Agenda item

To determine the application.

Tom Donnelly presented the report to members.

Members received a presentation, in accordance with the public participation procedure, from Victor Joyce, an objector. Mr Joyce stated that he was representing the residents of Blackmill Road and Fairview Gardens and made the point that the revisions to the application, included a revised certificate C, which he believes is a type of ownership certificate, but the applicant does not own any part of the drove. He explained that as stated in previous applications the applicant has tried to claim ownership and failed and recently the applicant has employed local contractors to undertake unauthorised works on the drove and also to the drainage ditch to the left which borders the properties on Millfield Close.

Mr Joyce explained that the Highways Enforcement Team insisted that the applicant cease the removal of any more trees and hedgerows from the ditch which then resulted in a fine of £4,400. He added that the applicant’s recent works have resulted in the drainage ditch bordering Millfield Close to partially collapse and block the drainage outfall pipe which was installed by the Highway Authority in order to alleviate the flooding issues.

Mr Joyce made the point that it was suggested that the reason for the Certificate C was to enable the applicant to fill in the ditch and try to widen the width of the drove to enable the ability of two cars to pass. He stated that the traffic that the development will incur has increased to 20 or more cars, an increase since the previous application.

Mr Joyce made the point that two of the objections are from properties at the end of Millfield Close that face directly towards the new proposed development and the illegal removal of the trees and hedgerows has already reduced the privacy to those properties and the residents fear that they will lose even more if the development is approved. He explained that the drove is 2 to 3 feet higher than the bordering properties where on the left-hand side Millfield Close is located and Fairview Gardens to the right-hand side, with residents concerned that if any attempt is made to fill in the ditches or widen the drove could mean the potential to cause further flooding issues.

Mr Joyce made the point that the drove is a byway with a one car width of approximately 3.2 metres at its widest point and it is used by many pedestrians, families, joggers, dog walkers and horse riders and at the end of the byway there is the pocket park owned by the Council which is well used and has increased the footfall along the drove. He stated that the width of the drove is a restricted width and has no footpaths or street lighting and, therefore, the increase in traffic could make the drove unsafe for pedestrians to use.

Mr Joyce explained that the residents in the vicinity of the application site have found it necessary to keep raising objections to the applications which have been ongoing since 2016 and objections have been submitted from the residents and other authorities with the main objectors since 2016 being the local residents, highways and byways, County Council Access and Bridleways, the British Horse Society, Chatteris Town Council and Anglian Water. He explained that Anglian Water have concerns because the mains sewer runs the length of the drove and made the point that whilst he is a member of Chatteris Town Council he is addressing the committee as a local resident.

Members asked Mr Joyce the following questions:

·         Councillor Marks referred to the point made concerning flooding, and he asked whether there have been any issues of flooding previously? Mr Joyce confirmed that there have been instances of flooding. Councillor Marks stated that when he visited the site, there is a dyke which is full and overgrown and it also looks as though the boundaries appear to be fairly flexible as there are posts which have been introduced along with fences which have been doglegged and he questioned whether flooding issues would be alleviated if the dyke were to be piped? Mr Joyce explained that the property that Councillor Marks referred to which has introduced posts is actually his property which he has owned for 50 years, and he has maintained the flow of the ditch over that period along with other properties. He stated that it is still a free-flowing drain and does take water and is not blocked but it is piped further down. Mr Joyce explained that over 10 years ago he encountered some flooding problems when one of the storm drains overflowed causing gardens to become flooded and as a result the Highway Authority diverted the pipe from the right-hand ditch to the left hand as it is the main flow drain. He added that the drove in comparison to the gardens is higher and even if the ditches were filled in there cannot be a level due to the slope and that is the reason he has never piped his ditch. Mr Joyce added that the main storm drain is now on the left-hand side from the top of Blackmill Road to the bottom which goes out into the storm drains.

·         Councillor Connor asked for confirmation as to whether the drains are riparian drains and whether Mr Joyce can confirm who owns them? Mr Joyce stated that the reason he has highlighted the issue concerning the Certificate C is due to the fact that over the years, the residents have always cleared the ditches along with Highways. He explained that when his garden flooded he had a conversation with Highways and they had diverted the pipe from the right-hand ditch to the left-hand ditch and the main flow to Millfield Close. Mr Joyce added that Highways had advised him that it was his responsibility to maintain the flow in his ditch which all the houses who border the property have done.

·         Councillor Connor stated that the ditch appears to be overgrown and, therefore, he questioned whether it would be better for the ditch to be cleaned out and piped in order to alleviate any problems going forwards? Mr Joyce expressed the opinion it has been like that for many years before those developments were there and the byway has always been there, and it has always flowed without any real problem. He added that the only issue that has occurred is when the main storm drain blocked which resulted in Highways diverting the pipe into the left-hand drain and the fact that it has not been cleaned is not down to the residents or the applicant, but Highways have said it is a riparian drain and residents have to maintain part of the ditch. Councillor Connor stated that it appears that it is a riparian ditch and, therefore, if the residents all agreed and piped it then it would flow a lot better without any obstruction. Mr Joyce stated that he does not see any benefit in clearing it out if it does not flood and has not done so in the last 20 years, adding that if it is filled in which is also what the applicant wants to see happen then the applicant will claim part ownership of the ditch and if it is piped then the next step will be to see the ditch filled in. He added that a future application which will be submitted will be to improve the byway in order to facilitate the ability to let two cars pass, with applications having been submitted since 2016 on the same basis and, in his view, it is not the fact that the residents have any problems or issues with the applicant. Mr Joyce explained that the hedges have been sprayed with chemicals and there have been trees removed along with a contractor who recently attended with the intention of levelling off the top of the brink resulting in the subsidence of the ditch.

·         Councillor Benney expressed the view that there has been a great deal of speculation in the points made by Mr Joyce and Planning Committee have to deal with factual information. He added that he is familiar with the road and the posts which Mr Joyce has erected have been placed on land which does not belong to him as nobody can own both sides of a drain. Councillor Benney stated that some of what has been said appears to be with regards to the drainage issues and possibly an element of personality is also an issue. He feels that the fact that posts have been erected to narrow the width of the road along with a fence which was not there before make him think there is something slightly untoward here. Councillor Benney asked Mr Joyce to confirm whether the posts are his? Mr Joyce confirmed that they are as well as part of the ditch which is in his ownership. Councillor Benney asked whether the posts are placed on land which Mr Joyce owns? Mr Joyce confirmed that is the case and explained that the reasons he installed the posts was due to the fact that he maintains the ditch and has done so for the last forty years. He added that when he cuts the grass he has also had to clear up dog fouling and the posts he has installed with chain link goes some way to alleviate that issue and to also stop cars driving onto the grass partly because the boundary slopes and he is trying to ensure vehicles do not have an accident and fall into the ditch. Mr Joyce added that there is no animosity between him and the applicant and the only issue that he has is the illegal works being undertaken in order to get the application passed, with every time an application is submitted it appears to be altered and amended in some way. Mr Joyce explained that the posts have only been erected recently and further around that side of the drove over the last 30 to 40 years people have filled in part of the ditch to the right and planted hedgerows, trees and fences and he explained that he is the last one to undertake any works down the drove. He added that the ditch has been open where his property is located for the last 50 to 60 years and since the houses were built, with him and his wife having lived there for 50 years and the ditch has always been maintained along with the drove.

Members received a presentation, in accordance with the public participation procedure, from Mr Matthew Hall, the agent. Mr Hall stated that he is pleased to note in the officer’s report that the principle of residential development at the site is accepted and there is no reason for refusal with the site all being located in Flood Zone 1. He explained that at the present time a Council’s refuse freighter uses the access to collect the bins down the access road and some properties have been there for about 50 years, with large agricultural vehicles also using the access road and have done so for a considerable number of years.

Mr Hall referred to the map on the presentation screen and highlighted that since the first application in 2021, there has been two delegated approvals and pointed out the yellow and purple areas on the plan where approvals have been made for bungalows, and they were approved with no objections from Highways under delegated approval, with to the east there is a development for 50 dwellings which was approved in 2019. He explained that when he submitted the application, he also submitted Land Registry documentation with some of it being from the 1970s, including one for Fairview Gardens, and the Land Registry maps consistently shows the width between rear boundaries and properties of Fairview Gardens and Millfield Close of between 7 and 8 metres, with there being a continuous curve and no kickouts.

Mr Hall stated that when he has visited the site and measured between some of the fences, there is consistency with the Ordnance Survey plan which was also submitted of 7 to 8 metres. He made the point that he has maps going back to 1886 and a further map from 1950 that shows the access as Blackmill Drove at a consistent width.

Mr Hall stated that the previous speaker has explained that when you go down there on the right-hand side towards the bend there is a kick in the fence which is not consistent and it does not match the Land Registry red lines of residents private ownership. He referred to one of the photos that the officer displayed that shows where the drove is narrow, which does not match the Land Registry, there is quite a lot of difference where those fences are compared to where the red line is on the Land Registry documents, with some of them going back to the 1970s.

Mr Hall referred to 5.6 of the officer’s report and made the point that Highways states that “there is a modest increase in peak hour vehicle trips arising from this development which would not result in a detrimental impact on safety grounds as such an objection could not be sustained solely on the grounds of highway safety”. He stated on 12 March Highways came back and raised no objection to this application based on five dwellings and two passing bays but when looking further at Public Access and in the officer’s report on 4 November they have now come back objecting to the application even though they have said there is no detrimental impact on safety grounds, with the application still being for up to five dwellings and two passing places proposed, one on each side and the previous applications were approved under delegated powers with no Highway concerns.

Mr Hall stated that this site and also the land to the south and west is all in the emerging Local Plan for residential development, with the two plots already approved off this access not having concerns raised with regards to sand and gravel extraction and the 50 house development to the east also did not have any concerns raised in relation to this. He referred to Policy LP15 stated as a reason for refusal to create a more sustainable transport network in Fenland and, in his view, this application provides betterment to the existing situation by creating passing places which would be used by vehicles and pedestrians who use the actual drove now.

Mr Hall made the point that the site is all in Flood Zone 1, there have been previous approvals given and since the previous refusal two delegated approvals so there is a material change since that previous refusal, the site abuts a 50 house development which is being built out and there are no objections in the officer report with regard to the principle of residential development.

Members asked questions of Mr Hall as follows:

·         Councillor Marks referred to the highway/byway and asked if he had a calculation as to how wide a byway should be? Mr Hall responded that when he has looked at byways down Mill Hill Lane in March, Westfield Road in Manea and this one they all seem to vary and when he spoke to the byways officer about this he was informed there is no defined width.

·         Councillor Sennitt Clough stated that she has looked at the previous application from 2021, with this application going down in the number of properties from 6 to 5 and asked if there is a reason for this? Mr Hall responded that it was felt that if the number of dwellings was reduced it would reduce the number of highway trips which would help when it was consulted on by Highways. Councillor Sennitt Clough asked if he felt that there is an issue with the byway based on the decision to reduce the number of properties? Mr Hall responded no, they looked at the previous application in 2021 which showed no improvements to the byway so it was felt that there needed to be a material change which was to undertake some improvements to the byway, with surveys having been undertaken and research on Land Registry. He made the point that where these improvements have been shown incorporated the byway and passing place at 5½ metres which includes the existing byway but when you go down there and measure and look on Land Registry in places it is 7-8 metres so they are not going the whole width of this area.

·         Councillor Sennitt Clough referred to mention of agriculture vehicles using the access road, with some combine harvesters being wide, and asked how this can be overcome and mitigated? Mr Hall responded that the farmer who farm some of the land use this access now so by making these improvements, in his opinion, it is a betterment and if they meet a vehicle there will be passing places which is far better than what it is now.

·         Councillor Benney referred to the previous application, before the posts and the fence were put up, where he went down and measured the roadway before it came to committee in 2001 and at its narrowest point that roadway was 7 metres wide and since then these posts and fence have encroached making it narrower. He referred to mention of the Land Registry not matching the drove and asked if the Land Registry shows for Fairview Gardens where the boundary was, which side of the dyke and is it a shared dyke? Mr Hall responded that on the Land Registry documents going back to 1971, 1972 and more recent ones the ditches are not shown but the boundary line is consistently a lot wider on the right hand side as you go down, the fences on 2-3 properties kicks in and that does not match properties Land Registry red lines so he would question whether the fences on those 2-3 properties are in the right place.

Members asked questions of officers as follows:

·         Councillor Marks asked for them to define a byway and what its width should be? Gavin Taylor responded that looking at the Definitive Maps Team comments at 5.4.3, who are the experts in defining byway extents and locations, these state “there is no legally defined and recorded width for this byway, and we are not able to advise what it would be. As the dimensions are not known, we cannot guarantee the applicant will be able to improve and widen the byway to secure a standard that may be required by the Local Planning Authority”. He added that this is far as they can go as officers because they are advised by the Definitive Maps Team who are deemed to be the experts. Councillor Marks asked for confirmation that there is no laid down measurement so it could be a metre or 10 metres so members are working on an unknown. Gavin Taylor responded that this was correct.

·         Councillor Connor asked for the photos to be shown where the fences were positioned.

·         Councillor Marks asked if it is known what minerals are needing safeguarding under the ground at this location? Gavin Taylor advised that it would be gravel and general sort of minerals for gravel, which are used for construction. Councillor Marks stated that it also says waste local plan and asked if it is thought that this would then be used as a waste site thereafter. Gavin Taylor responded that Cambridgeshire and Peterborough have a joint local plan which forms part of Fenland’s Development Plan, with Cambridgeshire and Peterborough being the Waste and Minerals Authority so they deal with minerals and waste separately. He added with other applications coming forward there is consideration of their waste guidance, which sits separate to the minerals safeguarding. Councillor Marks requested confirmation that it is sand and gravel that is being dealt with? Gavin Taylor confirmed as far as he was aware.

·         Councillor Mrs French asked officers to confirm what Mr Joyce stated about Anglian Water objecting as her understanding is that Anglian Water do not normally and she cannot see anything in the report. Gavin Taylor responded that there is not reference to Anglian Water within the report, they have not been consulted with as this scheme does not fall under a major application which they would be consulted on and he is not aware of any comments from Anglian Water on this application.

·         Councillor Gerstner asked officers to confirm the right of way to accessing a byway? The Legal Officer responded that a byway is a public highway and members of the public are allowed to pass and repass on foot, horseback and motorised vehicles.

·         Councillor Marks asked who has the obligation to upkeep that as a highway, is it Cambridgeshire County Council? The Legal Officer responded that the Highway Authority has general obligations to maintain highways but it is not adopted so it would not be as maintained as an adopted highway would be. He added that the owner may have an obligation but it is not known who the owner is, it might be the County Council but it might be somebody else. The Legal Officer continued if the byway is in unknown ownership the applicant should have served Certificate D to confirm the land is in unknown ownership and it should have been advertised as such and he understands that this has not been done so there may be a technical issue why this application may not be determined. Councillor Connor allowed Mr Hall back to clarify this issue. Mr Hall advised that during the application they serve various notices but they then put an advert in the newspaper and he has an e-mail from Mr Rowen agreeing to the advert and they also served a notice on the byway people as well. Councillor Connor expressed the opinion that it seems they have done as much as they can.

·         Councillor Mrs French stated that quite often the County Council do not own public rights of way and somebody else owns it, with it being very seldom that the County Council will actually repair it. She expressed confusion about who owns the land? The Legal Officer responded that it may be that Mr Joyce believes he is a riparian owner because there is a legal presumption if land is a roadway or a river and is in unknown ownership then it is deemed to be the owners of either side owning halfway across. Councillor Mrs French stated that Mr Joyce might own to the middle of the dyke but he does not own the whole dyke so there is a need to establish who actually owns the road because there are dykes on both sides and a road so, in her view, Mr Joyce does not own part of the road he only owns half of the dyke.

·         Councillor Benney stated that this is his understanding and that was what he was trying to establish with Mr Joyce as he has put these stakes on the wrong side of his boundary, it is a riparian drain to the centre of the drain and the stakes have been put on the roadway side which is narrowing the width. He added that from his understanding you do not own both sides of a drain on a riparian drain so those posts have been put on somebody else’s property and they only appeared a few months ago, which has narrowed the roadway to make it look bad. Councillor Connor stated that this is something that does need looking into.

·         Matthew Leigh stated that this application has been at committee before and members found it unacceptable on highway grounds, which is why objections were not raised on the principle because at the time the committee looked at the application they found the principle accepted but had concerns about the highway. He added that whether fences have moved or not moved since that application is irrelevant and is not part of the reasons for refusal or the decision that was made previously. Matthew Leigh made the point that while there may well be potential to make the access way acceptable compared to the previous application, officers have concerns about the ability to deliver those passing bays because of ownership issues and as decision makers it needs to be decided is it safe, is it possible to impose a condition that requires these passing bays to be implemented on this roadway where there are significant concerns about ownership.

·         Councillor Marks requested clarification that with the two passing places there has been a material change to the highway, with it being refused previously on highway grounds, which alleviates the concern of vehicles passing and it is purely just an ownership issue. Gavin Taylor responded that the Local Highway Authority have confirmed that the scheme with the passing bays is acceptable but it is subject to delivery of those passing bays so its objection is on the basis that it does not know how those passing bays are going to be secured because it is not known what the legal status is of the extent of highway or land required to deliver the passing bays. He added that this is what is different to the previous proposal as there was nothing tabled at that time other than an agreement or acceptance from the applicant at that time that they would explore and deliver necessary mitigation for footways, etc and that application was refused on failure to evidence that they were deliverable and it would be unreasonable to secure through a condition. Gavin Taylor stated that officers consider that there is a similar situation with this application as whilst there may be a plan with drawings that show what could be delivered, it is the deliverability that is in question.

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

·         Councillor Imafidon referred to the fences, posts and dykes filled in without authorisation and questioned why this was not picked up when the application was made and why has no enforcement been made on those unauthorised encroachments. He asked if it could not be made a condition if this application is approved that the passing places be effectively delivered.

·         Councillor Connor clarified that it was being said that the passing places could be conditioned and if they cannot be delivered then the development will not get built.

·         Councillor Marks stated that he has visited the site, he thinks building land will run out long before sand and gravel is started to be dug up to take any minerals away and there are 50 houses next door to the site which should have been picked up if minerals were an issue. He expressed the view that the applicant has come back with this application, it is not clear regarding the roadway ownership but there is a scheme, whether it works or not that has got to be negotiation with other people so if it can be conditioned he is happy to support the proposal.

·         Councillor Connor agreed with the comments of Councillor Marks, it is an improved scheme and feels there is some way forward for the proposal.

·         Councillor Sennitt Clough made the point this is an outline application, it has to be looked at as presented and her concern is that if committee says it will condition this and condition that where does this end and are conditions being applied that cannot be delivered. She expressed the view that, in terms of the deliverability of this application, at the moment there has not been enough undertaken to mitigate the safety in terms of the access.

·         Councillor Marks stated that the road is quite wide already in this location and by creating two passing places he feels it would better that roadway and further down the road there are two building plots which have now been given permission so it did not seem to be a problem to give this approval so committee is actually looking at five more houses on a road that is not busy.

·         Councillor Gerstner made the point that members have been told in the past about land ownership not being a material planning consideration and committee seems to have spent a long time discussing this byway, with officers making it clear both on the 2021 application and this application about the fact that there is the public byway open to all traffic and until such time that the applicant can prove that the land is deliverable he does not think committee should support it.

·         Councillor Benney stated that when this proposal came before committee previously he proposed that it be turned down because access was not committed at that time but on this application, in his view, it is a good scheme that can be delivered and there have been two other applications that are served from the same drove further down, one in 2022 and the other in 2023, and when you look at those reports there was no mention of additional traffic and they were approved with officer delegation. He stated that the thing that changes it for him is the fact that these two building plots were approved so if it was good enough for these plots why is it not good enough for this proposal. Councillor Benney expressed the opinion that the passing places will improve the byway and public safety and there will be public betterment by approving this application. He feels if the land ownership cannot be resolved then these dwellings will not be built.

·         Gavin Taylor stated that there are two issues with this byway, one is not just land ownership it also the legal extent of the byway which has not been explored, confirmed or an order made so there are two issues in establishing what is or is not deliverable and how the byway should and can accommodate the additional traffic. He made the point that in relation to the two applications for single dwellings that have been approved, both reports do refer to both the refused application and the fact that this is a byway and there will be additional traffic impacts, however, it was considered in both applications because they were incrementally single dwellings and infill at that time that they would not cumulatively create a significant harm in terms of highway conflict. Gavin Taylor added that there is now an application in front of committee where the Local Highway Authority are clearly objecting on the basis of the increase which would ultimately total seven dwellings here, which would create a material impact on the highway which would be unsafe for users. He continued that in terms of betterment, whilst he takes members point that passing places would only serve to improve that byway and create access for all, if this is going to be given significant weight there is the need to be certain that it can be delivered and securing it through a condition means that the tests of a planning condition can be met, that they are reasonable, achievable and deliverable, if they are not and a condition is imposed that does not meet those tests the applicant could seek to remove that condition and the Council may be in a weak position to object to this. Gavin Taylor referred to minerals and waste, the Local Plan for Minerals and Waste was updated post refusal of the application for six dwellings and there is a condition that forms part of the Council’s Development Plan and there is a legal duty to assess applications and determine them in accordance with the Development Plan and that policy under minerals and waste says that applications on mineral safeguarding areas should not be supported where it is not demonstrated that they meet a need. He added that on the scheme for 50 dwellings it was considered that would meet a need in terms of a wider need of housing delivery but this proposal is only serving five market dwellings which is unlikely to meet current needs notwithstanding that there is a healthy land supply. Gavin Taylor referred to encroachment onto public highway stating that enforcement acts occur in the public interest and if there are no concerns raised about unauthorised works it is not reasonable for the Council to take action notwithstanding that the Highway Authority would also be entitled to take action where they felt it affected their highway.

·         Councillor Benney stated that he has the Cambridgeshire County Council report in front of him and it says “whilst there is no submitted forecast of vehicle movements from the proposed dwelling and it is clearly accepted that the byway is currently utilised by a number of pedestrians throughout the day, the modest increase in peak hours vehicle trips arising from the development would not result in detrimental impact on safety grounds such that an objection from the Highway Authority could not be substantiated solely on the grounds of highway safety”. He feels that this says that there is no objection on highway grounds for safety, it is about the delivery of the scheme. Gavin Taylor responded that if the comments are read further it continues “it should be clearly understood however that the acceptance of the proposed development on highway grounds is contingent upon the provision of the widening works.”

·         Councillor Marks questioned the comments made about enforcement, was it Cambridgeshire County Council or Fenland being referred to? Gavin Taylor responded any enforcement party so if it was felt that it was unauthorised works then the Local Planning Authority could take action if they felt it was expedient to do so but equally if the Local Highway Authority felt it expedient to take action then they could do so also. Councillor Marks clarified that this is moving of the boundary fence over the dyke. Gavin Taylor responded that he believes that this is what the suggestion was.

It was proposed by Councillor Gerstner, seconded by Councillor Sennitt Clough to refuse the application as per officer’s recommendation but this was not supported on a vote by members.

Proposed by Councillor Benney, seconded by Councillor Imafidon and agreed that the application be APPROVED against officer’s recommendation, with authority delegated to officers to apply condition in consultation with the Chairman, Proposer and Seconder.

Members do not support officer’s recommendation of refusal of planning permission as they feel that the proposal is not in conflict with Policy LP15 of the Fenland Local Plan and Paragraphs 108 and 110 of the NPPF as they feel that anybody who lives in these dwellings is going to have a car as a car is needed to live in Chatteris as public transport is abysmal, there is no highway harm but betterment and deliverability can be mitigated against, there have been two other dwellings that have been approved that use this drove over a longer distance than this proposal would and there has been a material change since the previously refused application in terms of the number of houses and the access arrangements.

(Councillor Benney declared that the agent has undertaken work for Chatteris Town Council and himself personally and that the applicant is also known to him, however, he has not met or socialised with him for many years, but he is not predetermined and will consider the application with an open mind. He further declared, in accordance with Paragraph 14 of the Code of Conduct on Planning Matters, that he is a member of Chatteris Town Council but takes no part in planning)

(Councillor Marks declared, in accordance with Paragraph 14 of the Code of Conduct on Planning Matters, that he is a ward councillor for Chatteris and does attend Chatteris Town Council meetings, but takes no part in planning)