Agenda item

 

 

Application Number:			17/00364/FUL
Location:	The Water Garden, Birchley Road
Proposal:	Demolition of existing building and garage and replacement with two new detached dwellings
View:	Yes
Officer Recommendation:				Permit
Committee Decision:			Permit
Letters of Rep:		94	Update Report:		None

 

MJC introduced this application, to demolish a single dwelling, The Water Garden, and replace it with two houses.  It is at Committee at the request of Councillor Babbage, due to the level of  interest.  The recommendation is to permit.

 

Public Speaking:

Mr Adrian Smith, on behalf of local residents, in objection

The application has been met with almost universal objection for several reasons.  Firstly, it will breach the terms of the Battledown Trust Deed, which divided the estate into large ‘lots’, restricting the number of houses to be built on each lot, for density purposes and to avoid overloading the Victorian sewers and roads.  This lot is already ‘full’.  Officers say this is not a material consideration, but residents believe it is – because if this application is granted, other properties may follow suit, resulting in many additional houses which will destroy the Estate’s semi-rural character.  This application is therefore contrary to Policies CP1 and CP3.  

 

Secondly, the application site is on a steep bend on a narrow road with no footpaths – an accident black spot.  Not only will heavy construction traffic and machinery be a great worry, but the resulting increase in occupancy of the site will result if permanent additional traffic on this dangerous stretch of road.  Highway officers have no objections, but the scheme relies on visibility splays on land not owned or controlled by the applicant.  The application doesn’t comply with the requirements of CP4b and TP1.

 

Thirdly, the brash, brutalist, four-storey design is not respectful of neighbouring properties, its ridge heights some two storeys higher than the properties to the north and south.  It is disproportionate, overbearing, and will result in a significant loss of outlook from his property, all contrary to CP7, GE3 and GE2.

 

To conclude, the development will be overbearing and inappropriately large; the highways risk will increase; the drainage system will be put under pressure, and consent could lead to the destruction of the Battledown estate as an asset to the town as a whole.  It is contrary to CP1, CP3, CP4b, TP1, CP7, GE3 and GE2.

 

Mrs Wendy Hopkins, agent, in support

There have been a substantial number of objections to this application, mostly relating to the Battledown covenant.  Some say it should be taken into consideration in the determination of the application but that is not correct.  As officers have made clear, a covenant is a legal matter between the Battledown Trustees and the applicant, not a ‘planning’ issue.  It may be in the interests of some to draw this legal issue into the planning process, but this could be seen as manipulating the planning process, which would be deemed unreasonable.  Knows and trusts that Members of the Planning Committee are able to distinguish material planning matters, and therefore relies on their professionalism in concurring with officer advice on this matter. 

 

There are a number of other relevant planning matters raised in objection, summarised as relating to the principle of development, the layout and design, the impact on neighbours, highway safety and the impact on trees.  The officer report deals with all of these matters comprehensively, and further information and drawings have been requested and submitted to the satisfaction of all consultees.  Supports both the officer’s report and recommendation. 

 

Would add that Members will have noted on site visit that the majority of the site is well hidden from public vantage point along Birchley Road, only being revealed on entering the rear garden of this expansive site.  The site is nearly twice the size of neighbouring properties, and the layout would be similar to that of Birchley House and Ash Tree House opposite.  Each new dwelling would sit comfortably and retain the spacious feeling that is characterised by Battledown – large houses, large gardens, mature landscaping.  Also, it will replace a dwelling of little architectural merit, adding to Cheltenham’s rich architectural history and reflecting a high standard of design supported by Architects Panel.

 

 

Member debate:

SW:  looking at this plot and the number of properties the applicant proposes to build there, cannot help but think that it could support 6-8 good-size dwellings in any other part of town.  Noted on Planning View that the site drops considerably, which would make a large number of properties difficult to construct.  Highways officers do not have any concerns that one property will be replaced by two; they do not consider it will make a significant difference to traffic issues.

 

LS:  has a question and comment in on, regarding the deed of covenant.  The report deals with this briefly and dismissively.  Does it carry any weight in the planning process?  Surely its purpose was to protect the historic character of the Battledown Estate, a valuable and unique part of the town.

 

TO:  was concerned on Planning View to note that part of the proposal involves taking down a line of trees on the right-hand side of the site.  These trees screen the view from the neighbour’s property, and will take away amenity from the neighbours at the bottom of the garden.

 

BF:  Officers said the design is acceptable,and the agent said that the replacement dwelling is of greater architectural merit that the existing house.  Regarding the covenant, this has been in place for many years; recalls a similar covenant at Wild Perry House in Balcarras Road – when the houses were built, a covenant was in place for one dwelling on a particular plot but now there are three.   This is a civil matter, a legal agreement between the owner of the site and the Battledown Trust; it is not a planning issue.

 

CH:  what is the relationship between planning permission and covenants in the civil courts?  What weight does having planning permission in place hold if someone applies to the civil court to have a covenant lifted?  Which comes first – the planning permission or the application to lift the covenant – or is it up to the individual applicant?

 

NJ, in response:

-       covenants and planning permissions are two completely separate issues.  The granting of planning permission doesn’t mean that the covenant will automatically be lifted and implementation of the planning permission take place.  The covenant has to be dealt with separately, and is not a material consideration with which Members need concern themselves in their decision making.

 

MJC, in response:

-       to TO, regarding the removal of the trees: yes, the new houses will be visible from the neighbouring properties, but the gaps between the houses remains generous – there will be an amenity impact but officers doe not consider that this will be unacceptable, despite the loss of the trees;

-       to BF, Members will remember that the application at Wild Perry House was refused because there was a covenant, but was subsequently allowed at appeal;

-       LS commented that the officer report is dismissive of the covenant issue, but this is done deliberately, to deflect Members from dwelling on it when it is not a material consideration.

 

PT:  are all the trees to be removed or will some of them remain?  Would be sad to see the whole area denuded of beautiful trees.

 

LS:  is concerned about the environmental impact of the removal of these trees – they play an important visual part in the view up Battledown Approach.  Is concerned that this could be the thin end of the wedge, and the beginning of further development on the Battledown Estate.  It’s true that the houses stand in large plots, but this is an important part of the character of the area.  This is a landmark application, and if permitted, the change could affect the whole town.  Also, would like to highlight the strength of feeling in the community; Planning Committee is supposed to give a voice to this, not just to interpret policy etc.  The weight of local concern is important for all Committee Members.

 

MB:  has comments on two aspects of this application:  firstly the design – is not a fan, although realises that this is a personal thing – but is particularly concerned about the height.  Realises that no-on has a right to a view, but building a four-storey house into a hill will have a big impact and impose on the neighbouring property.  Adding two storeys to what is currently there is definitely a consideration.  Secondly, regarding the covenant, realises that this applies to a small area, a single site, and that it is not a planning consideration.  However, it is part of the whole area, and fundamentally linked with the character of the Battledown Estate.  The covenant creates the atmosphere and character of the area.  Is there any precedent where a covenant of this size has been considered in planning, where it cannot be separated from the character of the area?

 

CH:  notes from highways officers’ comments  that Birchley Road is a private road.  What is the role of a private road and how does it work in these circumstances?

 

BF:  in response to both LS and MB, it is clear from the ordnance survey map attached to the report that Birchley House and Ash Tree House both stand in plots smaller than The Water Garden.  Building two houses on this plot cannot be said to be altering the area.  Members should recall Temple Garth, which was demolished and two or three houses put up on the site – the covenant wasn’t mentioned at all.

 

CN:  the covenant issue regularly comes up, and this is a case in hand, generating much discussion in Planning Committee.   This is a question for the future:  we can’t relieve the disconnect between the two issues today, but is there any scope for the Cheltenham Plan to do so in the future.  This would be a different approach - to consider any major covenants in the town and give them some planning weight, so provided potential teeth for Planning Committee rather than the Parish Council being left to use the legal process to object to a problem.

 

PB:  we all want to represent the views of the public who elect us, but looking at this application objectively, it isa good scheme, a good design, on a plot capable of supporting it.  Can’t believe this is the first time an application of this kind has been submitted on the Battledown Estate, to build on a plot this size.  The question remains whether the applicant can overcome the covenant, and this application raises an interesting point about conservation areas and their protection.  Battledown Estate is an important area for the town – is there a way to conserve it going forward and give our conservation areas additional protection?  For now, however, in view of the lack of housing supply in the town, it would be a waste in making this applicant go to appeal. 

 

Regarding the trees, has gone back to look at the plans to see which of them are coming down.  Trees add greatly to the amenity and enjoyment of an area, and would like to have a clear understanding of the landscaping scheme and where trees are to be removed. 

 

SW:  this application and the point raised earlier by CH is a good example to Members; as has previously been pointed out, the Chairman could put in a planning application to build in SW’s garden if he wanted, but it would not happen – it would not be allowed to happen.  The same applies to this application – if the covenant prevents the building of these two houses, they will not be built.  Today, Members are considering if the application itself is viable and suitable; if they decide it is, it is for the applicant to take if forward. 

 

KH:  largely agrees with what PB has said.  Respects the strength of feeling from neighbours, but the simple fact is that the planning authority is not able to take the Trustees’ deed into account when making its decision; Members are therefore looking at a generous site which can easily accommodate what is being proposed.  The design is unashamedly modern, but this too is not a reason to refuse.  Cannot vote against it for these reasons.  Neighbours say it will be a loss to the area and the community but cannot agree with this; it is up to the people living in the two dwellings, which also make a contribution to the housing need, albeit at the higher end.  Regarding the broader issue of trust deeds, we can all think of examples round the country where deeds of covenant are used to protect large and beautiful properties, but times change and therefore worries that showing deference to these until the end of time should not be used to stop all development in the future. 

 

PM:  is on Charlton Kings Parish Council, the custodian of the boundary between the urban area and the AONB.  Much of Cheltenham is in or borders on the AONB – Glenfall Way, the cricket ground, Little Herberts Road, Greenway Lane, Stanley Road, Charlton Kings Common, Crickley Hill.  Battledown Hill is adjacent to the AONB, and policy CO2 states that development in or close to the AONB must be landscaped to avoid harming the view in or out of the AONB.  There was a planning application earlier this year for three houses at The Bredons in Harp Hill, which was permitted  with little objection, because it was  consistent with the covenant; this is true of other examples where other replacement dwellings  where there is space to subdivide the plot. The problem here is that the plot is already full and no extra dwellings are permissible. The   people who developed covenant were visionary - Battledown Hill is a unique feature in the Cheltenham environment, and should be protected in perpetuity.  The officer report on The Bredons stated that the SPD ‘Development on Garden Land and Infill Sites in Cheltenham’  assists in the determination of planning applications, as it provides a consistent and robust means of assessing the context and character of residential areas, and of complementing and respecting the surrounding area.  The report also refers to the spacious nature of the area on the edge of the AONB,  provided by specific character, large individual properties in their own grounds, with mature landscaping, protected by covenant. 

 

 

MJC, in response:

-       There has been discussion about this being a watershed moment in planning in Battledown but the SPD tells us to make an objective judgement as to whether a proposal sits comfortably on a site;  to repeat, the covenant is not a consideration here;

-       Officers have used their judgement; as SW stated, this size plot could comfortably accommodate 7-9 units  - this would be inappropriate to Battledown’s unique character, but the SPD does not say ‘thou shalt not develop’;

-       This scheme fits in well to the area; there is space round the buildings, and the plot is a good size;  agrees with BF – at a basic level, looking at the sizes of plots and houses around, it is clear that, contextually, dividing the site for this proposed development is not inappropriate.Is the proposal appropriate to the character of Battledown?  Officers feel that the space, landscaping features, trees etc are all entirely compatible, and that this is a sensible use of the land;

-       Regarding covenants, these can help planners to make proper judgements about planning applications:  if a proposal is compatible with a covenant, it can be permitted; if it isn’t, planners have to make a robust decision based on policies and guidance;

-       Regarding the loss of trees, these formed a side boundary of the site, and to the top corner there is a hedgerow where the trees will be removed.  The trees in the public realm will be retained.  The mature landscaping features will not be touched by the proposal;

-       Regarding the conservation area status of the site, this area was not considered worthy of that status, and the SPD is therefore used to to protect Battledown where appropriate;

-       It is fair to say that the two proposed dwellings would make a minor contribution to Cheltenham’s housing supply – this would be raised at appeal;

-       Regarding highways, this is a private road, and highways officers have applied best practice to the junction, finding it to be safe and suitable.

 

PT:  MJC mentioned trees with red rings around them – are these coming out or staying in?

 

AL:  the majority of the development is sensitive to the environment and surroundings, but the garage on the north side of the plot, where it comes out from the hill, will be very high.  When viewed from Wellswood House, this appears as a cliff of bricks – and is therefore a point of concern.  This cliff face is also viewable up Birchley Road. In principle, considers the proposed dwellings settle in well, but feels that this aspect needs to be addressed.

 

CC, in response:

-       On the plans, the purple trees are to be removed, the red trees to be retained.  The group of trees on Plot 1 by the garage – cypress trees, forming a hedge – serve a function, but their visual amenity is low.

 

MJC, in response:

-       Regarding the relationship between Plot 1 and the neighbouring property, there will be some impact – there is no getting away from that – but taking into account the space between the properties and the amount of garden to be affected, officers do not feel that this will be unacceptable.

 

MB:  regarding the size of the covenant and the areas affected, is more weight given depending on whether it applies to one plot or whole estate? 

 

MJC, in response:

-       Covenants are red herrings, not relevant to planning, whether they relate to one plot or a huge parcel of land.  A covenant on a large piece of land carries no more weight than one on a small site.

 

Vote on officer recommendation to permit

8 in support

6 in objection

1 abstention

PERMIT