Agenda item

Change of use of open space to private garden area (retrospective application).

The Principal Planning Officer, Alan Dobie gave a detailed presentation on the report relating to the abovementioned planning application, copies of which had been circulated (for copy see file of minutes).  Members noted that the written report was supplemented by a visual presentation which included photographs of the site.  The Officer advised that Members of the Committee had visited the site that day and were familiar with the location and setting.  The application was for change of use of open space to private garden area (retrospective application).

Members were asked to note from the site visit and plans that there were a number of open spaces alongside the footpath links within the area, not consistent in terms of size or the types of wall or fence or bushes running alongside, however, they did make the footpath links to shops, bus stops and schools attractive.  It was added the type of fencing that had been used to enclose the area of open space was of concrete post construction with wood panelling in between, and was felt to be of acceptable visual impact.  Members were also asked to note the amount of land enclosed in proportion to the whole area of open space.

The Committee noted that internal and statutory consultees had responded with the Police Architectural Liaison Officer noting the development was an improvement and should be retained.  The Principal Planning Officer added that the Landscape Team had responded after the report had been published in terms of not supporting the application, with concerns in terms of the narrowing of the open space, changing the landscape feel and loss of amenity. 

It was noted there were no objections from the Rights of Way Team as there were no recorded rights of way through the area in question.

The Committee noted that there had been 5 letters of objection from members of the public, including concerns such as loss of public space, lack of consultation and noting the area was maintained by the Council.   

The Principal Planning Officer explained that there had been 4 letters in support of the application, with comments including: the land in questions was derelict; collected rubbish; and was an area blighted with dog fouling.

Members were informed that the three Local Councillors had all noted objections to the application, noting the loss of open space and with the land having been maintained by the Council for over forty years.  It was added that Local Members were in attendance to speak.

The Principal Planning Officer noted the land was only overlooked by a limited number of properties and by footpath users and on balance it was felt there was enough of the open space remaining in terms of amenity and that darker stain could be used on the panelling to help it match other nearby fencing.  It was added that approval would not set a precedent with any enclosure of land at another location to be looked at in the local and cumulative context in terms of impact.

The Chairman asked the Local Members for Framwellgate and Newton Hall, Councillors M Simmons and M Wilkes to speak in relation to the Application.

Councillor M Simmons noted that the application land had been described as a grassed wasteland and explained that this was not the case.  Councillor M Simmons explained that there were a number of open spaces all around Newton Hall and that these spaces had been deliberately included within the design of the whole area, including the access and links to the two shopping areas.  Members were reminded that the green space had been maintained by the Council and that Local Members felt that it should remain so.  Councillor M Simmons added that Local Members worked to ensure any open spaces were litter free and noted the open spaces were designed as places to play.  Councillor M Simmons added that the applicant did not own the land, the fencing that had been erected was of a significant height and width, and a significant area of the open space had been enclosed.  Councillor M Simmons noted that the footpath alongside the area of land enclosed was frequently used by residents to gain access to bus services and added that should the application be allowed it could lead to other residents enclosing other areas of land, creating alleyways where residents would fear to walk.  It was added that many of the surrounding properties were bungalows and many residents nearby were elderly and the open space was of great significance.

Councillor M Simmons added that she had received ten telephone calls from residents objecting and also a number of objections had been raised at a local meeting.  Councillor M Simmons asked of those supporting the application, how many used the footpath or lived locally.

It was added that the surrounding area was one where everyone respected and looked after each other and there were no issues of anti-social behaviour and that for those elderly residents that were unable to travel very far it was important to retain the visual amenity and accordingly she felt that the benefits to the majority of residents of retaining the land as open space was such that the application should be refused.

Councillor M Wilkes pointed out that the applicants were known to him personally but he only realised this in the last 2 days. He noted two points in terms of the application: loss of open space; and lack of consultation.  Councillor M Wilkes noted that looking at a map of the area, of the 200 or more properties in the surrounding area only 4 properties had been consulted, with none of the properties on the cul-de-sac having been included.  Councillor M Wilkes referred Members to a number of “before and after” photographs of the site that were displayed on the projector screen.  Councillor M Wilkes noted that if the consultation had included these residents that maybe there would have been significantly more comments from residents.  Councillor M Wilkes added that the fencing had clearly altered visibility for residents noting other fencing in the area was staggered or stepped in height to allow for this.  Councillor M Wilkes noted comments from Durham Constabulary as regards the area and that there was no issues of anti-social behaviour, however, the footpath would not be visible from the nearby properties and should a person fall and be injured they would not be seen.  Councillor M Wilkes noted that the open space had looked visually pleasing and that the proportion that had been enclosed was significant, especially when looking at the view from 166 York Crescent.  Councillor M Wilkes agreed with Councillor M Simmons in that the land in question was not wasteland and in fact had been well maintained, and also that if any issues of litter or dog fouling were brought to Local Members’ attention they would ensure the appropriate actions were taken.  Councillor M Wilkes noted that should the Committee be minded to refuse the application, then Policies H13, E5A, Q9 and Q1 may be applicable in terms of adverse impact on visual amenity; the character of the area; scale of development; and layout and design of development.  Councillor M Wilkes noted that should Members be minded to approve the application, that it should be reiterated that only 4 properties had been consulted on the application.

The Chairman asked the Committee Services Officer to read out a statement from the remaining Local Member, Councillor A Hopgood, who was unable to attend the Committee meeting.

“I wish to object to the application of change of use of public open space to private garden at 170 York Crescent.

First and foremost this is not a piece of wasteland left over by the developer.  Throughout Newton Hall you will find pockets of green space at the end of cul de sacs which were deliberately left to enhance the living conditions of residents and to make the estate feel more open. Newton Hall was designed as an urban area, to mitigate against this pockets of green space were left at the end of streets and adjacent to public footpaths, this was paramount to the design of the area and nothing has changed in the last 50 years to not allow this to still stand.  These pieces of land have been maintained by the local council and should remain as an amenity to all residents.

Whilst I acknowledge that an attractive fence has been put up, the fence is indeed of a significant height and width to have a detrimental effect on the surrounding area.  When approaching the fence from the bottom of York Cres it takes up at least half of the width of the green open space, I would argue that this is significant.

Should this be allowed to happen we could be opening the floodgates to anyone adjacent to these valuable community green spaces to extend their boundaries and make what are now nice wide open walkways into nothing more than high fenced alley ways which could become areas where residents fear to walk as they are no longer visible to local houses and a threat to public safety”.

The Chairman thanked the Local Members and the Committee Services Officer and introduced Ms V Jackson and Mrs A Tones, local residents, who were in attendance to speak in relation to the application, having 5 minutes to address the Committee between them.

Ms V Jackson noted the images that had been shown in relation to the area and that a van that was in one of the pictures was always parked in the area and that this in addition to the fencing that had been installed meant that the remaining area of open space and footpath were not visible from surrounding properties.  Ms V Jackson noted that previously a resident had needed help at this location and that if this happened now they may not be spotted.  Ms V Jackson noted that it appeared land to the front of the fencing was also being claimed, with a row of shrubs appearing in this area.  Ms V Jackson noted that from looking at property deeds the land was public land and reiterated the previous comments regarding the amenity of local residents, especially those concerning elderly people using the footpath to access the shops and bus stop. 

Mrs A Tones asked the Committee to note she spoke from the heart and had lived at Newton Hall for around 50 years, having bought a property “off-plan” when the areas was still all fields.  Mrs A Tones added that the applicant had only recently moved into the area and asked what right had they to take the area of land from the public.  Mrs A Tones added she lived in the adjacent cul-de-sac and that the notice of the application had been displayed in an obscure place and added a lot of the elderly residents would likely have been fearful of objecting in case this would lead to a “falling out”.  Mrs A Tones concluded by noting that the public land had been fenced off and taken from residents and therefore the application should be refused.

The Chairman asked Officers as regards statutory obligations in terms of notices and consultation.

The Principal Planning Officer noted he had responses to several points raised, with it being highlighted that as there had been points made for and against the application it was at Committee for consideration.  It was reiterated that should other applications for proposed enclosure be received, or for retrospective consent, following an area of open space being enclosed, then each application would be considered on its own merits.  It was added that safety would be a potential concern if the fencing was very close to the footpath and made the footpath narrower. 

In terms of the consultation, the Principal Planning Officer explained that the statutory requirement was for those immediately adjacent to the site to be notified and a notice had been placed on a lamppost very close to the development.  In response to comments from Councillor M Wilkes as regards consultation and publicity, the Principal Planning Officer noted that there was a number of responses back from the public and relevant notices had been placed in the local media.  The Principal Planning Officer noted that the shrubs to the front of the site did not form part of the application, and issues regarding this had been highlighted at the site visit, noting the applicant had agreed to remove those shrubs.  The Principal Planning Officer noted that the issue of fencing off “public land” was an emotive one, however, the issue to be considered was for retrospective consent for change of use and land ownership was not relevant to the planning merits.  The Principal Planning Officer added that those that had written in support of the application were all from the Newton Hall area.

The Chairman asked Members of the Committee for their questions and comments on the application.

Councillor B Moir noted that he lived on an estate and that within many estates that had been developed, noting many 1960s estates within the Durham area, there was green open space provision at the ends of streets and this was one of the reasons why people chose to buy these types of properties.  Councillor B Moir added that he felt that if the decision on this application was to grant the retrospective consent, then opportunistic people looking at a decision may then seek to enclose land similarly.  Councillor B Moir added he did not feel that a darker brown stain on the wood panelling would help improve the appearance of the fencing used to enclose the land.  Councillor B Moir noted he did not feel retrospective consent should be granted.

Councillor J Clark noted she agreed with the comments made by Councillor B Moir and added that while Officers have explained that the issue of land ownership was not a consideration in terms of planning, there was the issue of public perception in that the area of open space was being maintained by the Council and then it had been enclosed so people would think the Council had approved that.

Councillor G Bleasdale noted that, having visited the site earlier in the day, the fencing was not of an attractive design and agreed with Councillor B Moir in terms of not granting retrospective permission.

Councillor J Lethbridge noted he too had attended the site visit and had noted the area to be very pleasant, however, he felt that there was potential use of exaggerated language in relation to this application, for example “people being fearful of walking down this area of footpath” and so on.  Councillor J Lethbridge noted he found this puzzling and also found it puzzling for some to say that there was a threat to public safety, especially when the Police had confirmed that there was not an issue in terms of anti-social behaviour.  It was added that within the areas surrounding the application site there were a number of boundary treatments, including fencing, bushes and hedges and Councillor J Lethbridge recalled the Principal Planning Officers comments that the suitability of the fencing was a matter of judgement and therefore supported the Officer’s recommendation for approval. 

Councillor M Davinson noted he had found the construction of the fencing to be poor when visiting the site and that a dwarf wall would present an issue in terms of maintaining the grass cutting on the remaining open space.

The Principal Planning Officer noted that the quality of the fence construction was not a planning issue, however, if there was an issue preventing grass cutting then this matter would be for the Council’s maintenance teams to address, although an informative to the applicant in terms of not preventing maintenance of the remaining open space could be included within any permission.

Councillor P Conway noted that it was a matter of judgement in terms of the aesthetics of an application, in this case fencing, however he noted that the land had been encroached upon and there had been evidence of further encroachment, the line of shrubs, when visiting the site.  Councillor P Conway noted he did not like retrospective applications, adding that had the applicant wanted to enclose the land, they should have submitted an application in advance of any works.  Accordingly, Councillor P Conway noted he did not support the recommendation for approval.

Councillor C Kay noted that while the ownership of the land was not relevant, the issue of a significant loss of open space for local residents was relevant.  Councillor C Kay noted that it could be the “thin end of the wedge” in terms of such enclosure of land, though he did note Officers had explained that this was not a material concern as each case would be looked at on its merits.  Councillor C Kay noted he would support refusal of the application based upon the saved local plan policies of H13, E5A, Q1 and Q9 to ensure that people have the right to open amenity space.  The Solicitor - Planning and Development noted that the explanation for refusal was sufficient in terms of H13, however further details were required for the other policies stated.  Councillor C Kay added that the development: detracted from the character of the area, in conflict with policy E5A; was in conflict with policy Q1 in terms of the access needs of people; and was in conflict with policy Q9 in terms of high impact upon neighbours and local residents.

Councillor A Bell sought clarification on the terms open space and open amenity space, with the Principal Planning Officer explaining that public open space was that for the general benefit of members of the public.

Councillor C Kay moved that the application be refused; he was seconded by Councillor B Moir.

RESOLVED

That the application be REFUSED as the development was contrary to Policies H13, E5A, Q1 and Q9 of the saved City of Durham Local Plan.