Agenda item

            That the Council’s case to the appeal be amended in accordance with the recommendation in the report to the Planning & Development Control Committee meeting on 14 March 2012, and as set out in the Head of Planning’s report.

The Committee considered the report of the Head of Planning in respect of this application.  The usual consultations had been undertaken and the responses received detailed in the report. 

            In introducing the item, the Development Manger reminded Members that at the meeting of the Committee held on 14 March 2012 they resolved had that the County Council’s stance in respect of the appeal was to request that the Inspector allow the appeal subject to a Section 106 Agreement and conditions listed in the officer’s report for that Committee.  However, in addition to endorsing the conditions and legal agreement recommended by officers, the Committee had also stipulated a further condition requiring that the play area be up to adoptable standard, that it be offered to the County Council for adoption and that a 10 year maintenance sum be requested if the play area was adopted.  Following the resolution, Counsel had been instructed in respect of the appeal and the advice given was that the condition requested by Members could not be reasonably advanced. 

The officer also reminded Members that when the stance for the appealed application was presented to Committee, the Council was still in the process of clarifying whether or not an additional financial contribution would be required in addition to the land “gifted” over to the Council to provide for a school, as set out in the existing Section 106 Agreement relating to the site.  The Committee endorsed the stance that, if deemed necessary, an education contribution be sought for schools served by the development.  At the Committee on 18 April 2012, when duplicate application 044426 was considered, late observations received from the Head of Education and Resources confirmed that in addition to the “gifted” land to provide for a new school, an educational contribution of £290,500 would be required.  Members had resolved to defer that application, so the decision had not been issued. 

Officers progressed the Council’s appeal stance on the understanding that a financial contribution would be required.  During the progression of the Council’s appeal statement, the Head of Education and Resources had reviewed the background data on justifying the need for an educational contribution and was now of the opinion that it would be unreasonable to require such a contribution.  Therefore, it was recommended to Members that the clause that the play area be brought up to adoptable standard and offered to the Council for adoption be dropped and that, as the request for the commuted sum educational contribution could not be sustained, this should not be pursued.       

            Councillor R.C. Bithell proposed the officer recommendation as detailed in the report which was duly seconded. 

            The local Member, Councillor R. Johnson, said that she had been advised that neither she nor Councillor J. Yorke from Flint Town Council had been permitted to speak at the Committee meeting on 14 March 2012.  She said that the Monitoring Officer had recently confirmed that this decision was incorrect.  She said that the appeal had been validated as a Section 73 application and she questioned whether this was correct as development had already started on the site.  She highlighted paragraphs 6.06 and 6.07 of the report and referred to Councillor J.B. Attridge’s question about the development brief and the response that this had been adopted in 2005; she believed this to be untrue and said that she felt that the 1999 development brief was the only formally approved brief.  She asked that the County Council position be reviewed and further talks open with the developer so that the Council was not faced with further punitive costs.  

            Councillor Bithell said that he had read the report in detail and said that the legal advice which had been sought needed to be followed.  He asked for an investigation of how the authority had arrived at this situation.   

            Councillor P.G. Heesom said that not much debate was needed on the recommendation and concurred that even though it had come in as a Section 73 application, it could not be granted under that process as the section stated that planning permission could not be granted to extend an outline planning permission.  He said that the crux of Counsel’s opinion was that non- determination raised a number of serious questions and said that there were grounds when an authority could decline to determine an application.  He felt that there had to be another application for outline consent and that Members should support the officer recommendation.

            In response to the comments made regarding the process of Section 73 applications, the Principal Solicitor said that he suspected that any misunderstanding regarding the process might have arisen from the fact that amendments made to the Section by the Planning and Compulsory Purchase Act 2004 only applied to England, not Wales.  Notwithstanding the comments made, the Head of Planning said that the issues of validity could be raised with counsel.           

            RESOLVED:

            That the Council’s case to the appeal be amended in accordance with the recommendation in the report to the Planning & Development Control Committee meeting on 14 March 2012, and as set out in the Head of Planning’s report.