Agenda item

Retention of use of land for 2 car parking spaces.

The Planning Officer, Lisa Morina, gave a detailed presentation on the report relating to the abovementioned planning application, a copy 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 application was for the retention of use of land for 2 car parking spaces and was recommended for approval.

 

The Planning Officer referred the Committee to a plan and aerial photograph of the application site and noted the status of the land was unclear, however, there was an established historic route in the area.  She explained the parking spaces were in connection to a previous scheme carried out for residential development at the Former Companions club.

 

Members were asked to note photographs of the land prior to development and subsequent to completion and were informed of the gravel surface construction and low-level wooden fencing with chain link along the front of the site. 

 

In respect of consultee responses, the Planning Officer advised there were no objections from the Highways Section, Northumbrian Water and the Design and Conservation Section noted the proposal would have a neutral impact.  It was noted the Public Rights of Way Team objected to the proposal. 

She explained that 13 letters of objection had been received to the application, including from the City of Durham Parish Council and a Local Member for the area. 

 

The Planning Officer noted that the application was considered to have a neutral impact in terms of the visual impact on the conservation area and surrounding listed buildings.  She noted that no neighbouring properties were impacted in terms of residential amenity.  In respect of Highways and Public Rights of Way issues, while there were the issues as regards the status of the land and impact on the historic route those were outside of the consideration of the application through the planning system and the application was able to be determined in respect of the application.  She added that other issues set out in the report included information regarding ownership and possession of the land.

 

The Planning Officer noted that the impact upon visual amenity of the area, including the conservation area and heritage assets, as well as the impact on residential amenity was considered to be acceptable.  She explained the application was considered to meet the requirements of the NPPF, the CDP policies as well as satisfying the requirements of Sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990.  She concluded by noting the objections and concerns raised had been taken into account and addressed within the report and it was felt, on balance, that the concerns raised were not to be of sufficient weight to justify refusal of the application.

 

For clarity the Planning Officer noted that in respect of the public right of way issues, whilst there were potential issues, they were not planning related and could be considered under separate legislation

 

The Chair thanked the Planning Officer and asked Parish Councillor R Cornwell to speak on behalf of the City of Durham Parish Council in objection to the application.

 

Parish Councillor R Cornwell thanked the Chair and Committee and explained the Parish Council had two arguments in relation to the application, either of which should lead the Committee to refuse this application.

 

He noted that the Parish Council was at a disadvantage however, because it was only with the publication of the Committee report that they learned of the legal opinion obtained by the applicant and forwarded to the Planning Officer.  He added, this was not on the public record and the Parish Council would like to read and assess this, which would require an adjournment, which the Parish Council would ask for unless, as we hope, the other arguments lead the Committee to refuse this application.

 

Parish Councillor R Cornwell explained the first ground on which Committee should refuse the application was the impact on historic assets.  He noted the lane itself was a historic route and was shown on Thomas Forster’s map of 1754, with others noting it was an ancient pilgrim route.  He added that while the parking bays were at a relatively low level, the intention was, of course, that they would be used.  He noted Members would have to consider the impact with two cars parked there, the officer’s report (paragraph 49) overlooking that point.

 

It was noted that within the lane was Flass Well, not Fram Well as stated in paragraph 51 of the report, and it was clear from multiple objectors that plans were well-advanced to clear the vegetation to give better access.  Parish Councillor R Cornwell noted the parking bays would obstruct that access and the clearing will also improve the views of Redhills Miners’ Hall.  He added that the report described that as not intentional, but it was still valued and the Durham Mineworkers Association, in their heritage statement on another planning application, commended it.  Parish Councillor R Cornwell noted that consequently the Parish Council did not agree with the conclusion that the impact was nil or neutral.  He added that there were policies that the Committee should use to refuse the application: Policy 44 of the CDP as summarised in paragraph 18 of the Committee report.

 

He explained that the City of Durham Neighbourhood Plan was now in its final form with no outstanding objections or changes required.  He added that the version that will be put the referendum was with the County Council and explained that under the Coronavirus Regulations it now had very considerable weight.  He noted Policy H2 was relevant here and as the parking bays in use would not sustain and enhance the conservation area, Policy H4 was also relevant.  He added there was no understanding of the significance of Redhills nor of the Flass Well.

 

Parish Councillor R Cornwell referred to highways issues and noted that when the Rights of Way team stated that the status was unclear, they meant they were unsure whether it was a footpath, a bridleway or a byway.  He noted they were clear that it was some kind of public highway.  Parish Councillor R Cornwell noted there was a legal maxim of “once a highway, always a highway”, the reference being Harvey v Truro Rural District Council: 1903.  He noted the applicant accepted that a footpath exists running past the application site (paragraph 2.3 of the Heritage Statement) and the surveyor in 1854 said it was 15 feet wide.  He noted that would be the legal width of the footpath and added that the applicant had no right to narrow it to 1.4 metres, which was less than five feet.

 

 

 

Parish Councillor R Cornwell explained the route of Flass Lane, now Ainsley Street, was a green tongue running up to the Flass Well and below the Miners’ Hall at Redhills.  He added that quite aside from its legal status, it was part of the Green Infrastructure which was the subject of CDP Policy 26.  He noted he was looking particularly at part of the Policy:

 

Development proposals will not be permitted that would result in the loss of open space or harm to green infrastructure assets unless the benefits of the development clearly outweigh that loss or harm and an assessment has been undertaken which has clearly shown the open space or land to be surplus to requirements.

 

He noted Policy G1 of the City of Durham Neighbourhood Plan also protected Green Infrastructure with the relevant section reading:

Development proposals should have regard to the local distinctiveness, character, quality and biodiversity of public rights of way and other footpaths. Proposals which connect to, improve or extend the network of public rights of way and improve its accessibility will be supported.

 

Parish Councillor R Cornwell explained Members would note the reference to “other footpaths”, the precise status of the route was not relevant to this Policy.  He added that the parking bays blocked access unless you were a pedestrian and narrowed that access if you were.  He explained there were plans to improve the area, which the parking bays would make more difficult, with later speakers being able to inform Members more about those plans.

 

Parish Councillor R Cornwell noted the Parish Council agreed with the conclusion of the Rights of Way team, when they stated:

 

“This path is within the red line boundary; however, as mentioned, a Land Registry search reveals this land is unregistered. The applicant has not demonstrated that they own or are in control of the land. It is not clear therefore who would become responsible for maintaining or be liable for this path. If approval is granted, then this needs to be clarified especially in the event of a trip or accident.  A third party, not the landowner nor the County Council as Highway Authority, has laid and improved the path surface, so I would assume that any potential future claims for public liability would be directed towards the third party.

 

Furthermore, the proximity of a path directly next to residential property can create amenity and or antisocial issues. This could become a concern, given the narrowness of the path and could lead to a desire to close or stop up the remainder of the path.

 

We cannot support the application as it restricts public access by means of fencing from the full width of the lane to a narrow 1.4 m width alongside residential property”.

 

Parish Councillor R Cornwell concluded by noting, for all of those reasons, the Parish Council urged the Committee to refuse the planning application.

 

The Chair thanked Parish Councillor R Cornwell and asked the Solicitor – Planning and Development to respond to the points raised.

 

The Solicitor – Planning and Development noted in terms of the legal disclosure or non-disclosure of the Barrister’s opinion submitted as part of the applicant’s case, there was a separate process for such requests to be made, and the Parish Council’s request had been passed to the appropriate team within the Council to process that request. 

 

He noted his advice was that it did not make a difference in terms of determining the application, as the Council’s position was clear in terms of the issue of the status of the application site, that the Council did not feel it had sufficient evidence at the present time to assert that it was a highway, essentially the same position as taken by the applicant.  The Solicitor – Planning and Development noted that even if there was sufficient evidence to assert that the land was highway, that would not necessarily impact in terms of the Officer’s assessment of the application, it would simply mean if planning permission was granted the applicant would need to go through a separate procedure to have that highway stopped up.  He added that it was not felt that the lack of disclosure of the legal opinion and/or the unclear status of the land at present would have any material impact upon the planning merits of the application.  The Solicitor – Planning and Development noted Parish Councillor R Cornwell referred to public liability in terms of the remaining 1.4 metre pedestrian route to the side of the fenced area and while it was not a matter for Members to consider in respect of the planning application, it would be a matter to be considered outside of the planning process.

 

The Chair thanked the Solicitor – Planning and Development and asked Local Member, Councillor L Brown to speak in relation to the application.

 

Councillor L Brown thanked the Chair and Committee and noted she was speaking at Committee to ask Members to refuse permission for what could be construed as a land grab about which there had been considerable local disquiet.  She noted the planning history of the site was as described by the Officer, however, she wished to clarify a few points.  She explained that the site of the old Companions Club was granted planning permission on the grounds that it was a sustainable site close to public transport hubs, adding that as such the parking spaces were reduced. 

She noted that then 3R found room for another flat and needed more parking and the two bays were laid out, outside the boundary of the property on Aynsley Street.  She pointed out, as mentioned by Parish Councillor R Cornwell, that the Rights of Way Officer had asked for the bays to be removed, with the Committee report stating at Paragraph 69 that there was strong circumstantial evidence that the site was highway land.  She noted the Miners’ Hall also felt that some of the land was within their curtilage, adding that certainly ownership was in dispute.

 

Councillor L Brown explained that the area lay within the Durham City Conservation Area very close to the Grade 2 listed building, The Miners’ Hall, in fact it was overlooked by it as the applicants’ Heritage Statement made clear.  She noted the area was also just down the footpath from the Flass Well, a non-designated heritage asset.

 

She noted that as such, the area received a great deal of protection from the CDP and the Durham City Neighbourhood Plan which superseded the City of Durham Saved local plans.  She added that both the new plans were supported by the NPPF.

 

Councillor L Brown noted Policy H2 of the new Neighbourhood Plan offered similar protections to both Listed Buildings and non-designated heritage assets, as well as the conservation area.  She added that the design of the parking bays was not in keeping with the area.  Councillor L Brown added that the wooden birds mouth fencing was obtrusive, with the plastic car parking grid with the gravel inset not echoing any features within the area and she noted the white plastic chain was “quite frankly nasty”.

 

Councillor L Brown noted point (k) of part H2 stated development in Conservation Areas should “use high quality design sympathetic to the character and context of the local area and its significance and distinctiveness…”, adding the application quite plainly did not.  She noted furthermore that the eyesore affected the setting of not one, but two notable structures which was in conflict with Neighbourhood Plan Policy H4.  She added she would also like to draw the Committee’s attention to Policy T1 which gave a hierarchy of transport where cars were very low on the list and paragraph 4.261 gave a list of questions to be considered when assessing car parking associated with new development including: “Does existing street character rule out on-site parking?”; and “Are key local services conveniently and safely accessible by walking, cycling and public transport?”.  She noted that the answer to those two questions were quite clearly No and Yes.

 

 

 

 

Councillor L Brown noted the new CDP also protected Conservation areas and the setting of notable buildings within it with Policy 44 stating that applications in the Conservation Area must show “respect for, and reinforcement of, the established, positive characteristics of the area in terms of appropriate design (including pattern, layout, density, massing, features, height, form, materials and detailing).” She noted that referring to Heritage Assets the Plan asserted: “Development will be expected to sustain the significance of designated and non-designated heritage assets, including any contribution made by their setting.”.  She added that Policy 21 dealt with sustainable transport with paragraph 5.219 having a similar set of transport policies to the Neighbourhood Plan and a similar position for car travel.

 

Councillor L Brown noted that if Committee were minded to approve the application then she would ask Members to set certain conditions on materials for the development because Committee would notice that, as it was a retrospective application, there were none.  She added that the area was within a conservation area and deserved a sympathetic design. 

 

She noted rear streets in the area were surfaced with granite cobs and she suggested a surface that mixed granite cobs traditional paving slabs for the pavement area and that the parking area was delineated by bollards, such as seen in other parts of Ainsley Street.  She added that the birds-mouth fencing and the white plastic chain should be removed.  Councillor L Brown noted the materials she suggested would be far more in keeping with the conservation area and the setting of two notable heritage assets.  She added that the developer surely could afford to pay a parking firm to police the area, as other developers can and do.

 

Councillor L Brown concluded by noting she had quoted Neighbourhood Plan Policies H2 and H4, CDP Policies 21 and 44, all of which were supported by NPPF parts 9 and 16, in order to encourage the Committee to refuse the application and she felt that Parish Councillor R Cornwell and herself had put up very good arguments against the application, however, if Members were still minded to approve, she would respectfully ask that they considered placing conditions on the development so that materials were more sympathetic to the surrounding notable buildings and that access was far easier.

 

The Chair thanked Councillor L Brown and asked Officers to respond to the points raised.

 

The Planning Officer noted in respect of ownership and “land grab” they were not material planning concerns, however, the applicants did serve a notice in the press which was the standard procedure if the owner of the land was unknown and relevant certificates were served as part of the application. 

She added that the opinion of the impact upon the Conservation Area was detailed within the report and it was felt to the impact on the Conservation Area and the heritage assets was acceptable.  She concluded by noting that any change of materials was an issue for the Committee to consider if they felt appropriate.

 

The Chair thanked the Officers and asked Ms Val Standen to speak on behalf of the Friends of Flass Vale in objection to the application.

 

Ms V Standen thanked the Chair and explained she represented the Friends of Flass Vale as Chairwoman of the community group, with the group having over 200 members.

 

She explained that Flass Vale was a Local Wildlife Site and Local Nature Reserve which had been very important to families, not just local, over the past months as a safe retreat for exercise and enjoyment.  She noted Volunteers contributed over 1,000 person hours of hands-on conservation work each year.  She added that Ainsley Street and Flass Lane, were part of a historic route running from the Market Place along the bottom of Flass Vale and it was therefore the entrance to the nature reserve. 

 

She noted, however, the lane had started to become dilapidated and neglected, with the yard being used as dump, and therefore in March 2018 the Friends of Flass Vale outlined a project to improve the appearance of the area which was approved in principle by Public Rights of Way department of Durham County Council.  Ms V Standen explained the Friends of Flass Vale then began to make contact with stakeholders such as Miners’ Hall and the Kings Lodge Hotel.  She noted they had met on site with staff of the Miners’ Hall who, at that time, were preparing a bid to the Heritage Lottery Fund to renovate the Hall and its grounds which border Flass Lane.  She added that plan included the removal of unsafe tees, replanting with suitable tree species, as well as work on Flass Well which was situated just beyond the parking bays.  She noted that the projected plan was then put on hold because work started on the Companions Club.  She added that on two separate occasions she gave a copy of the proposed project to the Development Site Manager for their information, suggesting that they might support the project once their work was completed.  She explained that the plan included installing retractable bollards where the parking bays were now to prevent cars parking there, but to still allow access for pedestrians and for any works, such as tree felling, or emergency vehicles as needed.

 

 

 

 

 

Ms V Standen concluded by explaining that the issue of two parking bays may seem trivial but she would ask for support for local people, who had a long term practical commitment to the area, in their desire to reject the application and so maintain the semi-rural character of Flass Lane in the wider context of the nature reserve, the historic roads of Durham and to allow for better access.

 

The Chair thanked Ms V Standen and asked the Committee for their comments and questions.

 

Councillor D Freeman noted he was a Member of the City of Durham Parish Council; however, he was not a member of their Planning Committee and had not been party to their submission in objection to the application.  He asked as regards the point raised by Councillor L Brown in terms of the Council’s Rights of Way Team having told the developer of the parking bays that they needed to be removed, he understood the issues as explained by the Planning Officer and Solicitor, however, he felt it was important the Committee should know whether the Team within the Council had stated that the parking bays must be removed. 

 

The Solicitor – Planning and Development noted the position was that while the Public Rights of Way Team maintain their objection to the application and would, in an ideal world, like the development to be removed, the strict legal position was that they were not in a position to require it, as it was not felt that the Council had sufficient evidence of its highways status.  He reiterated that the planning application had to be determined on the basis of the situation at the moment, and while that may change in the future it was outside of the scope of the planning system with a separate system under which the issue may or may not be resolved in the future, not an issue for Members of the Committee to try and resolve.

 

Councillor B Coult noted she understood the issue of ownership was outside of the scope of the Committee, however, she felt the visual impact on the Conservation Area, the green space and heritage was an issue, with the development looking out of character and having a negative impact on the Conservation Area.

 

Councillor P Taylor asked if there were any Officers present at the meeting from the Design and Conservation Section.  It was confirmed no Officers from the section were present at the meeting.  Councillor P Taylor noted he would have wished to speak directly to an Officer.  He explained that he was horrified by the comments as set out within the report from Design and Conservation that stated the development would have a “neutral effect”. 

 

 

He noted he felt it was not a neutral effect and while the application may only be for two parking bays, after listening to representations from the Parish Council and the Local Member, he felt that perhaps such issues were taken too lightly.  He noted the application was in a Conservation Area, the area was part of our history and he felt the materials used were not acceptable, adding that the materials would not be considered appropriate for Palace Green and he felt they were similarly unsuitable for the application site.

 

Councillor M Davinson asked if permission was granted, and subsequently the land was determined as being highway land, would the applicant be required to reinstate the land to its previous state.  He noted the deadline for determining ownership was by 2026 and asked, if there was period by which the application could be deferred by which time the status of the land would be determined.

 

The Solicitor – Planning and Development explained that the two issues were entirely separate and that if planning permission was granted by Committee and it was subsequently discovered through better evidence that the land was highway, the grant of planning permission would have no impact upon that highway status.  He added in that circumstance there would be two possibilities, either the applicant could apply for a stopping up of the highway or the Council’s Public Rights of Way Team or Highways Team could “assert the highway”, informing the applicant that the structures needed to be removed.  He reiterated that the issue was entirely outwith the scope of the application before Committee.

 

Councillor P Taylor noted many policies had been mentioned and lots of reasons suggested for the justification of the parking bays being removed.  He noted he was drawn to Policy 44 “Historic Environment seeks to ensure that developments should contribute positively to the built and historic environment and seek opportunities to enhance and, where appropriate…” and asked whether Members felt the application was compliant as he did not believe it was.

 

Councillor D Freeman noted the situation had been described as a “land grab” and explained he was interested in going back in time adding he presumed the applicant was the same developer that had developed the former Companions Club.  He noted he could not recall if the development was student accommodation or otherwise, however, he noted that at that time the Council would have decided, in terms of the sustainability aspect of that development whether extra car parking spaces were not required outside of the development site of the former Companions Club.  He noted the current application was from the same developer, adding to the car parking for the previous development and he felt that would be against the original planning permission in the first place. 

He noted that if those additional parking spaces had been discussed at the time of the original application, permission may have been refused as a result of that aspect.  He noted two extra car parking spaces, possibly on highway, and added that, following the point raised by Councillor P Taylor, he found it difficult to see how the current application was compatible with Policy 44 of the CDP, the application doing nothing to enhance the Conservation Area of the city and that location in particular.

 

Councillor M Davinson asked if the application was deferred for a month whether information as regards the highway status of the land could be uncovered. 

 

The Planning Officer noted in response to Councillor P Taylor that the issue of the impact on the Conservation Area was set out at Paragraph 50 of the report, with the impact being not to be harmful overall and therefore acceptable in terms of Policy 44.

 

The Solicitor- Planning and Development noted that the public Rights of Way Officer was present at the meeting and Members may wish to hear from him in respect of the issues raised.  He added that as he understood there would be significant time and resource required to research the matter further and therefore, he felt it would be unlikely that a determination could be made within one month should the application be deferred.

 

The Senior Public Rights of Way Officer, Nick Howell noted that 2026 cut off was the deadline for any applications coming in based upon historic evidence, to be received by the Council before the 1 January 2026.  He noted that date may be reviewed by Government in due course, in light of COVID-19 restrictions and access to records offices.  In terms of such applications, he explained that normally there may be one a year received, however, following the introduction of the cut-off date by Government there were currently around 10 applications being submitted each month from user groups, with approximately 200 applications now being looked at by the Council’s Definitive Map Officers.  He noted that timescales in determining such applications varied, with COVID-19 making access to record offices and archives impossible and added that each application required in-depth research in terms of historic documents, maps and Council minutes to be able to make an interim decision.  He added that individuals could object to that interim decision and then it would need to be considered by the Planning Inspectorate and he noted their timescales had also been affected, with around a year for a public inquiry to be arranged.  Accordingly, the Senior Public Rights of Way Officer noted he felt a month to be able to determine the status of the land would be impossible, however, the application would continue to be researched and a decision would be made in due course. 

He reiterated the point made by the Solicitor – Planning and Development that the Council would reserve the right to go back to the applicant to either ask them to remove the development or apply for a stopping up.

 

The Chair thanked the Senior Public Rights of Way Officer and asked for clarification in terms of, if the Committee were minded to approve the application, whether the Public Rights of Way Section would be able to come back with whatever actions deemed necessary based upon the outcome of the investigation into the status of the land.  The Senior Public Rights of Way Officer noted the risk was for the applicant, with the Council reserving the right to seek action outside of the planning process under Highways Act powers.

 

Councillor P Taylor thanked the Planning Officer and noted Paragraph 50 of the report which stated: “Overall, the development has changed the appearance of the site but the resulting impact on the designated heritage asset of Durham City Centre Conservation Area as a whole is negligible and not considered harmful and therefore preserves the setting and character of the area”.  He noted he disagreed with the report and asked if Members of the Committee agreed.

 

The Chair thanked Members for their comments and questions and asked if any Member wished to propose a motion in respect of the application.

 

Councillor P Taylor noted he would propose that the application was refused as he felt it was contrary to Policy 44 of the CDP, the application did not preserve the character and appearance of the area, adding he felt the development was a dreadful thing to have a happened to a much loved and respected area of the city.

 

Councillor B Coult seconded Councillor P Taylor’s proposal to refuse the application.

 

The Solicitor – Planning and Development asked if there was any particular aspect of the development that Members felt was incongruous or had an adverse negative impact on the character of the Conservation area or heritage assets, such as the materials used, or whether it was the overall appearance of the development.

 

Councillor P Taylor noted it was all the elements, the gravel surface, birds mouth fencing, the plastic chain, noting he did not feel it fit in with the historic nature of the city.

 

 

 

The Area Planning Team Leader - Central and East, Sarah Eldridge noted that following Councillor P Taylor citing CDP Policy 44, there were corresponding policies within the Neighbourhood Plan and the NPPF, namely Policy H2 and part 16 respectively, which Members may also wish to consider.

 

Councillor P Taylor noted he would be happy to add those to his reasons for refusal, noting he felt Policy 44 would have been a strong enough policy for refusal in any case.

 

Councillor M Davinson reiterated the comments made by Councillor L Brown in terms of noting similar parking provision in other neighbouring areas which had been constructed sympathetically and asked if it would be add that to the list of refusal reasons as he felt that was also an important point.

 

The Chair asked the Solicitor – Planning and Development whether that would be possible.  The Solicitor – Planning and Development noted the suggestion was an amplification of the reasons put forward by Councillor P Taylor in terms of the visual impact and did not see any problem with a reference to a lack of sympathy with the other car parking provision within the immediate surrounding area.

 

Upon a vote being taken it was:

 

RESOLVED

 

That the application be REFUSED as it was considered that the proposal by virtue of its design, materials and location had an adverse visual impact within the streetscene and conservation area and also was not considered to be in keeping with the character and appearance of other parking spaces within the area, thereby failing to preserve or enhance the character and appearance of the conservation area, contrary to policy 44 of the County Durham Plan, policy H2 of the emerging City of Durham Neighbourhood Plan and part 16 of the NPPF.