Agenda item

            That planning permission be granted subject to the conditions detailed in the report of the Head of Planning and the additional conditions to mark out the right of way and safeguard it prior to any further development and to complete the development within 12 months. 

The Committee considered the report of the Head of Planning in respect of this application which had been the subject of a site visit on 10 February 2014.   The usual consultations had been undertaken and the responses received detailed in the report.

                        The officer detailed the background to the report and explained that this was a partially retrospective application for proposals that were required to prevent the site from flooding.  The building had been in place some time before 1992 and the application had come forward because of Enforcement Team action.  The main issues included:-

• the principle of the proposal and flood risk
• Contamination of surrounding water courses
• the impact on the Right of Way
• restoration and aftercare
• ecology, biodiversity and European protected species

On the issue of flooding, the officer said that Natural Resources Wales (NRW) had been consulted and they had undertaken modelling of the area which had identified that the proposal would not result in any third party harm of flooding elsewhere subject to the landraise area being no greater than 650m².  The material that was proposed to raise the level of the land would allow water to percolate through it and would therefore alleviate the flooding issue.  Photographs had been circulated at the site visit which were taken in 2000 and the officer advised that the Environment Agency had invested £90k on flood defences since then and there had not been any flooding since then so the photographs should be disregarded as they were not a material consideration.  The officer explained that NRW were satisfied that the construction material that was to be used would not cause contamination in the area.  The public right of way was not shown on the definitive map but the statement that accompanies the map indicates that the footpath extends through the application site. Therefore, the exact line of the right of way is uncertain. The anomaly on the definitive map would be rectified by the County Council adding a line to the definitive map under a separate statutory process.  Should the existing building prove to cause an obstruction of the right of way, this could be rectified by way of a diversion under a separate statutory process outside of the planning process so was also not material to this application.  However, what was material was whether the proposal affected the use of the right of way but as this would raise its level the proposals would be beneficial..  The application was retrospective and not finished but would require an additional 130 tonnes of material to be brought in to complete the restoration which would increase the height by approximately 10cm.  The applicant had not yet decided whether the finish would be grass or concrete but as no objections had been received from statutory consultees and the two letters of objection related to the impact on the public footpath, there was no evidence or reason to refuse the application. 

            Mr. H. White spoke against the application as a footpath user and member of the Rambler’s Association.  The right of way was not shown on the definitive map and therefore there was a degree of doubt about the route of the path.  He felt that it had been missed off because of the community boundary and that it was not clear if the proposal would affect the right of way.  He felt that there were inconsistencies in the report as one section said that the path was obstructed but it was also reported that the proposal would be of benefit as it would raise the land.  He sought clarification as to whether the building affected the line of the path and said that he would work with the applicant on the route of the path to achieve what the applicant wanted and to get it on the map.  Mr. White asked that the application be deferred if there was any doubt about the path or that it be delegated to officers to clarify the issue of the right of way. 

            Mr. J.R. Jones, the applicant, spoke in support of the application, and in referring to the site visit, said that the Committee would have been able to see the issue of the flooding and why there was a need to raise the ground and the floor level of the building.  He had owned the land for 20 years and the building, which had now become unusable, had been in place for over 28 years and the area had always been prone to flooding but not at the current levels.  Mr. Jones said that he had been granted a licence in 2010 to tip inert rubbish on the site and this had been monitored by the Environment Agency.  Meetings with the Environment Agency had been undertaken and a site visit had been carried out by the Council’s Enforcement Team and the Environment Agency about the flooding.  A site meeting had also been undertaken by DEFRA.  Until he received a letter from DEFRA indicating that they felt that he had enough material on site to raise the level, he had not been told to stop the work being undertaken.  Mr. Jones felt that the concerns of Cilcain Community Council about contamination had been addressed in the NRW report.  On the issue of the footpath he said that it was a straight line to the stile with no obstructions. 

            Councillor Mrs. Butlin from Cilcain Community Council spoke against the application which she said was a development on a flood plain.  She referred to the areas of Hendre and Rhydymwyn which had flooded in 2000 which had increased the residents’ insurance premiums.  This landfill would prevent floodwater of the land earmarked by NRW as floodplain in this area and Councillor Mrs. Butlin referred to hydraulic modelling of the brook that had been undertaken was inaccurate as it assumed that all culverts had been cleared but this was rarely the case.  In referring to the flooding at Glasdir Estate in Ruthin, she said that if this application was approved it would mean that nothing had been learned about flooding in North Wales.  Planning should be in the public interest and not what was convenient for the developer.

            Councillor Owen Thomas proposed refusal of the application against officer recommendation, which was duly seconded.  He said that the report did not provide details of the history of the site and he detailed letters and emails between the Community Council, enforcement officers and the applicant from 2010 to 2012.  He said that the application breached the Council’s policies about building on a flood plain and he added that the proposal did not benefit from planning permission and that waste was being brought onto the site which was contrary to the Council’s Policies.  The footpath had been built upon and there was nothing in the report about whether there was any slurry on the site which was agricultural land.  Councillor O Thomas referred to para. 3.09 of the officer’s report and the material which had been deposited on site in an area of 820m² to a depth of 0.8m. Councillor O Thomas asked why the application proposed moving more material onto the site when what was there was already adequate.  He felt that more consideration should be given to the people who had had their houses flooded in Rhydymwyn in 2013 and said that what was proposed was unacceptable. 

            Councillor Richard Jones referred to two issues:  raising the land level and raising the height of the agricultural building and said that both of these things would have an effect on the modelling undertaken by NRW.  He accepted that removal of the building could not be enforced as it was classed as lawful development but as the building was being raised it was effectively being moved and he queried whether this should result in the loss of the lawful development status.  He agreed that the application should be refused. 

            Councillor Alison Halford felt that the report fell short on the issue of the footpath and queried how many lorry loads would equate to 130 tonnes of material to complete the restoration of the site.  She referred to the flooding in the area in 2000 and said that she could not support an application that could allow it to happen again.  Councillor Chris Bithell queried whether planning permission was needed for the agricultural building and said that the floods were lower down stream.  NRW had initially objected to the proposals but had since withdrawn their objection and he queried what would happen in an appeal situation without the support of NRW.  He felt that the issue of the footpath could be resolved through conditions and he asked that this be considered if the application was approved.  In referring to the footpath, Councillor Derek Butler acknowledged the comments of Mr. White but said that issues of permissive paths could be negotiated outside of the planning process. He also believed that if NRW were satisfied it would be difficult to refuse the proposal. Councillor Richard Lloyd asked what the field would be used for if the application was approved and, referring to paragraph 7.08, how the applicant was to collect the rainwater from the roof.  He also asked how raising the land would improve the footpath. 

            In response to the comments made, the officer said that assumptions had been made about where the right of way was and how the application affected it as it was not shown on a definitive map. This would be added to the definitive map by the County Council through the Wildlife and Countryside Act.  She said that there were alternative ways to cross the site if it was found that the path went through the building and the diversion of the path could be dealt with through the Highways Act.  Flooding in other counties in North Wales was not material to this application but the evidence before Members indicated that NRW had undertaken computer modelling which identified that the proposed material would be permeable and would allow the water to drain through.  The applicant had not yet decided what material he would use to complete the restoration of the site if permission was granted but that it would either be covered with soil and seeded or concreted.  The history of the site was reported in paragraphs 5.01 to 5.06 even though all of the letters that Councillor O Thomas had referred to had not been included but the investigations had resulted in the application before the Committee.  The officer queried which policies Councillor O Thomas felt that the application breached as it was considered that the development would not cause any additional problems and even though the application was retrospective, there was no policy to indicate that it should be refused.  On the issue of the material being used, there had been no objections from NRW as it would not cause any contamination and there were no cows on the site, so there would not be any slurry.  The officer asked Councillor O Thomas to clarify the figures that he had quoted from Paragraph 3.09 of her report as they did not agree with the information included in the Officer’s report. 

            Councillor O Thomas said that the officer was “not up to scratch”.  He repeated the figures which were included in the Justification Statement as part of the application that the area was 820 sq metres with a depth of 800mm and the area that had been raised of 620 sq metres and the 100mm to complete the land restoration; he had calculated that this meant that there was already more than enough material on the site. 

            The officer responded that the Justification Statement was supported by a number of plans and that an area of approximately 27.5metres by 23.75metres equated to a total area of approximately 650 sq metres as detailed in the plan that accompanied the application and that the development needed to be carried out in accordance with this.  Modelling had been undertaken on the 650 sq metre area and NRW were satisfied that the works would not cause flooding elsewhere to third parties.  The applicant would be asked to peg out the area so that no more material would be brought onto the site than was needed.  Between four and seven truckloads of material would be required to get the depth to 100mm and the officer reminded Members that the site had not been finished as the applicant had been asked to stop work which he had done.  She confirmed that planning permission was required for an agricultural building and that it was included in this application.  The rainwater would be collected in a large water butt and in ditches around the site which would be cleared out. 

            The Development Manager said that the officer had done admirably.  He confirmed that a condition could be imposed about the line of the footpath to allow it to be agreed and safeguarded before any further development took place on the site.  The Head of Planning expressed his regret at the comments of Councillor O Thomas and said that it was a professional and thorough report.  He said that Flintshire County Council was lucky to be the lead authority in Minerals & Waste planning across North Wales and said that, even though Members may not agree with the recommendation, there was no need to make accusations against the officer.  The Chairman asked that Councillor Thomas withdraw his comment and apologise.  Councillor Halford said that she thought that it was unprecedented that a former Chair of Planning had attacked the integrity of an officer; it was not what the Members wanted to hear and she hoped that Councillor O Thomas would offer an apology. 

            Councillor O Thomas said that he would apologise to the officer but he expressed his frustration that he felt that the report was incomplete. 

            Councillor Bithell queried whether the applicant was to complete the restoration with concrete, as the officer had indicated earlier.  The officer advised that she had mistakenly referred to concrete and the finish would be either soil and grass or ‘crusher run’ material that would provide a hardstanding surface which would be permeable and that this would be conditioned.  She added that the building may not be raised as this would depend on the type of animal that would be housed in it.                                                   

            In response to a further question from Councillor R Jones about the lawful development status, the officer confirmed that the erection of an agricultural building formed part of the application.  The Development Manager said that if Members were minded to refuse the agricultural building they should be mindful that its lawful development status was a material consideration. 

            In summing up, Councillor O Thomas said that the site was on a flood plain and that in his opinion there was a risk of flooding to Rhydymwyn and Hendre if the application was approved.  He referred to a policy which indicated that agricultural buildings should not be built on land of less than two and a half acres and that therefore there should not be a building on the site.  He referred to flooding which had occurred in the area in the last 12 months and said that as the Planning Authority was meant to act in the interest of the public, then any works that could be undertaken to prevent further flooding in these areas should be undertaken. 

The Democracy & Governance Manager explained that if the proposal to refuse was lost on the vote, then a further vote would be required as there had been mention of what conditions to impose and it was not a straight for or against.  There was no evidence in the report to suggest that the proposal would cause additional flooding in the area and this had been confirmed by NRW and therefore the officers did not feel that the proposed reasons for refusal could be defended if the application was refused and the applicant appealed. 

Councillor Jones felt that the Committee should be considering the erection of a new building on the site, not just the raising of the existing building and that the application should therefore be refused.  The Development Manager advised that the building on the site was immune from enforcement action and that this application involved the re-erection of the building.  If the application was refused on the basis that Members did not want a building on the site, they would need to give a reason as to what the difference was compared to what was there before. 

On being put to the vote, there was an equality of voting and the Chairman used his casting vote against refusal of the application. 

Councillor Bithell then moved approval of the application, which was duly seconded, and requested that a condition be added that the right of way be marked out.  Councillor O Thomas proposed an amendment that it also be conditioned that no more material be brought onto the site, that the bund be removed to allow the river to flood and that a condition be included about an assessment of whether there was any slurry on the site. 

In response, the Head of Planning said that condition 9 covered the request to have the site marked out and condition 3 indicated that no more waste material was to be imported, however condition 6 referred to the importation of soil or other material to complete the restoration of the site.  The removal of the bund did not form part of this planning application and could therefore not be conditioned and the Head of Planning advised that NRW had indicated that the proposal would not have a detrimental impact on the area on the issue of flooding. 

Councillor O Thomas queried whether a time limit could be imposed and the officer responded that there was no time limit to implement the development as the application was partly retrospective, however a time could be imposed on the completion of the proposal.  The Head of Planning said that a completion limit of 12 months could be supported and conditioned.  Councillor O Thomas added that slurry was not allowed to enter the river and that therefore a slurry tank should be put in place.  Councillor Bithell confirmed that his proposal could be amended to include the completion of the development within 12 months. 

Councillor Carol Ellis referred to the withdrawal of the objection by NRW and queried who would monitor that the landraise area was no greater than 650m² and asked whether it could be conditioned to provide assurance to Members.  The officer and Head of Planning confirmed that monitoring would be undertaken by the Council. 

On being put to the vote, the proposal to approve the application along with the two extra conditions about marking out the right of way and safeguarding it prior to any further development and completion of the development within 12 months was CARRIED.                        

            RESOLVED:

            That planning permission be granted subject to the conditions detailed in the report of the Head of Planning and the additional conditions to mark out the right of way and safeguard it prior to any further development and to complete the development within 12 months.