It took nearly 5,000 words to record their debate and opposition, but Fenland District Council planning committee has – yet again – been landed with paying the costs for refusing an application that has been overturned on appeal. It is not the first time this has happened.
And, yet again, the minutes of the meeting which refused the application – against officers’ advise to approve – record legal opinion given to the committee of there being “a risk in these sorts of cases if the evidence is not produced to back up a refusal there may be an award of costs, so the council has to pay not just its own costs but also the appellant’s costs”.
It means A and L Construction Services can go ahead with building a pair of two storey 3 bed semi-detached homes at 113 Elm Low Road, Wisbech, a site which previously had permission for one 4 bed house.
(You can view the full planning committee agenda via this link and follow the meeting via the YouTube link )
https://www.youtube.com/live/vSvlm03vGU4?si=ALgmesZ6gug_MjLQ
https://moderngov.fenland.gov.uk/ieListDocuments.aspx?CId=137&MId=2955
Planning inspector M Clowes, in upholding the appeal, ruled that the applicant could retrieve partial costs.
“The applicant’s cost claim is made on the basis that the council has failed to provide evidence to substantiate its reasons for refusal,” he said.
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“In determining the planning application, the planning committee as the decision maker is not bound to accept the recommendation of its officers. However, it is required to give clear, substantiated reasons for its decision.”
Site of proposed development at 113 Elm Low Road, Wisbech IMAGE: GoogleThe application was refused on the grounds of:
1: The development proposed by virtue of its form, design and scale would result in the overdevelopment of the site, appearing crammed and out of keeping with this prevailing character and failing to make a positive contribution to the local distinctiveness and character of the area
2: The scale and proximity of the proposed development to the side windows of 111 Elm Low Road would have an adverse impact upon the residential amenity of the occupiers of this property due to the loss of light to these windows.
Mr Clowes said the second reason for refusal related to the effect of the development on the living conditions of the occupiers of No 111 Elm Low Road, with particular regard to a loss of light.
“The committee meeting minutes make only vague reference to a concern regarding the overshadowing of the bungalow, without any detailed explanation of why this was considered to be the case,” he said.
“Furthermore, there was no apparent consideration of the extant approval for a single dwelling that would occupy a very similar position and be of a similar height and scale to the proposal.
“The brevity of the council’s appeal statement does not provide any substantive clarification or explanation as to why the proposal was considered materially worse than the fallback position.
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“Based on the evidence before me, it seems that with regard to the second reason for refusal, the council relied on vague and generalised assertions which are unsupported by any objective analysis of the appeal proposal, or the previous approval which formed a material consideration.
“An appeal may not have been avoided in its entirety. However, I find that unreasonable behaviour has occurred from the council’s failure to properly consider and substantiate the effect of the proposal on the living conditions of neighbouring occupiers.”
Site of proposed development at 113 Elm Low Road, Wisbech IMAGE: Google
He added: “The applicant has incurred costs in having to defend this aspect of the appeal. I find that unreasonable behaviour resulting in unnecessary expense as described in the PPG, has been demonstrated.
“A partial award of costs in respect of the second reason for refusal only, is justified in this instance.”
He said the two parties would have to agree the amount of costs.
In his appeal judgement he referred to the site “as an undeveloped plot of land, it appears as an anomaly within an otherwise built-up frontage.
“The scale of development would provide an appropriate transition from the lower bungalow of No 111 Elm Low Road and the larger, taller dwelling of No 115. Set back in a manner consistent with the neighbouring dwellings, the scheme provides for an appropriate level of on-plot car parking and good-sized rear gardens suitable for family-sized dwellings.
“Access routes to either side of the building would further help to maintain a sense of space between it and adjacent dwellings.”
“There is no compelling evidence before me to demonstrate that in this instance the occupation of 2 dwellings would be significantly different from the occupation of a single dwelling, given that it could be occupied by a large family including adult children.
“Even if I could accept that there was an intensification of use, it would be unlikely to be readily discernible given the steady vehicular and pedestrian activity along Elm Low Road that I observed during my visit.
“The loss of the hedgerow is unfortunate. However, its loss would not be significantly detrimental to the appearance of the street scene, given that paved front gardens and hard boundaries are a local feature.”
Ironically the planning committee of Wisbech town council approved the application although 3 councillors wrote to Fenland District Council opposing it.
Site of proposed development at 113 Elm Low Road, Wisbech IMAGE: GoogleWisbech Town Council said it did not share the opinion of the local planning authority that Elm Low Road is characterised by bungalows and detached houses.
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“The council is of the opinion that there is a mix of dwelling type and, consequently, this proposal is neither out of keeping with the existing development on Elm Low Road nor would it have an adverse effect upon the street scene and the settlement pattern of the surrounding area,” the town council planning committee said.
“Wisbech Town Council supports this planning application.”
Cllr Sam Hoy of Wisbech, however, told Fenland Council that “I would like to object to this due to overdevelopment I have no issue with one dwelling which there is already permission for but two is overdevelopment and not in keeping with the street scene as all other places down there are single plots”.
Cllr Steve Tierney, also of Wisbech, told FDC: “I am one of the three district councillors for the area. I would like to raise an objection to this application.
“Although previous applications on the same plot were approved, this one is different as it is for two houses instead of one and is therefore overdevelopment of the plot, in my opinion, and not in keeping with the rest of the road.
“If officers are minded to refuse, then fine. If not, I’d like to call this one in to the committee please.”
Cllr Susan Wallwork, also of Wisbech, emailed FDC to say: “Hello, I would like to echo Cllr Tierney’s thoughts and request in relation to this planning application.”
Planning committee minutes that refused the application record that the applicant’s agent David Rowen “stated that his advice to committee would be that if the committee wants to refuse the application it is within their gift to do so but any subsequent appeal is going to be somewhat difficult to defend”.
