Queen's Counsel Opinion on Affordable Housing

IN THE MATTER OF<br><br>ERECTION OF BUILDINGS TO PROVIDE EXHIBITION SPACE, RETAIL ACCOMMODATION, A TOURISM/ RESIDENTIAL FACILITY, RESIDENTIAL APARTMENTS AND RESTAURANT WITH ASSOCIATED 142 PARKING SPACES AT<br><br>THE FORMER MARINE BIOLOGICAL STATION, BREAKWATER ROAD, PORT ERIN , ISLE OF MAN (Planning Application 1900373A)<br><br>____________________________________<br><br>OPINION<br><br>_____________________________________

Introduction

• 1. In this matter I am instructed by Landmark Planning on behalf of Delgatie Ltd in respect of a planning application for the erection of buildings to provide exhibition space, retail accommodation, a tourism/ residential facility, residential apartments, and restaurant with associated 142 parking spaces (hereinafter “the proposal”) at the former Marine Biological Station, Breakwater Road, Port Erin, Isle of Man (hereinafter “the Site”).
• 2. The Isle of Man Government Department of Environment, Food and Agriculture is the planning authority. The planning system is administered through the Planning and Building Directorate.
• 3. Tynwald, the Isle’s Parliament has a Strategic Development Plan for the Island, which was adopted in 2016. It is the first such plan for the Island.
• 4. There is also an Area Plan for the South, which was adopted on 1 March 2013.

Advice Sought

• 5. The Planning Committee may be seeking to impose an affordable housing contribution on the proposal. I am asked to advise whether there is a policy basis for this.

ADVICE

• 6. The relevant policy is contained in Housing Policy 5 of the Strategic Plan. This reads:

Housing Policy 5: In granting planning permission on land zoned for residential development or in predominantly residential areas the Department will normally require that 25% of provision should be made up of affordable housing. This policy will apply to developments of 8 dwellings or more.

The term affordable housing is defined by the Department as housing, which is either:

• - directly provided by the Department; or
• - directly provided by Local Authorities; or

- meets the criteria for the Department’s House Purchase Assistance Scheme2004 (and any successor schemes approved by Tynwald).

• 7. The key issue is whether the proposal falls within the definition in the terms of the policy as regards being either “on land zoned for residential development” or “in predominantly residential areas”
• 8. I have looked at the Strategic Plan and the Area Plan for the South. The application site is not within an area zoned for residential development. I have also looked at the location of the site. And It cannot be said to be in a “predominantly residential area”, since it is set apart from the nearest residential area by nearly 500 metres. Therefore, the proposal falls outwith the wording of the policy.
• 9. The Directorate’s Principal Planning Officer suggests that a different conclusion can be reached on the basis of the wording of the reasoned justification, which supports Housing Policy 5. The complete text reads as follows:

8.6 Affordable Housing

• 8.6.1 The Department is concerned about the increasing difficulties of securing the provision of affordable housing across the Island. The Department can, and does as a Housing Authority, intervene financially to provide financial support to local Authorities; financial support to prospective owner occupiers (through the House Purchase Assistance Scheme

2002) and by direct provision of new houses to rent. The provision of affordable housing is a material consideration in the preparation of the development plan. In the current situation the Department considers that, to secure an adequate provision of affordable housing, it is appropriate to require that any area of land identified for housing purposes should include a contribution towards the provision of affordable housing.

• 8.6.2 There are currently around 1,584 (as at 31st March 2007) households on the General Housing Waiting List. In addition, there are some 690 (as at 31st March 2007) households

• registered with the Department under the House Purchase Assistance Scheme (HPAS). This indicates a total current need of some 2,274 households for affordable housing.
• 8.6.3 In the current circumstances the Department considers that approximately 25% of new housing provision should take the form of affordable housing. In assessing the appropriate percentage in each instance, the Department will have regard to the fact that the figure is a target over the Plan Period as a whole; to evidence of local housing need; to the nature of the land and viability of the scheme; and to the nature of existing adjacent housing. The 25% provision will be monitored and reviewed as part of any review of the Strategic Plan.

• 10.The planning officer relies in particular on the fact the reasoned justification contains this sentence “In the current situation the Department considers that, to secure an adequate provision of affordable housing, it is appropriate to require that any area of land identified for housing purposes should include a contribution towards the provision of affordable housing.” (my undermining of the words the officer highlights)

• 11.It is important to understand that In R (Cherkley Campaign Ltd) v Mole Valley District Council and Longshot Cherkley Court Ltd [2014] EWCA Civ 567, the Court of Appeal held that supporting text to local planning policy was plainly relevant to the interpretation of a policy but was not itself a policy or part of a policy. It is therefore permissible to look at the text in seeking to understand the policy. This indicates that in understanding what is meant by “land zoned for residential development” one should look at an allocation to see if it includes “land identified for housing purposes”. In other words what is important is to look at the individual allocation itself and the wording of the allocation.

• 12.The Site is allocated for development in the Area Plan for the South. The allocation is Site 22. The relevant text for Site 22 of the Area Plan for the South reads:

“Site 22

Location: The former Marine Biological Station, Port Erin Size of Site: 0.4 ha (buildings only) Previous designation: Harbour Use Proposed designation: Mixed Use (Proposed) Site Assessment Framework (Residential Score): 48/68 (Employment Score): 42/60

• 4.61.1 The former Marine Biological Station sits beyond the lifeboat house, up against the base of the cliffs in the south-western corner of Port Erin Bay. Most of the contiguous land between the former Biological Station and the harbour is vested in the Department of Infrastructure, and is not intensively used. Re-use or redevelopment of the composite site would be of general benefit to Port Erin.
• 4.61.2 The buildings which remain on the site became redundant as a Marine Laboratory in 2006, but have recently been let to a new user, keen to see the buildings used for purposes in keeping with their maritime heritage. The buildings and the land around them have considerable potential, and this wider site would support Mixed Use - primarily marine based tourist/leisure uses (including associated accommodation) - but may also include a residential element.

4.62 Development Brief 22

• 1. The use of the land is deemed suitable for marine-based tourist/leisure purposes (including associated accommodation), but an element of residential use may also be considered favourably.
• 2. Development should preferably make use of all existing buildings on the site, including the re-use of the original Marine Laboratory Building.
• 3. The overall development site should include not only the former Marine Biological Station site, but also contiguous land vested in the Department of Infrastructure. There should be consultations with the Department at an early stage in the formulation of development proposals.

• 4. The design of new buildings and the treatment of the spaces between them should reflect the conspicuous nature of the site as viewed from across the bay, and the appearance and character of the emerging Conservation Area.
• 5. The layout of the site must make appropriate provision for access to the cliff-top footpath from the harbour area. Applicants should be aware that due to the steep nature of the cliff, there exists a possibility that there will be water run-off from the top of the cliff to the cliff base at the rear of the buildings.
• 6. Port Erin Bay is known for its ecological importance, for example, as a plaice nursery area, basking shark hotspot and as an important dive site. Any new development should be sensitive to this ecological importance and also the scallop ‘closed area’.
• 7. Any proposed scheme must include a Traffic Assessment evaluating the traffic impact of development on pedestrian and vehicular access along the narrow section of Shore Road.

(It must be noted that circumstances have changed with regards to the buildings on site and their condition since the brief was prepared. There has not been any use of the buildings since 2006. All the buildings are derelict. One was burned in 2016 leaving it without a waterproof shell and since then it has been water damaged beyond reasonable use. The other building is damaged and not watertight).

• 13.It is clear from the wording of the development brief section of the Site 22 allocation, that the allocation is for mixed use, and within that primarily marine based uses. The mix of intended uses are set out in the text of the policy:

“Mixed Use - primarily marine based tourist/leisure uses (including associated accommodation) - but may also include a residential element.”

• 14.It is therefore clear that the Site is intended for a mix of uses. In my opinion, that does not make it “land identified for housing purposes”. Moreover, the wording of the allocation makes clear that the land is plainly identified for primarily marine based tourist/ leisure uses, with the possibility of housing being allowed. That certainly does not make it “land identified for housing purposes.” That interpretation, that it is not land identified for housing, would also be wholly consistent with the fact the wording of Housing Policy 5 itself requires the land to be zoned for residential development. It is clear to me that the allocation is far removed from that.
• 15.I trust that those matters of concern to my instructing consultant have been addressed, but needless to say I would be happy to advise further, upon the telephone if necessary.

CHRISTOPHER YOUNG QC NO5 CHAMBERS

21 October 2019

IN THE MATTER OF

ERECTION OF BUILDINGS TO PROVIDE EXHIBITION SPACE, RETAIL ACCOMMODATION, A TOURISM/ RESIDENTIAL FACILITY, RESIDENTIAL APARTMENTS AND RESTAURANT WITH ASSOCIATED 142 PARKING SPACES

AT

THE FORMER MARINE BIOLOGICAL STATION, BREAKWATER ROAD, PORT ERIN, ISLE OF MAN

_________ OPINION _________ Landmark Planning Ltd 10 Salisbury Road, Leicester LE1 7QR