Meeting documents

Application proposal: Erection of a building for B1, B2 and B8 uses with associated infrastructure, parking and landscaping.

The Area Lead introduced the application and reminded members of the site and the history.  He referred members to the Google Earth display before them, which was a little out of date but illustrated the site location. He advised that since writing his report, he had a number of updates to the report including:

·         further letters had been received:

o  Three from local residents raising concerns about landscaping and visual impact generally, feeling that the Landscape Officer had shifted position, concern about non-compliance with planting at the site in general and reference that the proposal represents over provision of employment land in Lopen.

o  Another letter and email had been received from the lawyer engaged by an objector raising a number of issues.

He summarised the content of the e-mail and 12 page letter received from the lawyer (James Smith) for an objector, (the letter having been previously circulated to members). The Area Lead responded to some of the points contained within these communications including:

·         Complaint had been made that specific commercial information relating to the business of the applicant and used to inform the EIA screening decision was not in the public domain.  The Area Lead explained the reasons for such confidentiality but advised that SSDC would respond to the request for disclosure of this information by dealing with it as an environmental information request.

·         SSDC was confident that its’ latest (and fourth) screening opinion (based on both the applicant’s and an objector’s disclosed information) was sound, and  maintained  its’ stance that an EIA was not required.  What was proposed was not an integrated chemical installation for the purposes of EIA.  Neither was the landscape impact (whether considered individually, or cumulatively with other site development) so significant that a formal EIA was necessary to deal with it.

·         Some issues raised in the letter included:

o  Concern that all emerging policies of the draft Local Plan had not been mentioned in the report to Committee

o  Allegations that a flawed framework led approach had been taken.

o  Some elements relating to save policies had been omitted from the officer report.

o  Claimed that development at this site was not of small scale.

o  Disputed that it was a sustainable location – his client’s view was that it clearly was not and the officer report did not clearly say it was. Concerned that emerging policies of the Local Plan were not mentioned in the officer report.

o  Concluded that the proposal would have a significant negative visual impact on the landscape

o  Claimed that the LPA had failed to fully assess noise and light pollution

In response to some of the points raised in the lawyer’s letter, the Area Lead noted that:

·         The Area Lead clarified that it was the LPA’s opinion it was considered to be a sustainable site in the context of this application

·         A large building in a prominent position did not mean it was automatically unacceptable.

·         It was not considered there had been a change in circumstances since the application was last considered.

·         The Secretary of State was aware of the situation with the application and had been contacted about the screening opinion.

·         Environmental Health had not raised any objection regarding noise and light pollution. He had visited the site at night and the street lighting at the nearby roundabout was more prominent than lighting at the application site.

The Area Lead read out comments and advice received by SSDC’s Counsel in response to the 12 page letter from an objector’s lawyer, as follows:

•        Emerging policy: this did not form part of the development plan.  Even if relevant, it was a matter for the Council (‘SSDC’) as to how much weight it gives it as a material consideration for section 38(6) purposes (that is, the Area Lead further commented, the starting point needs to be the consideration of the Local Plan).

•      The NPPF: this was a material consideration for section 38(6) purposes.  There was more to it than paragraph 28.  It must be read as a whole.  The weight to be afforded to it and its policies was a matter for SSDC.

•      Section 38(6): the officer report was not "NPPF led".  It clearly set out section 38(6) first in the Policy section, and it clearly detailed the saved Local Plan 2006 policies before identifying Chapters of the NPPF and the national Planning Policy Guidance.  The Justification section reached a clear conclusion in accordance with the development plan taken as a whole, before reference to the NPPF.

•      Members were advised that they should of course apply section 38(6), appreciating that the development plan is the starting point and that the scales did not start off in even balance.

•      The High Court judgment (R (on the application of Sienkiewicz) v South Somerset District Council (2013)) did not fix for all time the issue as to whether the proposed development was in accordance with the development plan, since the weight to be afforded to policies within it (such as Policy ME4) may change with the passage of time or because or some other material consideration (e.g. consistency with the NPPF).  It was common for relevant development plan policies to pull in different directions with respect to planning applications.  SSDC had to make a judgment as to whether the proposal was in accordance with the development plan taken as a whole. Officers judged that it was. Moreover, officers judged that the NPPF (an important material consideration) indicated that planning permission should be granted in any event.

•     Sustainability: there were three dimensions to sustainable development: economic, social and environmental.  Officers had considered all three in the round.  They considered, having regard to all three dimensions, that the proposal represented sustainable development. The judgment as to the sustainability of the proposal having regard to all three dimensions was a matter for SSDC as decision-taker.

•     Landscape and visual impact/residential amenity: there is a difference of opinion between SSDC officers and objectors with respect to the landscape and visual impact of the proposed development.  That does not disclose an error of law on the part of SSDC.  There is no obligation to undertake a full Landscape and Visual Impact Appraisal of the scheme.  By the same token, the objections as to residential amenity do not disclose an error of law on the part of SSDC either.

•     Building B: officers did not consider that Building B on the allocated site provided a basis for refusing this application.

•     Environmental Impact Assessment: SSDC concluded prior to the High Court proceedings that the application did not amount to EIA development.  The Secretary of State agreed (twice). The Court rejected the challenge on this issue. SSDC had comprehensively reconsidered the issue afresh.  It had considered the proposal in isolation and cumulatively.  Officers remained of the view that the proposal did not represent EIA development.

•     Personal condition: the first permission was challenged by reason of the personal condition attached to it. The Court upheld that challenge and quashed the permission.  In a judgment handed down as recently as 14 October 2014, it records at paragraph 62 a submission by Leading Counsel (Gregory Jones QC), for the objector, citing the High Court judgment in this very case, that paragraph 93 of Circular 11/95 advised that local planning authorities should not grant personal permission to companies.  The Area Lead then said that there was a reference then to a High Court case: R (Lady Hart of Chilton) v. Babergh DC (2014).  Members were referred to the entirety of paragraphs 93-95 of Circular 11/95, including paragraph 95 on personal occupancy conditions.

The Area Lead said that he had those pages with him if members needed clarification on that, but it was quite clear from Circular 11/95 that to seek to make a permission personal to a company was flawed and that was the reason the permission was quashed.

The Area Lead apologised for the length of the updates but noted it was important to go through all the issues and to address concerns raised so that members had all the information in order to make a decision.

The Principal Legal Executive, clarified that the comments and advice just read out were from the barrister who had represented SSDC at the Judicial Review when the previous permission was quashed.  The barrister had seen the objector’s solicitor’s letter, gone through it and what the Area Lead had read out was the barrister’s response to the points made by that solicitor, including the legal issues.  The Lady Hart case mentioned was a case heard on 14 October 2014 (very recently, in the last couple of weeks) and indicated that a personal condition should not be used; which was the point being taken against SSDC when the objector challenged SSDC in the High Court last December.  So for the complaint to now be made that SSDC was not now proposing a personal condition was invalid, when the High Court had clearly indicated that, as the Circular on conditions clearly says, such conditions were inappropriate.

The Area Lead then presented the application as shown in the agenda, during which he highlighted it would be prudent to add the plans for the floor layout to the condition detailing the approved plans. He explained that the existing line of conifer trees were recommended to be removed and be replaced with more appropriate species as the conifers were not in good condition. The presentation included photographs from an objector’s landscape and visual impact assessment.

Moving on to the key consideration, the principle of development, the Area Lead said that it was accepted that the site was outside of the existing allocation and outside any identified settlement in the saved Plan.  However, it adjoined the allocated site and was a former horticultural site, and it was not considered to be objectionable in principle, subject to considerations as to scale and whether the other points as listed, were on balance acceptable.

In terms of sustainability it allowed for the expansion of an existing employment site and and an existing user on that site, providing rural jobs for people who live in the countryside. In terms of justification for the sustainability decision recommended to members, the applicant had provided clear evidence as to their on-going business plan, why they need the additional works space.  The applicant was a local company who had started in Stoke sub Hamdon and had moved to this site with a history of operating outside major settlements. No fundamental sustainability issues were seen that would prevent them continuing to do so on their new site.

In terms of justification the applicant had supplied all the evidence that SSDC could reasonably ask for to demonstrate that this was not a speculative application and was to meet the applicant’s needs. It was not seen that, on the basis of consideration of those other issues, that a personal condition or any kind of personal limitation was necessary to make the development acceptable in planning terms because, going on to consider the landscape and visual issues, an objector’s point that the development was fundamentally objectionable was not accepted. SSDC’s landscape architect had looked at it in great detail.  The site was already there and it had been accepted that it could be developed, permissions had been granted with conditions for landscaping. While the concerns that these landscaping conditions may not have been fully complied with, no evidence of that had been seen in relation to the Probiotic’s site. The planning officer was more than happy to check the position with regard to the Lift West site to see if there are outstanding issues, but the mere fact that someone might not comply with their conditions was not a sufficient reason in its own right to withhold permission. It was SSDC’s view that the landscaping and visual impact of the proposed scheme could be acceptably mitigated, a landscaping plan had been seen and SSDC’s landscape architect was satisfied that it would do so.

In terms of highways and parking, the Area Lead referred to the photograph of the entrance and commented that it was a perfectly acceptable entrance to accommodate the development. There was adequate parking provided.

In terms of drainage, there were local misgivings about the consideration of the drainage plans. These had been looked at by SSDC’s Engineers and the Environment Agency and they had raised no concerns. The Area Lead had confirmed on site with the applicant that their conditions on the other buildings had been complied with. The advice received from technical consultees was that the proposed drainage arrangements were acceptable

The Area Lead referred to the previous decision and explained that members needed to be satisfied as to whether there had been any material changes in circumstance that justified a full reconsideration of this application and potentially a different decision.  He referred to his lengthy report (and to his appended earlier officer’s report by way of background) and said that it considered this in terms of all those points and there had been no fundamental changes in circumstance. The Area Lead did not believe a personal condition was necessary to make the application acceptable. He did not believe that there was a justification to withhold planning permission. The officer recommendation was for approval subject to the change to condition 12 to include floor plans (ground floor plan 004B and first floor plans 005A).

The Principal Legal Executive referred to what he had said earlier in the meeting and clarified to members the advice in Circular 11/95 (as referred to by SSDC’s barrister and the Area Lead) as to why personal conditions should not be used in the context of companies (as in the situation with this applicant), namely, the problems that could ensure if a company’s shares were transferred. He gave an example of this situation.  He also reminded members that copies of the relevant paragraphs of the Circular could be handed round to members if they wanted to view them and reminded them that SSDC’s barrister had specifically drawn their attention to these paragraphs, although the Area Lead had already summarised the advice anyway.

Ms K McDonald, spoke as representative for Lopen Parish Council and in objection to the application, and noted it was not merely a handful of individuals that have problems with the site – as a community, they really could not have sent a stronger clearer message. It was felt the community had been frozen out and no attempt had been made to engage with them. No mitigation measures requested by the parish council had been granted. She noted the parish were not against development but were against inappropriate development. She commented it was thought the instigation of legal proceedings would have spurred the local authority to engage in trying to resolve issues. In their opinion Lopenhead was not justifiable.

Mrs T Sienkiewicz, objector, noted that she had prepared something to say but had not seen the legal advice read out by the officer. She claimed the Council had not been upfront about disclosing information. Rural development should be small scale and reference was made to the settlement hierarchy, and this proposal being against just about every saved policy. She did not understand why officers were still advising as they were, and felt the proposal failed the sustainability test. She did not agree that the conifers should be removed, and did not agree with the landscape officer comments.

Mr A Whitehouse, spoke in support of the application as the landowner. He made reference to the Lift West business at the site and noted that many employees were local. He noted he had heard the village comments for years and had tried to engage with the parish council to no avail. He commented he was a member of Into Somerset and wanted to see new jobs.

Mr M Frost, agent, noted the application had been first submitted in March 2012, approved, but then quashed solely due to the personal condition. The contribution to the local economy was not what it could have been if the proposal had been built. He made reference to the Local Plan being out of date, the NPPF, and the elements of the legal challenge that had failed. He noted the design of the building was inappropriate to any other business and there were no objections from technical consultees. He hoped members continued to support the business and approve the application.

Ward member, Councillor Paul Thompson, comments included that Probiotics could be considered a market leading business, and for their processes and customers there was a need for a separate building. There had been no representations about flooding  since the wider site had been developed. He agreed it would be nice to keep the conifers but they were not in a state as to be worth keeping. He struggled to see the impact of the proposal on Lopen. With reference to the legal challenge he commented that in effect members were only considering the personal condition. He could see no reason to refuse the application and hoped it would be supported.

The Principal Legal Executive referred to what had just been said and reminded members that they must be under no illusion that their decision was a re-determination of the application and it was not just limited to looking at condition 08 (the personal condition). Members must consider all matters afresh again as outlined in the officer’s report and as amplified by the Area Lead.  He asked members to have a completely open mind in reaching their decision.

The Area Lead was asked by the Chair if he had any comments to make on anything that the objectors, or anyone else, had said so far.  He indicated that his only point was going to be exactly what the Principal Legal Executive had just said, that this was a re-determination of the application and that members must consider all aspects of it.

During a short discussion comments raised by members included:

·         Agree with officer

·         Feel objectors comments  are over-stated and exaggerated

·         Have read everything, listened carefully – feel no option but to approve

·         Fully support, have followed site all way through since the first application

·         Well respected business

·         Perhaps conifers could be retained and trimmed until new planting matured

·         Feel would be foolish not to approve

·         Might be preferable for mature planting rather than saplings

·         Disappointing that community and businesses cannot come together

·         Site will be better cleaned up.

At the conclusion of discussion it was proposed and seconded to approve the application, as per the officer recommendation and subject to condition 12 being amended to include the floor plans. On being put to the vote, the proposal was carried unanimously in favour

(Voting: Unanimous in favour)