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Murray House, Mount Havelock, Douglas, Isle of Man, IM1 2SF. Tel: (01624) 685859 Fax: (01624) 685945 E-mail: [email protected] Chief Executive K. A. Kinrade
Our ref: KAK/AJC/MC
15th July 2009
Dear Sir/Madam,
I refer to the recent appeal hearing in respect of not only the above planning application, but also applications for dwellings on the individual plots.
In accordance with the provisions of the Town and Country Planning (Development Procedure) Order 2005, I am enclosing a copy of the report of the person appointed to hear these appeals. This report deals only with the application for the layout of plots, roads and sewers.
The Minister has considered the report, and concurs with the appointed person's conclusions that -
He therefore also shares the general conclusion that the application is incomplete, in that it does not show conclusively how construction traffic would gain access to the site for the duration of the construction period, and accepts the recommendation that the appeal should be dismissed. Accordingly, the Planning Committee's decision to refuse planning permission is confirmed.
However, having also noted that the St. John's Local Plan establishes a presumption in favour of the development of the site for up to six dwellings, the Minister has indicated that his decision is without prejudice to a further application which includes full details of the arrangements for a temporary access for construction traffic.
Yours faithfully
Chief Executive
Please see over for circulation list/......
Report of an inquiry, held on 17 June 2009, into an appeal by Mr H Shimmin, against the decision to refuse approval for the layout of plots, roads and sewers for 6 dwellings on Fields 312909 and 314758 at Balladoyne, St John's
1 This appeal was considered at the same inquiry as 4 related appeals (Nos AP09/0057 to AP09/0060) by MP Associates, against decisions to refuse approval for the development of land adjacent to the Ballodyne Estate, St John's, by (A) the erection of dwellings on Plots 2, 4 and 6; (B) the erection of a dwelling on Plot 3; (C) the erection of a dwelling on Plot 5; and (D) the erection of a dwelling on Plot 1. Those appeals are the subject of a separate report.
2 The appeal site consists of an irregularly shaped, open area, of about 1.4 ha, enclosed and subdivided by mature hedgerows. It lies about 90 m to the south of Peel Road (A1), the intervening area being occupied by open fields, and by the buildings of Balladoyne Farm. To the north-east, the site is bounded by the Balladoyne housing estate, the estate road terminating at the site boundary. The south-western site boundary is marked by the line of a disused railway.
3 The application seeks planning approval for the layout of 6 residential plots, roads and sewers. One of the original application plans (Drawing 4215/P1) which was received by the Planning Authority on 1 August 2008, has been superseded by an amended plan (Drawing 0725/PL010) which was received on 27 February 2009.
4 The application plan indicates that access by construction traffic during the development of the site would be from Peel Road, by means of a temporary route along the western edge of the open land at Balladoyne Farm. However, this route is outside the application site as outlined in red. The permanent vehicular access to the site would be formed by the extension of the Balladoyne estate road.
5 The application plan shows that a section of the Balladoyne estate road would be widened, and that improved sightlines would be provided at its junction with the A1, by the removal of vegetation adjacent to the property "Rosshay". The proposed layout provides for the protection of the Cairn, an archaeological site located to the south of No 8 Balladoyne.
6 In the St John's Local Plan, the appeal site is identified as a proposed residential area (Area 1) for up to 6 dwellings. Paragraph 2.9 of the Local Plan states that "... construction traffic associated with the development should not pass through the Balladoyne estate. The roadways within Balladoyne are not suitable for construction vehicles
and the amenities of the existing residents would be significantly damaged if this were to occur".
7 The Development Brief for this site (in the St John's Local Plan) provides that an approved roads and sewers application must precede any application for the erection of dwellings; and that the application must include an indication of a temporary access to serve construction traffic.
8 M P Associates act for the appellant, who has sold his interest in the appeal site to them. The reason for refusing planning approval asserts that the "application fails to demonstrate that there is sufficient control over the temporary access so as to provide a reasonable period in which to complete the development." However this is essentially a legal matter, rather than a matter for the Planning Department.
9 The open land to the north of the appeal site at Balladoyne Farm, over which the proposed temporary route for construction traffic would pass, is owned by Mr and Mrs Davies. They had bought that land from the appellant in the 1990s. The deed of sale provides for a 5 m -wide vehicular right of way across the land in question for construction purposes, for the benefit of appellant (and his successors in title). That right will remain effective until 28 January 2010.
10 However, there is currently a dispute relating to the deed of sale. The appellant has been given legal advice that its implied terms have been breached by the current landowners. As a result, legal action is being taken to have the duration of the right of way extended.
11 In accordance with normal practice, after planning approval has been granted for the proposed development, the agreement of the Department of Transport would be obtained for the formation of a temporary access from the A1 for construction traffic. Planning approval is not normally required for a temporary access of this sort.
12 By refusing planning approval, the Planning Committee have abused the planning process, and colluded unlawfully with the owners of Balladoyne Farm in a private dispute. Land ownership is not a planning matter. It is open to a prospective developer to apply for planning approval to develop land that he does not own. If planning approval is granted in such circumstances (as it frequently is) it is then for the developer to negotiate with the landowner, so as to secure the right to carry out the development. If he fails to do so, the development cannot proceed. But that does not imply that planning approval should have been withheld.
13 In practice, the proposed erection of 6 dwellings on the appeal site could be completed before the end of January 2010. With the use of
pre-fabricated frames, the dwellings could be built within about 6 weeks. After that, only cars and small vans would need to visit the site to finish the development.
14 A condition could be imposed to preclude the use of the Balladoyne estate road by construction traffic travelling to and from the appeal site, in accordance with the requirements of the St John's Local Plan. However, it would be necessary to define the meaning of "construction traffic" for this purpose. There is no reason to ban cars or light vans, carrying construction workers, from travelling through the Balladoyne estate to get to and from the site. An acceptable condition would restrict vehicles of over 4 tons from entering the site via the Balladoyne estate. It could further stipulate that there should be no more than 20 daily traffic movements in and out of the site; and that traffic movements should be monitored by a signing-in register at the site office, in which the date and time of movements would be logged.
15 Even if the preferred temporary construction access could not be used, there are a number of other options. These are shown in Appendix C to the evidence of M P Associates. In each case, their use would be subject to the agreement of the relevant landowners.
16 It would not be in the interests of M P Associates to commence a development that they could not finish for want of an access for construction vehicles. The appropriate way forward is for planning approval to be granted, subject to a condition restricting the use of the Balladoyne estate road by heavy construction vehicles. It would then be incumbent upon the prospective developer to secure an appropriate route into the site for this traffic, should the preferred route no longer be available. The Minister is asked to allow the appeal accordingly.
17 Housing Policy 6 of the Isle of Man Strategic Plan indicates that the development of land which is zoned for new housing must be undertaken in accordance with the brief in the relevant Area Plan. The Development Brief for the appeal site in the St John's Local Plan states that the relevant application must include an indication of a temporary access to serve construction traffic. The Local Plan makes it clear that construction traffic associated with the proposed development should not pass through the Balladoyne estate. "Construction traffic" is not defined in the Local Plan, but may be taken to include all vehicular traffic generated by on-site operations associated with the proposed development.
18 The Development Brief also stipulates that approval of an application for roads and sewers must precede any applications for dwellings; and that provision must be made for the investigation of the site's archaeological value.
19 In 2006, approval in principle was granted for the development of the present appeal site with 6 dwellings (PA 06/00371/A), a decision which was subsequently confirmed on appeal. A planning condition required that construction traffic must use only a specified temporary access. Details of the temporary access were to be included in the application for the approval of the reserved matters. The approval in principle was valid for a period of 2 years, and has now expired.
20 In 2007 approval was sought for improvements to the Balladoyne estate road, and for its use as an access to the development site for construction vehicles. Approval was refused, on the grounds that the use of that route by construction traffic "would result in disruption, inconvenience and a reduction in road safety within the estate". A subsequent appeal was withdrawn. The narrow and winding nature of the Balladoyne estate road makes its use by large construction vehicles inappropriate.
21 At present there is no vehicular access between the Balladoyne estate road and the appeal site. The formation of such an access would constitute development requiring planning approval. However, as a result of the development now proposed, such an access would be created. It may not be possible to impose a condition preventing the use of the Balladoyne estate road by construction vehicles, since that road is part of the public highway. In the absence of an alternative access, there would be a danger that construction vehicles would access the appeal site via the estate.
22 A condition could be imposed to preclude the formation of the vehicular access to the appeal site from the Balladoyne estate road until such time as the construction of the proposed dwellings is complete. But this might be unreasonable, for instance if one or two of the proposed dwellings were to be occupied before the completion of the others. The occupants of those dwellings would be precluded from using the Balladoyne estate road. They would have no permanently established means of access.
23 The present application refers to a temporary access to the A1, across the field to the north of the site, which would be used by construction traffic. The prospective developer is not the owner of the land over which that access route would pass, but has a legal right of way across the land in question for construction traffic, up until 28 January 2010.
24 However, it is extremely unlikely that the proposed development would be completed by that date. The present application is solely for the approval of the layout of plots, roads and sewers. The detailed design of the proposed dwellings (which is the subject of a number of separate planning applications that are currently the subject of appeals) has not yet been approved. Furthermore, at present, there is no vehicular access between the A1 and the proposed temporary route for construction traffic. Approval would be
required for the formation of such an access. There is potential for delay in the requisite approvals being obtained.
25 Consideration has been given to the possibility of granting approval for the proposed development, subject to the condition that development should not commence until the prospective developer has secured the use of an alternative access for the duration of the proposed works. However, it is necessary to consider whether there is a reasonable prospect of the prospective developer being able to comply with such a requirement. In the absence of evidence that the owner of Balladoyne Farm would be willing to extend the duration of the temporary right of access, it is not considered that such a condition would be reasonable.
26 In the circumstances, the Minister is asked to dismiss the appeal. However, if he is minded to grant approval, the following conditions are suggested:
1 The development hereby permitted shall commence before the expiration of 4 years from the date of this notice.
2 This approval relates to the residential layout of 6 dwellings with layout of plots, roads and sewers, Fields 312909 and 314758, land at Balladoyne St John's, as shown by 4215/L1 received 1 August 2008 and 0725/PL010 Rev B received 12 January 2009.
3 All dwellings must be single-storey (dormer accommodation will not be permitted).
4 Construction traffic must only use a temporary access route, to be formed on land outlined in blue on Drawing No 0725/PL010 Rev B. This temporary access must be removed and the land over which it passes must be restored to its current condition within one month of the completion of building operations. No construction traffic shall access the site by Balladoyne.
5 Manx National Heritage must be informed in writing of the commencement of works on site and be given access at all reasonable times and reasonable opportunity to inspect the site, observe all excavations and investigate any archaeological features exposed.
6 All existing trees and hedges within the application site, with the exception of those removed or lowered along the northern boundary of the property Rosshay, must be retained and afforded adequate protection during the development of the site, in accordance with a tree protection scheme that has been submitted to and approved in writing by the Planning Authority prior to the commencement of works on site.
7 The development shall not be occupied until the access to the development has been constructed to at least base course level in accordance with approved plans.
8 Prior to the commencement of works, the boundary of "Rosshay" on the east side of the junction of Balladoyne and the A1 Peel Road must be altered to provide a visibility splay of 2 m by 23 m .
27 Mr and Mrs Davies own Balladoyne Farm, and Mrs Davies owns a share of the appeal site itself. They oppose the proposed development of the appeal site, which would mar the view from the Royal Chapel and the ceremonial route to Tynwald Hill. This is a particularly sensitive area for the Isle of Man, which should not be sacrificed.
28 A legal agreement provides for temporary access across Balladoyne Farm to the appeal site for construction purposes. It is subject to the proviso that the design of the temporary access must be approved by the landowners (this approval is not to be unreasonably withheld); and it is subject to the proviso that all necessary consents must be obtained (including any necessary planning approval). To date no detailed design for the access has been approved by the landowners; and currently, there is no planning application pending for the formation of an access between Peel Road and the appeal site. The legal agreement expires on 28 January 2010 and will not be renewed. No alternative means of access for construction traffic is available. The Minister is asked to dismiss the appeal.
29 Written objections to the appeal have been submitted by the occupants of Nos 2, 3, 4, 5, 6, 7, 10 and 11 Balladoyne. Written support for the proposed development has been submitted by the occupants of No 8 Balladoyne.
30 In a written submission, Manx National Heritage confirm that the proposed layout has been designed in such a way as to avoid the defined site of archaeological interest (the Cairn site). However, they request that, if planning approval is granted, a condition be imposed to ensure that an archaeological watching brief is maintained during the site's development.
31 The St John's Local Plan establishes a presumption in favour of the development of the Area 1, with up to 6 dwellings. Equally, it makes it clear that construction vehicles associated with this development should not pass through the Balladoyne estate. I consider this to be a legitimate planning objective.
32 The current scheme proposes the formation of a new vehicular access between the Balladoyne estate road and the appeal site. In the
absence of a secure alternative route, there is clearly a danger that construction traffic would travel to and from the appeal site via that access, once it is available. A planning condition precluding the use of that route by construction traffic would probably be unenforceable. It seems to me that the surest way of preventing the passage of construction traffic through the Balladoyne estate would be to impose a condition precluding the formation of the access to the appeal site from the estate road until after the construction of the proposed dwellings is complete. That would compel construction traffic to use an alternative temporary route.
33 I have considered whether it would be reasonable to impose a negative condition, precluding work on the site from commencing until such time as an acceptable temporary access for construction traffic has been secured for the duration of the proposed development period. However, it seems to me that the temporary construction access should constitute an integral part of the proposed scheme; and that development should not proceed until that access has been approved, and its availability for the duration of the proposed building work is secure.
34 I note the appellant's claim that construction work could be completed in 6 weeks, but I consider that to be optimistic. Planning approval has yet to be granted for the proposed dwellings; and no planning application has yet been made for the formation of the proposed temporary access for construction traffic. In this connection I note that the temporary access to Peel Road is not within the present application site, as defined by the red line on the application plans. Scant details of the proposed temporary access are given, for instance in terms of turning radii or sight lines. I do not consider that the restoration of the land over which the haul route would pass could be secured by a planning condition, if that land is neither owned by the appellant, nor within the application site.
35 I do not accept the appellant's contention that planning permission is not required for the formation of a temporary access for construction traffic. Section 6(2)(d) of the Town and Country Planning Act 1999 makes it clear that certain engineering operations constitute development. These include the material alteration of an existing means of access to land from a road; the provision of a new means of access; and the execution of any road works preliminary or incidental to the erection of a building. No exception is made for temporary works.
36 In accordance with section 7(1) of the Act, planning approval is required for the carrying out of any development of land. The requisite approval for the formation of a temporary access to a building site is not granted by Article 2 of the Town and Country Planning (Permitted Development) Order 2005. Given the requirement to obtain the necessary approval, it seems to me that
there is a strong likelihood that the proposed development will not be completed by the end of January 2008.
Since I consider the temporary construction access to be an integral part of the proposed development, it seems to me that the present application for the layout of roads and sewers is incomplete. In particular, it does not show conclusively how construction traffic is to gain access to the site for the duration of the proposed construction period. I recognise that there are various potential solutions to this problem, as indicated by the appellant. But, as far as I am aware, each of these would require the agreement of a third party, and would also require planning approval.
I consider that the Planning Authority are entitled to insist on an application for the layout of roads and sewers that would meet the clear requirements of the development plan. The present scheme does not do this. In the circumstances, I do not consider that the appeal should succeed.
I recommend that the appeal be dismissed.
MICHAEL HURLEY Inspector
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