Agenda item

To consider a report by the Divisional Director of Planning and Transport Development and the Planning and Environmental Law Manager

The Committee considered a joint report by the Divisional Director of Planning and Transport Development and the Planning and Environmental Law Manager regarding this site and which (1) referred to the decision of the Special meeting of this Committee held on 30^th March 2012 at which it was requested that a further report be submitted to this meeting. The March Committee resolved:

(i)  To note that material progress had been made in relation to the Committee’s resolution of 5^th January 2012 and that Officers were making progress in negotiations with the site owner’s Agent with a view to bringing forward a Residual Waste Facility on the site;

(ii)  That Officers continue to work with the site owner’s Agent to secure the delivery of a Residual Waste Facility on the land;

(iii)  That, in the light of progress on negotiations, it was not considered to be expedient to take enforcement action today (30^th March 2012) against the breaches of planning control currently identified at the site as set out in the previous report to the Committee;

(iv)  That an update report be submitted to the Committee in May to ensure that no immunity from enforcement action occurs in respect of the alleged breaches of planning control; and

(v)  That enforcement action be considered and appropriate weight be given to the issue of the expediency in the light of the update report.

An update report provided further information on the matter and slightly amended the recommendation. The Chair introduced this item. Councillor Martin Veal stated that a formal complaint had been lodged against him in respect of this item on the Agenda regarding the land at the former Fullers Earthworks. In light of this, he had been advised that it would be inappropriate for him to take part in the discussions or decision with regard to this matter. He would therefore withdraw from the Committee when this item was being considered which he proceeded to do.

Mr Harwood, the Council’s Planning Consultant, reported on the matter by means of a power point presentation and took the Committee through aerial photographs taken over recent years and some taken at the recent Site Visit attended by Members on 19^th March this year. He drew the Committee’s attention to the Update Report and late representations received and advised that Local Plan policies were consistent with the National Planning Policy Framework (NPPF).

Mr Herbert, the Council’s Waste and Minerals Consultant, reported by means of a power point presentation on the pre-application proposals that had been submitted by the owner. These had been considered by the Development Team who found them to be unacceptable for various reasons but that, with revisions, they could be satisfactory.

The public speakers made their statements on the matter. The Chair then stated that there were 3 issues for consideration, namely, whether or not they accept the Officers’ findings that there were breaches of planning control on the land; if they accept that there were breaches, then the Committee needed to consider the expediency of taking enforcement action; and, if so, the period of compliance with the enforcement notice. He then opened the matter up for debate.

Councillor Les Kew stated that the activities on the site needed to be regularised and that enforcement action could be taken at the same time as negotiations were continuing on the proposal for a Residual Waste Facility on the site. He considered therefore that enforcement action should be taken immediately and before the end of this month to avoid possible immunity from enforcement action. Councillor Bryan Organ also considered that enforcement action should not be delayed and moved the Officer recommendation to authorise enforcement action but that such action be taken immediately and before 31^st May 2012. This was seconded by Councillor Neil Butters. The Planning and Environmental Law Manager considered that there was a conflict of wording in the motion by including both “immediately” and “before 31^st May 2012”. Councillor Organ therefore altered his motion by removing the word “immediately”.

The Planning and Environmental Law Manager gave advice to Members regarding taking enforcement action and the expediency of doing so, advising Members that enforcement action was discretionary and that their decision had to be proportionate to the breaches of planning control. Such action would interfere with the owners’ and occupiers’ Convention rights under the European Convention of Human Rights and consideration therefore needed to be given as to whether such interference would be justified and proportionate in the wider public interest. She stated that Members have had the benefit of a number of reports which set out Officers’ view as to the harm caused by the alleged breaches of planning control and also pointed out the progress that had been made in the pre-application discussions, albeit that more work had to be done. This was also a material consideration. She advised Members that the only reason the Officer recommendation had changed was due to the need to protect the Council against the possibility of the alleged breaches of planning control becoming immune from enforcement and therefore outside the control of the Council. The aim, as set out in the Council’s JWCS, was still to deliver a Residual Waste Facility.

Members debated the motion as amended. The issue of the period of compliance with the Enforcement Notice was raised. Some Members felt that 12 months was sufficient whereas other Members considered that 18 months was better. The Planning and Environmental Law Manager responded to questions raised by Members and reminded Members of the Committee of the 3 questions they had to address: 1) is there a breach of planning control; 2) if there is, is it expedient to take enforcement action; and 3) what, in the circumstances of this case, would be a reasonable time for compliance with any enforcement notice. She also drew their attention to the representations that had been received from the owner’s Solicitor as to why they took a contrary view to the Officers on the alleged breaches of planning control and their concern over the Council’s change in position. The Planning and Environmental Law Manager advised the Committee that the previous position was based on the information available at that time and that the owners and their representatives had been advised in the past that the Council had changed its view. She advised Members that, as set out in the report, the information currently available shows good evidence that the changes had not occurred until 2003 but that there was stronger evidence for June 2002 which had led to the Officer recommendation. Councillors Eleanor Jackson and Doug Nicol were concerned that small businesses should be protected and that they should be given sufficient time to relocate. Councillor Nicholas Coombes confirmed that he had considered the 3 questions but thought that 12 months was sufficient time for compliance. A question was raised regarding the boundary of the JWCS allocation and whether this went beyond Area A. The Committee’s attention was drawn to the map showing the boundary of area allocated in the JWCS, Annex C of the Report, from which it was clear that the allocation went beyond Area A shown on Annex E. There was some debate regarding the reasons why 18 months was recommended as a period of compliance and the Committee was advised that this was to allow sufficient time for negotiations to continue with the aim of delivering an acceptable Residual Waste Facility on the land and also to enable businesses to relocate and clear the site. Councillor Bryan Organ considered that 18 months compliance was a reasonable amount of time in the circumstances and, with the seconder’s agreement, included this in his motion. The motion was then put to the vote which was agreed unanimously.

RESOLVED that (1) the Divisional Director of Planning and Transport Development, in consultation with the Planning and Environmental Law Manager, serve the necessary enforcement notice(s) on behalf of the Local Planning Authority before 31^st May 2012 in respect of the alleged planning contraventions outlined in the report by exercising the powers and duties (as applicable) under Parts VII and VIII of the Town and Country Planning Act 1990 (including any amendments to or re-enactments of the Act or Regulations or Orders made under the Act) in respect of the above land; (2) give an 18 month period of compliance with such Enforcement Notice(s).

General Note

This specific delegated authority will, in addition to being the subject of subsequent report back to Members in the event of enforcement action being taken, not being taken or subsequently proving unnecessary as appropriate, be subject to:

(a) all action being taken on behalf of the Council and in the Council’s name;

(b) all action being subject to statutory requirements and any aspects of the Council’s strategy and programme;

(c) consultation with the appropriate professional or technical Officer of the Council in respect of matters not within the competence of the Divisional Director of Planning and Transport Development; and

(d) maintenance of a proper record of action taken.