East Herts Uncovered

Planning

East Herts Council is responsible for both:

  A. The Local Development Framework and Planning Policy which sets the rules for the district and

  B. Development Control which grants permission (or otherwise) for individual planning applications according to the policies

During our time in office we were often asked about the development control or planning process. Here are two cases ......

New
12th April 2011

In Feb 2009, the Riverside Garden Centre was devastated by floods

In June 2009 a planning application, 3/09/0939/FP, was submitted. It came to committee in August 2009

The officers’ report concluded: “Overall, it is the Officer’s view that as the application proposes a replacement building for one of similar scale and footprint that was destroyed in a recent flood, the proposal amounts to very special circumstances to override Green Belt policy. Whilst the design and layout of the proposal could be improved, this is not considered to be unacceptable. Further, there will be no material harm to the openness of the Green Belt.” Officers recommended approval

The committee decided to defer the application “to allow officers to enter into further consultation in relation to the details of development on the site” (see minutes here, from page 241).

The Mercury reported: “Six workers at the Riverside Garden Centre were laid off after East Herts Council's development control committee voted to defer the decision.”

In Sept 2009 the planning application came back to committee. Once again officers recommended approval.

The committee agreed that “authority be delegated to the Director of Neighbourhood Services in consultation with the Chairman of the Committee to grant planning permission subject to confirmation from the Environment Agency that the submitted Flood Risk Assessment is acceptable” and with a variety of conditions (see minutes, from page 325).

The owner seemed relieved

However the conditions of the permission limited the opening times for the restaurant. The applicant applied for a variation of those planning conditions

In April 2010 a planning application, 3/10/0704/FO was submitted asking for Variation of Condition 9 which states " The use of the premises shall be restricted to the hours 08.00 to 23.00 Monday to Saturday and 10.00 - 22.00 on Sundays and Bank holidays" to read "The restaurant shall not be open for business from 01.00 to 08.00"

This planning application (3/10/0704/FO) came to committee in June 2010

Cllr Haysey wrote a letter that was read out to the committee. It contained the following:
“……We as a council must make every effort to protect the rural areas surrounding our towns. You as members of the Development Control Committee can provide that protection.
As the report states, noise travels in strange ways along the valley and parties and noise can be heard from a great distance. If this restaurant is allowed to open until 1am, every night then a far greater number of residents could be disturbed than just the immediate neighbours.”

You can see the committee meeting on the webcast, starting at 4 minutes

Officers recommended refusal. The Committee voted to refuse to vary the opening hours as requested.

The applicant appealed to the Planning Inspectorate and in January 2011 that appeal was successful.

The applicant was also awarded costs against the Council. We believe these costs may have been in excess of £15,000.

Here are some extracts from the Inspector’s report on the awarding of costs against East Herts Council (the Respondent):

“Circular 03/2009 advises that, irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably and thereby caused the party applying for costs to incur unnecessary or wasted expense in the appeal process.”

“The condition was first imposed in planning permission 3/09/0939/FP without any prior discussion, despite the fact that there had been no previous complaint regarding noise or disturbance from the premises. There was no evidence to support the need for the condition.”

“The Respondents failed to produce any credible evidence to provide a respectable basis for the condition they sought to uphold….”

“The Respondents have acted unreasonably.

It is well worth reading the full Inspector’s report on granting the appeal and allowing the new opening hours.

Tewin Bury Farm Hotel

In Nov 2009, the development control committee agreed enforcement action against a number of unauthorised developments at Tewin Bury Farm Hotel with a time limit for compliance of 6 months.

The meeting paper stated: “In October 2008 concerns were expressed to the local planning authority about the permanent erection of a double marquee, with a covered walk way, on the western side of the Tewinbury Farm Hotel site. There were also concerns about new car parking facilities, a timber pergola, and a number of permanent jumbo umbrellas.”

One of the reasons for enforcement was: “The development of the marquees; associated structures; gazebo; umbrellas; car parking areas and associated engineering works however represent inappropriate development in the Green Belt and no very special circumstances are apparent in this case to justify an exception to Green Belt policy. The buildings, car parking areas and structures are therefore contrary to policy GBC1 of the East Herts Local Plan Second Review April 2007 and PPG2.

According to the minutes: “Councillor L O Haysey, as the local ward Member, addressed the Committee in support of enforcement action”

In July 2010 a new planning application, 3/10/1200/FP, was submitted. It came to committee in Nov 2010. The Director of Neighbourhood Services recommended that planning permission be refused.

The minutes record (page 24 onwards):

“Councillor Haysey commented that the reasons for refusal were not substantial and asked that this application be approved. In respect of policy GBC8, Councillor Haysey stressed that this policy made provision for new buildings in the Green Belt.

 “The Director reminded the Committee that Members had authorised enforcement action against the one of the marquees and the car park about a year ago. An appeal had been lodged and the Committee was advised that a decision on this was expected towards the end of 2010 of early 2011.
Members were reminded that approving this application could undermine the case of the Authority at the aforementioned appeal and that the Council could be seen as unreasonable. The Director stressed that there was a risk of costs being awarded against the Authority should Members approve the application this evening.”

Mr Steptoe, Head of Planning, said (see webcast 02:02:58)
 “This time last year this Committee took rather a different view to that that it seems to be taking tonight......... So, if you indicated you were minded to support this tonight..... we are at very significant risk of being seen to be unreasonable if we do make a decision tonight.”

And: (webcast 2:06:48)
“One can see a difference quite clearly between the marquee as exists and the building that’s now being proposed......Unfortunately we also took enforcement action against the car park, we said that was unacceptable....... at the 11th hour effectively saying ‘well forget what we said last year now we think it’s acceptable’, that’s the unreasonableness. So that’s the situation that we’re getting into”

The committee agreed “planning permission be deferred to enable the outcome of the current appeal against enforcement action to be received.”

In January 2011 the Planning Inspector upheld the Council’s original decision regarding enforcement action.

The Council’s own press release said:
 “A big marquee and ugly car park on Green Belt land must go, said a government inspector who backed East Herts Council's enforcement notices ordering the owners to remove them.
The developments at Tewin Bury Farm in Tewin "caused considerable harm to the Green Belt." They were "not of a high standard of design" and "sprawl along the valley," said the inspector in her report. She gave the owners 12 months to take down the marquee, remove hardstanding parking for 220 cars, a covered walkway and toilets.”
And
"We know the importance of flourishing businesses in the district where appropriate, but the inspector's strong words emphasise how wrong this development was for the Green Belt," said Councillor Malcolm Alexander, Executive member for community safety and protection.”

The appeal decision can be found here

A few weeks later, in March 2011, planning application 3/10/1200/FP came back to the Development Control committee. Again the Director of Neighbourhood Services recommended refusal.

Read from page 27 in minutes:

“The Director read out a written submission on behalf of Councillor L O Haysey, as the local ward Member. Councillor Haysey had stated that the application had been deferred pending the outcome of an appeal decision, to avoid the possibility of costs being awarded if the application had been approved whilst there was an outstanding appeal decision.”

(Remember the Inspectors report in the Riverside case (above) “irrespective of the outcome of the appeal, costs may only be awarded against a party who has behaved unreasonably.”)

The minutes continue:
“She had stated her continued support for this application and urged Members to recall their extensive and constructive comments at the November meeting of this Committee and subsequently approve the application”

“The Director commented that the key issue was the green belt location. He stressed that the national and local planning policy was very firm in stating that there should be no development in the green belt unless very special circumstances could be demonstrated for going against policy.
….. Members were also advised that the inspector had stated that the site had reached its limit in terms of capacity for new buildings.”

The Committee agreed that planning permission be granted subject to conditions to be agreed by the Director of Neighbourhood Services, in consultation with Councillors M R Alexander, W Ashley, Mrs R F Cheswright, R Gilbert and Mrs M H Goldspink.

Published and promoted by Nigel and Deborah Clark ,on their own behalf, both of Yewtree House, High Street, Hunsdon, SG12 8NT.

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