Agenda item

 

 

Application Number:			14/00505/FUL
Location:	Avenue Lodge, Chargrove Lane, Up Hatherley
Proposal:	Garden Landscaping
View:	Yes
Officer Recommendation:				Permit
Committee Decision:			Refuse
Letters of Rep:		11	Update Report:		Additional representation

 

MJC introduced the application, which is back at Committee following deferral at the May meeting to allow for additional information to be presented to Members, essentially a hydrologist’s report which would allow Members to fully understand how the pond functions and the potential impact of filling it in.  Reminded Members this is an application for garden landscaping, and needs planning permission because infilling part of the pond is involved.  The application was originally brought to Committee because of Parish Council objections.  The recommendation remains to permit.

 

 

Public Speaking:

Mr Bacon, neighbour, in objection

Members will be aware of letters between the officer and the applicant, and that the officer’s sound advice was ignored – the consultants engaged did not seek the views from any neighbouring properties.  The applicant states that the hydrologist’s report provides irrefutable information to prove that infilling 50% of the pond won’t exacerbate the flood situation in the area, but is it irrefutable?  The answer is emphatically no.  There is no evidence of practical fieldwork at the pond site.  At paragraph 1.7, the report makes clear that it has examined the situation from a theoretical point of view, and it has provided no real reason to go away from this approach.  At paragraph 3.7, it is clear that practical work at the site has not been undertaken – the report states that core sampling would have been useful yet was not done, when it easily could have been.   There are a number of contradictions in the report, where the hydrologist appears to be sitting on the fence.  For example, paragraph 3.3 rules out springs, though also states that the geology of the site does not rule springs out but make them ‘unlikely’; Page 1 of the report talks about infilling approximately 40% of the pond, while paragraph 5.2 refers to infilling half the existing pond area; this is a very significant difference in a pond with the capacity to hold 1.8 million litres.  There are no recommendations on how the reduction can be achieved, how the impact can be effectively monitored, or the long-term effect of the work.  The officer has laid out certain stipulations but the whole issue remains haunted with risk.  Remains opposed to the application.

 

 

Mr Limbrick, applicant, in support

Reminds Members that the report states that there is no reason why this application should not be permitted.  Its progress has been marred by uninformed speculation – comments which should be set aside.  With all the facts at their disposal, Members should permit the application and allow the applicant to improve his garden without further delay.

 

Councillor Whyborn, local ward member

Like all councillors, wants to be fair to all his constituents – has been approached by the applicant and by objectors concerning this proposal. The Committee should ignore emotional comments and objections which are not made in planning terms, and also reminds Members that planning permission for landscaping of gardens is not normally needed – it is required in this case as the proposed work goes beyond normal gardening into the realms of hydrology.  Neighbours have the right to be assured that the flood risk to their homes will not be increased, hence the requirement for the hydrologist’s report.  Neighbours have also expressed concern about the loss of amenity. Unlike the Parish Council and some residents of Up Hatherley, cannot see that this pond has high amenity value – it can’t be seen from outside the garden, and was personally unaware of its existence for many years.  However, we have to consider the Planning Inspector’s comments in 2010, which described the site as ‘highly-valued’ locally, a ‘tranquil green open space’, a ‘valuable oasis’ in this suburban area, and a ‘long-standing historical feature’, adding that ‘its essential character should be protected’, and development would disturb and displace much of the wildlife (although it should be remembered that these statements were made in reference to a different application).  Members have to decide whether an Inspector presented with this different proposal on the same site is likely to reach the same conclusions.  A hydrologist’s report has now been produced; the borough engineer’s comments in the officer report are clear and have been endorsed by the hydrologist’s report, although it includes an important caveat on the risk of flooding, particularly at Brambles.  It states that the increase in frequency of flooding is unlikely to be significant, but provision of compensatory storage volume is recommended.  Members should take the report on board but note that the compensatory storage volume is a lot less than the volume of the pond which is to be removed.

 

 

Member debate:

HM:  welcomes the hydrologist’s report, and is pleased that its findings suggest the Committee was right to ask for one to be done, but it has also opened a whole new set of questions.  We need to know what the secondary storage solution would be and where it would be situated – a tank big enough to hold 83 cubic metres of water will be a significant feature and Members ought to have some views on where it will be sited.  We know nothing about how water from the reduced pond would enter or leave the tank.  It may be that a depressional tank could alter the number of trees included in the application – currently stated as 50 – but there is no further comment from the trees officer.  Maybe he could suggest particular varieties of tree depending on which solution is chosen.  This is a rather a vague application – like someone asking permission to build a dwelling on a site but not saying whether it will be a one-bedroomed house or a six-bedroomed executive dwelling.  It is not acceptable to not know more details about the storage solution.

 

CN:  like HM, has some nervousness about this application.  On the one hand, it is clear that the applicant has made quite a few attempts to improve his property, which is to be commended.  Having seen the pond, can see that what is suggested is a good idea and has something of merit to support it,  but having read the hydrologist’s report, with its qualitative not quantitative, theoretical not practical, approach, remains nervous about the flood risk.  Notes the mitigation measures suggested in Condition 6, but how will we check the right amount of infill is installed?  As mentioned in the Brambles letter, the physical size of the tank will need to be very large, and there is no indication about getting this into the ground, so how can we be sure we are getting it right?  If it were a building, the building extension would be able to be seen, if not checked before it goes in – how is the size of the tank going to be checked? Is this a practical solution or not?  Has questions in his mind – can officers provide reassurance?

 

FC:  finds paragraph 1.1 on the first page of the hydrologist’s report interesting – the consultant was not asked to do an assessment of the pond as it is, but to demonstrate that partial infilling will not have a significant effect on flooding elsewhere.  The report has therefore been designed to give a positive impression of what the change to the pond it likely to do.  Secondly, if reading the objections correctly, the pond contains about 2 million litres of water, and would therefore wish to be completely satisfied, given what has been said, that the mitigation measures are going to do the job and not cause severe flooding of the area and the neighbours’ gardens - is not convinced about this.  We need a less biased report, as is obviously the current case.

 

PT:  agrees with all the previous speakers.  One of the letters of objection refers to building at Witley Lodge – a small development on the other side of Avenue Lodge – where the builders were hindered by flooding when laying the foundations, and came across a bell chamber in the ground, large enough for a man to stand up in.  This should be easy enough to find, and if it is there, it shows that there must have been a problem with flooding in previous years; Witley Lodge (the original old house) was constructed in 1837.  We are being told that the idea is to infill the pond with a clay soil mix.  Clay holds water; it is used to line swimming pools.  It fits in with the idea of holding water in a depression, but doesn’t make sense to use it in this way.  Last time, suggested a sunken tank to hold the excess water, but the bell chamber ought to be investigated before doing anything else at all.

 

MS:  was concerned about this application last time and remains so.  Councillor Whyborn mentioned that the Inspector’s report was related to a different application which would have meant disturbing local wildlife by creating a new building.  The current proposal will also disturb wildlife, so the Inspector’s statements are still valid.  He described the area as a ‘valuable oasis’, and to fill in more of the pond will disturb and displace much of the wildlife that uses it.  The application should be refused on the basis of the Inspector’s report, on paragraphs 109 and 123 of the NPPF, Local Policies GE2(c) with reference to paragraph 6.12, and CP4(a).  The report accepts that the pond does in fact hold run-off water and surface water and that something has to be done with this at times of high rainfall.  Is nervous for the bungalows at the bottom of the garden and the adverse effect the proposal would have on their amenity.  There must be a way of re-landscaping the garden but keeping the pond as it is.  Moves to refuse on the above grounds.

 

BF:  last time this application was at Committee, at the suggestion of ex-Councillor Garnham, the applicant was requested to provide a hydrologist’s report.  He has now done this; whether Members accept it or not is up to them, but it would be foolish to ignore it altogether.  A lot of objectors have complained about putting the storage tank in the ground, but there have been many applications at Committee where flood potential is mitigated by the installation of a tank to hold excess water and release it slowly – this is a SUDS scheme.  The water won’t be displaced; it will be held in the soil, and the percentage of water will vary with the time of year - the water from the pond won’t instantly be flowing through the garden.  The hydrologist’s report has nailed the red herring that the pond is fed by a stream or spring – it is not.  It has also suggested that there is an issue with another pond in someone else’s garden; this is not the applicant’s problem. Nowhere was safe from flooding in the extreme conditions of 2007 – in places there was even 4ft of water 800ft above sea level – and nothing can be completely failsafe.  When the hydrologist’s report was requested, Members asked who would pay for it?  The applicant has paid for it, the report has been done, a tank to mitigate some of the water has been proposed as an effective way to do the job, and the pond will be filled in with absorbent material which will absorb some of the water.  Does not see how we cannot approve the proposal, which only requires planning permission because of the significant amount of soil which will have to be brought onto the site.  We have the hydrologist’s report and cannot argue with it – Members are not hydrologists.  On balance, what is proposed will do the job, but won’t prevent flooding in other gardens for other reasons.  Lots of places flood for lots of reasons.  It happens, and this proposal won’t alter that fact. The applicant wants to landscape his garden.  A significant amount of the pond will be left for wildlife.  The proposal is OK to approve.

 

CM:  has a major concern about how we get to the figure of 83 cubic metres for the loss of pond volume.  Paragraph 4.3 of the hydrologist’s report calculates this as half the surface area of the pond x 0.3m, but acknowledges at paragraph 3.14 that in a very heavy summer storm, the pond level could rise by 0.5m in an hour.  The storage tank will have to have a capacity of 137.5 cubic metres – this is massive – where will it go?  The Trees Officer’s comments that tree roots cannot live in water must be taken into consideration here.  Regarding the possible impact on wildlife, ponds are the natural habitat of many insects – this is where they start their life cycle – and a reduction in their habitat will have a knock-on effect on birds and other species of wildlife.  Paragraph 7.1 of the officer report concludes that a reduced pond will continue to support wildlife albeit a different type of wildlife, but this could well be less than at present.  Concerned about where the storage tank will go, damage to trees, and potential loss of wildlife.  Wants to know how the loss of pond is will be mitigated – this should be before Members to decide, not simply included in a condition.

 

MJC, in response:

-          the discussion so far has been very similar to the last time the application was at Committee;

-          BF has summed a lot of the issues very well.  Members should not lose sight of the reason for this planning application – fears that they are over-thinking the issues.  The application is required essentially because of the amount of material being brought onto the site – it is an engineering operation - but ultimately the applicant is simply landscaping his garden, as we are all allowed to do; the Committee has to strike a balance;

-          some Members consider that the introduction of clay soil to the site will increase the flood risk, but this is erring into the area of micro-management – a balance has to be struck, and we can only go so far with this application;

-          to HM’s point, officers also welcome the hydrologist’s report which clarifies a number of issues and explains why the pond is there.  It explores the possible consequences of the proposal with the suggestion of a storage tank or depression.  This is a standard way of mitigating surface water run-off, used in SUDS schemes as mentioned by BF – developers are encouraged to introduce this kind of scheme to their sites;

-          it has been established that the pond is fed by rainwater, and at times of peak rainfall, it acts as a balancing pond.  A tank to mitigate the loss of capacity in the pond is an appropriate suggestion;

-          the report is clear that the water table will not be affected long term, and that it will level out over time.  Water will always be there; the soil which replaces the pond water will absorb it;

-          to PT, clay soil does have absorbent qualities; the compacted clay used for swimming pools etc differs from the clay soil in the ground;

-          the proposed storage solution is appropriate; it is not for Members to exert control over how it is done.  The number of trees on the site is not relevant to the proposal and not part of the planning permission.  It is the soil being brought into the site that needs planning permission;

-          the suggested condition is evolved from a standard condition relating to drainage systems.  The applicant is required to provide a scheme, and officers will consult with the team, building control officers, and the borough engineer to make sure it is fit for purpose;

-          once it is agreed, the condition will need to be implemented as written, as with all conditions;

-          to FC, it’s true that the brief for a report can set the tone for what the report goes on to say, but this hydrologist’s report does a good job in explaining the situation at the site, how the pond functions, and the impact of the proposed work at the site.  This is what the Committee wanted.  The applicant was not obliged to provide it and could have gone straight to appeal.  It is helpful to have it, and it should carry a lot of weight;

-          to PT on storage solutions, mitigation measures have been suggested via condition and we have to accept that this is what they are for.  If the applicant wants to implement the work, he will have to comply with the conditions; if he doesn’t want to, he will either not do the work or go to appeal regarding the condition.  The hydrologist’s report suggests that he is happy to do the mitigation work required;

-          to MS’s move to refuse, some of the suggested policies were discussed at the last committee meeting and gave cause for concern;

-          Policy GE2 refers to sites which make a significant environmental contribution to the town – this site does not.  The policy is concerned with premier parks and gardens.  When this policy has been used in relation to sites of this nature in the past, we have never had any joy at appeals; it is not relevant here;

-          we talked the last time about policy CP4 – JF suggested it.  If MS wants to move to refuse, CP3 would be better as it directly refers to flood risk; CP4 is about protecting the amenity of occupants;

-          the two NPPF quotes are not entirely relevant; the chapter refers to the natural environment and this pond is man-made, with no public benefit;

-          officers’ advice to Members is that they deferred the application in May for a hydrologist’s report; this has been provided and it clarifies various issues, and goes beyond regarding surface water run-off, providing a strong body of evidence to suggest that there will be no increased flood risk; 

-          neither the borough engineer nor the Environment Agency consider the flood risk will increase with the development.  The agreement of these three professional bodies would put the council in a very difficult position at appeal;

-          toCM’s question about where the 83 cubic metres capacity comes from, the report at Paragraph 3.14 talks about a 500mm difference in water level, but it is important to bear in mind that this is referring to a 1/170 year flood event.  National advice is to cater for a 1/100 year flood event; the hydrologist has described a worst case scenario and it would be unreasonable to expect the applicant to plan for that.

 

CN:  without wishing to overthink things or concentrate on detail, still remains nervous.  The calculations in the report show a formula which includes 300mm in the equation, yet the report elsewhere talks about the possibility of a 500mm rise in the level of the pond.  Also, the photographs submitted with the Brambles letter demonstrate a difference greater than 300mm.  Again, MJC has referred to a 1/100 year flood event, yet the Brambles letter suggests that it is far more frequent than this.  Is nervous and concerned we should get it right.  What is the correct size for the storage tank?  In addition, have we talked to the enforcement team to ensure that when thetank gets into the ground, all will be as it should be?

 

DS:  there is no mention of where the overflow tank will be situated; it would be nice to know.

 

MS:  thanks to MJC for his comments on the suggested refusal reasons.  Is prepared to add CP3, but would like to retain the other suggested refusal reasons – thinks these do have a chance at appeal, taking into account the previous Inspector’s comments.

 

KS:  regarding the risk of flooding, if the scheme is approved and flooding is worse, would CBC be liable for any type of account re. duty of care to residents, or would the professional body which produced the hydrology report be liable?  It is important to know.  Does not want to agree to something which could be harmful to peoples’ homes; we are the guardians of the town and should not behave in a rash way.  It should be remembered that three experts advised on Cox’s Meadow improvements but this did not stop the town from flooding badly in 2007.  Experts are not always right.  Members are right to be cautious.

 

PB:  what is Policy CP3 – has forgotten to bring his copy of the Local Plan.  Can Members put in additional conditions?  If so, there should perhaps be one concerning the significant amount of movement by lorries in and out of the site.  Regarding the protection of wildlife and local amenity, would suggest that the scheme could actually be used to enhance local wildlife rather than detract from it.

 

MJC, in response:

-          to DS, where the storage depression/tank will go is not an issue at this point.  In line with the suggested condition, if the proposal is permitted, this will be approved in consultation with building control and the council’s drainage officer.  This is standard practice with any kind of drainage condition.  We would not expect to see details of where it would go, as long as it is fit for purpose and doesn’t compromise protected trees;

-          to MS, notes that he is happy to add CP3 to his refusal reasons, but points out that the Inspector in the previous case made no reference to GE2 and that policy was not included in the refusal reasons for the proposal to build a house over the pond.  Consistency is important here; to use it now implies that the site is more important now than it was in 2010;

 

MS:  appreciates this and is therefore prepared to withdraw GE2 as a refusal reason.

 

MJC, in response:

-          would refer KS’s comments about liability in the event of a future flood to CL;

-          regarding Cox’s Meadow, it didn’t protect the town from flooding in 2007 – this was a 1/200 year event, and the requirement was for protection against a 1/100 year event – but it did rectify earlier failings and the 2007 floods would undoubtedly have been worse for Cheltenham without it.

 

CL, in response:

-          KS’s question came up at the last committee;

-          the council is a statutory body making a decision, but this does not prevent it from being liable for a breach of duty of care;

-          the claimant would have to demonstrate that the extra flooding was due to the new development, and CBC breached its duty of care, for example, if it acted against the advice of the expert consultees;

-          regarding neighbour to neighbour liability, there could be a possible claim here, but again it would have to be proved that the additional flooding was caused by the new development.

 

MJC, in response:

-          PB has now been provided with a copy of the Local Plan and understands CP3;

-          his comment and suggestion about traffic movement in and out of the site is a good one, and Condition 4 regarding trees can be strengthened to included traffic to and from the site. This could be agreed through the Chair (the Vice-Chair is not present at the meeting);

-          regarding biodiversity and how it can be enhanced, would suggest that this is straying beyond the Committee’s remit – it is a decision for the applicant;

-          Members need to concentrate on the impact of the introduction of the clay soil; the site is not being built on.  Habitats will be lost, but different ones will be created.  The site will remain a spacious, open and bio-diverse garden.

 

CN:  MJC has not answered his point regarding the formula used to calculate the required size of the storage tank.  He has said it needs to be fit for purpose; this must mean it has to be the right size.  Is he dismissing the evidence provided in the Brambles letter, including the photographs which demonstrate a difference in the levels of the pond greater that 300mm?

 

MJC, in response:

-          no, he isn’t dismissing it.  The photos show that the garden gets flooded, but experts have stated that if the proposal is approved, it won’t make this situation worse.  Both the hydrologist’s report and the borough engineer say the water table will compensate for the loss of capacity – this is what the water table does – and the storage tank is being introduced to mitigate for the loss of capacity in the pond in periods of very heavy rainfall.  There is no reason to dispute the calculations of a professional hydrologist;

-          the key thing to remember is that the proposal won’t make the situation worse; the photographic evidence is not being dismissed, but officers are confident that the proposal will adequately mitigate the loss of pond capacity.

 

CN:  MJC is misunderstanding his question.  The Brambles letter of 18^th September refers to more than the summer and winter levels of the lake and the difference of 300mm referred to by the hydrologist.  The writer is not only concerned with flooding on his property.  Are we to dismiss the evidence he has provided?

 

AM:  MJC has stated that the reason the application has been made is due to the amount of soil and volume of groundwork needed to complete the landscaping work – nothing to do with hydrology – but there is nothing in the report about the volume of material expected to be used on the site, the number of vehicle movements required to bring it in, or the impact this might have on the traffic.  Would have expected some comment from highways officers, even if simply to say there would not be a problem.  Is worried about the argument around the previous deferral of the application pending a hydrologist’s report to be provided by the applicant; the report cannot now be dismissed because it has been provided by the applicant.  Members should either accept it or not.  The lack of information was the reason why the application was deferred in the first place.

 

PT:  following on from PB’s comments, is there a wheel-washing condition? 

 

MJC, in response:

-          to CN, regarding the Brambles letter, this refers to periods of sustained wet weather.  The hydrologist’s report acknowledges the situation, accepts that Brambles has flooded on occasion, and talks about the reason why.  The different ground levels are also a factor here, but the depression will act as a wet weather pond, a balancing pond when the existing pond spills its banks.  We cannot get away from this happening, but the proposal seeks to ensure that the situation will not get any worse.  The excess rainwater will be held in the tank/depression, as the pond holds it now – this is how the scheme is designed;

-          the tank is necessary during periods of sustained wet weather, and will compensate for the loss of pond capacity at other times;

-          to AM, it is a matter of judgement when engineering work crosses the line from being permitted development to requiring planning permission.  There is no guidance based on X tons of soil; a judgement needs to be made, and the reason why it was felt planning permission should be required in this case was to do with the potential flood risk; if there was no pond on the site and the applicant wanted to bring large amounts of soil into his garden, it might not be required.  Officers felt that in view of the large amounts of the soil being imported, it was right to consider the flood issue;

-          regarding traffic to and from the site, it’s agreed that the proposed works need permission but there was no need to consult with Highways officers on the matter – the amount of traffic resulting from the proposal will be no greater than from any other large household application.  The current agreement is not to consult with Highways on applications such as this, as they do not have the resources to deal with them;

-          to PT, if Members are concerned about wheel washing etc, we have in the past required a construction management scheme to be submitted, setting out how the site will be managed, where the vehicles will go in and out etc.  If this would give Members comfort, it can be agreed with the Chair, but any more than this would be going beyond our remit;

-          we don’t have a figure for the actual amount of soil going into the site – we don’t need it in order to understand the implications of the work – but Members do need to make a decision today.

 

GB:  MS has moved to refuse, based on the Inspector’s report, NPPF paragraphs 109 and 123, and Local Plan policies CP4(a) and CP3.   If this move is lost, the application will be approved with the additional conditions suggested by MJC.

 

Vote on MS’s move to refuse on the Inspector’s report, NPPF paragraphs 109 and 123, and Local Plan policies CP4(a) and CP3.

8 in support

6 in objection

REFUSE