Agenda item

Erection of four detached dwellings with attached garages, demolition of the stable block, conservatory extension on Fernhill and erection of a car port / covered area for parking a horse box.

 

The Chair asked the Solicitor – Planning and Development, Clare Cuskin to update Members in respect of a document circulated to the Committee by the Applicant’s Agent setting out a legal opinion they had obtained.

 

The Solicitor – Planning and Development noted that Members would have seen the Applicant’s legal opinion and noted it had largely rested upon “very special circumstances”, however, she reminded Members that was a judgement for the Committee to make.  She noted the Applicant’s legal opinion contained three points: previous proposals by the Council within the County Durham Plan (CDP) process to delete the application site from the green belt; that the Council had previously agreed that the site made a limited contribution to the green belt purposes; and that the development might fall within one of the exceptions within Paragraph 145 of the National Planning Policy Framework (NPPF) and therefore the Applicant may not have to demonstrate very special circumstances in order for the application to be approved.

 

The Solicitor – Planning and Development noted the assertion that the Council had proposed the deletion of the Fernhill site from the green belt within the CDP process was not denied.  She noted that, however, when the proposal to delete the site from the green belt was considered by the independent Planning Inspector, as part of the examination in public of the CDP, the Council and Applicant’s arguments in support of the proposal to remove the site from the green belt were rejected.  She added that Inspector had gone so far as to indicated that the draft CDP could be unsound without a modification to delete the policy which proposed the Fernhill green belt deletion.  She explained that following the adoption of the CDP, the Council had an up-to-date adopted Local Plan in which the Fernhill site remains within the green belt. 

 

The Solicitor – Planning and Development noted the Council’s position, and that her advice to Committee, in respect of the assertions by the Applicant’s legal advisor, was that the Council did not consider the arguments put forward in a completely separate process, which were subsequently dismissed by the independent Planning Inspector, can or should be relevant to the determination of the current planning application.

 

In respect of the second issue, that the Council had previously acknowledged that the site makes a limited contribution to the green belt purposes, the Solicitor – Planning and Development noted it was not felt anything turned upon that point.  She added she did not consider a need to go through the green belt purposes in order to identify the magnitude of harm.  She noted the Officer’s report was clear that there was no harm identified to the green belt other than that which was deemed to arise due to the inherent inappropriateness of the development and the impact on the Area of High Landscape Value (AHLV). 

 

In terms of the third main point, the Solicitor – Planning and Development noted that she did not agreed with the Applicant’s assertion that the development might not amount to inappropriate development because it falls within one of the exceptions within Paragraph 145 of the NPPF.  She noted that exception sets out that development on land which had previously been developed and would not have a greater impact upon the openness of the green belt than the existing development should not be considered to be inappropriate.  She noted that clearly, in this instance, there would be greater impact upon the openness of the green belt as there would be buildings constructed on what currently was undeveloped land or largely undeveloped land.

 

The Solicitor – Planning and Development noted that for those reasons that the Officers’ position in respect of the application remained as set out within the report.

 

The Chair thanked the Solicitor – Planning and Development and asked the Case Officer to present his report.

 

The Senior Planning Officer, Barry Gavillet, 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 erection of four detached dwellings with attached garages, demolition of the stable block, conservatory extension on Fernhill and erection of a car port / covered area for parking a horse box and was recommended for refusal.

 

The Senior Planning Officer referred Members to slides setting out aerial photographs, site plans, views of the site, house types, floor plans and proposed elevations.  He explained as regards the green belt allocation, referred to plans of the extent of the green belt, and highlighted nearby buildings including Durham Johnston Comprehensive School, the University Hospital of North Durham, and County Hall.

 

In reference to statutory responses, the Senior Planning Officer noted no comment from Northumbrian Water Limited and no objections from the Highways Section subject to conditions.  He added there were no objections from the Drainage Authority.  He noted the City of Durham Parish Council had objected to the application, noting the Inspector, at the time of the inquiry into the CDP had concluded that Fernhill should remain in the green belt. 

 

The Senior Planning Officer noted in respect of internal consultees, Spatial Policy had concluded that the proposal was likely to be inappropriate in the green belt as it would reduce openness.  He explained that Design and Conservation had noted that the design of the executive homes, conservatory and carport would be acceptable, and details would be of high quality.  He added that the Nuisance Action Team had offered no objection subject to the inclusion of a condition requiring a construction management plan.  Members were informed that the Ecology Team had no objections subject to a condition ensuring the mitigation contained in the submitted ecology surveys.  The Senior Planning Officer explained the Archaeology Team had no objections, subject to a condition requiring further investigative work being carried out.  The Committee were informed that the Landscape Section had commented that the proposals would broadly conserve and enhance the contribution made by the site’s vegetation to the AHLV however, would erode its open character to a degree.  The Senior Planning Officer noted the Landscape Section had noted the harm would be localised, but noticeable from public vantage points in the immediate vicinity.

 

The Senior Planning Officer noted the Coal Authority had no objections to the proposals and a letter from the MP for the City of Durham noted that despite the apparent willingness by the Local Authority to remove the site from the green belt through the CDP process, the Planning Inspector chose not to agree and left Fernhill within the Green Belt.  He added that the MP asked that all circumstances surrounding the land were considered when determining the application.

 

Members were asked to note 16 letters of support had been received, stating that the proposals would lead to much needed executive housing, which in turn would contribute to the local economy, and that the site made no contribution to the green belt.

 

It was noted there had been nine letters of objection received, with issues raised including: that the proposals would lead to a loss of privacy and light; an increase in traffic; a harmful landscape impact; flood risk; that there has been a previous refusal; and that the site should remain in the green belt.

 

In terms of the principle of development, the Senior Planning Officer noted that the CDP was the statutory development plan and the starting point for determining applications.  He added that the Planning Inspector’s report into the CDP had confirmed that the site should remain in the Durham City Green Belt.  He added that the site was viewed as being located outside of the built up area and also in an AHLV.  He noted that the proposal was considered to be inappropriate development in the green belt as it would reduce openness and very special circumstances had not been proven.  He noted that therefore the proposal would be contrary to CDP Policy 20 (Green Belt) and 39 (Landscape) and parts 13 (Green Belt) and 15 (Natural Environment) of the NPPF.

 

In reference to the impact on the green belt, the Senior Planning Officer noted the site was located within the green belt and CDP Policy 20 (Green Belt) stated that proposals would be determined in accordance with the NPPF.  He added NPPF Paragraph 133 noted that the fundamental aim of green belt policy was to prevent urban sprawl by keeping land permanently open; the essential characteristics of green belts were their openness and their permanence.  He explained that NPPF Paragraph 143 stated that inappropriate development was, by definition, harmful to the green belt and should not be approved except in very special circumstances.  He added that the construction of four new residential dwellings was considered to be inappropriate development.  He explained the benefits identified relating to the provision of executive housing and resulting economic benefits were not considered to constitute very special circumstances and therefore the proposal was contrary to Policy 20 of the CDP and NPPF part 13.

 

The Senior Planning Officer explained that the design of the large executive homes would be acceptable and was of a high quality.  He noted the proposed layout of the site was appropriate and was of minimal harm to Fernhill, The Lodge and Club Lane.  He added separation distances to existing properties could be achieved and amenity standards for future residents would be acceptable.  He noted a large number of trees and shrubs around the site would be retained and an additional appropriate landscaping scheme would be introduced.  The Senior Planning Officer noted that overall, the design and layout of the proposals were of high quality in accordance with Policy 31 of the CDP, part 12 of the NPPF and Policy D6 of the Durham City Neighbourhood Plan. 

 

 

 

He explained that the Highways Section had confirmed that safe access and egress from the site could be achieved subject to an upgraded access point and a protected right hand turn on the A167 and reiterated that the Ecology Section had no objections subject to the proposed biodiversity mitigation being conditioned.

 

The Senior Planning Officer noted, in summary, that the proposal was considered to be inappropriate development within the green belt and therefore by definition was harmful.  He noted that additional harm arose due to the impact on the openness of the Green Belt and the benefits of the proposal were restricted to a modest boost to executive housing supply and the resulting economic benefits.  He added the application and supporting information failed to demonstrate very special circumstances which were required by CDP Policy 20 and Paragraph 145 of the NPPF.  The Senior Planning Officer explained the contribution to housing supply was notably reduced as the Council was now able to demonstrate a housing land supply in excess of 5 years. 

 

The Senior Planning Officer noted reference to the impact on the AHLV would need to be included and therefore it was recommended that the application be refusal as it was considered that the proposal would harm the openness of the Durham City Green Belt and constituted inappropriate development without very special circumstances to indicate otherwise and would have an adverse impact on the AHLV, contrary to Policies 20 and 39 of the CDP and Parts 13 and 15 of the NPPF.

 

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

 

Parish Councillor R Cornwell thanked the Chair and Committee for the opportunity to speak in relation to the application.  He explained that Fernhill and the field next to it were Green Belt and had been so since 2004.  He noted they performed the essential role of connecting Flass Vale to the broader countryside beyond. 

 

He noted that Mr Bracewell was aggrieved that Fernhill was included in the Green Belt.  It was added that County Council proposed, in the various drafts of the CDP, that it should be removed.  Parish Councillor R Cornwell noted the Parish Council, and others, felt it should remain in the Green Belt and all made their case, either in writing or in person, to the Inspector at the Examination in Public which was held in October 2019.

 

 

 

Parish Councillor R Cornwell noted that Mr Bracewell’s case had been in writing and set out why he felt Fernhill should not be in the Green Belt.  Parish Councillor R Cornwell added that Mr Bracewell’s arguments were essentially the same as those he advanced in favour of his planning application and were set out in paragraph 61 of the Officer’s report.  It was added that they were based on paragraph 134 of the NPPF and all of the arguments about the manner in which the land had been included in the Green Belt in 2004 were put to the Inspector.

 

Parish Councillor R Cornwell explained that the Inspector was ‘clued up on the background’ and considered all of those arguments and decided that Fernhill should remain in the Green Belt.  He noted that on 28 October 2019 the Inspector issued an action point “Council to prepare potential main modifications to the Plan and changes to the Policies Map to reflect my finding that there are not exceptional circumstances to justify removing land at Fernhill and the former Lumley Boys School from the Green Belt.”  Parish Councillor R Cornwell asked Members to note that the responsibility was on the Council to come up with the wording of the main modification and they did so and the submitted Draft Policy 21, which deleted Fernhill from the Green Belt, was then removed from the Plan by the County Council.

 

The Committee was asked to note that after delays caused by COVID-19, the CDP was approved on 21 October 2020 by resolution of the full Council and Fernhill remained in the Green Belt.

 

Parish Councillor R Cornwell noted that anybody aggrieved by the Plan had six weeks to challenge it in the High Court and he explained he did not know if that had happened, adding the Solicitor may be able to advise the Committee. 

 

Parish Councillor R Cornwell noted he would turn to the statement of case made by the Applicant and the Committee report, noting Members would need to bear in mind he had not seen the document circulated by the Applicant’s legal advisors.  He added that the Applicant referred to statements of common ground previously reached with County Council Officers and noted all of those had been superseded by the Inspector’s findings.  He noted that the Applicant stated: “the development will not impact on the five purposes of the Green Belt, which is the key consideration in the determination of this application.”  Parish Councillor R Cornwell noted that was wrong, adding that the Applicant had referred to a set of criteria used in plan-making, not in determining planning applications.  He added that proposals affecting the Green Belt had to be assessed in accordance with paragraphs 143 to 147 of the NPPF. 

 

 

He noted that they stated that “A local planning authority should regard the construction of new buildings as inappropriate in the Green Belt.” and “Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.”  Parish Councillor R Cornwell explained Paragraph 145 set out a list of exceptions, none of which had been put forward by the Applicant, unless they were within the document circulated by the Applicant’s legal advisor and the Solicitor had dealt with those issues, and as far as he could see none of them applied anyway.

 

Parish Councillor R Cornwell noted that Mr Bracewell’s arguments amounted to a re-running of matters that had been decided during the examination of the CDP and endorsed by the full Council when Members adopted the Plan.

 

Parish Councillor R Cornwell asked Members to note one final point: the planning portal had a letter from Mary Foy MP which some people had taken as expressing support for the application.  He added it did not, explain that throughout it stated: “Mr Bracewell informed me” and “Mr Bracewell indicated to me” and so on.  He noted that what the letter did was to outline her Constituent’s case, however, she did not say she supported it.  He noted the MP’s letter ended “I very much hope that all of the circumstances surrounding this land can be considered when a determination is reached.”  Parish Councillor R Cornwell noted that the Parish Council endorsed those sentiments, which he would have thought went without saying.  He concluded by noting when Members reached a determination in this case, there was only one conclusion that Members could reach, which was to refuse the application and he asked them to do so.

 

The Chair thanked the Parish Councillor R Cornwell and asked Local Member, Councillor L Brown to speak in relation to the application.

 

Councillor L Brown thanked the Chair and Committee and apologised for any repetition within her address to Members.  She noted she was speaking in relation to the application because her predecessor, Councillor G Holland, had, quite rightly, called it to Committee six years ago.  She added that at that time, the status of the land was in dispute.  She noted that in the intervening years there had been an Examination in Public for the new CDP and added that the Applicant had put his case to the Inspector then and it was found to be “unsound”.  She explained that Inspector Fieldhouse recommended that “the Policies Map should be amended to retain Fernhill… in the Green Belt”, as described in Paragraph 72 of the Committee report.  Councillor L Brown explained that the CDP was adopted in October 2020 and it gave the proposed application site Green Belt status and therefore protection under policies 20 and 39, supported by NPPF Part 13 and 15. 

She noted the Officer had recommended the application for refusal and she asked that the Committee supported his recommendation to protect the green spaces around Durham City.

 

The Chair thanked Councillor L Brown and asked Mr Paul Bracewell, the Applicant, to speak in support of his application.

 

Mr P Bracewell thanked the Chair and Members for the opportunity to speak at Committee.  He explained that, as set out within the Committee report, he purchased the site in 1994 and had been looking to develop the site since 2004.  He noted that the application was submitted in 2014, with additional information being submitted as required, most recently updating ecology surveys.  He explained that, working with Council Officers from the outset, he had employed notable Architects Jayne Derbyshire and David Kendall to design a scheme which made use of the natural topography of the site.

 

Mr P Bracewell added that the Committee report confirmed that the design was acceptable and took on board the site’s level changes.  He noted that all the technical issues, including highways, drainage and ecology had been considered to be acceptable.  He explained that in 2016 and 2019, the Council entered into statements of common ground in which they confirmed that Fernhill did not perform any of the five green belt purposes.  He noted that, within the Committee report, Officers agreed that the site should be considered as previously developed land.

 

Mr P Bracewell noted his Agent had submitted Counsel’s opinion, adding he hoped Members had had the opportunity to review.  He added that the key consideration for the assessment of the proposed development before Members was the impact on openness. 

 

He noted that in the Officer’s assessment of openness, paragraph 81 of the Committee report, no assessment of visual elements had been made.  He explained that the current lockdown meant that Members were unable to visit the site and added that if they had been able, they would have found that what the site looked like on plan was not how it looked in reality. 

 

Mr P Bracewell explained that the proposed dwelling would be entirely screened by mature landscaping on the boundary of the site and by Fernhill itself, which was situated at the top of the site, with three of the proposed dwellings sitting ‘tucked-in’ behind the house and with the fourth located as a replacement for the existing stables.  He noted the development had been designed so that there was no impact upon the openness, which he noted was obvious if one was actually on site, and as the Planning Officers would have noted when they walked the site the previous week. 

 

Mr P Bracewell noted in terms of the wider green belt, the Council had accepted that the development of the site would not result in a net encroachment into the green belt.  He noted development of the site would not impact the Durham green belt.  He respectfully requested that Members approved the application, recognising the benefits of the development, especially the economic benefits and the need for more executive housing to support the Council’s aspiration for Durham City.

 

The Chair thanked Mr P Bracewell and asked Mr Joe Ridgeon, Agent for the Applicant, to speak in support of the application.

 

Mr J Ridgeon thanked the Chair and Members and noted he wished to highlight that the application site was a brownfield site within the green belt as had been mentioned already at Committee.  He explained that was set out within the Committee report, however, he wished to reiterate that was a key consideration for Members to consider when assessing the site.  He noted, picking up on the comments from Parish Councillor R Cornwell, that there was the principle, however, Members needed to look at the scheme that was before Committee, adding that it was not a large, volume housebuilder type scheme, rather it was four executive dwellings designed to be appropriate for the site.

 

Mr J Ridgeon noted the proposed development took into consideration the topography of the site so that there was no impact upon the openness of the site.  He explained that it was felt there were very special circumstances, which had been set out in the opinion from Counsel that had been provided to Members, and that it was key to understand that it was different on the actual site.  Mr J Ridgeon noted that Officers had visited the site, adding it was a shame Members had not been able to visit the site themselves as one had a very different understanding of how the proposed houses would sit within the landscape.  He added that it was his view that there would not be any impact upon the openness of the greenbelt and therefore the application was acceptable under Paragraph 145(g) of the NPPF.

 

The Chair thanked Mr J Ridgeon and noted the emphasis made in respect of Members being unable to carry out site visits.  She noted the Area Planning Committee (Central and East) was made up of a mix of Members and included ‘local Members’.  She added that the application site was also very close to County Hall and therefore she felt the Members of the Committee would be aware of the very prominent site and added that Members would have undertaken journeys passing the site in the past.

 

The Chair asked the Senior Planning Officer to respond to the comments made by the speakers.

 

The Senior Planning Officer confirmed that Officer did think that all the technical issues relating to the application were acceptable, however, there was the consideration of the principle of development.  He added that Officers did consider that it was inappropriate development in the green belt and that very recently it had been deemed by the Planning Inspector, during the Examination in Public of the CDP, that the application site should remain within the green belt.  He noted that it was Officers’ opinion that the proposed development would substantially alter the local area and the openness of the green belt and therefore the application was recommended for refusal.

 

The Solicitor – Planning and Development referred to the points raised as regards impact upon the openness of the green belt and noted there were two main elements to that openness, spatial and visual.  She noted that Counsel’s opinion and Mr J Ridgeon both raised issues in terms of the visual element of openness.  She added that, within Counsel’s report, there had been no view offered in terms of spatial impact.  The Solicitor – Planning and Development noted that, clearly, the impact of four dwellings in terms of spatial openness would be greater than what would arise from the existing situation, with a building to be demolished and replaced with four new dwellings.  She explained that there would be quite a significant impact upon spatial openness in terms of the proposed development adding it was an inescapable conclusion that no amount of discussion on visual openness could reasonably alter.

 

The Chair thanked the Officers and asked Members of the Committee for their comments and questions.

 

Councillor M Davinson explained that on a first look the application seemed a good scheme, providing executive homes for the County.  He recalled a previous application at Bournmoor, a scheme which had been deemed acceptable as it would bring executive housing into the County.  He explained that the problem he felt with the application being considered was that which had been mentioned.  He added that while he did not have all the history in terms of the site being included within the green belt, then being proposed for deletion from the green belt, he understood that the Planning Inspector had stated that the site should be retained within the green belt and therefore was struggling to see what the Committee could do against that.  He noted that all had waited so long for the CDP to be adopted, being the Council’s blueprint for the future and therefore it could not be disregarded.  He noted that would wish for the executive houses, however, not within the green belt.

 

Councillor I Jewell noted he had looked at the application and it had looked very good, with good quality and types of housing and, in those aspects, everything had seemed very good and very positive. 

However, he noted that he struggled in terms of the application site falling within the green belt.  He added that was the reality of the situation and noted that the recommendation from Officers was for Members to refuse the application on that basis.  He noted that he would listen to the comments from other Members, however, he felt that while he liked the development very much and he felt it had many things in its favour, he felt it was difficult for Members to accept the application as it was within the green belt.

 

Councillor P Taylor noted the application before Committee was to build upon the green belt.  He added that Members had heard a lot of history and received good presentations, however, a lot of the history was unfortunately irrelevant.  He noted that application was to build on the green belt and Members could either agree with the Inspector that it was correct for the site to be within the green belt or otherwise.  Councillor P Taylor indicate he did feel the Inspector was correct and that of course development would cause harm to the green belt, that it would be inappropriate development.  He added it was urban sprawl and explained he knew the area very well, as he drove past it every day, and could almost see it from his home.  He noted he valued the area and would wish to keep it within the green belt and added he was in total agreement with the Senior Planning Officer and his assessment that the application was inappropriate development as it was within the green belt.

 

Councillor B Coult explained she felt the development looked superb, of exception quality and the proposed properties looked fantastic.  However, she felt, similar to Councillor P Taylor, that she could not go against the Officer’s recommendation and the fact that the Inspector had advised that the site must remain within the green belt, she felt the Committee could not allow the development on green belt land.

 

Councillor D Freeman noted, like his colleagues, he would have to accept the Officer’s recommendation to refuse the application.  He noted the site was within the green belt and when one looked to develop anything within the green belt there needed to be an exceptional circumstance.  He added he did not feel there was any exceptional circumstance in respect of the application.  He noted Members had spoken in relation to the merits of that type of housing for the County, however, he noted Neville’s Cross did not lack that type of housing, there being no massive demand for executive housing within the Neville’s Cross division.  He added that perhaps if the application had been for some other form of housing that may have made it slightly more acceptable, however, he noted he did not feel that the application was in any way exceptional and therefore he felt that Members had to reject the application as it was inappropriate development within the green belt. 

 

 

He noted the long history relating to the site and that at one point the Council wished to remove the site from the green belt, however, the Inspector had thought otherwise.  He emphasised that it was not a decision by an Inspector made many years ago, rather it was a decision made only a few months ago, a very current decision.  He reiterated that he would support the Officer’s recommendation for refusal.

 

Councillor D Brown noted the comments of fellow Councillors and asked if examples could be given of “special circumstances” in terms of permitting development within the green belt.  The Senior Planning Officer noted that in respect of the application before Members, the Applicant had put forward that executive housing would be the special circumstance, however, the Council’s Strategic Housing Market Assessment (SHMA) did not mention executive housing and there as no evidence that there was a need for executive housing and it was not mentioned within the CDP.  He explained that what would be considered exceptional circumstances would be if there was a need for a particular type of housing in the area, such as affordable housing.  He reiterated that there was no evidence that executive housing was needed. 

 

The Solicitor – Planning and Development noted that case law was very clear that a very wide range of issues could be considered to be very special circumstances for the purpose of assessing green belt proposals.  She noted a recent example in County Durham was a scheme at Lambton for 400 houses, where the special circumstances for that application was a significant scheme of public benefit in terms of public access to the grounds amongst other benefits.  She noted that had been another scheme towards the Arnison Centre which had been within the green belt and noted that scheme had secured significant financial benefits. 

 

The Solicitor – Planning and Development noted that schemes had to demonstrate special circumstances, and in terms of the application before Committee, Officers had considered the benefits afforded in terms of the boost to the supply of executive housing and the economy and concluded that there was nothing that could be put forward as justification as being very special circumstances.  The Chair asked if it would be that there would be a requirement for an evidence base to prove any special circumstance.  The Solicitor – Planning and Development noted that it was a judgement call for Members and added that she did not feel that Members could be criticised if they felt what was being proposed did amount to special circumstances.  She reiterated that, in the judgement of Officers, it was not felt that the acknowledged harm, by virtue of the inappropriateness of the proposed development, was outweighed by the provision of four homes within the green belt and the harm that would result from that.

 

 

Councillor P Taylor moved that the application be refused, on the basis of the Officer’s recommendation.  He noted he had listened very carefully in terms of very special circumstances, however, he felt there were none.  Councillor D Freeman seconded the proposal for refusal.

 

The Solicitor – Planning and Development noted there would be a vote on the refusal of the application, as set out within the Officer’s report, with the updated reasons for refusal.

 

Upon a vote being taken it was:

 

RESOLVED

 

That the application be REFUSED for the reasons as set out within the report, updated to included reference to the adverse impact on the Area of High Landscape Value (AHLV).