean Coastal I wish to object to the above planning application for the following reasons:

 

“The original planning application on this site was refused and was subsequently won on appeal. The inspector was very clear with her reasons why she added the conditions. Partially Condition 12 in relation to the screening of trees and hedges to afford neighbours some privacy.

 

“I do not support the developer’s request to amend the existing granted application to enable the developer to cram too many properties on this site.

 

“This was always going to be a difficult site to develop, trying to build the number of units in such a small area, the original drawings showed this, now as the site is being developed, it’s even clearer.”

 

            Questions to the Planning Officer

 

(5)          In response to Councillor Wares, the Planning Officer confirmed that condition 12 referenced the protection of trees and hedges at the site during construction. Officers also confirmed that some trees which should have been protected were not and had sustained damage although were not thought to be at risk of being lost.

 

(6)          In response to Councillor Wares, the Planning Officer confirmed that the application was now retrospective but was not at the time that it was made. The position or number of the dwellings had not changed and the application followed several enforcement visits.

 

(7)          Councillor Wares asked that in light of the developer’s apparent disregard for conditions in the past how could the Committee have any confidence that any new conditions would be complied with.

 

(8)          The Planning Officer responded that Members and officers could only make a decision on the application in front of them and had to do so with an open mind. The Council had a Planning Enforcement Team and it was up to them to take action should a developer not comply with conditions.

 

(9)          In response to the Chair, the Legal Adviser stated that the Council could use an enforcement notice to require compliance with a condition or could serve a breach of condition notice. Non-compliance with a breach of condition notice was a criminal offence and would be a swifter remedy than an enforcement notice to enforce conditions.

 

(10)       Councillor Miller stated that he would be keen for the Council to exercise its powers to enforce conditions more robustly in the future. He asked officers to confirm what aspects of the landscaping had changed.

 

(11)       The Planning Manager stated that part of the enforcement process was negotiating with developers and seeking to regularise a breach with an application to vary permission. If a developer continues work before a variation is granted they do so at their own risk.

 

(12)       The Planning Officer confirmed which existing trees the developer proposed to retain and where new trees would be planted. Two hedges which should have been retained were removed and the landscaping plan proposed to reinstate them in addition to erecting acoustic fencing along the vehicle access.

 

(13)       In response to Councillor Miller, the Planning Officer stated that he could not confirm all of the changes to the landscaping plan from the one approved by the Planning Inspector and stated that an additional condition could be added requiring the submission of a more detailed landscaping plan.

 

(14)       In response to Councillor Marsh, Officers stated that they would not recommend a condition that was not enforceable. If conditions were breached the Planning Enforcement Team would take appropriate action.

 

(15)       In response to Councillor Marsh, the Legal Adviser clarified that previous breaches of conditions was not a ground on which an application could be refused.

 

(16)       In response to Councillor Littman, the Planning Officer stated that the Planning Inspector’s condition only protected trees during construction and not in perpetuity. Officers also confirmed that any differences between the original landscaping plan and the new one had already been actioned. Officers suggested that the Committee may want to request that the applicant produce a more detailed tree plan.

 

(17)       The Chair also responded to Councillor Littman that as the provision of a bin store was conditioned but not shown on the site plan this condition could be strengthened so that the site could not be occupied until developers had confirmed how this would be achieved.

 

(18)       In response to Councillor Gilbey, Officers stated that the trees at the back of the site had been removed and that officers would look to secure mature trees to replace them rather than saplings.

 

(19)       In response to Councillor Wares, the Planning Officer stated that the changes to the exterior of the houses resulted from the developer rearranging the interior which may have been to better accommodate individuals with mobility difficulties.

 

(20)       The Chair reminded the Committee that the question they were considering was whether the application in front of them was acceptable.

 

Debate and decision making process

 

(21)       Councillor Miller stated that he would not be supporting the officer’s recommendation. He stated that he had no issues with the change to the elevations but that the changes to landscaping and the removal of previous retained fully grown trees would have a negative impact upon the neighbours’ amenity.

 

(22)       Councillor Inkpin-Leissner stated that he was displeased by the Developer’s actions and felt the Council should have been stronger in its enforcement of the conditions.

 

(23)       Councillor Littman stated that while the application appeared straightforward he was concerned that the committee was rubber stamping vandalism of the ecology on the site and that he was not convinced that the Committee had enough information on which to base a decision. He understood his colleagues’ desire to vote against the application as the Council did not want to encourage this behaviour from applicants but was concerned that refusal would prove difficult to defend.

 

(24)       Councillor Page stated that robust conditions had been suggested which built on good work by the Planning Enforcement Officers. He agreed with Councillor Littman about the seriousness of breaches of condition but stated that the variations were relatively minor and he would be supporting the officer’s recommendation.

 

(25)       Councillor O’Quinn stated that the two trees had already been lost and that they would be replaced by mature trees. She did not feel the change in design was a concern.

 

(26)       Councillor Gilbey stated that she would be supporting the officer’s recommendation and requested that a condition be added to obscurely glaze the two new side windows.

 

(27)       The Chair stated that the Committee could not punish applicants and must make a judgement on the application before them.

 

(28)       On a vote of 4 For, 5 Against with one abstention the committee refused permission.

 

(29)       Councillor Miller proposed that the application be refused on the following grounds:

 

1.                  That the change to the landscaping plan was overbearing and resulted in overlooking into neighbouring gardens.

 

(30)       Officers stated that the Planning Inspector had not conditioned that the trees on the boundary be retained and that it may be difficult to argue this as a ground for refusal should the applicant appeal. Officers also stated that the Planning Inspector would consider whether grounds for refusal could have been reasonably remedied through an additional condition which would have allowed for permission to be granted such as conditioning that mature trees be planted on the boundary. 

 

(31)       Councillor Miller stated that he disagreed with the officers and believed that his motion provided adequate grounds on which to refuse the application.

 

(32)       Councillor Wares seconded the motion.

 

(33)       The Chair called a vote on the proposed alternative recommendations. This was carried with Councillors Inkpin-Leissner, Marsh, Miller, Taylor and Wares voting For, Councillors Gilbey, O’Quinn, Page and Cattell voting Against with Councillor Littman abstaining.

 

31.7    RESOLVED - That the Committee has taken into consideration the recommendation laid out in the report but resolves to REFUSE planning permission on the grounds proposed by Councillor Miller detailed in paragraph (29) above.