North Yorkshire Council
Community Development Services
Selby Area Constituency Planning Committee
14 AUGUST 2024
ZG2024/0187/S73- section 73 application to vary conditions 01 (approved plans), 03 (landscaping scheme), 06 (use of land), 07 (boundary treaTment) and 08 (emergency access) of approval 2017/0736/remm reserved matters application relating to appearance, landscaping, layout and scale for the erection of 50 dwellings of approval 2015/0615/out for outline application to include access for a residential development granted on 11 june 2021 at land south of main street church fenton on behalf of yorkshire country properties.
Report of the Assistant Director Planning – Community Development Services
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1.0 Purpose of the Report 1.1 To determine a Section 73 application for variation of the conditions on the approved reserved matters application to reflect changes to the approved plans for the erection of 50 dwellings on land south of Main Street, Church Fenton. 1.2 This application is reported to Committee because the Head of Development Management considers this application to raise significant planning issues such that it is in the public interest for the application to be considered by Committee. |
2.0 SUMMARY
RECOMMENDATION: That planning permission be GRANTED subject to conditions listed below and prior completion of a Deed of Variation to the existing S106 agreement to reflect the changed plans.
2.2. The application red line site is located on the southeast side of Church Fenton. It relates to a series of agricultural fields south of Main Street and East of Church Street, Church Fenton.
2.3. The principle of this development has already been established though the outline permission and the reserved matters application. The development has already commenced, and the fallback position is that the existing permission is extant and could be completed at any time. As such the only consideration of this application is in relation to the conditions of the approval and the impact the proposed variations would have. The impacts of the differences between the approved and the proposed scheme are considered.
2.4. The key issues are the impact of the changes on the character and appearance of the locality and the Heritage Assets which are the nearby Grade I Listed Church of St Marys and nearby Grade II listed buildings including the Old Vicarage and the historic footpath links and open space between them. Other considerations related to the changes include Highway Safety, Residential Amenity, Affordable Housing, variations to the condition wording, and the need for a new Deed of Variation to link this new permission with revised plan numbers to the S106 requirements.
2.5. On 30 July 2024, the Government announced in a Ministerial statement its intention to reform the planning system, including making changes through a Planning and Infrastructure Bill in the first session and revising the NPPF. The proposed revisions to the NPPF are currently out to consultation which runs until the 24 September 2024. As such, whilst the Ministerial statement is acknowledged, it is noted that the December 2023 iteration of the NPPF remains until such time as revised legislation is passed and / or policy is published.
2.6. On balance the application is considered to be acceptable in principle and complies with policies SP18 and SP19 of the Core Strategy and policies ENV1, T1 and T2 of the Local Plan and H2 of the CFNP and guidance within the NPPF.
3.0 Preliminary Matters
3.1. Access to the case file on Public Access can be found here:- ZG2024/0187/S73 | Section 73 application to vary conditions 01 (approved plans), 03 (landscaping scheme), 06 (use of land), 07 (boundary treatment) and 08 (emergency access) of approval 2017/0736/REMM Reserved matters application relating to appearance, landscaping, layout and scale for erection of 50 dwellings of approval 2015/0615/OUT for outline application to include access for a residential development granted on 11 June 2021 | Land South Of Main Street Church Fenton North Yorkshire (selby.gov.uk)
3.2. During the course of the application an amended suite of plans was submitted as required to address comments raised by consultees and the case officer.
3.3. The following previous planning applications are identified as relevant planning history for this application site:
3.4 Application 2015/0615/OUT- Outline application including access for a residential development on land to the south of Main Street, Church Fenton - Permitted 03/12/2015 subject to 30 conditions and a Section 106 agreement to secure the following:
· Affordable Housing.
· Waste and recycling contribution - Amount and Phasing of payment
· Education contribution - and
· Open Space – Extent/Layout/Delivery/Maintenance and Management
The application was approved at a time when the Council did not have a five-year land supply.
3.5 A Deed of Variation to the Section 106 Agreement was agreed on 19 September 2016. The original Section 106 Agreement included a definition to the term “Application” which was defined as:
The Deed of Variation completed on 19 September 2016 amended the wording to the definition of the term ‘Application’ to exclude reference to the number of dwellings. The revised wording stated the terms be replaced with the definition below:
“means the application for outline planning permission for the erection of residential development registered by the District Council on 5 February 2015 and allocated planning reference 2015/0615/OUT”.
This was agreed because the outline application did not refer to the number of dwellings in the description or by condition.
The first non-material amendment application, (ref:2016/0063/MAN), sought to correct an error on the Outline Permission. Despite the Outline Permission including permission for access of Church Street, Condition 2 attached to the Outline Permission stated that the matter of access still needed to be dealt with as part of any subsequent reserved matters submission. The non-material amendment sought to alter the wording of condition 2 to remove the requirements for details of means of access.
This second non-material amendment (Ref: 2016/0463/MAN) sought to address an error with one of the conditions attached to the Outline Permission. Although all matters, save for access, were reserved at outline stage, an indicative layout was submitted to the LPA. The purpose of the indicative plan was to provide an illustrative layout to demonstrate how a residential scheme could be accommodated on the site. It was amended and reduced to an area in the northern part of the site during the course of the applications consideration. The applicants had not intended this to be the final layout as this matter was not being dealt with at the outline stage but was reserved for subsequent approval. Despite this, Condition 30 attached to the Outline Permission listed the indicative layout plan as an approved plan and required that any subsequent development must be carried out in accordance with that plan.
3.9 Application 2017/0736/REMM - Reserved matters application relating to appearance, landscaping, layout and scale for the erection of 50 dwellings of outline approval 2015/0615/OUT.
This was refused by Planning Committee on 05/03/2020 (against officer recommendation). The refusal reasons for the above application were as follows:
02. The design details of this reserved matters submission would due to the lack of integration with the quality and characteristics of its surroundings, the use of repeated standard house designs at odds with the quality, variation and characteristics of the surrounding development and a layout dictated by roads, parking arrangements and garaging, would be harmful to the setting of the Church of St Mary, other nearby listed buildings and would diminish the established historic links between them. The details submitted would therefore fail to have the "Special regard" required by Section 66 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and would conflict with the aims of Policies SP18 and SP19 of the CS and with the NPPF.
The application was allowed on Appeal (Public Inquiry) on 11 June 2021. Amended plans were submitted with the lodging of the appeal to address the reasons for refusal. These provided a more informal road layout and increased the variation of house types and designs.
3.11 Applications 2022/0851/DOC, 2022/0661/DOC, 2022/0271/DOC, 2022/0902/DOC, 2022/0835/DOC,2022/1003/DOC to discharge all pre-commencement conditions on the outline and reserved matters applications were submitted. These were all discharged within the requisite timescale and a commencement of the development occurred on 8th June 2023.The planning permission associated with the site is therefore considered to have started and could be completed at any time. The permission is therefore extant and provides a fallback position to the development of the site against which this application should be considered.
4.0 Site and Surroundings
4.1. The application red line site is located on the southeast side of Church Fenton. It relates to a series of agricultural fields south of Main Street and East of Church Street, Church Fenton. The site sweeps round from the back of Church Street around the rear of the Grade I Listed St Marys Church up to the rear of the parish hall on Main Street and along the rear of the properties along Main Street. The site then follows the dyke south from the Pumping Station and then steps in before sweeping back on Church Street.
4.2. The site is outside the development limits of Church Fenton as defined in the Local Plan. Church Fenton is a Designated Service village (DSV) as identified in the Core Strategy. The site is therefore located within the open countryside. St Mary’s Church abuts the western edge of the application site which is a Grade I Listed Building. Other Listed Buildings (Grade II) adjoin the site including dwellings the ‘Old Vicarage’ to the north adjacent to the village hall and ‘The Croft’ to the west. A Public Right of Way (PROW) crosses the site from the east across open countryside leading to the church. There are also PROWs from the church leading to the main street and to the Old Vicarage. The site is within Flood Zone 2.
5.0 Description of Proposal
5.1. The original reserved matters scheme 2017/0736/REMM was submitted on behalf of Strata Homes. However, the site has now been acquired by Yorkshire Country Properties. This application on behalf of Yorkshire Country Properties seeks to vary the conditions associated with the approval of reserved matters, specifically those conditions which reference approved plans. The application does not change the purpose or intention of the conditions but is a result of a different developer bringing changes to the house types and changes to the road standards to meet current safety and highway standards. The proposal can be determined under S73 as it is regarded as the same nature as the original approval.
5.2. Following discussion and meeting with the applicant, officers were not supportive of the scheme due to the significant departure from the approved plans, the diminishment of the variation in house types, the limited materials proposed, the large number of very similar houses and the formalisation of much of the proposed internal roads to adoptable standards. The application has now been significantly amended from the first submission.
5.3. The key elements of the existing scheme are retained including:
• The proposed number of units remains 50 dwellings.
• Proposed access arrangements, including emergency vehicular access and pedestrian and cycle access is retained as approved.
• Proposed development is contained to the previously approved developable area and the general form of the layout is retained.
• The level of affordable housing (10% as secured through S106 legal agreement and subsequent variations) is retained.
• The quantum and position of POS (as secured through S106 legal agreement) is retained.
• On-site infrastructure including the proposed substation and attenuation basin are retained.
• The general road layout arrangement is similar to the approved scheme.
5.4 The approved housing mix included 30 detached dwellings, 20 semi-detached and 10 terrace units. Of these there were 20 x 3 bedroom units, 21 x 4 bedroom units and 9 x 5 bedroom units.
5.5 The proposed housing mix would include 39 detached dwellings, 4 semi-detached and 7 terrace units. Of these there would be 20 x 3 bedroom dwellings, 25 x 4 bedroom dwellings and 5 x 5 bedroom dwellings.
5.6. The revised scheme adjusts the housing position on the northern side back to a similar orientation, layout, numbers and spacing so that the relationship with existing dwellings to which they back on to is preserved. An increased number of house types, designs, materials, form and features is re-introduced.
5.7 The changes between this revised proposal and the approved appeal scheme are now summarised as follows:
· The proposed house types would include 39 detached dwellings, 4 semi- detached dwellings and 7 terrace units (1 x 4 units and 1 x 3 units).
· Amendments to the designs and materials of the houses.
· Amendment to internal road standards to provide turning in the northwest corner of the layout, widening and re-alignment of the central and northern internal access roads and widening of the turning area at the southern site entrance.
· Changes to the landscaping and boundary treatments associated with the amended layout and house types.
5.8. The housing types have been amended and provide more variations in design, form and materials.
6.0 Planning Policy and Guidance
6.1. The Planning (Listed Buildings and Conservation Areas) Act 1990, Section 66(1) imposes a statutory test that requires “in considering whether to grant planning permission or permission in principle for development which affects a listed building or its setting, the local planning or, as the case may be, the Secretary of State, shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.”
6.2. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that all planning authorities must determine each application under the Planning Acts in accordance with Development Plan so far as material to the application unless material considerations indicate otherwise.
Adopted Development Plan
6.3. The Adopted Development Plan for this site is:
- Selby District Core Strategy Local Plan (adopted 22nd October 2013) (CS)
- Those policies in the Selby District Local Plan (adopted on 8 February 2005) which were saved by the direction of the Secretary of State, and which have not been superseded by the Core Strategy (LP)
- Minerals and Waste Joint Plan (adopted 16 February 2022) (MWJP)
- Church Fenton Neighbourhood Development Plan (Adopted 29 September 2021)(CFNP)
Emerging Development Plan – Material Consideration
6.4. The Emerging Development Plan for this site is listed below.
- Selby Local Plan revised publication version 2024 (Reg 19)
On 17 September 2019, Selby District Council agreed to prepare a new Local Plan. Consultation on issues and options took place early in 2020 and further consultation took place on preferred options and additional sites in 2021. The Pre-submission Publication Local Plan (under Regulation 19 of the Town and Country Planning (Local Development) (England) Regulations 2012, as amended), including supporting documents, associated evidence base and background papers, was subject to formal consultation that ended on 28th October 2022. The responses were considered. In order to fully address the responses to this consultation, a revised Publication Local Plan 2024 was consulted on between 8 March and 19 April 2024. The responses have been considered and the next stage is to move to submission of the plan for examination.
In accordance with paragraph 48 of the NPPF, given the stage of preparation following the consultation process and depending on the extent of unresolved objections to policies and their degree of consistency with the policies in the NPPF, the policies contained within the emerging Local Plan can be given weight as a material consideration in decision making and, if relevant, will be referred to in the body of the report.
Guidance - Material Considerations
6.5. Relevant guidance for this application is:
- National Planning Policy Framework 2023
- National Planning Practice Guidance
- National Design Guide 2021
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7.0 Consultation Responses
7.1. The following consultation responses have been received and have been summarised below.
7.2. Parish Council: (01/07/2024) Observations and Concerns on the revised submission as follows:
· Primary concern is the limited variation of house designs. Numerous numbers provided but these have minimal visual differentiation with superficial distinctions. In contrast the approved scheme emphasised streetscape design sympathetic to the existing village, characterised by individual houses with distinct styles. This revised proposal, with only around 10 visually distinct house types, undermines the core principle upon which approval was granted.
· Potential of reversing critical conditions of the appeal.
· Car parking concerns – the scheme should provide 2 spaces excluding garages per dwelling.
7.3 NYC Highways
No Objections to the submitted or the latest revised scheme.
7.4 NYC Housing Strategy and Policy (Affordable Housing):
Satisfied with the proposal subject to no change in the previously agreed affordable housing provision.
7.5. NYC Public Rights of way
Happy in principle with the proposals for the new routes and confirm officers are happy to continue to work alongside the applicants and planners to achieve an outcome that is beneficial to the Public using these Public Rights of Way.
7.6 NYC Education Directorate
As the changes referred to in this application consultation relate only to the layout, house types and designs CYPS have no further comments to make in addition to those previously submitted in relation planning application 2015/0615/OUT.
7.7 North Yorkshire Fire and Rescue Service
No comments at this stage - will comment further when a building regs application is submitted. In terms of access and facilities for fire service, it is assumed that the provision of water for firefighting will meet the requirements set out in the National guidance document.
7.8 North Yorkshire Police
Some details comments on individual plots referring to details on the conditions relating to boundary treatments which were previously resolved are not shown on the revised scheme now. Comments made on defensible space and the need for demarcation between private frontages and the public realm.
7.9 NYC Waste and Recycling
(26.03.24) Clarity needed on areas of public or private road as this affects bin collection points. Comments made on maximum distances and road alignments from bin presentation points and waste vehicle collection points to prevent risks from reversing and for wase of turning Advice given on bin storage requirements for each property.
7.10 NYC Heritage Services
The archaeological condition remains active and no specific comments to make on the variations.
7.11 NYC Conservation Officer
It is considered that the proposed scheme would result in less than substantial harm to the setting of the Grade I St Mary the Virgin Church, the Grade II The Croft and the Grade II The Vicarage. The harm to the setting has already been established due to the extant permission planning application reference 2017-0736-REM.
7.12 Natural England
No comments received.
7.13 Yorkshire Water
No comments received.
7.14 IDB Selby
No Comments received.
7.15 SuDS/LLFA
No Comments received.
7.16 The Environment Agency
No Comments received.
Local Representations
7.17. The application was advertised by site notices on 20/03/2023 resulting in 27 letters of representation. A summary of the comments is provided below.
7.18. Main Grounds of objection summarised as follows:
Principle
· NYC should not have accepted this application.
· Planners should insist on the appeal scheme being implemented.
· Adopted Church Fenton Neighbourhood Plan is now a material consideration.
· Conflicts with GB policy
· Inspector would not have passed these plans. Disregard of the Inspectors Appeal Decision and the public inquiry
Design and impact on character of the area and on Heritage assets.
· Significant reduction in quality of the scheme, which is not now in character with village, unsympathetic repetitive standardized housing estate, more regimented, no individuality, less haphazard and more rigid rows.
· The unique nature and style of the houses approved by the Planning Inspector, with the "pastiche" architectural features of the houses have been replaced by off the peg anywhere housing.
· Too much change from original application approved- the scheme approved at appeal must be upheld.
· Developers just trying to save money.
· Increased harm to the setting of the Grade I Church.
· Extracts provided from expert heritage statements on the planning appeal. Scheme granted on appeal was closely linked to the Councils heritage expert opinion on how to preserve the heritage of the area.
· Appears to be less landscaping.
· Object to brick entrance feature on church street- completely out of keeping with rural character.
· Quotes from NPPF on design citing emphasis on good design provided including paras 131,132, 135, 137 -emphasising the lack of good design on this scheme.
· Revised scheme provides numerous house types but there is very little variation between the designs. Broadly these fall within 5 styles not the 34 types presented at the inquiry.
Ecology
· The area should be left to grow wild.
· Loss of wildlife and harm to smaller mammals and breeding birds
· Re-orientation of house to face existing gardens on main street unacceptable.
· Concerns that no fencing on northern boundary will result in hedgerow and trees on the boundary being cut down.
Flooding, Climate Change, Drainage, Infrastructure
· Despite legal opinions on the flooding issue, the opinion is that flood management and mitigation remain a live issue and it is for the decision maker to ensure any residual risk is managed safely.
· Flood zone 2 reclassification means raising levels to make them flood resilient and higher-level houses than the rest of the village- visual harm to village and setting of Listed Building.
· Finished Floor levels should be requested as part of this application.
· Consider that the EA’s standing advise should be applied.
· Infrastructure of village wont cope- Water would drain towards the main village and the school and community pub- sewage system is overloaded, field get waterlogged.
· No details of how increased surface water will be managed.
· Potential risk of flooding of surrounding low lying Listed and older buildings
· Impact on local amenities which are at full stretch.
· Extra paved areas – may affect ground water levels.
· House insurance won’t be possible with flood mitigation.
· Quotes from NPPF on climate change including paras 157,158,160,164 emphasising the scheme does not ensure the impacts of climate change are mitigated.
· Quotes from NPPF on Flooding including paras 172,173.
· There should be an up-to-date FRA the LPA has not asked for a FRA or a sequential test even though the Flood Zone has changed. The EA have pointed out that this is a requirement.
Road Safety issues
· Lack of car parking – doesn’t meet standards- every dwelling should have 2 spaces.
· Will exacerbate to Traffic problems on church lane and conflict with parking at the church.
· Some plots only have as single parking space.
· Pedestrian access to some plots removed and will be harder to reach open space areas.
Procedure
· Locals notified of all previous applications but not this one.
· no wider consultation with the community
· Disagree these are minor amendments- should be a fresh full application.
· Request to be heard by committee.
Amenity
· Police require changes to boundaries for security.
· Development is closer to existing houses.
In addition, one letter of support was received with no comments.
8.0 Environment Impact Assessment (EIA)
9.0 Main Issues
9.1. The key considerations in the assessment of this application:
· The principle of the development
· Highway Safety
· Character and Appearance of the Area and on Heritage Assets
· Residential Amenity
· Affordable Housing
· Conditions to be amended
· Deed of Variation to the S106
· Other Matters
10.0 ASSESSMENT
Principle of Development
10.1. It is noted that those writing in objection to the scheme have requested that other issues are included for consideration on this application. This is not a fresh or new full application, and the principle of the development cannot be reconsidered. The Town and Country Planning Act 1990 Section 73 allows for applications to be made to continue to carry out development without complying with conditions previously attached to a grant of planning permission. Paragraph (2) of Section 73 states “On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and —
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.”
10.2. Therefore, the principle of this development has already been established though the outline permission and the reserved matters application. The development has already commenced, and the fallback position is that the existing permission is extant and could be completed at any time. As such the only consideration of this application is in relation to the conditions of the approval and the impact the proposed variations would have. In this case the issues are those relating to the differences in design of the houses and road details.
10.3 The Government in the Ministerial statement by the Ministry of Housing, Communities and Local Government of 30 July 2024 announced their intention to reform the planning system. Such Ministerial statements can be material to the determination of planning applications. This includes, inter alia, reversing the wider changes made to the NPPF in December 2023 and restoring the standard method as the required approach for assessing housing need ensuring local plans are ambitious to deliver the Government’s commitment to building 1.5 million new homes over the next five years. Clear emphasis is placed on the importance of the plan making system to achieve universal coverage of ‘ambitious’ local plans. There is an intention to introduce a Planning and Infrastructure Bill in the first session as well as longer-term housing strategy to address the identified housing crisis. The Government published a consultation to seek views on the proposed reforms to the planning system and National Planning Policy Framework on 30 July 2024, which is live until September 24th. As such, whilst the Ministerial statement is acknowledged, it is noted that the December 2023 iteration of the NPPF remains until such time as revised legislation is passed and/or policy is published.
Section 149 of The Equality Act 2010
10.4. Under Section 149 of The Equality Act 2010 Local Planning Authorities must have due regard to the following when making decisions: (i) eliminating discrimination, harassment and victimisation; (ii) advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and (iii) fostering good relations between persons who share a relevant protected characteristic and persons who do not share it. The protected characteristics are age (normally young or older people), disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation.
10.5. The development of the site for residential purposes would not result in a negative effect on any persons or on persons with The Equality Act 2010 protected characteristics and could in the longer term have a positive effect.
Highways Safety
10.6. Policy in respect to highway safety and capacity is provided by SDLP Policies ENV1 (2), T1 and T2 and criterion f) of Core Strategy Policy SP15. The aims of these policies accord with paragraph 14 (b) of the NPPF which states that development should ensure that safe and suitable access can be achieved for all users to a site. In addition, paragraph 115 which advises that development should only be refused (on highway grounds) where it would result in an unacceptable impact on highway safety.
10.7. The access to the site from Church Lane and the Emergency access from Main Street have all been established through the outline permission and reserved matters application. Conditions have been discharged in relation to these details. No changes are proposed to these elements, and these are not matters for re-consideration.
10.8. The main changes proposed are to the internal road standards. The route and layout arrangement of the scheme remains very similar. The difference is in the road standards. On the appeal approval, revised plans were submitted through the appeal process which provided for narrower, informal roads in some sections which would not be of adoptable standards. The conditions relating to these road details required fully detailed drawings to be agreed by the Highway Authority. This was achieved but sections of the internal roads would remain unadopted and private.
10.9. However, when reversion to the original approved road layout was discussed with the Highways Authority for this submission, it was indicated that the Highway Authority has serious concerns regarding the previously approved plan, specifically related to the absence of a turning head. Without a turning head, any refuse or delivery vehicles accessing plots at the western end would need to reverse a long way back. This situation raised several issues:
· Safety Risks: Reversing long distances of approx. 200m increases the risk of accidents, particularly for larger vehicles such as refuse and delivery trucks/van. This is especially concerning in residential areas where children and pedestrians may be present.
· Refuse Vehicle Limitation: Refuse vehicles are typically only allowed to reverse for a maximum distance of 10 metres. This significantly limits their manoeuvrability within the approved plan.
· Pedestrian Consideration: Pedestrians are expected to wheel their bins for a maximum distance of 36 meters. The current layout may force residents to exceed this distance, leading to potential inconvenience and non-compliance with standard guidelines.
· Emergency Vehicle Access: The current layout may hinder the access and manoeuvrability of emergency vehicles. In the event of an emergency, this could delay critical services, putting residents at greater risk.
· Difficulties achieving access to dwellings for deliveries and removal lorries.
The Highway Authority would now require a Road Safety Audit on the appeal road layout which would raise the above several concerns. The lack of a turning head poses significant safety risks and operational challenges that would be highlighted in such an audit.
10.10. In view of the above, the application has been amended to retain as much of the approved layout as possible whilst retaining the informal narrower road layout in the southwest section where it impacts on the setting of the Grade I Listed Church. The amended layout received was as a result of meetings and discussions with the Highway Authority. It is noted that objectors raise concerns about inadequate parking provision and the impact this may have on the surrounding roads particularly in the vicinity of the school and the church. However, the Highway Authority has no objections to the latest revisions on either parking or road safety matters. The visual impact on the character of the area and on Heritage Assets is discussed in the next section. However, subject to the above the revisions are considered acceptable in terms of highways safety and in accordance with Policies ENV1 (2), T1 and T2 of the Selby District Local Plan and with the NPPF.
Design and Impact on the Character and Appearance of the Area and on Heritage Assets
10.11. Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 requires that special attention is paid in the exercise of planning functions to the desirability of preserving the Listed Building(s) or its setting or any features of special architectural or historic interest which it possesses.
10.12. Core Strategy Policy SP18 seeks to protect (amongst other things) local distinctiveness. ENV 1 of the Local Plan is also relevant and SP19 seek to ensure all new development contributes to enhancing community cohesion by achieving high quality design and have regard to local character, identity and context of surroundings including historic townscapes settlement patterns and the open countryside.
10.13. The adopted Church Fenton Neighbourhood Plan forms part of the Development Plan. Policy H1 sets out the type, size and scale of new housing development. Policy H2 sets out the design principles new developments should comply with. Policy H3 seeks to govern the location of new housing. These policies are noted. However, in this instance there is an extant permission that establishes the principle of development of the land and that has been implemented. Further, this current application is submitted under Section 73 of the Town and Country Planning Act to vary conditions associated with the extant permission by proposing to make amendments to elements of the detailed design. Therefore, while noting the intentions of policies H1, H2 and H3, given the planning position of this site established through the outline consent and the reserved matters, they would be more relevant if the principle of this development was being re-considered.
10.14. The key heritage assets in this case are the Grade I Listed Church of St Marys set within its churchyard set a focal point in the village on the edge of the settlement with views of the church from the east along the PROW and surrounding open countryside. Additionally, the setting of Grade II Listed Old Vicarage and the Croft to the north were considered important and the need to maintain the open space with footpath links between them and the church and to preserve this setting.
10.15. The Reserved Matters application began with a scheme which almost entirely filled the red line area with housing engulfing the church but was substantially improved and amended beyond its original submission prior to determination. A scheme was recommended for approval at a committee meeting in February 2020. However, the Council refused the Reserved Matters application specifically related to the design details. The main concern was to try and move further away from a standard housing estate dominated by roads and repeat standard house designs at odds with the quality, variation and characteristics of the surrounding local character and which was considered to be harmful to the setting of the Grade I listed Church and other nearby Listed Buildings.
10.16. A revised scheme was submitted through the appeal process. The key changes on the appeal scheme from the refused application included the following:
· Landscape buffer facing church increased (Plots 1 & 22-31 moved north).
· Road serving Plots key plots replaced with private drive and footpath. This is the row facing south closest to the Grade I Listed Church.
· Internal road alterations to include informal sections.
· Vehicular access for some plots moved to a rear parking court.
· 'Old Vicarage' footpath reinstated on its historic route.
· Reinforced boundary to south and east with continuous hedge and estate fencing to enclose frontage gardens of the development to give a rural feel to the development.
· Improved design and variety of house types with a wider housing mix of detached, semi-detached and terrace units focusing on features such as fenestration, variation of eaves and ridge heights, porches and chimneys to provide more varied street scenes.
· Redesign of boundary treatments to include extensive native hedgerow planting.
10.17. These main changes provided for a less formal road layout in the southwest corner within the closest setting of the church and the incorporation of variations to the house types and sizes to include terraces, semi-detached, parking courts and varying design features added to standard house types to reflect the mix of housing within the village and respect the characteristics identified in the Church Fenton Village Design statement.
10.18. It should be noted that the original submission for this application provided for a much more standardized estate housing development. The majority of objections received raise concerns about this and the difference with the more sensitively designed varied scheme submitted and approved on the appeal. The disappointment and the concern of the residents prompting the level of objections was justified. Officers have worked with the agents to amend the scheme back to achieve something more similar to the appeal scheme.
10.19. The majority of above fundamental features of the previously agreed scheme are retained in this revised S73 scheme. It is acknowledged that the proposed revisions re-introduce more formal road standards within the internal layout of the scheme. However, this is necessary to achieve a safe development in terms of refuse collection, turning for refuse vehicles and safe access for deliveries and emergency services. These changes have been kept to a minimum with the original layout reverted back to align more with the previous approval in the most sensitive southwest corner near the church. The changes to the internal road standards do provide a clear public benefit in terms of safety to the proposals in this respect to which some weight should be attached. Moreover, the informal road layout with narrow road width has been retained in the southwest corner to protect the setting of the Grade I listed Church. Overall, the changes to the roads still provide for a scheme which is an improvement on the refused scheme, and which represents only minor changes overall to the approved road scheme maintaining the protection to the setting of the most important heritage asset.
10.20. Whilst it is acknowledged that the proposed revision includes a different suite of house types and the variation in house mix has diminished to some degree. However, the scheme does include a similar mix comprising terraces, semi-detached and detached dwellings with similar design variations of form, individual features and materials. The key differences are the increase in the number of detached dwellings and the re-formalisation of parts of the internal road layout. Although there are more detached units, the design varies so that these are not a uniform repeat across the estate. Overall, there is now a much-improved mix of house sizes with 20 x 3-bedroom units, 25 x 4 bedroom units and 10 x 5 bedroom units.
10.21. Attention has been given to providing varied street scenes on the outer edges of the development to integrate with the village and ensure the scheme does not appear as uniform rows of estate dwellings. The variety of house types on the southern frontage closest to the Church includes a short row of 4 terrace units, and detached housing of varying size, form and materials and spacing between to create interest and variety to this new street scene. Materials are a mix of different brick and tiles with some rendered dwellings. Parking for three of the terraces would be from an internal parking courtyard accessed from the estate road to the north thus reducing the visible harm of parking at the front of dwellings. Front gardens in this section would be enclosed with hedgerows. The revised scheme in this respect retains the important features of the approved scheme to create an attractive street scene in the vicinity of the church. As such it is considered that here is no increased harm to the setting of the Listed Church or the other listed buildings as the open area and links provided on the approved scheme have been retained.
10.22. It is considered that the scheme provides for a good mix of house types, designs with sufficient variation in form and materials to reflect the mix of dwellings in the neighbourhood. Overall, the difference between the proposed scheme and the approved scheme can be considered minor in nature.
10.23. It is concluded that the proposal would not harm the character or appearance of the area and would not conflict with LP Policy ENV1, CS Policy SP19, and H2 of the CFNP.
10.25. With the revised scheme, the above assessment does not change. In terms of the statutory duty to S66 special attention has been paid to the desirability to preserve the Listed Building. In this respect the development would not cause any harm to the fabric of the Church or other listed buildings themselves. There is clearly a degree of harm to the setting of the listed buildings which is still considered to be less than substantial in the terms of the NPPF framework. In relation to this scheme there is minor increased harm from the formalisation of some of the internal road provision, but this is balanced out by the public benefit to the future occupants in the provision of a safe development with adequate turning for refuse and emergency services within the site. The previously assessed benefits as identified by the Inspector on the appeal remain unchanged. The housing mix has changed but the overall design is sympathetic to the surrounding area and sensitive in those areas within the setting of the Listed Buildings. As such the degree of harm remains at the lower end of the spectrum of ‘less than substantial’ in the terms of the NPPF framework. Overall, the cumulative public benefits still outweigh the harm which has been identified.
10.26. The revised development is therefore acceptable and would not conflict with Policies SP18 and SP19 of the Core Strategy, ENV1 of the Local Plan and H1 and H2 of the CFNP. Due regard has been given to the special duty of Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
Residential Amenity
10.27. Policy in respect to impacts on neighbour amenity and securing a good standard of residential amenity are provided by Local Plan Policy ENV1 (1) and (4) and Core Strategy Policy SP19. In addition, paragraph 135(f) of the NPPF encourages the creation of places which are safe, inclusive and accessible, promoting well-being ‘with a high standard of amenity.’
10.28. To the north and west of the application site are existing residential properties fronting onto Main Street and Church Lane. The land to the south and east is undeveloped open countryside.
10.29. Given the size, siting and design of the proposed dwellings and their relationship to neighbouring residential properties outside the application site, it is not considered that the proposals would result in any increased adverse effects of overlooking, overshadowing or oppression on the residential amenities of any neighbouring residential properties outside the application site. The distances between the new dwellings and existing dwellings more than meets the minimum separation distance requirements. The spacing between new dwellings has been maintained so as not to increase any harm the amenity of adjoining dwellings.
10.30. Given the layout, scale, appearance and landscaping of the proposed dwellings, it is not considered that the proposals would result in any adverse effects of overlooking, overshadowing or oppression on the residential amenities of any residential properties within the application site. Furthermore, the proposed dwellings would each benefit from an adequate amount of useable external amenity space for the occupiers of the proposed dwelling.
10.31. Having regard to the above, it is considered that the proposals are acceptable in terms of residential amenity in accordance with Policy ENV1 (1) of the Selby District Local Plan, SP19 of the Core Strategy and within the NPPF.
10.32. In light of the above, it has been demonstrated that the proposal would not contravene Convention rights contained in the Human Rights Act 1998 in terms of the right to private and family life.
Affordable Housing
10.33. Core Strategy Policy SP9 and the accompanying Affordable Housing Supplementary Planning Document (SPD) sets out the affordable housing policy context for the District. Policy SP9 outlines that for schemes of less than 10 units or less than 0.3ha a fixed sum will be sought to provide affordable housing within the District.
10.34. Affordable housing was secured via a Section 106 agreement on the outline permission and was subject to a viability appraisal on the RM application. An updated affordable housing plan provides for a terrace of 3 x 3 bed units for social rented and a pair of 3 bed semis for shared ownership. This is in accordance with the provision of the deed of variation to the S106 agreed on appeal.
10.35. The provision was previously agreed at 5 units, and these are integrated within the housing layout in two separate locations. The Council’s Rural Housing Enabler has been consulted on the updated proposals but raised no objections to the submitted details provided this does not change the agreed provision. The scheme is acceptable in this respect.
10.36. It is therefore considered that having had regard to Policy SP9 of the Core Strategy, the Affordable Housing SPD and the advice contained within the NPPF, on balance, the application is acceptable without a contribution for affordable housing.
Conditions to be amended
10.28 Where an application under section 73 is granted, the effect is the issue of a new planning permission, sitting alongside the original permission, which remains intact and unamended. A decision notice describing the new permission is issued, setting out all the conditions related to it. To assist with clarity decision notices for the grant of planning permission under section 73 should also repeat the relevant conditions from the original planning permission unless they have already been discharged.
10.29. This application seeks to vary conditions associated with the approved reserved matters (RM) approval allowed on appeal (application reference 2017/0736/REMM); specifically, those conditions which include plan references. The main changes are to the house types and to the road standards to afford adequate width and turning for refuse vehicles and emergency vehicles. All other aspects of the scheme remain unchanged. The intention is to change the wording of the conditions and the S106 only with respect to the plan reference numbers and to reflect in the new permission all conditions associated with the original Reserved Matters permission. These will be re-attached and those with the revised plans will require further discharge.
10.30. As the development has already commenced, the wording on any pre-commencement condition which has already been discharged with the original plans will need to be varied to include the revised plan reference and to substitute ‘no development shall commence’ with ‘no further’ development should commence until the varied condition with the substitute plans has been discharged.
10.31. Given the wording of the RM decision notice, it is necessary to vary a number of conditions to incorporate the above wording and to reflect the revised plan reference; on condition 1, 3, 6, 7 and 8. These conditions all reference specific approved plans which will need to be changed as a result of the plan swap. The application does not seek to change the purpose or intention of the conditions as written. The proposed variation to the conditions is summarised as follows.
Condition 1 Approved Plans
10.32. The RM condition required that the development permitted shall be carried out in accordance with a list of plans/drawings: The list comprised all layout plans, affordable housing plan, areas plan, emergency access plan, massing plan. Materials plan, street scenes, landscape master plan, landscape details, House Plot types (Plans and Elevations), Garage Plot types (plans and elevations), Boundary treatments and substation plans.
10.33. The variation to the condition would be to substitute the approved plan references for the plan references now proposed.
Condition 3 Landscaping
10.34. Condition 3 of the RM relates to landscaping. It referenced the Landscape Master Plan and required the development not to commence until a fully detailed landscaping plan and tree and shrub planting scheme for the site was submitted and approved in writing. It provided a list of other details to submit. The only change proposed to this condition is the new reference number of the landscape masterplan with no other change to the requirements or wording. The condition has been discharged for the previous scheme but will need to be re-discharged.
Condition 6 Areas Plan
10.35. Condition 6 is a compliance condition which referenced the Areas Plan requiring the area to the south and east of the access road shown on the areas plan described as “Existing arable land to be retained and managed by the current landowner” and shown hatched by brown diagonal lines, shall be used only for agricultural purposes only. The proposal is to substitute the condition with the new revised Areas Plan reference. No other change wording or to the intention of the Areas is proposed.
Condition 7 Boundary Treatments to specific plot numbers
10.36. Condition 7 required specific boundary treatments to certain plots to increase security. The plot numbers need to be changed and the condition re-discharged.
Condition 8 Emergency Access
10.37. Condition 8 relates to the emergency access plan and requires the development not to commence until full details to be submitted and agreed. The proposed change to this condition is the substituted plan reference and for the condition to be re-discharged.
Deed of Variation to the S106 (DOV)
10.38. The RM Appeal was granted subject to a DOV. A new additional deed of variation will be required to link this S73 permission to the provisions of the original S106 and the RM DOV substituting the revised plan references included within it for the new plan references. The existing DOV covers the amount, type and timing of the AH provision, Open Space provision and Recreation Open Space provision.
Other Matters
10.39. Objectors raise issue in relation to Flood risk. This cannot be raised on this application. The matter was an issue at the Planning Appeal and was the subject of multiple legal opinions. The Inspector provided a ruling setting out that on the question of flood risk, in principle or by way of condition, it is not a matter that can be considered on the RM application as it was dealt with at the outline stage.
10.40. If the permission had lapsed and we were considering the case afresh this might be the case. However, we are not. A technical commencement has been made on the development and the existing permission approved under the outline and reserved matters remains extant and can be completed at any time. This S73 application seeks only to vary some of the house designs and road standards which have already been approved under the reserved matters. However, as discussed at 10.1, 10.2 and 10.12 above, the principle of the development on this site is established and therefore the only conditions which could be imposed are those which directly relate to the matters reserved. No changes in level are proposed as part of this submission and condition 24 of the Outline consent requires there to be no raising of ground levels within Flood Zone 2.
10.41. In terms of drainage and surface water, details have been submitted and approved under discharge of condition applications and are not matters for consideration on this application.
10.42. In terms of procedural matters, objectors have complained about not being individually notified by letter when they were notified on the original scheme. However, the development has been advertised in accordance with the requirements of the Development Management Procedure Order which requires either a site notice OR notification of adjoining occupiers. This is in full accordance with the NYC Statement of Community Involvement February 2024 which sets out at Para 3.28, the publicity for planning applications. The Council did previously notify adjoining land owners but has not done so for many years now. The statutory requirement was fulfilled by the erection of site notices. Several were put up around this site. It was also advertised in a local newspaper on 4th April 2024.
11.0 PLANNING BALANCE AND CONCLUSION
11.1. The original reserved matters scheme 2017/0736/REMM was submitted on behalf of Strata Homes. However, the site has now been acquired by Yorkshire Country Properties who seek to vary the conditions associated with the approval of reserved matters, specifically those conditions which reference approved plans. The proposed changes are to the house types which reflect those of the new developer and changes to the standards of parts of the internal road layout.
11.2. The principle of this development has already been established thought the outline permission and the reserved matters application. The development has already commenced, and the fallback position is that the existing permission is extant and could be completed at any time. As such the only consideration of this application is in relation to the conditions of the approval and the impact the proposed variations would have. The impacts of the differences between the approved and the proposed scheme are considered.
11.3. The key issues are the impact of the changes on the character and appearance of the locality, the Heritage Assets which include the nearby Grade I Listed Church of St Marys and nearby Grade II listed buildings including the Old Vicarage and the historic footpath links and open space between them. Other considerations related to the changes include Highway Safety, Residential Amenity, Affordable Housing, variations to the condition wording, the need for a new Deed of Variation to link this new permission with revised plan numbers to the S106 requirements.
11.4. The harm to the Heritage Assets of the approved scheme is assessed as less than substantial, in the language of the NPPF framework with the harm being at the lower end of the spectrum. Great weight was attributed to this harm but weighed against the public benefits of the provision of housing boosting the supply of homes, to which significant weigh was attributed. Further benefits in the form of affordable housing were attributed and some weight in the provision of recreation open space for existing and proposed residents. Added to this was the limited weigh of the economic benefits from construction in the short term. Overall, the cumulative benefits clearly outweighed the heritage harm.
11.5. With the revised scheme, the above assessment does not change. There is minor increased harm from the formalisation of some of the internal road provision, but this is balanced out by the public benefit to the future occupants in the provision of a safe development with adequate turning for refuse and emergency services within the site. The housing mix has changed but the overall design is sympathetic to the surrounding area and sensitive in those areas within the setting of the Listed Buildings. As such the degree of harm remains at the lower end of the spectrum of ‘less than substantial’ in the terms of the NPPF framework. The revised development is therefore acceptable and would not conflict with Policies SP18 of the Core Strategy.
11.6. No other harm is identified arising from the changes to the character and appearance of the locality, Residential Amenity, Affordable Housing provision or Highway Safety.
11.7. Having regard to the above, on balance it is considered that the proposals are acceptable subject to the revised conditions and the completion of a new deed of variation to link the permission to the S106 Agreement and to reflect the revised plans.
12.0 RECOMMENDATION
12.1 That planning permission be GRANTED subject to conditions listed below and prior completion of a Deed of Variation as described above.
Recommended conditions:
1. The development hereby permitted shall be carried out in accordance with the following plans/drawings:
Proposed Site Layout 1331.05 K
Landscape Masterplan 24 5705 100 D
Landscape Details 24 5705 101 B
Proposed Areas Plan 1331.06 K
Affordable Housing Plan 1331.07 L
Proposed Boundary Treatments Plan 1331.08 K
Proposed Massing Plan 1331.09 K
Proposed Materials Layout 1331.10 L
Proposed Streetscapes 1331.12 C
Proposed Streetscape D-D 1331.13
1200mm Estate Railing 1331.56 16/07/2024
T1 (Semi-detached) Plans 1331.50
T1 (Semi-detached) Elevations 1331.51 29/05/2024
T2 (Terrace x3) Plans 1331.52 29/05/2024
T2 (Terrace x3) Elevations 1331.53 29/05/2024
T3 (Semi-detached) Plans 1331.54 29/05/2024
Stock Proof 1375mm High Post & Rail Fence 1331.55
T3 (Semi-detached) Elevations 1331.55
T4 (Semi-detached) Plans 1331.56 A
T4 (Semi-detached) Elevations 1331.57 A
T5 Plans 1331.58
T5 Elevations 1331.59
T6 Plans 1331.60
T6 Elevations 1331.61
T7 Plans 1331.62
T7 Elevations 1331.63
T8 Plans 1331.64
T8 Elevations 1331.65
T9 Plans 1331.66
T9 Elevations 1331.67
T10 Plans 1331.68
T10 Elevations 1331.69
T11 Plans 1331.70
T11 Elevations 1331.71
T12 Plans 1331.72
T12 Elevations 1331.73
T13 Plans 1331.74
T13 Elevations 1331.75
T14 Plans 1331.76
T14 Elevations 1331.77
T15 Plans 1331.78
T15 Elevations 1331.79
T16 Plans 1331.80
T16 Elevations 1331.81
T17 Plans 1331.82
T17 Elevations 1331.83
T18 Plans 1331.84
T18 Elevations 1331.85
T19 Plans 1331.86
T19 Elevations 1331.87
T20 Plans 1331.88
T20 Elevations 1331.89
T21 Plans 1331.90
T21 Elevations 1331.91
T22 Plans 1331.92
T22 Elevations 1331.93
T23 Plans 1331.94
T23 Elevations 1331.95
T24 Plans 1331.96
T24 Elevations 1331.97
T25 Plans 1331.98
T25 Elevations 1331.99
T26 Plans 1331.100
T26 Elevations 1331.101 B
T27 Plans 1331.102
T27 Elevations 1331.103
T28 Plans 1331.104
T28 Elevations 1331.105
T29 Plans 1331.106
T29 Elevations 1331.107
Single Garage 1331.108
Shared Double Garage 1331.109
Double Garage (Hipped) 1331.110
Double Garage (Gable) 1331.111
Sales Double Garage 1331.112 B
T30 Plans 1331.113
T30 Elevations 1331.114 A
T31 Plans 1331.115
T31 Elevations 1331.116
Reason:
For the avoidance of doubt.
2. Notwithstanding the Materials Plan, no development above foundation level shall commence until details of the materials to be used in the construction of the exterior walls, window materials and roofs of the development have been submitted to and approved in writing by the Local planning authority, and only the approved materials shall be used.
Reason:
In the interests of visual amenity.
3. Notwithstanding the Landscape Master Plan (24 5705 100 D), Landscape Details, (24 5705 101B) and the Areas Plan (1331.06 K), no further development shall commence until a full detailed landscaping scheme and tree and shrub planting scheme for all the Public Open Space areas as indicated on the Areas Plan, has been submitted, together with a Phasing Plan for the implementation of both the landscaping scheme within the housing development area and the Public Open Space Areas has been submitted to and agreed in writing with the Local planning authority. The scheme shall include:
• Identification of all existing trees and shrubs on site to be retained setting out measures for their protection throughout the course of development.
• Details of the species, location, planting density and stock size in respect of all tree and shrub planting.
• Details of replacement hedge planting at the main access to Church Lane.
• Details of the surface materials of the footpaths.
• Details of the benches and bins and any other street furniture.
• Details of the Suds drainage basin area (including cross sections) which should provide for a basin that can be integrated into an area of public open space without the need for fencing to ensure safety.
• Details of stockproof fencing where the site adjoins open fields to the east.
• Details of the measures for the management and maintenance of the approved landscaping.
• Details of the proposed open space land management regime.
All planting, seeding, or turfing shall be carried out prior to occupation of 50% of the dwellings. Any trees or shrubs which die, are removed, or become seriously damaged or diseased within the first five years following completion of the development shall be replaced in the next planting season with others of similar size and species.
Reason:
In the interests of the overall appearance of the development.
4. The site layout shall incorporate the following measures;
• All access roads shall be constructed with speed humps or raised tables the details of which will have received the prior written approval of the Local planning authority.
• Plots with integral garages shall be set back to ensure a minimum of 6 metres drive length between the back of the footway and the garage door.
• All boundary details should not be greater than 600mm above road level for a distance of 2 metres back from the rear of the footway.
• •Trees should not be planted within 1.5m of any footway and 2.5 metres of any road.
Reason:
To ensure highway safety.
5. The development shall take place in full accordance with the recommendations and measures advised in sections 1.4, 1.5 and 1.6 of the Geo-environmental Appraisal by Lithos dated June 2017.
Reason:
To minimise the risk of harm to health, property and infrastructure.
6. The area to the south and east of the access road shown on the Areas Plan Referenced 1331.06 K described as “Existing arable land to be retained and managed by the current landowner” and shown hatched by brown diagonal lines, shall be used only for agricultural purposes only.
Reason :
In the interests of the character and appearance of the area and so as to maintain the setting of the church.
7. Notwithstanding the submitted layout plan, no further development shall take place before details of the following have been submitted to and approved in writing by the Local planning authority:
• Details of the boundary treatment to plot 50 to include supplementary planting on the outside of the boundary fencing shared with the open space.
• Details of the boundary treatment to clearly demarcate the boundaries between Plots 7 & 8, 2,3,& 4, 32 & 33, 22 & 23, 16,17 & 18.
• Details of the boundary treatment to plots 25, 26, 27, 28 & 29, 30 & 31, 17 & 18 shall include the erection of a 1.8m high visually permeable gate with a key operated lock fitted.
The development shall be carried out in accordance with the approved details and retained as approved.
Reason:
In the interests of the appearance of the development and the surrounding area and in the interests of highway safety.
8. Notwithstanding the details shown on the submitted plan, the development shall be carried out in full accordance with the Emergency Access Detail Plan Reference: E21/7887/036B Revision B, which shows a 2 metres wide footway and 1.7 metre wide grasscrete area making up together a 3.7m wide emergency access which was approved under 2022/0835/DOC on 14 October 2022 and under 2022/0851/DOC approved 26 April 2023. The approved emergency access shall be implemented in accordance with the approved details and used only for emergency vehicles and shall be kept closed and locked at all other times.
Reason:
So as to prevent use by other vehicles in accordance with the submitted proposal.
9. All further development must be carried out in accordance with the Construction Management Plan Revision B and the details submitted and approved on 6 April 2023 under the discharge of condition application Reference 2022/1003/DOC.
Reason:
To protect the amenity and safety of local residents.
Target Determination Date: 31/08/2024
Case Officer: fiona.ellwood@northyorks.gov.uk
Appendix A – Proposed Layout Plan