Agenda item

To determine the application.

Gavin Taylor presented the report to members.

Members received a presentation, in accordance with the public participation procedure from Peter Humphrey, the agent. Mr Humphrey stated that Murrow is classed as a small village under LP3 of the Local Plan with development of a limited nature and he made the point that the application is a resubmission of a previous refusal, with, in his view, the current application addressing all the previous reasons for refusal. He stated that the application will now have a new access point from The Bank and the property faces The Bank and the County Council have confirmed on 4 March that they have no objection to the proposal.

Mr Humphrey expressed the view that the application will finish off the development in the area to match the extent of development opposite and it uses the drain as a natural stop line for development as detailed within policies LP12 and LP16. He explained that he has had direct discussions with the North Level Internal Drainage Board and the drain is cut through land which is owned by the family and the drainage board wanted to create the new drain and the family gave permission for this to take place and the landowners are happy to work with the drainage board.

Mr Humphrey stated that the drain is currently maintained with access from Back Road, and he referred to the location plan where the drain access point can be identified. He added that the site is currently used for domestic garden area including polytunnels and, therefore, the site is not within open countryside or agricultural land and, in his opinion, the application will create a better view as you enter the village of Murrow from Parson Drove rather than the view of polythene tunnels of the rear elevation of Longways.

Mr Humphrey made the point that the Environment Agency have no objection to the proposal provided that the flood risk assessment measures are adhered to. He stated that at the time that the application was submitted to the Council on 22 June 2023, the site passed the sequential test and unfortunately as eight months have passed in order to determine the application, officers have now decided that it does not pass the sequential test as there is another plot available and he finds this disappointing.

Mr Humphrey explained that as agents they are not in control of when applications are going to be approved and he expressed the view that agents are then penalised and in this case the application was compliant at the time of submission. He referred to a Fenland District Council Application F/YR22/1187/FDC in Parson Drove which was for an almost identical application for a single plot which was also in Flood Zone 3 on the edge of the village and was approved within 7 weeks.

Mr Humphrey added that it had two plots approved in the village but were deemed irrelevant and he made the point that they also had to use a renewable energy source to make the application acceptable which is what has been included in the application before the committee today. He concluded that the application is a logical plot at the end of the developed form of the village and uses the existing drain as a natural boundary which will also enhance the view when entering the village from Parson Drove, with the sequential test being deemed acceptable, and he asked the committee to accept the application.

Members asked Mr Humphrey the following questions:

·         Councillor Imafidon asked for clarity over the access point with regards to the location of the speed limit signs. Mr Humphrey responded that it is within the 40mph zone. Councillor Imafidon stated that the distance is quite minimal, and he questioned how close the access point is to the 60mph zone. Mr Humphrey stated that the new access falls within the 40mph zone and the speed limit has recently been lowered there but he is unaware of the distance.

·         Councillor Benney asked Mr Humphrey to provide further clarification with regards to the sequential test as he had stated that the proposal had originally passed the sequential test and to now find that the application is being refused with one aspect being that of the sequential test, in his opinion, is unfair on the applicant, agent and creates additional work for officers. Mr Humphrey stated that at 10.14 of the officers report it states that ‘the submitted Flood Risk Assessment sets out within the sequential test the approved planning applications in Murrow as of the date of the FRA being completed and states whether the development has either been completed or is under construction and this has been compared to Fenland District Council records. The detail submitted is unfortunately now out of date and applications have been granted since the submission.‘ Mr Humphrey added that, in his view, officers have now identified that as a reason for refusal.

Members asked officers the following questions:

·         Councillor Mrs French asked officers to confirm when the application was submitted and validated? Gavin Taylor confirmed that the application was valid as of the 22 June 2023.

·         Councillor Benney stated that when a sequential test is undertaken and passes how long does it remain valid .Gavin Taylor stated that the point at which the application is determined is when an assessment will take place to ascertain whether there are other sites available to achieve the development at a lower area of flood risk and if information comes forward during the course of determining the application then that does need to be given weight.

·         Councillor Gerstner stated that he accepts the site is in Flood Zone 3 and it had passed the sequential test but that now appears not to be the case and he asked officers to provide clarification. Gavin Taylor stated that he has nothing on record to evidence that officers had concluded that the site had passed the test at the time, however, within the officers report it does state that there is information which has come to light post submission which indicates that it does not pass the sequential test because there are other sites reasonably available in lower areas of flood risk that have been approved.

·         Councillor Hicks asked a hypothetical question in that if planning permission was passed with a sequential test in place, but before development is commenced the plans are changed slightly so the application is resubmitted but another site has been identified, would that application be refused because there is another site in the sequential test chain. Gavin Taylor clarified that if there is a live extant planning permission on a site and a subsequent application is submitted on the same site for a slightly different development then significant weight would be given to the fact that there is still an extant permission which is live and the development could still be capable of implementation on the original application. He added that in terms of the sequential test although it is yet to be delivered, the permission is still extant and, therefore, would be a significant material consideration to weigh in favour of approving a further development on the site.

Members asked questions, made comments and received responses as follows:

·         Councillor Benney referred to the development in Wype Road in Eastrea which, in his opinion, set the entrance to the village off very nicely. He expressed the view that things can change which is not a negative thing and polytunnels are not pleasing to the eye when you enter a village, adding that when considering the character of the area, personal taste should be considered and, in his view, a dwelling on the site would enhance the entrance to the village. Councillor Benney added that he is concerned with regards to the sequential test, however, given the fact that it passed the test when it was first submitted and now forms part of the reasons for refusal, there has been money spent by the applicant along with the time spent on the application by the agent and officers continuing with an application which has already passed the test to then go on and refuse it is, in his opinion, would be unfair. He stated that with regards to the principle of development there is one there and is a natural boundary with the dyke that is there and he added that if the application had been for a greater number of dwellings then his view and opinion may have been different. Councillor Benney expressed the view that he sees very little wrong with the proposal and has concerns with regards to the sequential test, however, as it already passed in June it should not be a block to development.

·         Councillor Imafidon stated that with regards to the access when he undertook a site visit there was a dirt track which is not a very good access road and there is a steep incline and, in his opinion, having the second access is a good idea. He added that the people who rent the land out to house the polytunnels have included a gate in order that the dyke can be accessed due to previous issues with trespassers on the land. Councillor Imafidon expressed the view that development on the site would be a good idea so that the issue of trespassers and anti-social behaviour does not occur again. 

·         Councillor Marks stated that when considering the local distinctiveness and character of the area, Murrow is a Fenland village, and most Fenland villages have one road in and one road out with building off them and there are plenty of other villages within the area which are much the same. He added that another reason for refusal is cited as the application fails to reinforce the local identity and would adversely impact upon the street scene and he questioned what the local identity is of any village, and, in his view, it is what houses are there and it is whether they are new or old. Councillor Marks added that he does not see any issue with the proposal, and he referred to the Policy LP16 where it states in the officer’s report that the application would have an adverse impact upon the street scene and he expressed the view that all street scenes change and for one dwelling he does not see any issues with it at all.

·         Councillor Connor stated that the Highway Authority have stated that they have no objection to the proposed development, however, it is unclear if the access track can be constructed without earthwork encroachment. He made the point that if they cannot facilitate that then there will be no development and he referred to 5.6 of the officers report where the Highway Authority have stated that prior to commencement of the use of the development hereby approved, visibility splays shall be provided on both sides of the new vehicular access and shall be maintained free from any obstruction over a height of 600mm within an area of 2.4 metres x 2125 metres and, therefore, if members decide to approve the proposal against the officers recommendation then that is something that could be conditioned. Councillor Connor stated that the villages and towns are all changing and, in his view, that is a good thing as progress needs to be made and cannot live in the past.

·         Gavin Taylor stated that he has measured where the 40mph sign is in relation to the site access which is around 90 metres and the Highway Authority do not have any objection on that basis.

·         Gavin Taylor added that the application is an outline application with all matters reserved so that matters of access would be a matter which is yet to be agreed and with regards to considerations on the appearance of the village as you enter it, at the current time there are no details with regards to the design and, therefore, that detail is not currently known including the scale bearing in mind that it is in a high flood risk area so it maybe something that members wish to consider. He stated that with regards to the sequential test and the assertion over the test having been met, there is nothing on the file which shows that officers ever agreed that the sequential test had been met and that appears to be an assertion made by the applicant. Gavin Taylor added that at the present time the opinion of officers is that the sequential test has not been met due to the fact that there are other sites which are reasonably available at a lower area of flood risk. He made the point that with regards to the point made concerning identity, the officer was referring more to the pattern of development which is visible as you look along Back Road, which is more linear ribbon type development with frontage dwellings and this is also the case along Murrow Bank on the other side of the road as there is no back land development which is prevalent in that location.

·         Councillor Mrs French stated that it is her belief that in an outline application access has to be agreed at that time and not at a later date. Gavin Taylor stated that access does not have to be committed and the Council can insist if they ask to do so within a month, but there needs to be an indication of where the access is likely to be derived from. He referred to the red outline drawing and explained that the red line would restrict the location points where the access could be put through and officers have assessed the application based on the proposal to put the access where it is proposed on the site layout plan which is deemed to be acceptable and, therefore, the assumption is that if it was going to be approved and then access details were then committed, the applicant would be taking a large risk to depart form that as an approach as it could create uncertainty in terms of safety. Gavin Taylor stated that all that is required is an indication of where it could be derived from. Councillor Mrs French made the point that information differs from what she has been advised over many years and she made the point that if the committee decides to approve the application then the access has to be included.

·         Gavin Taylor stated that at the reserved matters stage it would include the details of access which the Council would then have the opportunity to consider and consult on. Councillor Connor stated that if access was changed significantly which it could be then would the application have to come back to the committee as the Highway Authority opinion may then be different. Gavin Taylor stated that not as far as the scheme of delegation is concerned, unless it is called in, or there are objections or the Chairman requests for it to come to committee. He added that if the Highway Authority had concerns then officers would negotiate an improvement to the access arrangements until a satisfactory point can be reached in order to approve, however, if it gets to the stage where officers cannot be satisfied and there is no other option than to refuse the application on the technical aspect then it would come back before the Chairman to consider whether or not it would need to come back before the committee for determination.

·         Councillor Benney stated that he was also under the impression that access had to be committed and he referred to another application where the application had three reasons for refusal and the committee refused it on the grounds of access as committee were told that access had to be committed at that point. He questioned when that change had come into being because it would appear that members appear to be of the same understanding.

·         Gavin Taylor stated that when considering an application if the access appears to be somewhat complicated then officers can ask for the detail and if that detail is not forthcoming then officers can refuse the application on the basis that the applicant has failed to demonstrate that an adequate access can be achieved to accommodate the development and on this occasion the indicative layout demonstrates that a suitable access can be achieved although it does need to be committed.

·         Councillor Imafidon stated that there are two polytunnels and behind one of them is where the application site is and questioned whether access rights will be given to those users of the polytunnels by the applicant. Gavin Taylor stated that it would a private matter and nothing to do with the planning permission.

·         Gavin Taylor stated that the application is recommended for refusal, and should members decide to approve the proposal then they will need to provided planning reasons. He added that with regards to the issue concerning flood risk, if the sequential test is deemed to have been met, then the next stage will be to demonstrate that the exception test can be passed as well, which is a two-stage process and stage one is to demonstrate that flood risk will not be increased either on the site or elsewhere but also that there are wider community benefits to the scheme that outweigh the flood risk.

·         Troy Healy stated that you cannot apply a condition when dealing with the exception test.

Proposed by Councillor Benney, seconded by Councillor Gerstner and agreed that the application be GRANTED against the officer’s recommendation with authority delegated to officers to apply reasonable conditions.

Members do not support officer’s recommendation of refusal of planning permission as they feel that the proposal will not harm the character of the area and will be a benefit, as the sequential test was passed in June and the land was deemed suitable then it should be suitable now and that the sequential test can only be seen as a block to development.