Agenda item

 

 

 

Application Number:			14/00505/FUL
Location:	Avenue Lodge, Chargrove Lane, Up Hatherley
Proposal:	Garden landscaping
View:	Yes
Officer Recommendation:				Permit
Committee Decision:			Defer
Letters of Rep:		10	Update Report:		Parish Council correspondence and additional representation

 

MJC explained to Members that planning permission is required for this application for landscaping in the grounds of Avenue Lodge because a large amount of earth will need to be brought onto the site, making it more of an engineering operation and beyond normal garden landscaping.  It is at Committee because of the Parish Council’s concerns about flooding issues, and at the request of Councillor Whyborn.  The Officer recommendation is to approve.

           

 

Public Speaking:

Mrs Limbrick, applicant, in support

The main purpose of this application is to allow the owners to continue to improve and enjoy the garden of Avenue Lodge.  CBC considers the proposal to infill part of the pond to be an engineering operation, which is why the applicants are required to seek planning permission.  There is professional advice from CBC’s drainage engineer in the report, which states that infilling the pond will not increase the flood risk on the site or the surrounding land, and also that groundwater levels will balance out in time.  The Environment Agency agrees with these comments.  At Paragraph 1.3.6 of the report, professional advice is clear that the pond has no flood storage capacity and infilling will therefore not exacerbate any flood risk.  This is a comprehensive design to transform the garden at Avenue Lodge, increase its amenity value, and bring the garden into full use.  With no objection from professional consultees and the officer recommendation to permit, there is no valid reason for this application not to be approved.

 

Councillor Whyborn, in support

The report refers to a number of other applications at this property, but as Members know, each application must be looked at on its own merits.  Having received representations from the applicant and from various objectors, realised that this is a controversial application there is a lot of high feeling, but on the other hand, planning permission isn’t usually required for landscaping a garden – it is needed here for filling in the pond.   There is a lot of anecdotal evidence from various neighbours, which needs to be taken seriously, but the clear guidance from officers is that the risk of flooding will not increase with the infill of the pond.  Members have seen pictures of flooding in the area, but there are many reasons for this.  These concerns are obviously very important for neighbours but a red herring in planning terms.  Officer advice is unequivocal, and Members should follow this.

 

(Councillor Coleman allowed Members time to read the blue update.)

 

Member debate:

PT:  has a question for the Legal officer.  It’s clear that the pond is well-established but officers can’t say how deep it is.  Having been in two local properties and seen pictures of water coming under the fence and into their gardens, is very worried by this.  If the application is permitted tonight and the gardens – or even worse, the houses – flood as a result of the displaced water, can the residents sue the Council?

 

CL, in response:

-          this is a good question, and just because exercising a  statutory function, not automatically immune from a negligence claim.  It’s a matter of the Council exercising a duty of case and whether it has breached that duty.  .  If flooding was to occur, one of the questions would be whether the Committee had made a reasonable decision, based on professional advice, both internal and external to the Council – the advice given is that the pond is a drainage pond and that filling it in will not increase the risk of flooding.  If the neighbouring houses were to flood, it would have to be shown that filling in the pond was the reason for this – there may be other reasons, and causation would have to be established.  If it was proved that filling in the pond had caused the flooding, it would need to be considered whether the Council was in breach of its duty of care.

 

JF:  is worried by this.  Was on Planning Committee when previous applications at this site were considered, and although Members know they must look at each case on its merits, those applications do have a bearing on this one.  If a pond is filled in, water is displaced; if only half of the pond is filled in, there is still short-term displacement of water and this needs to be managed.  How is this going to be done?  Has seen photos of flooding in the area and doesn’t think CBC should permit anything which might add to it.  The officer report at 2.3 (orange update) states that ‘on balance’, the recommendation is to permit – which suggests that the officer could have gone either way in his conclusion.  Notes the 2010 appeal described the area as a ‘tranquil green open space’ - this still stands and the area is a haven for wildlife.  The NPPF Paragraph 109 states that planning decisions should protect and enhance valued landscapes, minimise the impact on biodiversity, and benefit the ecosystem.  Officers say that the garden will continue to support a variety of wildlife after the landscaping work, albeit a different type of wildlife, but why disturb it at all?  There is no reason to infill part of the pond; the next step could be to fill in the whole of it.  Moves to refuse on CP4 and the NPPF.

 

MS:  agrees with what JF says, and cannot believe that such an amount of water can be displaced without increasing the flood potential, despite what the experts say.  All one needs to do is look at the pictures of the neighbours’ gardens, and the muddy mess they can become. Regarding the relative level of the pond to the adjacent bungalow, noted on planning view that this is more or less the same, or, if anything, the bungalow is slightly lower.  If huge amounts of water are displaced, it won’t take much for it to be seeping under the door of the bungalow, not just accumulating in the garden.  Is with JF in her concern about the process of attrition to destroy this nice wildlife sanctuary, and can find no reason to vote for that to happen.

 

SW:  agrees with JF.  The pond itself is not fed by a stream or spring, has no outlet, and neither is it a dew pond which gathers surface water, as suggested by one objector.  Therefore, basically, the level of the water in the pond is the level of the water table, and partial infilling will therefore work to some extent, with the displaced water being soaked up by the surrounding ground.  Is concerned, however, that several ponds in the area have been filled in over the years by farmers and builders; this one remaining pond is a little pocket of wildlife, and it seems a shame to destroy it just because the owner wants a better garden.  On planning view, it was clear that the shape of the pond has already been spoilt.  This is an ancient pond, home to diverse wildlife, including frogs and toads which will have nowhere else to go if the pond is lost.  It will be a sad shame to lose any part of it, and if anything, would like to see the pond enlarged rather than reduced.  Supports JF’s move to refuse.

 

RG:  we also have a duty to the applicant to consider what they want to do in their own garden, not just worry about biodiversity.  The garden is being well-managed, and any changes will be part of this.  However, as we can’t be sure of the effect of infilling the pond, would have expected to see a hydrologist’s report included in the officer report.  Local residents have submitted pictures which prove that flooding occurs, most recently in November.  Has huge respect for CBC’s land drainage officer, but the views of a geo-hydrologist would be helpful here, as we do not know exactly what will happen when the pond is filled in.  From a potential flooding point of view, we shouldn’t take the risk.

 

LG:  notes that the applicants and objectors refer to the water here as a pond, but elsewhere, including on the 1874 Cheltenham map, it is defined as a lake, and it clearly existed before any houses were built in the vicinity.  Has lived in Up Hatherley for 52 years, during which time there have been many different occupants of Avenue Lodge.  Many years ago, a doctor lived there with his family, and actively encouraged local children to make use of the land to play and study nature – LG’s own children used to play there – but the doctor would sometimes put a notice on the gate to say the grounds were closed due to flooding.  This happened on numerous occasions and is still the case.   As Chairman of Up Hatherley Parish Council, went many times to look at flooding in neighbouring gardens, and whatever the land drainage officer may say, there is undisputed evidence that these gardens flood - we cannot get away from this. It is stated that this is not a drainage pond, yet every year, especially in the winter, water rises over its banks and into the neighbours’ gardens.  This water must come from somewhere; it isn’t all from above. 

 

Irrespective of this, common sense should prevail here – if you try to put a gallon of water into a quart pot, it will overflow and the surplus will run everywhere.  There are thousands of gallons of water in the lake, and infilling any part of it will cause problems somewhere along the line.  The floods of 2007 taught everyone a timely lesson which should not be forgotten.  Prestbury had problems with flooding for years, which have now been alleviated by improved drainage.  This pond collects water, and if the water doesn’t go into it, where will it go?  It is simply common sense.  CP4 is the right reason to refuse.

 

HM:  is interested in the historic status of the pond, noting that if the land around it at Avenue Lodge has been developed but the pond left intact, this must have been done for a good reason.   The 2010 Inspector described it as an historic feature, and a geo-technical study has identified it as an important historic part of Avenue Lodge.   It has been established as historic, and as such, if it was a building, the conservation officer would be fighting for it to be conserved and enhanced.  The NPPF states that planners should conserve and enhance heritage assets for future generations.  Has looked back at the 2010 refusal reason, which states that although there is no public access to the pond, it has a positive impact on local living conditions – this is contrary to what is said in the current report.  If, however, Members are minded to approve this application, a condition to ensure satisfactory dispersal of excess water, as raised by JF, should be included.

 

BF:  had several concerns after reading the report, and has subsequently spoken to the officer about these.  The report states that when the lake is filled in, the water will have to be managed – i.e. a certain amount of water will have to be physically removed to lower the level, and ballast added to bring it back up to the required level.  There is also a suggestion that rainwater from the surrounding area drains off towards the garden at Avenue Lodge– is the report wrong?  Is the drainage engineer wrong?  Despite members’ concerns, this application comes a long way from destroying the pond completely.  Agrees with RG that a hydrologist’s report would be useful, suggesting that partial infill may actually improve drainage of the land around, as a result of not holding so much water in the area.  The analogy of putting a gallon of water in a quart pot wouldn’t have the same outcome if there was sand in the quart pot, and with the right absorbent material in the lake, the excess water may well be absorbed.  We cannot do anything about the water table, but we have a planning application to consider, the drainage engineer and Environmental Agency say it should be OK, and the legal officer has told members that they need to consider this and act responsibly.  We have to consider the planning application as it stands, and whether we like the proposed planting or not is irrelevant – the application is only at Committee because of the volume of pond being filled in and the engineering work required.  The Committee should stick to planning considerations when deciding how to vote.

 

PT:  believes that there are TPOs on several trees around the pond, and that both the house and the trees are on the A-list of things to be preserved in Cheltenham.  This is an old and historic lake and it would be wrong to destroy something so valuable.  Do we know how much of it is to be infilled, and what type of material – sand, clay, clinker? – is to be used?  It is difficult to envisage without knowing how deep the pond is.  Interested in what BF said about water draining from the bungalow towards the pond –must have missed this when reading the report.  If it is so, and water continues to come from the bungalowand if the pond is filled in, where will it go?

 

KS:  can the pond be protected, and if not, is there any listing anywhere?  Has this ever been applied for and refused?  There are a lot of conflicting comments about what type of pond this is – a dew pond, spring fed etc – but it is undoubtedly of public benefit, and is therefore very sad if something so beneficial to biodiversity is not considered as such because it cannot be seen from the road.  This contribution is clearly a public benefit.

 

CH:  carrying on from RG’s comments, a better understanding of how water works in the area would be helpful in making a decision.  Agrees with BF and wants to understand if there are any benefits to the area’s drainage issues of having half the pond filled in with soil – water can’t absorb more water but soil can.  There is no flowing water here – if the surface of the lake is the height of the water table, anything lower would be under water, and this clearly isn’t the case.  The drawing shows a pond in a neighbouring garden – how does this relate to the water level?  Does not consider Members have the right information to make a decision; what is decided could have a very important effect on the flood risk in the area, as reducing the size of the lake may actually be beneficial.  There is clearly a drainage problem in the area – neighbours’ pictures show this – but is it the responsibility of the owner of one garden to sort this out?  If improving the garden could have the additional effect of improving the drainage issues and flood risk, it could be beneficial all round.  Realises he may be rambling, but has not properly understood all that has been said and written; the report says filling in the pond won’t make the flooding issue worse, and what happens in the area is important for members making the decision.

 

MJC, in response:

-          to begin with, for clarity, the pond is formed through ground water – it has no inflow or outlet, and the depth of the water goes up and down with the water table.  The land drainage officer and Environment Agency endorse this view – it is not a balancing pond.  Water may run into the pond, but it originates from ground water;

-          the Council’s land drainage expert says that if the pond is partially filled in, the water taken from the pond will have to be managed by pumping it away – the application needs a condition to ensure this – but once the excess water has been removed, the land will act as a drain and flooding won’t increase as it will balance out over time.  SuDS schemes try to replicate what happens in a greenfield situation and that is essentially what will happen here – the soil will hold the water rather than the pond. The principal engineer and Environment Agency both say that infilling the pond won’t make flooding worse and that the land will compensate for the loss of the pond;

-          regarding wildlife habitats and biodiversity, it is important to stress that these will still be there, albeit in a slightly different form.  There will still be water, trees, shrubs, plants, grass etc.  The proposed landscaping work is the kind of thing anyone can do in their own garden without planning permission, and which could equally be said to change wildlife habitat and biodiversity, albeit on a different scale.  Biodiversity will change but will not be lost;

-          to RG’s comment about a hydrologist’s report, there is a flood risk assessment and geologist’s report included in the officer’s report, and both the applicant and the officers don’t consider a full hydrologist’s report to be necessary.  If the Committee wants to push this further, to get more information of issues they don’t fully understand,  it may be more appropriate to defer the decision until this has been received – this would not be unreasonable;

-          to HM and LG’s comments on the historic status of the lake, Avenue Lodge is included on the Local Index, but the pond itself is not protected or designated as a heritage asset.  The building’s listing makes no reference to the setting – just to the building itself – and there is therefore no duty to preserve or enhance it.  Although the pond is considered to be important and makes a contribution to the locality, he is starting to struggle with concerns about the impact of the work – the only impact will be within the site and views won’t change, as this is basically a piece of landscaping work within a garden;

-          to sum up, there are two issues for Members:  firstly, drainage concerns –if Members want additional information about this, they can ask for it; secondly, the impact of the work on the locality which, in his opinion, will not be harmful and will not affect views into the site;

-          regarding JF’s suggested refusal reasons (Policy CP4 and the NPPF), CP4 is not relevant to this application, as it concerns harm to the amenity of adjoining land users.  CP3 would be more appropriate and relevant here, if Members are minded to refuse;

-          in response to MS’s comment about levels, has not been able to get the information discussed on planning view as yet, although it was clear when Members viewed the site that the bungalow appears to sit lower than the banks of the lake.  Will get the information as soon as possible if the application is deferred tonight.

 

JF:  how does the NPPF Paragraph 109 sit with this?

 

MJC, in response:

-          it is not irrelevant, but is inclined to advise Members to stick with Local Plan policies and hang their refusal on these.  NPPF Paragraph 109 is more concerned with biodiversity; the Local Plan policy is a better place to start.

 

RG:  has asked for more information, due to concerns about Members being asked to make a decision without all the information they need.  LG’s comments about flooding are correct – it is all very well for the Environment Agency to say that everything will be fine, but theirs is a desk-top study, and the pictures provided by neighbours suggest otherwise.  Moves to defer, pending more information.  MJC has unpicked the main objections and made the point that landscaping work can usually be done without planning permission and that biodiversity could be enhanced here, but does not want the decision Members make to cause any further harm in the future. A hydrologist’s report will help Members to understand the surface water flows etc, and therefore whether the neighbouring properties will be at greater risk of flooding.

 

CC:  JF has moved to refuse, and has now heard to comments of MJC, CH and RG.  Does she want to continue with her move to refuse?

 

JF:  yes, as although Members have requested further surveys and responses, does not see that more information will help.  Is prepared to accept MJC’s suggestion that the refusal reason be changed from CP4 to CP3, but wants to keep NPPF Paragraph 109.  This is important – a lot has been said about the water and flooding, but we have to consider the environmental impact too.

 

KS:  hopes that Members won’t end up tying themselves in knots with this, but for clarity, notes that the Design and Access statement refers to ‘incorporating an existing dew pond’.  Is not an expert, but wonders if it makes any difference to the outcome whether this is a dew pond or spring-fed pond as it is referred to elsewhere?  If the supporting evidence states that it is a dew pond, was the flood risk assessment carried out on that basis?

 

LG:  has two points to make in response to comments from MJC.  The application refers to the partial infill of the pond – understands that this will be at least 50%, if not more.  The orange update, at 1.3.5, refers to the ‘informal views’ of the Environment Agency.  Rang the EA on Monday, and was told that it had had no formal application to comment on the works at Avenue Lodge, and referring to records, noted that the property is in Flood Zone 1.  The EA and Members need to be told exactly how much of the pond will be filled in.

 

SW:  has limited, second-hand geo-tech knowledge, but knows that this is not a dew pond – if it was there would be very serious problems if it was filled in.  If it is in line with the water table, the level will eventually sort itself out after infilling, but is still concerned about the effect on biodiversity.  Losing half the lake will mean losing half the habitat for frogs etc, like losing half a housing estate – it is wrong to say that nothing will change and nothing will be lost.  If partial infill of the pond is allowed, the applicant must stick to the sound expert advice on exactly what materials should be used for this.  If the surface is below the water table, the material will become waterlogged, or could become saturated and expand, contract or move.  If dirt is used, it could go in all directions and the entire lake could be lost.  Expert views are needed about what is used and how it is done.

 

BF:  agrees with RG that we do not have enough information to make a sound decision.  If Members vote for refusal, that decision can be appealed, and if it is won, the application will go ahead as it is now.  If the decision is deferred tonight, Members will be able to make the right decision.  Does not feel enough information about the possible changes to the contours of the garden has been provided – different plants in different parts of the garden, marginals etc will change the contours and could improve drainage.  More information is needed to make a sound decision. Also, if a hydrologist’s report is required, will this be at the applicant’s or CBC’s expense?

 

AM:  agrees with RG.  The Committee will be in an invidious position if forced to take a decision without the information needed - this would be appalling.  We are told that the pond is shown on an 1874 map but don’t know if it’s a natural feature, and therefore don’t know the consequences of any change to it.  The officers say it will be OK, Members are not so sure, but it would be wrong to turn the application down without a full hydrologist’s report.  If it is turned down, smaller-scale development could be permitted, and the applicant could end up doing exactly the same thing as applied for here, but in phases.  Members need to have fuller information in order to vote with confidence, and to balance the aesthetic issues with the potential impact of the work on the surrounding area.  We need to find a way to defer or the Committee will be a laughing stock.

 

JF:  if the decision is deferred, can members be assured of an answer from the applicant as to how much of the pond will be filled in?  This is critical, and it’s essential that Members have this information.

 

CC:  this is an important question and should be added to the list.  The feeling from Members appears to be that they want to defer and get further information about this.  If they vote on JF’s move to refuse and this is lost, the application will be permitted and a further vote to defer cannot be taken.  With apologies to JF for putting her under pressure, what would she like to do?

 

JF:  does not want to see this application approved by default, and will therefore withdraw her move to refuse until further information has been received.  

 

HM:  at the risk of sounding like a broken record, also favours a vote for deferral, and notes that the fourth bullet point of NPPF Paragraph 109 refers to proposed development adversely affecting the levels of water - suggests that JF can take comfort from pushing for this, and that a hydrologist’s report will inform the decision Members end up making.

 

CH:  there is currently not enough information; wants to understand what is happening, and requests that the report explains more fully.  Could CBC be sued if flooding increases?  If Members can understand what is happening, as lay people, they can offer more protection to the area.  This area floods – that needs to be stated clearly.  If the area was drained, would there still be a pond?

 

PH:  a variation on a theme.  Is relieved that the application is likely to be deferred, as everything discussed so far has been speculation rather than irrefutable facts, such as whether this is a lake or a pond, and whether flooding on neighbouring properties will get worse.   There must be a reason for flooding in the area, and a hydrologist’s report should explain this – it needs to be investigated if the Committee is to come to the best decision it can, in good faith.

 

PT:  some of her concerns will be covered by the deferral and by a hydrologist’s report, but would still like to know more about the quantity of infill and the depth of the water.  If water run-off from the bungalow is feeding the lake as has been suggested, where will that water go after the work has been done?  We are told that it will balance out over time, but how long?  Ten days, ten years, 100 years?  This is not very satisfactory for local people.  Anecdotally, it is clear that this area floods, as seen in photos of adjacent gardens, and we have to be very, very careful here.

 

MS:  if the pond is infilled, it will need to be with certified material that won’t pollute any ground material.  Expert advice is needed to sure that this is safe.

 

MJC, in response:

-          to LG’s comments about the Environment Agency’s ‘informal view’, it is not obliged to comment on applications of this nature but officers felt it would be helpful for members to have its views.  These are referred to as ‘informal’, having been made by one officer who comments on all applications as requested.  Members can be sure that this is qualified, professional advice on flooding issues;

-          regarding comments from experts, CBC’s land drainage officer has given a clear response about what the pond is and how it functions, and no different advice will be presented if this application is deferred tonight.  He is the resident expert, and officers depend on his professional advice.  Members may want more information, but officers are happy for his comments to stand;

-          to PT, regarding the quantity of infill, the drawings make this clear, but officers can ask for specific volumes.  The applicants are present at the meeting tonight and have heard the discussion and Members’ concerns – they can make the appropriate response regarding the depth of the pond, and this information can be passed to Members before the next meeting;

-          to MS’s comments about the infill material, this is covered by an existing condition – it will be inert clay and soil backfill to British Standard, to ensure that the ground water is not polluted.

 

PT:  the question of the water in the bungalow’s garden – where it comes from and where it might go to – has not been answered.

 

CC:  there is a move to defer, on account of a number of questions requiring answers.  These will be dealt with in the officer’s report.

 

SW:  also has an unanswered question.

 

CC:  this will be dealt with next time.

 

Vote taken on RG’s move to defer

11 in support

3 in objection

DEFER

 

(Councillor Barnes had left the meeting before the end of this item)