Agenda item

            That the application be deferred with a report being submitted to the next meeting of the Committee with additional information on the issues raised. 

The Committee considered the report of the Chief Officer (Planning and Environment) in respect of this application which had been the subject of a site visit on 18 January 2016.  The usual consultations had been undertaken and the responses received detailed in the report.  Additional comments received since the preparation of the report were circulated at the meeting. 

                        The officer detailed the background to the report explaining that planning permission had been granted in March 2015 by Committee against the officer recommendation.  During the development of the site, it had become apparent that there were some issues with the location of the store in relation to the surrounding residential properties and the extent of the works that would need to be undertaken on the existing vegetation and bund.  This retrospective application had been submitted to regularise the proposal and to reflect the proposed changes which included the removal of the housing element of the application, instead proposing a commuted sum, an extension to the car parking and also the erection of a substation.  The officer explained that a number of objections to the proposals had been received and these were set out in the late observations.  The main issues in this application were whether the landscaping in this scheme provided adequate screening, whether the extension to opening and delivery hours was acceptable and also the acceptability of a commuted sum in place of the five affordable houses on the site and for public art.

                        The principle of the site had been established but there was a need to consider the differences between what had been approved and what was built on the site.  The previous application stated that the existing landscaping bund, which was on site as part of its former use as the compound for the construction of the retail park, would remain.  The bund was covered in unmanaged vegetation and it was proposed that the mature trees would remain with some removal of low level vegetation as required.  However following the marking out of the store on site and the commencement of the construction process, it became evident that the works required to the bund were more substantial than initially envisaged.  The stores location was plotted using GPS with the retail park spine road used as the starting point.  The site boundaries with Simonstone Road and Chester Road had not been surveyed due to the vegetation on the site.  The submitted plans therefore relied upon Ordnance Survey data which in this instance was inaccurate with what was actually built on the ground.  The main discrepancies relating to the position of the boundaries and siting of 24 and 26 Simonstone Road with these properties being located closer to the site boundary than indicated on the Ordnance Survey plan.  The officer explained that it had therefore been necessary to remove some of the existing bund during the construction process and support it with stone filled gabion baskets with a fence on top.  This led to the removal of trees and substantial vegetation on the bund but it was proposed that this be replanted and a comprehensive planting scheme had been submitted.  The scheme was a mixture of deciduous and evergreen trees but the mix of planting had been questioned by an adjoining resident.  However, officers recommended that what had been proposed was acceptable but a management condition was included in the recommendation to control growth in the future.

                        The issue of noise from the trolley bay and security on the site had been raised by an adjacent resident.  The officer explained that there was a significant boundary in the area referred to and a security gate had also been included which was locked and not used as a staff entrance but was for access for maintenance.  A noise report had been submitted with the application and Public Protection officers were satisfied with the outcomes from the report.  The opening and delivery times on this application were slightly longer than had been agreed in March 2015 and a noise report had also been submitted for this aspect of the proposal.  Public Protection did not have any objection to the proposed opening hours on amenity grounds and therefore it was not considered that shorter hours could reasonably be imposed.  As it was not proposed to build the houses on the site, this had increased the number of car parking spaces available; there were no objections from Highways and there was also no requirement for any conditions in relation to parking or access.  It was previously proposed that five affordable dwellings be included on the site but this application included a proposal for a commuted sum of £210,000 by way of Section 106 agreement in lieu of the on-site provision; the officer explained how this had been calculated and this was also detailed in paragraph 7.34.  It was also felt that a commuted sum of £15,000 to provide public art to be spent on community art projects was more appropriate than the provision of a scheme of public art on the site.  This would also be achieved by a Section 106 agreement and paragraph 7.36 to 7.40 detailed how these proposals were compliant with the Community Infrastructure Levy (CIL).

                        The Chief Officer (Planning and Environment) advised that he would read out a statement prepared by Mrs. J. Richards, as she did not want to appear on the webcast, (summarised as follows):  When Aldi started developing the site, they became aware that the residential boundaries had been incorrectly shown on the Ordnance Survey maps and they knew that the measurement taken from the road would mean almost completely removing the bund to the rear and side of the store.  Aldi had continued with the development and the Council had been unable to take enforcement action because they had incorrectly worded the planning consent relating to the bund.  Photographs had been displayed that showed the development from Aldi’s perspective but Mrs. Richards felt that the view from the residential properties was significantly different and she asked the Committee to reject the application in its current form.  Approved plans had included a 10m bund which would have meant the store was hardly visible from residential properties but this was not the case as the bund had been reduced to less than 5m and the retrospective plan did not restore the high level trees and dense shrubbery previously in place nor did it enhance the planting. 

Mrs. Richards felt that the plant machinery was sited much closer to the housing than had been originally proposed.  This could be relocated to a different area at the rear of the store which was a significant distance from residents and where the bund remained intact.  It was also suggested that the plant machinery could be completely encased by acoustic screening.  Mrs. Richards was able to view the trolley bay and bike racks from her property as the bund and planting in this area had been reduced significantly and the constant noise of trolleys was causing a significant disturbance every day.  She felt that the area could be enclosed or a taller acoustic fence installed and linked to the garden fences to prevent any form of public access onto the bund.  She also suggested that the proposed planting to the rear of the store be enhanced.  The reduced opening hours had been granted due to the proximity of the store to the residential properties but as the store was now situated more closely to the existing dwellings and the extensive planted bund no longer existed, Mrs. Richards felt that the application to extend the opening hours should be refused. 

                        Ms. J. Gabrilatou, the agent for the applicant, spoke in support of the application.  She welcomed the officer recommendation to approve the application but explained that the retrospective application was an unusual step for Aldi but due to complexities with the development meant that amendments were necessary.  As recommended on the previous application, it was not anticipated that any major works to the bund at the rear of the site would be necessary but due to constraints on site, this was necessary and Council officers had been informed immediately.  Aldi maintained that the bund and landscaping would be replaced and this had been achieved and agreed with officers.  It became clear during the development that two properties were located nearer to the store and at this point a GPS survey took place which showed that Mrs. Richards’ property was located 0.7 metres closer to the store than was shown on the Ordnance Survey plan.  Ms. Gabrilatou advised that the store was in the exact location shown on the submitted drawings and showed that it did not harm the amenity of residents.  The Landscaping Officer was satisfied with the proposed landscaping which would provide a screen on the bund between the store and the neighbouring properties.  The noise assessment had been updated and showed no change in impact and no concerns had been raised by the Pollution Officer.  The houses on Chester Road were closer to the store entrance, car park and trolley bay which were the busiest areas of the site but none of these residents had made any complaints.  The area where Mrs. Richards lived, which was to the rear of the store, was the least active part of the site.  It was also felt that the site was secure and did not propose any risk to Mrs. Richards’ property and the reinstated bund and fencing provided more security than when the site was vacant.  During the development of the store, it became clear that providing the five affordable homes, which would require access through the car park of the store, would not provide a suitable place to live and it was therefore proposed that a commuted sum of £210,000 be provided instead.  It was not Aldi’s intention to circumvent the planning process and no other adjoining residents had objected to the proposals and Aldi was therefore seeking approval of the application in line with the officer’s recommendation.                                                                                          

            Councillor Derek Butler proposed refusal of the application, against officer recommendation, which was duly seconded.  He felt that the application should be refused as it did not comply with planning legislation.     He referred to the decision of the Welsh Government Inspector to change the designation of the site to housing and the residents were unhappy with this as it was felt that it should have remained as landscaping but with housing being more preferable to any other designation.  He commented on the applications referred to in Section 5 of the report on the planning history.  Councillor Butler indicated that when the previous application had been considered he had requested that the bund and the landscaping be retained.  He suggested that the store had moved twice and an early survey which took place on the bund before development commenced on site resulting in work being stopped following enforcement action as too much vegetation was being removed. 

In referring to the comments in Mrs. Richards’ statement, Councillor Butler felt that if an anomaly in the measurements that had been taken had been identified, then checks should have been made with officers and residents prior to continuing work on the site to destroy one of the elements of the conditions imposed on the site by the Committee.  He spoke of barristers’ opinions and disagreement between the Council’s barrister and Aldi’s which delayed the process whilst development was still taking place on the site.  He felt that CCTV could be installed at the rear of the store that would assist with the issue of security that had been raised by Mrs. Richards and he added that other residents had also submitted objections to the proposals.  Councillor Butler referred to the element of the affordable housing and the statement in the late observations that the Council proposed a commuted sum of £240,000.  Aldi had undertaken their own assessment of final values and had proposed £174,000 but Housing Strategy colleagues considered this assessment to be too low and the figure was recalculated at £210,000.  Councillor Butler felt that Aldi should provide the £240,000 requested by the Council. 

            Councillor Alison Halford felt that there had been a hard fought battle over the site and said that 50 house places had been given up because the site had been used for commercial development.  She commented on the issues of noise and lights which were referred to during consideration of the previous application but the Committee had been assured that the issues would be overcome.  She expressed significant concern that the five affordable dwellings had been removed from the proposal and suggested that the application should not be allowed to proceed.  She felt that a solution to the noise of the trollies, which was not referred to in the report, should be identified.              

            Councillor Mike Peers said that the previous application had been approved for the store and five affordable homes on the site.  In section 7 of the November 2014 report, it was reported that ‘the houses were a ploy to get the application through’.  He queried how the situation had occurred of how it had ended up that a car park was included on the site where five affordable houses should have been situated and queried whether officers were aware that the car park was being created.  He quoted from the report on the approved application which included details of the affordable dwellings that would be run by a Registered Social Landlord and the dwellings would not be out of keeping with the area.  The officer had indicated at that meeting that the retail store would result in the loss of a site allocated for housing but it had been agreed that five affordable dwellings on the site was appropriate.  In referring to this application, Councillor Peers said that the dwellings that had the benefit of planning permission were no longer included.  At the meeting in November 2014, Ms. Gabrilatou had spoken in support of the application which would allow the development of five affordable dwellings and she had also referred to the growth of Broughton.  However, at this meeting, she had indicated that the houses were not suitable to access through the car park of the retail store and that the Council would benefit from the receipt of the commuted sum.  Councillor Peers agreed that the sum should be £240,000 and not the £210,000 suggested by Aldi and proposed that either paragraph 2.01 be amended to reflect this or that the five dwellings agreed in November 2014 be provided.

            The Housing and Planning Solicitor reminded Members that the fact that the application was retrospective was not a material consideration but the previous decision of the Local Planning Authority to grant permission for a foodstore on this site was a material consideration. 

            Councillor Paul Shotton said that the Aldi store was welcomed but the impact of the development on the neighbouring residents should be considered, particularly as it was felt that the visible and acoustic provisions were inadequate.  Therefore he felt that high screening was required and that the plant machinery should be repositioned away from the residential properties.  He also concurred that £240,000 for the commuted sum for affordable housing was more appropriate. 

            Councillor Richard Jones had considered the changes from the previous application to this proposal which included the store being located closer to homes. He added that the bund was now inadequate and commented that the five affordable houses were no longer included in the proposal.  The hours of operation and delivery were also being changed in this application.  The original opening hours were conditioned on the previous application to reduce the impact on the neighbouring residents and there was a certain amount of bunding which would reduce the impact of noise.  He felt that the affordable housing should be included on the site and the issue of access to the dwellings through the retail car park had not been raised when planning permission was granted in November 2014.  He felt that the issues of noise, bunding and acoustic fencing should be as the original application to reduce the impact on residents. 

            Councillor Bithell said that the siting of this store did not comply with the previously approved application and had eroded the bund and landscaping aspect.  He felt that the commuted sum of £210,000 and the newly proposed opening hours were unacceptable and that the Committee had a duty to ensure the applicant provided what was being requested by the residents on the issue of opening hours and the acoustic problems.  He referred to paragraph 7.19 where it was reported that the site was in an urban area with residential properties adjacent to a foodstore but Councillor Bithell said that when the occupiers had purchased their properties, the site was designated for housing.  He added that the officer recommendation on the November 2014 was of refusal on those grounds.  He raised concern at the maps used and suggested that the proposed £15,000 for public art in the community was inadequate.  He felt that the application should be refused. 

            Councillor Gareth Roberts felt that refusal of the application would be difficult to defend on appeal and expressed significant concern at the situation that the Committee now found itself in because of the decision to vote in favour of the previous application against officer recommendation.  Councillor Mike Lowe agreed that consultation should have been undertaken when the developers started to build into the bund as one of the main considerations was that the bund should remain in place.  He also raised concern at the issue of security between the back of the store and the neighbouring properties which he felt had not been addressed.  Councillor Richard Lloyd said that he had supported approval of the previous application with the inclusion of the five houses and the conditions relating to the bund, landscaping and the noise issues.  He was disappointed with Aldi for ignoring these conditions but added that the majority of the Committee had voted in favour of the application at the time.  Councillor Carol Ellis said that what had been approved was not what was before the Committee today and that approval had been granted including the proposal for the five houses, the bund and the landscaping measures. 

            The Chief Officer (Planning and Environment) concurred that this application was not what had been approved in November 2014.  Officers had been transparent in the calculation for the commuted sum in lieu of affordable housing and the Aldi representatives had heard the concerns raised by the Committee on that issue and the impact on residential amenity.  The Chief Officer felt that the impact on the residents could be mitigated if all of the aspects conditioned were included and reminded the Committee that reasons for refusal would need to be stated if the application was to be refused, against officer recommendation.  Councillor Shotton had also raised the issue of site security but officers were comfortable that the measures in place were appropriate.  The Chief Officer felt that the recommendation before the Committee was sustainable but he said that Members had the option to defer the application to ask officers to further discuss the concerns raised by members during the debate with Aldi.  He sensed the frustrations of Members but he did not feel that there was sufficient evidence to refuse the application.

Councillor Derek Butler proposed deferment for further discussions to take place with Aldi but reiterated his concerns that WG had allowed the site to be removed from the housing designation which had made an impact on the Council’s five year housing land supply.  He suggested that the application would not have been granted planning permission if the five affordable dwellings had not been included and he felt that the store should be knocked down and the retailer located within the neighbouring retail park.  Deferment of the application was duly seconded.   

The Development Manager suggested that if the application was deferred, a report would be submitted to the next meeting of the Committee with additional information on the impact on amenity and the five affordable dwellings or commuted sum.  Councillor Peers sought clarification that the issues that had been raised at this meeting would be considered when the report was submitted to the next Committee meeting.  The Development Manager indicated that Councillor Peers had stated that he had looked at the report from November 2014 and had asked why officers had allowed the car park, that officers had agreed five houses that had been promoted by Aldi and that if the application was approved, the commuted sum be for £240,000; a response to these issues along with those raised by other Members would form part of the report to the next meeting.                          

            RESOLVED:

            That the application be deferred with a report being submitted to the next meeting of the Committee with additional information on the issues raised.