Agenda item

PROPOSAL: Incorporation of buffer land into residential garden of Pear Tree Cottage, Tumper View, Brockworth (retrospective application).

OFFICER RECOMMENDATION: Permit.

51.29        This application was for incorporation of buffer land into residential garden of Pear Tree Cottage, Tumper View, Brockworth (retrospective application).

51.30        The Planning Assistant advised that the application required a Committee determination due to an objection from Brockworth Parish Council based on harm to the Cotswold National Landscape.  The site was a triangular piece of land, located south of the existing garden of Pear Tree Cottage and north of Green Street which passed the southern boundary of the site, with the Cotswold National Landscape falling south of Green Steet. The land would be used as garden space for Pear Tree Cottage, resulting in no harm to neighbouring residential amenity and no adverse impact to the highway network. The site itself was of very limited landscape value, being surrounded by, and therefore well related to, existing residential development, preventing any unacceptable encroachment into the wider landscape with views being dominated by the backdrop of the Brockworth settlement when viewed from Coopers Hill.  As the proposal would be an appropriate use, respecting the form, character and setting of the settlement and with no adverse impacts upon residential amenity or highway safety, the Officer recommendation was to permit the application.

51.31        The Chair invited a local Ward Councillor for the area to address the Committee.  The local Ward Councillor indicated that the land was directly adjacent to the Green Belt and Cotswold National Landscape and was previously part of two fields that were also designated but had been removed with the new line moved towards Watermead Lane.  A buffer strip had been created as a mitigation between high density housing and beautiful countryside as part of an application for a development of 80 dwellings to ensure there was appropriate green infrastructure due to future loss of green space brought about by the development.  Other green space, including two strips of land behind houses The Lodge and Castle Park down to Kennel Lane, approximately 20 metres by 100 metres, had also been taken into account as part of local green infrastructure when permission was given for the development.  That green infrastructure had also been subject to a planning application for an additional 13 or so houses, as such, a great proportion of that had also been lost.  Although he could see no reference to it in the Additional Representations Sheet, attached at Appendix 1, he believed that loss of green space was relevant to this application in terms of the protection given by the buffer.  Housing density directly next to this site had not changed since planning permission was granted for development and designation of this small field as a buffer zone -  Hillsdown Cottage, Watermead House, Pear Tree Cottage and Arlingham Cottage, and surrounding houses, were still as per the plan with their associated gardens, as such, he questioned why there was now a change in view regarding the importance and designation of this land.  Changing the site’s designation set a precedent and he asked what would be stopping him from buying buffer zone land from developers, cutting down trees and seeking change of use for 10 or more houses some years later.  The Council had declared a climate emergency and buffer zones were one of the tools to encourage green infrastructure, therefore, he felt Members should be supportive of retaining that land as a buffer zone.

51.32        The Chair indicated that the Officer recommendation was to permit the application and he sought a motion from the floor.  A Member asked whether the owners of Pear Tree Cottage also owned this land and the Planning Assistant advised that the application form stated they were the only interested party which indicated they were the landowners.  A Member queried whether it would be possible to remove permitted development rights due to the sensitivity of the land closest to the Green Belt and Cotswold National Landscape, should Members be minded to permit the application, and the Development Management Team Manager (East) confirmed that a condition could be included as Members saw fit but reminded them they were looking at a change of use in its entirety to residential use and what would come with that so it would be necessary to state specifically what would be restricted.  The Member indicated that she would wish to restrict large structures such as home offices on that piece of land.

51.33        A Member indicated that she was concerned about visual impact of the proposal which she felt would be considerable and asked if this had been considered.  The land had been allocated as a buffer zone and allowing this application would set a precedent which meant it would be impossible to say no to other applications which may come forward.  Another Member asked if buffer zones had any legal protection and the Development Management Team Manager (East) advised that the buffer zone was included on the edge of the housing estate in 2008 and formed part of a condition only, it was not designated in the Tewkesbury Borough Plan and was different to a locally important space.  The Legal Adviser confirmed that it was part of the landscaping scheme for that housing estate and was not legally designated in the same way as Green Belt or Cotswold National Landscape so it did not have that legal status and was not protected into the future – anyone could submit an application on that land at any point and it would be down to whether the Committee, or relevant Officers, felt it was appropriate when assessed against policy at that particular time.  The Member asked whether the Council had any specific policies regarding buffer zones and the Development Management Team Manager (East) clarified that, whilst there were policies in relation to important gaps, Green Belt and important open spaces, there was no policy in relation to buffer zones specifically. 

51.34        A Member sought clarification as to the percentage of ‘greening’ for the housing estate given there had previously been ancient hedgerow and Perry Pear Trees but nothing remained and allowing this application would take away the only buffer zone.  The Development Management Team Manager (East) advised that it was difficult for Officers to give a percentage but the landscape plan associated with the development would direct where green space was located.  The Member asked how others would be prevented from doing the same, should this application be permitted, and the Development Management Team Manager (East) explained that when the housing development to the north of the site was approved it had not included this section as there was a gap between the two; the original application was for 80 houses but subsequent dwellings had been approved therefore the context of the site had changed from the initial consent.  A Member questioned whether the fencing had been up since 2014, assuming it had been used as a garden since that time, as she agreed this hardened the edge of the lane which had greenery on the other side.  The Development Management Team Manager (East) confirmed the fence had been erected for over four years, albeit there was no planning history.  In response to a query as to whether the land was being used by the public or whether it was enclosed when the site was developed, Members were informed that the land had not been used by the public whilst in the current ownership but Officers did not have information prior to that.  A Member noted that, if the land had been included within the residential boundary from the outset it would not have become wild and overgrown as it was now and he asked whether the applicant’s name was on the land registry.  The Legal Adviser explained that, in order to complete certificate A of the application form, the applicant must be the legal owner of the land; when it was informal open space such as this, where land was not transferred to the local authority or to a management company, some developers transferred plots to housing units and imposed restrictions on how it could be used in order to ensure there were no plots without ownership.  The Development Management Team Manager (East) displayed the landscaping plan for the application and pointed out that the current site was marked as “existing tree, shrub and scrub area”.  A Member indicated that, if that was the case, she would want to protect the edge against the lane with more wild planting.  In her view it needed to stay as a buffer zone – it had already been eaten into by the house next to it and, given the climate change emergency, she felt all plots of wild planting should be saved.  A Member questioned whether scrub land could be a buffer zone and was advised that there were still parts of the buffer zone on the landscaping plan but this particular site was scrub land.  Another Member queried whether it was possible to include a condition that the existing fencing had to be open so there was no harsh edge and was advised that fencing did not form part of the planning application which was for change of use of the site.  It was within Members’ gift to add conditions but they should bear in mind the test of reasonableness; the fence may well have consent due to the passing of time and it would be difficult to remove what was there already by way of condition.  If the application was refused, a Member asked whether the land would remain as it was i.e. an enclosed piece of land with the fence still in place and the Development Management Team Manager (East) confirmed that would be the case.  The Member questioned if the applicant could be asked to replant it as wild planting as they had removed it without permission, resulting in no conservation for the rest of the area, and the Development Management Team Manager (South) reiterated that the buffer zone was not a statutory designation and there was no condition requiring it to be retained as would be the case with a landscaping condition which may reference a period of five years after the implementation of the planning permission – in any case, five years had passed since the development was commenced so the trees could be removed without any recourse and it would be unreasonable to require the land to be reinstated. 

51.35        It was proposed and seconded that the application be deferred for a Planning Committee Site Visit in order to assess the status of the land as a buffer zone and the impact on the Cotswold National Landscape, residential amenity and the view from the lane.  The seconder of the motion indicated that a site visit had been requested prior to the Committee but had been refused by Officers.  A Member asked on what grounds this had been refused and was informed that the process had not been followed correctly in terms of the request with no material planning reason for the visit provided until after the deadline.  A Member expressed the view that, given the Officer’s explanation regarding the buffer zone, it appeared there were no grounds for refusing the application and she questioned what the point was of calling something a buffer zone if it was potentially only in place for five years or less.  The Development Management Team Manager (East) advised there would generally be a landscape impact reason for implementing a buffer zone.  In terms of setting a precedent, this was not a material planning consideration and each case would be considered on its own merits – it may be there would be a different impact if other parts of the buffer zone were removed.  In this instance, the original condition attached to the planning permission did not require the buffer zone to remain in perpetuity for the lifetime of the development and the site was within the residential development boundary.  The fencing could be looked into and, assuming there were enforcement cases open, Members could be updated as to progress.  A Member agreed these were two separate issues and, provided there was a condition included on the planning permission to prevent the garden being developed, she could not support a deferral for a site visit as it was not possible to change what was there now.  Upon being put to the vote, the motion was lost.

51.36        It was proposed and seconded that the application be refused in order to protect the buffer zone.  The seconder of the motion indicated that Brockworth had taken a substantial amount of development and the buffer zone had been included to soften the edges and should be protected.  A Member questioned what impact a refusal would have in terms of improving the current situation and the Development Management Team Manager (South) confirmed it would effectively be the status quo - the land would eventually become overgrown but the fence would remain.  In response to a query, the Legal Adviser explained that enforcement action would be the most likely option regarding the fence but that would not stop residential use of the land and it would become lawful if it had been in use for 10 years; in this instance, the fence was considered to have been in place for nine years.  A Member queried where the nine year figure had come from given that the images on Google maps showed the area being wild and overgrown.  The Planning Assistant indicated the applicant’s submission stated that the land had been used without planning consent as a garden since 2014 and no application had been made for a Certificate of Lawful Existing Use.  The Enforcement team had prompted the application to be submitted.  The most recent images were from 2012 and it was possible the fence had been erected at some point since that time, most likely in 2014 when it had been used as a garden.  A Member questioned whether an application for residential development on that land would have been more favourable if the land was garden as opposed to scrub land and was advised that, although there would possibly be some support in terms of principle, land use was not particularly important as a decision would be based on a judgement of the landscaping impact of any new dwelling on a piece of land.  The Legal Adviser reminded Members this was not relevant to the determination of the application today.

51.37        A Member expressed the view that the soft edge had already been lost with the erection of fencing which could not be rectified through refusal of this application.  Upon being put to the vote, the motion to refuse the application was lost.  It was subsequently proposed that the application be permitted in accordance with the Officer recommendation, subject to inclusion of a condition to remove the permitted development rights under Class E Schedule 2 Part 1.  A Member felt that lessons needed to be learnt from this in terms of notifying the Enforcement team immediately of any unauthorised development, such as the erection of fencing.  The Development Management Team Manager (East) confirmed the team was currently wholly reliant on people reporting unauthorised development.  It should be borne in mind that there were permitted development rights for fencing so not everyone would require planning permission to erect them; however, this one was adjacent to a highway and therefore did require permission.

51.38        Upon being put to the vote, it was

RESOLVED           That the application be PERMITTED subject to the inclusion of a condition to remove the permitted development rights under Class E Schedule 2 Part 1.