Agenda item

To consider an application for alterations and rear extension to existing building, demolition of curtilage structure, erection of ancillary building, retention of log cabin (for temporary period), boundary fencing and gates, and provision of on-site parking and turning area at Bwlch Du, Nantglyn, Denbigh (copy attached)

 

 

An application was submitted for alterations and a rear extension to the existing building, demolition of curtilage structure, erection of an ancillary building, retention of a log cabin (for a temporary period), boundary fencing and gates, and provision of on-site parking and turning area at Bwlch Du, Nantglyn, Denbigh.

 

The Vice Chair, Councillor Alan James took the Chair for agenda items 11 and 12 relating to Bwlch Du, Nantglyn because the Chair, Councillor Joe Welch was the Local Member.

 

Public Speaker –

 

Mr Mark Davies (For) – reminded members that the application was submitted by two residents of the ward who had bought the property for residential use, and wanted to use Bwlch Du as a residential dwelling. Although he acknowledged that this was not a material planning consideration he asked the Committee to bear this in mind

 

Mr Davies drew attention to paragraph 2.7 of the Supplementary Officer Report to the Committee, where the report contradicted the applicants’ Counsel’s advice that there would need to be ‘positive steps’ taken to demonstrate abandonment. Mr Davies countered that it was possible to take positive steps to abandon something. He added that the Council needed to show with evidence, that on the balance of probabilities, there had been an absence of residential use, which was not the case here. Referring to case law outlined in the Committee’s documents, Mr Davies highlighted the Secretary of State’s determination that where the design of the structure was so closely determined by the use and where much of the structure was still standing, then abandonment must rely on evidence of more positive actions. With Bwlch Du being clearly recognisable as a dwelling the Council had to look to more positive evidence of abandonment.

 

In turning to the officer recommendations for refusal Mr Davies highlighted the use of Policy PSE4 of Denbighshire’s Local Development Plan to support refusing the application. PSE4 related to the re-use and adaptation of a rural building in open countryside for use as a dwelling. Mr Davies advised the Committee that as Bwlch Du was still and always had been a residential dwelling, Policy PSE4 did not apply. Mr Davies also stated that reasons 2 and 3 for refusal were not valid. He particularly highlighted reason 4 as being irrelevant – the safeguarding of wind farm sites from other developments which could sterilise them – as again, it relied on the building not already having residential use status.

 

General Debate - The Development Manager, Planning and Public Protection, referred the Committee to significant information circulated on the addendum report to the main agenda report together with supplementary information submitted by the applicants’ solicitors.

 

Local member Councillor Joseph Welch addressed the following points:

·         Natural Power’s representations that local residents had not raised Bwlch Du as being a residential dwelling during the wind farm application process, was irrelevant. Whether the building had been abandoned or not depended on the 4 tests of abandonment not on local views about it.

·         The report outlined the 4 relevant factors to be taken in to consideration when determining whether the use of a dwelling had been abandoned and Councillor Welch commented as follows:

o   Physical condition of the building: the building at 1,400 feet above sea-level was very high for buildings in Wales. Despite this it had a roof, a chimney, four walls in good condition and overall was in pretty good condition.

o   Whether the building had been utilised for any other purposes: It was clear that this building had only been used for residential purposes.

o   Length of time for which the building had not been utilised for residential purposes: there was uncertainty and confusion here but it was certain that the building had been lived in in the 1960s and that there was reliable witness testimony that it had been used as a weekend cottage much more recently.

o   The intentions of the owners: The previous owner had continued to pay council tax on the property which suggested that it was regarded as still being residential. The Committee would have to decide this point. In addition, that owner had driven to attend a wind farm consultation event.

·         He believed that the Committee could and should overcome the reasons given for viewing the building as being abandoned.

·         In respect of the proposed reasons for refusal, reason 2 related to the log cabin and the scale of the proposed ancillary building. Councillor Welch advised that the log cabin would be removed once the work requested had been completed so was not an issue. He added that any adverse visual impact from the ancillary building had to be put in the context of the  visual impact of the 16 turbine wind farm situated some 400 metres from the property.

·         In relation to reason 3 the facts relating to ecological matters were unclear, but mostly related to the protection of bats in the area, of which there was no evidence of any being there. Councillor Welch quoted research which found that 80,000 bats were killed each year by turbines making it an unlikely site for them.

Councillor Welch acknowledged that while permission for a new residential dwelling in the vicinity of a wind farm would not be granted, as Bwlch Du was there before the wind farm he proposed that the application should be granted with appropriate conditions.

 

The Development Manager, Planning and Public Protection (DM) referred to the deferment of this application from the July 2019 meeting of the Committee to allow consideration of late information submitted on behalf of the applicants. He advised that Counsel for the Council viewed the July committee report to be sound and came to reasonable conclusions. Expert legal advice had also been sought for the Supplementary Officer report and Planning officers had been told that they had assessed matters correctly and the four reasons proposed for refusal were correct.

 

The DM outlined the risks to the Council should the Committee grant planning permission contrary to officer advice. He reminded members that there was a consented wind farm next to the property which the Council had given planning permission for, and part of that process was the acceptance that Bwlch Du had been abandoned. He reported that officers were confident that their position for refusing permission was legally correct but a decision to grant the application could become the subject of a judicial review.

 

The Council’s Legal Officer advised the Committee that its role was to weigh the evidence presented relating to abandonment and to come to a decision on it. There were legal arguments presented for both sides and the issue of whether the property had been abandoned was for members to assess on the evidence before them. She added that any planning decision made by the Committee was potentially at risk of being judicially reviewed indicating the importance of taking appropriate decisions.

 

The Head of Planning and Public Protection summarised this part of the discussion as being about ensuring correct, robust decision making with an appreciation of risks.

 

The DM reported the recent enforcement notice on Bwlch Du, upheld on appeal that required the removal of some of the structures on the site.

Councillor Merfyn Parry welcomed the applicants’ interest in investing in a listed building.

 

Councillor Mark Young queried the criteria for an empty building to lose its residential use status, citing one in his ward which had been empty for many years but that had retained its residential status. The DM advised that applications for works to empty properties in rural areas hinged on whether the building had an existing lawful use as a dwelling, and it was officers’ opinion that Bwlch Du did not.

 

Further to this point, the DM advised that the application under consideration was not for a certificate of lawfulness so the judgement on abandonment had to be made holistically on the four relevant factors outlined in the report. The Legal Officer added that the Planning Officer dealing with this application had addressed the four criteria, analysing the relevant factors in the report.

Councillor Tony Thomas advised that he was in favour of following officers’ recommendations and refusing the application. There would be the option of appealing the decision which the Welsh Government’s Planning Inspector would determine, and this could reduce the Council’s liability in the event of an associated judicial review.

 

The DM, responding to questions by members, confirmed that the identification of Bwlch Du as an abandoned dwelling had been made in the wind farm operator’s application. This information had been published and was part of the extensive wind farm planning application process. The building’s status as an abandoned dwelling had not been disputed by any of the parties at that time. He advised that the normal procedure from there would be to seek a certificate of lawfulness of use.

 

Proposal - Councillor Alan James, chairing, confirmed that a proposal by Councillor Welch to grant planning permission had been seconded by Councillor Ellie Chard.

 

Councillor Welch confirmed that the reasons proposed for granting the application were based on the relevant factors to be taken into consideration when determining whether the use of a dwelling had been abandoned, as he had outlined earlier in the debate. These were that the building was in a reasonably good condition, it had only ever been used or intended for use as a residential dwelling, there was evidence that residential use of the building had continued until relatively recently, and this evidence pointed to the building having an existing lawful use as a residential dwelling.

 

In respect of objections to the proposal having an adverse effect on visual amenity, this was negligible owing to the significantly greater impact of the adjacent wind farm. Finally, the welfare of bats had been raised but there had been no evidence presented either for this application or during the wind farm process of bats being on this site.

 

VOTE:

GRANT – 8

REFUSE – 5

ABSTAIN – 0

 

RESOLVED that permission be GRANTED (subject to appropriate planning conditions to be agreed by officers with the local member) contrary to officer recommendations, on the grounds that the building has an existing lawful residential use and would have a negligible adverse impact on the visual amenity or ecological welfare of the area.