Agenda item

To consider an application for part change of use from restaurant Class E(b) to residential Class C3.

Application for part change of use from restaurant Class E(b) to residential Class C3.

The Officer’s Report stated that this application had been referred to the Planning Committee as requested by the Chair and Vice Chair of the previous Planning Board at Mendip District Council as they disagreed with the Officer’s proposal to refuse the application.

The Report continued that the proposal was for the change of use of the restaurant to residential with the overall result being two dwellings.  The site was located within a Conservation Area and was within the development limits of Shepton Mallet.  The site was also located within the Somerset Levels and Moors Ramsar catchment.

Shepton Mallet Town Council had supported the application but there had been no letters of support or objection from local residents.

Regarding phosphates, the Report stated that the application site fell within the catchment flowing into the Somerset Levels and Moors Ramsar, designated for its rare aquatic invertebrates.  There was a major issue with nutrients entering watercourses and any new housing, including single dwellings, would result in an increase in phosphates contained within foul water discharge. As the designated site was in 'unfavourable' condition, any increase, including from single dwellings, was seen as significant.

The applicant had not provided a Nutrient Neutrality Assessment and Mitigation Statement (NNAMS) and based on the information available, it was not possible for the Council to determine whether the proposal would have an acceptable effect in relation to the Somerset Levels and Moors Ramsar site, and as such it failed Regulation 63 of the Habitat Regulations 2017. The Report continued that it was also not possible to determine the effect on protected species and as such the Recommendation was for refusal.

The Planning Officer explained the application to the Committee with the aid of a PowerPoint presentation.

The Chair invited the agent for the applicant to speak on their behalf. He made the following points:

• The owners of the restaurant had been trying to sell it for a considerable amount of time but have been unsuccessful. They would like to convert the restaurant to a residence and make two properties, one of which they would sell.
• The Phosphate calculator was flawed as it did not take into account the loss of the restaurant business and how that would result in an overall reduction in phosphates emitted.
• As a restaurant, the water usage was between 400 and 600 litres per day. As a dwelling this would reduce to 150 litres per day. This was an obvious benefit to the Somerset Levels and Moors Ramsar site.

Before the Committee debated the application the Legal Advisor re-iterated that the proposal failed Regulation 63 of the Habitat Regulations 2017, which prohibits the Council from granting planning permission unless it is sure beyond reasonable doubt that the development it will not adversely affect the integrity of the Ramsar Site. He urged Members not to make an unlawful decision by granting permission for the development without the necessary evidence to demonstrate that it would be nutrient neutral.

During the debate the following points and questions were raised by some Members:

• Great sympathy was felt for the owners of the restaurant that they were in this difficult position.
• The Phosphate calculator did not seem fit for purpose. How could it be fixed?
• What solution could the Planning Officer offer the applicant to solve the problem?
• It seemed common sense to approve the application despite the Regulations. What would be the risk of doing this?
• Could the application be deferred to allow the applicant to work with Planning Officers to find a phosphate solution?

In response to these questions the Legal Advisor said that the Phosphate calculator had been adopted Somerset-wide and that it had been approved by Natural England. It would not be lawful to ignore the Habitat Regulations. The Team Leader – Development Management advised there were a number of mitigation schemes available, and the applicant could purchase P-credits in those schemes to mitigate against the phosphates. Deferral of the application to explore these options would be a possibility.

Many Members agreed that deferral would be useful as it would give the applicant every opportunity to consider the Phosphate mitigation. Councillor Susannah Hart requested that Planning Officers agreed to undertake to contact Natural England about the issue with the Phosphate calculator.

At the conclusion of the debate, it was proposed by Councillor Heather Shearer and seconded by Councillor Nick Cottle to defer the application for up to 2 months to allow the applicant to secure mitigation against the Phosphate emissions. On being put to the vote the proposal was carried with 9 votes in favour and 1 against with 1 abstention.

RESOLVED

That planning application 2022/0258/FUL be deferred for a period of up to 2 months to allow the applicant to secure mitigation against the Phosphate emissions.

Before the meeting was closed, the Chair permitted Councillor Helen Kay to raise the issue regarding the lack of ability to browse Minutes and papers from the old Mendip District Council website. In response, the Head of Service explained that the link from the former District Council website to the new Somerset Council website would be secured in time. However, this had been an issue from the migration and was still being resolved. In the meantime, Members and the public could request to see previous Minutes and papers via an online form.