Agenda item

That the Local Planning Authority should not present evidence to defend Reason for Refusal 1 at the appeal proceedings. 

The Committee considered the report of the Head of Planning in respect of this application.  Councillors A.M. Halford and D.I. Mackie, having earlier declared an interest in the application, left the meeting prior to its discussion. 

            The Head of Planning explained that following the resolution at the 2 November 2011 meeting by the Committee to refuse the application, the applicant had appealed against the decision.  An appeal by Public Inquiry had been scheduled for 4 and 5 July 2012.  Upon receipt of legal advice from Counsel appointed to appear at the Public Inquiry, this report sought a direction from Members in respect of the stance to adopt at the appeal in respect of one of the reasons for refusal which was attached to the decision. 

            The officer explained that three reasons for refusal had been put forward by the Committee at the meeting in November 2011.  The advice from Counsel was that a case in respect of the reason for refusal no.1, on overbearing impact, could not be advanced.  He added that if the Council tried to defend this as a reason for refusal, it was likely that it would attract a claim for costs against the Authority.              

            Councillor H.G. Roberts proposed the recommendation to not present evidence to defend Reason for Refusal 1 at the appeal proceedings which was duly seconded.

            The Principal Solicitor said that Councillor C.S. Carver was able to address the Committee for three minutes and indicated that Councillor Carver had asked for the opportunity to explain why that was the case.  Councillor Carver provided details of why he was only able to address the Committee for three minutes, explaining that in the Standards Committee minutes for meetings when he had applied for dispensation to speak on the application, the dispensation had not been minuted.  As there had been no Standards Committee since March, there had been no opportunity to correct the error.  He was therefore only able to address the Committee as local Member for three minutes as if he were a member of the public.  He further informed the Committee that he intended to remain in the meeting after he had spoken as he wished to hear for himself the decision taken by the meeting.  The possible consequences of so doing had been explained to him by both the Monitoring Officer and his Deputy.  He concluded by explaining that a decision was needed today as he had Rule 6 status at the Inquiry which meant that he had to produce his evidence four weeks before the start of the Inquiry. 

            Councillor Carver read out a prepared statement which indicated that the minutes from the meeting held on 2 November 2011 reflected “that planning permission be refused on the grounds of overbearing impact on existing properties, lack of on-site play provision for younger children and the insufficient level and lack of integration of affordable housing”.  He explained that a resident had said that the most affected properties were 63 and 65 Overlea Drive.  However, the decision notice issued 26 days later was specific in that the overbearing nature related to Penlan Drive and Overlea Crescent only, and not Overlea Drive.  Councillor Carver also said that the plans contained errors relating to slab levels and also did not show, or take into account, extensions and conservatories on existing properties, details of which he provided.  He explained that he was the Rule 6 Party referred to in the report and that he was now facing a part striking out of the decision notice which to him did not reflect the minuted decision of the Committee.  He could also not understand how the decision notice detailed in paragraph 6.01 listed so many policies supporting reason 1, yet the legal opinion was the opposite view. 

            Councillor J.E. Falshaw queried why the decision notice had not included Overlea Drive, when this was the area most affected by the planning proposal.  Councillor M.J. Peers said that for future reports, it would be useful to have Counsel’s advice as part of the report to Committee.  He said that there was also a need to know why reason 1 could not be advanced as this information was not before the Members.  In response, the Principal Solicitor said that Counsel’s advice had been fairly summarised in the report. 

The officer said that the reason for refusal was that advanced at Committee where reference to Overlea Drive had not been made.  Councillor R.B. Jones said that they needed to see the evidence before making a decision and said that if the decision notice was different to the minutes, then the wrong information had been sent to the applicant.  The Principal Solicitor read out the resolution from the Committee meeting in November 2011 which was approved at the subsequent meeting in December 2011.  He said that reference had been made by Councillor Cheryl Carver of Hawarden Community Council about slab levels and the reference to overlooking which did not relate to particular properties.  He also detailed what had been included in the decision notice which had been sent to the applicant.

Councillor Jones said that what had been agreed by the Committee in the minutes was not reflected in the decision notice.  He said that the Committee had meant all of the existing properties and it was wrong of the officer to determine otherwise and what the Committee meant should have been checked.  The Planning Strategy Manager said that to say that the decision related to all properties would be incorrect.  The officer said that he had been present at the debate and that Overlea Drive had not been specifically mentioned. 

            Councillor P.G. Heesom raised concern at how general matters were handled and said that previously third party speakers had not been permitted.  The Principal Solicitor said that Councillor Carver was the local Member for Hawarden. 

            Councillor R.C. Bithell said that it was obvious that there was a need for Committee to be specific in the grounds for refusal and accurately reflect what had been determined.  He concurred that the minutes had also been approved by Committee.  He said that there was a need to listen to the advice which had been given by Counsel in not putting forward reason 1 in the appeal.  He added that it did not preclude the local Member making representations at the Public Inquiry. 

            Councillor C.A. Ellis said that this was the second time when this had occurred and suggested that officers and Members could learn from it.  She suggested that the decision could be drawn up immediately and shared with the Committee before the decision notice was issued to ensure that discrepancies were identified.  The Principal Solicitor said that there was always the intent for the decision notice to reflect the debate but added that misinterpretations could occur.  He said that he would discuss the issue with the Head of Legal and Democratic Services. 

            Councillor D. Butler said that the Committee had a chance to amend the minutes when they had been submitted to the subsequent Committee, but they had not done so and had approved the minutes as being a correct record of the meeting.  He added that it should have been picked up by the Committee and the blame not put on the officers.

            The officer said that paragraphs 6.07 to 6.10 of the report detailed the reasons expressed by Counsel in coming to his view on refusal reason 1 and he drew particular attention to paragraph 6.09. 

            Councillor H.G. Roberts said that what had been put on the decision notice had to be addressed, and taking everything into account, the Committee should take note of the recommendation in the report. 

            On being put to the vote, the proposal to accept the recommendation in the report was CARRIED.        

            RESOLVED:

That the Local Planning Authority should not present evidence to defend Reason for Refusal 1 at the appeal proceedings.