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16/01376/B
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PLANNING OFFICER REPORT AND RECOMMENDATIONS
Application No. : 16/01376/B Applicant : Mr James Cubbon Proposal : Landscaping works to create memorial garden including walls, paths, seating area and off road parking Site Address : Field 333144 East Foxdale Road Foxdale Isle Of Man
Case Officer : Mr Edmond Riley Photo Taken : 01.02.2017 Site Visit : 01.02.2017 Expected Decision Level : Officer Delegation
Officer’s Report
1.0 THE APPLICATION SITE
1.1 The application site is an irregularly shaped parcel of land, comprised of part of Field 333144, which is bounded to the north by the A24 highway and to the east and southeast by Billy Goat Hill, to the east of Foxdale. Edged blue on the application drawings is further land to the west and east, with the latter larger comprising the residential curtilage of the dwelling known as 'The Deads', which is nearing completion.
1.2 The application site has a pair of stone buttresses situated southwest of the centre of the site, which is also the highest part of the site. Though once noticeably proud of the land surrounding them, they are now almost entirely imperceptible due to the placing of spoil around them. The land slopes downwards from this point in all directions, although to a greater or lesser degree across the site - the highest part of the site is 142m above sea level, and while this drops to 136m above sea level to the north it only falls to 140m above sea level to the east. To the east of the buttresses is an almost triangular (but certainly naturally formed) pond, while there are three isolated trees in the vicinity of this pond.
1.3 The site itself is quite varied in appearance, with self-set scrub-like vegetation the dominant feature. The northwestern area adjacent to the junctions of the A24 and Billy Goat Hill is mound- like and apparently unnaturally formed, though it too has been colonised by what appears to be a mixture of grasses. It is not readily visible from public viewpoints with the exception of the adjacent highways: it is visible on the A24 as far as the public footpath near to the curtilage of the dwelling known as 'Mana'. It is slightly apparent from the Lhoobs Road at a distance.
2.0 THE PROPOSAL
2.1 Full planning approval is sought to create a memorial garden on the site. The highway- facing parts of the site would have Manx stone walls, 1.4m in height, erected in an irregular line. The existing stone buttresses, such as they can be seen, would have similarly sized walling installed around their edges, with a pair of memorial benches sited on each. A footpath would gently zigzag through the site, from the access at the junction of the A24 and Billy Goat Hill, up to the buttresses, between them, and then finishing at an arear of proposed tarmac-finished parking area, accessed off Billy Goat Hill. Seven cars could park here. The footpath would be finished with self-binding gravel.
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2.2 Presumably in order to more clearly and specifically define the seating area as the highest part of the site, some of the earth / spoil would be removed. However, these works are fairly minor relative to the much more significant works undertaken in the area as part of the recent reclamation works. No other change is proposed to the finish or appearance of the site.
3.0 THE DEVELOPMENT PLAN
The Foxdale Local Plan
3.1 The site is designated as "Area for reclamation" on the Foxdale Local Plan of 1999. Although previous reports on applications for the area have made reference to sites of interest for nature conservation (Hawkweed Hierarcium and Rosa rugosa) these do not appear to be on the current application site.
3.2 Paragraph 2.0 of the Local Plan states:
"Foxdale is, in some parts, still characterised by views of large areas of spoil and the remnants of mining structures which not only blot the landscape, but post a potential environmental hazard. Any study which looks at the village must as a priority consider how best to confront these challenges whilst recognizing, and where appropriate protecting, the village's existing assets and valuable characteristics."
3.3 The Plan included reference to a number of studies which were undertaken into the contamination of the former mining area and concluded that the study area accommodated three heavily contaminated sites directly related to the presence of mine workings; the application site sits atop the Louisa Mine site and is described in paragraph 2.11 as:
"perhaps the most in need of restoration of all those identified in the Wolverhampton Study as it is so close to the highway and is very open with little in the way of roadside hedging so that the ground itself and the remnants of the mining apparatus - the old chute, concrete buddle and wheelcase etc - may be seen by the passing public. The site does, however also have much to offer in terms of natural and archaeological interest: naturally in terms of species of flora and habitat which currently exist and that which could be restored by reducing or eliminating the possibility and continuation of exposure and spread of contaminated material and also by creating another part of a wildlife corridor, possibly linked to the adjacent Kionslieau Dam which is rich in ecological interest" (paragraph 2.11).
3.4 The Plan goes on to state:
"The Louisa Mine site is not visually an integral part of the village; rather it forms part of the wider periphery or backdrop to the village and in this respect it is suggested that the site is not suitable in its entirety for the development of built structures. This has significant repercussions for the viability of any reclamation works which themselves are likely to be costly. There may be opportunity, however to develop the westernmost part of the site for housing as tests undertaken subsequent to the Wolverhampton Study have revealed that the level of contamination in this part may not be so high as to preclude such development and after use (see Section 3)" (paragraph 2.12).
3.5 It continues at paragraph 2.13:
"It is suggested that the site should be reclaimed with an end use of Open Space which if properly managed could provide a valuable asset in terms of ecological and archaeological conservation for the village and the Island as a whole. The site should be capped at the eastern end around the old reprocessing plant and planting encouraged of indigenous species of gorse, broom, heathers and grasses. The slopes of the western and northern part of the plateau should be remodelled at a lower angle, infilled around the old chute which itself should be removed or buried. The central part should be appropriately landscaped with indigenous species and where possible mining structures
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should as the remnants of the wheelcase and concrete buddle should be retained and preserved. In the western part of the site there is little which needs to be done but should be appropriately managed in view of the botanical and industrial interest. Due to the possible problems of ground stability and hot spots of contamination which may be identified, it is recommended that access by livestock and the public be appropriates restricted."
3.6 The Plan recommends that catchment-wide drainage scheme be formulated for the interplay of drainage water and contaminated spoil. This would be made up of Government departments and agencies. This has never been undertaken and, presumably, owing to the approval of The Deads on the site, it is unlikely to ever occur. A series of policies were adopted in the Local Plan for the different levels of contamination of the wider area. The most heavily contaminated areas were subject to a list of conditions relating to dealing with the contamination, landscaping, drainage and surface materials.
3.7 Paragraph 3.16 goes on:
"Various parts of the village have become contaminated to varying degrees as a result of mining spoil transported around the area by unconstrained surface water flowing over the area. The Wolverhampton Study has recommended that any land which is known to be heavily contaminated should not be used for housing due to the possible risk to health through disturbance of the sub- soils by the creation of gardens, planting etc. There is also a continuing rise in standards applied by the European Community to such matters and there is also a general increase in terms of public expectations for such work. There are, therefore, areas in which residential development should not occur (Fig. 2) to reduce the risk of contamination which might prevail due to bringing contaminated earth into the surface during planting and the creation of gardens. Such pockets as have been identified should be properly capped and sealed and either developed for non-residential purposes in conjunction with specialist advice or sealed/de-toxicated and encouraged to revert back to natural open space."
3.8 The first condition of the development brief for a nearby residential zoning reads as follows:
"Any proposal for development of the site must be accompanied by proposals for the restoration of the Louisa Mine site. The Mine site may only be used, after restoration, as Open Space (paragraph 3.54.1).
The Strategic Plan
3.9 The Strategic Plan was adopted after the Foxdale Local Plan and provides further, general guidance for development on the Island. In view of the references throughout the Foxdale Local Plan to the intention for the wider Louisa Mine site to be used for Open Space, it is considered that the proposal complies with that zoning in principle, and is therefore best assessed against General Policy 2 of the Strategic Plan:
"Development which is in accordance with the land-use zoning and proposals in the appropriate Area Plan and with other policies of this Strategic Plan will normally be permitted, provided that the development:
(a) is in accordance with the design brief in the Area Plan where there is such a brief; (b) respects the site and surroundings in terms of the siting, layout, scale, form, design and landscaping of buildings and the spaces around them; (c) does not affect adversely the character of the surrounding landscape or townscape; (d) does not adversely affect the protected wildlife or locally important habitats on the site or adjacent land, including water courses; (f) incorporates where possible existing topography and landscape features, particularly trees and sod banks; (g) does not affect adversely the amenity of local residents or the character of the locality;
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(h) provides satisfactory amenity standards in itself, including where appropriate safe and convenient access for all highway users, together with adequate parking, servicing and manoeuvring space; (i) does not have an unacceptable effect on road safety or traffic flows on the local highways; (l) is not on contaminated land or subject to unreasonable risk of erosion or flooding."
3.10 The Strategic Plan contains advice about contaminated land and pollution, which is set out below:
"Development will not be permitted where it would be incompatible with an existing use of land. In the case of new residential development, this will not be allowed where properties would suffer unacceptable loss of amenity due to exposure to existing sources of pollution whether this is from noise generation, odours or airborne pollutants such as dust. Not only could this reduce the quality of life of future residents but it could lead to future complaints that may prejudice any future development or expansion of an existing land use" (paragraph 7.19.1).
"Contaminated land on the Island is typically as a result of the legacy of past industrial and chemical land uses. Perhaps the most notable sites are land areas associated with former mining practices and it is not uncommon for such sites to be close to residential areas or watercourses which can be detrimentally affected by such contamination. Foxdale is a prime example of a former mining village, which largely specialised in lead mining during the 19th Century under the control of the Isle of Man Mining Company, and physical evidence can still be found of important archaeological remains. A number of studies have revealed varying degrees of contamination across Higher Foxdale, much of which still requires reclamation from heavy metal contamination. It is recognised, however, that some of the former mining areas host a variety of rare plants which may have ecological value" (paragraph 7.20.1).
"The practice of reclaiming contaminated land and bringing it back into beneficial use is supported, whether it be suitable in the end for open space or residential development or as deemed appropriate in the Area Plans. It is important that however former contaminated land is utilised, both health and property are safeguarded. Detailed surveys may be required to identify the extent of contamination and how contamination problems can be overcome. On sites where the Department has no control, the developer will have responsibility to ensure that any development site is free of contamination which may constitute a hazard to occupiers or potential users of the development or land. Furthermore, precautions will be essential to ensure that contaminants cannot escape from the site which may cause airborne or waterborne pollution or pollution of nearby land" (paragraph 7.20.2).
"In addition to the need for protection there is also a need to carry out enhancements to the natural environment if a sustainable vision for the Isle of Man is to be achieved. Opportunities for environmental enhancement, such as tree planting, the removal of eyesores and the management of habitats will need to be identified in Area Plans with the full involvement and support of local communities. Such opportunities may include former mining areas which have been or are in the process of being reclaimed. Appropriate reclamation should protect or enhance features of industrial or archaeological significance" (paragraph 7.21.1)
3.11 These paragraphs support the wording of the following Environment Policies:
Environment Policy 24: "Pollution-sensitive development will only be allowed to be located close to sources of pollution where appropriate measures can be taken to safeguard amenity.
Environment Policy 26: "Development will not be permitted on or close to contaminated land unless it can be demonstrated that there is no unacceptable risk to health, property or adjacent watercourses."
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Environment Policy 27: "The Department will seek to enhance the natural environment, including sites contaminated by former mine workings, along with other Government Departments, local communities, the private sector and all appropriate agencies in order to ensure the appropriate reclamation, water management, planting of appropriate tree species, the management of special habitats including aquatic habitats and the removal of eyesores."
4.0 PLANNING HISTORY
4.1.1 The application under which The Deads was approved was PA 13/00387/B - this was an amendment to an earlier approval, reference 12/01053/B. The 2012 application contained the following text in the officer's assessment; the application was recommended for approval, a recommendation with which the Planning Committee agreed subject to a number of conditions:
"...it must be borne in mind that the proper reclamation of the site will be a costly exercise which will benefit the wider community of Foxdale with little or no immediate recompense to those funding the works. As such, perhaps it is unrealistic to expect that the site would be restored when there remains a restriction of any development which could help pay for that restoration."
4.1.2 The condition most relevant to note is the tenth one, which was also attached to the 2013 approval, and read as follows:
"The land on the south western side of the road leading to Stoney Mountain Road may be used, after reclamation, as open space and not part of the residential curtilage of the approved dwelling."
4.1.3 The land referred to in the above condition falls within the current application site, but is smaller than it.
4.2 The surrounding land has been the subject of other applications for residential development and the creation of an earth bund, but these were prior to the Strategic Plan adoption and in any case were withdrawn.
5.0 REPRESENTATIONS
5.1 Highway Services of the Department of Infrastructure initially deferred making comment on the application on 13th January 2017, and then on 14th February 2017 commented as follows:
"The proposal is to create a memorial garden with car parking on a plot of land.
"The parking is acceptable and Highway Services do not oppose this application."
5.2 The Fisheries Directorate of the Department requested the applicant send them a 'Development Within 9m of a Watercourse' form on 5th January 2017. Although the Planning & Building Control Directorate has not been forwarded a copy of that form, it has been forwarded to the Fisheries Directorate as, on 12th January 2017, they stated that "the applicant has considered suitable precautions to reduce the possibility of harmful materials entering the river", noting they had no objections to the application should those precautions be followed.
5.3.1 The Development Executive for Mines, Minerals and Energy, who is employed by the Department of Economic Development, noted, in comments received 29th December 2016, that the application contained no mention of how the mine shaft within the site is to be, or has been, treated. 5.3.2 This was queried with the agent to the application, who confirmed: "The shaft has to the best of our knowledge already been capped."
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5.4.1 Manx Utilities (Electricity Division) objected to the application on 12th January 2017, noting that a low-voltage, underground power cable runs through part of the site where a stone wall is proposed to be sited.
5.4.2 The plan they provided showing the location of this cable was forwarded to the agent to the application, who commented: "Regarding the underground cable we can confirm that our client has installed the cable referred to, the location of this has been accurately recorded and our client confirms that the construction of any wall (or part thereof) will be done such as to respect its location. Any bridging of the cable will allow lintels to be installed locally to enable full access without disturbance of the wall."
5.4.3 Manx Utilities in turn responded: "Manx Utilities requests the applicant or their agent liaises with our Manx Utilities engineer on site, prior to the building of the wall, to verify the location of the cable and agree the method of working adjacent to the cable."
5.5 Manx National Heritage sent comments dated 13th January 2017. They note that the mining area has now been capped and vegetation is beginning to grow over it, suggesting that a memorial garden would seem to be an appropriate after-use of the site and therefore do not object to the principle. However, they go on to query whether or not the garden will be publicly accessible, noting that any public open space will require the Commissioners to bear the burden, and further query whether or not making the garden attractive to wildlife via "low intensity management such as allowing grass to grow freely in at least some areas and encouraging local wildflowers".
5.6 Patrick Parish Commissioners offered no objection to the scheme in commented received 11th January 2017, though they also queried whether or not the garden is intended to be a public area or for private use, noting that, if the former, the applicant is recommended to provide dog waste bins (unless dogs would be banned) and other rubbish bins.
6.0 ASSESSMENT
6.1 As a general principle, the proposal meets some of the key, directed wording and policies of the Foxdale Local Plan in that it would turn previously contaminated land into open space. That this is proposed after the decontamination of the surrounding land has already been undertaken is clearly to be welcomed, especially given the (realistic) comment made by the case officer in their consideration of the original application for The Deads dwelling and as outlined in paragraph 4.1 of this report.
6.2 Similarly, the approval issued to the two applications seeking approval for the erection of a dwelling on the site required by condition part of the area the subject of the current application to be public open space. As no appeal was lodged against the decision by any interested party, including the applicant, it follows that this condition was acceptable to those parties.
6.3 Accordingly, the view of MNH that the proposal represents an appropriate use of the land is wholly accepted and the scheme is considered to be both in compliance with the Local Plan zoning and also reflective of the intentions for this previously heavily contaminated site.
7.0 RECOMMENDATION
7.1 It is recommended that the application be approved.
7.2 The request made by Manx Utilities cannot be made in the form of a condition and has been forwarded to the agent. It would be appropriate to include it as an advisory note on the decision notice, however.
7.3 The presence or otherwise of litter bins is similarly not considered appropriate to address by way of planning condition. If these were small enough to be unobtrusive then it is unlikely that they
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would require planning approval, while equally if they were so large as to be obtrusive then clearly they would undermine the intention of the applicant and, moreover, would likely require the submission of an application that may not be viewed favourably by the Department.
7.4 It is understood from the agent that the advice of MNH is noted and that the Manx Wildlife Trust have been involved in the development of the site throughout. This, too, is not judged to be a matter requiring control by way of planning condition.
7.5 A condition requiring that the proposed parking spaces be made available to use prior to the site's opening to the public, and kept free from obstruction thereafter, is recommended despite Highway Services not requesting this. Billy Goat Hill is not a well-used highway but nevertheless proper parking facilities for the use proposed should be made available to ensure that inappropriate on-street parking is kept to a minimum.
8.0 INTERESTED PERSON STATUS
8.1 By virtue of the Town and Country Planning (Development Procedure) (No 2) Order 2013, the following persons are automatically interested persons:
o The applicant, or if there is one, the applicant's agent; o The owner and the occupier of any land that is the subject of the application or any other person in whose interest the land becomes vested; o Any Government Department that has made written submissions relating to planning considerations with respect to the application that the Department considers material, which in this case includes the Department of Economic Development and Manx National Heritage; o Highway Services of the Department of Infrastructure, and o The local authority in whose district the land the subject of the application is situated.
8.2.1 In addition to those above, article 6(3) of the Order requires the Department to decide which persons (if any) who have made representations with respect to the application, should be treated as having sufficient interest in the subject matter of the application to take part in any subsequent proceedings relating to the application.
8.2.2 In this instance, it is considered that the following persons have sufficient interest and therefore should be awarded the status of an Interested Person:
o The Development Executive for Mines, Minerals and Energy, who is employed by the Department of Economic Development; o Manx National Heritage, and o Manx Utilities (Electricity Division).
8.2.3 In this instance, it is considered that the following persons do not have sufficient interest and therefore should not be awarded the status of an Interested Person:
o The Fisheries Directorate, which sits within the same Department as the Planning & Building Control Directorate.
Recommendation
Recommended Decision:
Permitted Date of Recommendation: 15.02.2017
Conditions and Notes for Approval:
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C : Conditions for approval N : Notes attached to conditions
C 1. The development hereby approved shall be begun before the expiration of four years from the date of this decision notice.
Reason: To comply with article 14 of the Town and Country Planning (Development Procedure) (No2) Order 2013 and to avoid the accumulation of unimplemented planning approvals.
C 2. Prior to the use of the land as a Memorial Garden coming into use, the area labelled "TARMAC PARKING AREA" on approved Drawing MG-03 Rev B, date-stamped as having been received 14th December 2016, shall be provided and kept free of obstruction thereafter.
Reason: In the interest of providing appropriate levels of off-street parking in the interest of highway safety.
N 1. The applicant or their agent is requested to liaise with a Manx Utilities engineer on site, prior to the building of the wall, to verify the location of the underground cable and agree the method of working adjacent to that cable.
The development hereby approved relates to Drawings MG-01, MG-02 Rev A and MG-03 Rev B, all date-stamped as having been received 14th December 2016.
I can confirm that this decision has been made by a Senior Planning Officer in accordance with the authority afforded to that Officer by the appropriate DEFA Delegation.
Decision Made : Permitted
Date: 17.02.2017
Determining officer
Signed : S CORLETT Sarah Corlett
Senior Planning Officer
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