Agenda item

To consider an application for the 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 (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 this item because the Chair, Councillor Joe Welch was the Local Member.

 

Public Speaker –

 

John Litton QC (Against) – represented Brenig Windfarm who objected the proposed developments. He stated that the committee had three issues to consider.

 

The first issue was whether the existing building had lawful residential use. On this issue there were five points. Firstly the appropriate way to resolve the issue would be for the applicant to apply for a lawful development certificate.  Secondly the site was enforced against in 2018 which resulted in a failed appeal by the applicant, the good sense of applying for a certificate was referred to by the inspector who said ‘statute has provided a means for legally determining or establishing the planning status of land, a lawful development certificate’. No certificate exists, or to his knowledge no application has been made. Following the site visit on Friday it was noted that there had been further breaches to planning and listed building control.  Thirdly if the applicant had applied for a certificate they would have had to support the application by evidence including sworn statements. The inference which can be drawn from the failure to apply is that they realise an application would fail.  Fourthly the fact that any residential use of the building has been abandoned was the long held position of the Council who have sought and received independent legal advice on the issue on at least two occasions. Fifthly there is nothing before members including the material submitted on behalf of the applicant which would allow them to reasonably reach a different conclusion to officers.

 

The second issue was if the building does not have existing residential use, was the change of use and other proposed development in accordance the Local Development Plan? The correct position set out by officers in reports since July 2019 was that granting permission for change of use and proposed developments would be contrary to the local plan both in principle and because of the adverse planning impacts on the visual and landscape character of the area, with the ecology and the building as a listed building. It was would also have an impact on the amenities of any future occupiers of the building because of the potential noise from the nearby turbines. Very importantly granting permission for any residential use, would likely curtail the operation of one or more of the existing turbines, which would be wholly inconsistent with the critical need to produce renewable energy to help address the climate emergency which has been given so much recent media attention, therefore granting permission would be contrary to the local plan, Planning Policy Wales and TAN8 for the clear reasons given by officers.

 

The third issue was if the existing building has a lawful residential use, was the proposed development in accordance with the development plan? Even if it was concluded that any residential use of the building has not been abandoned, permission should still be refused for the reasons given by officers.

 

Mark Davies (For) - thanked the committee for the opportunity to speak. It was clarified that he was present whilst the item was discussed in September, and in his opinion Councillors did speak clearly and in a manner consistent with their decision which was made. However before getting to those reasons, he referred to  points which were made in the course of discussions which should be borne in mind.

 

Firstly and foremost the point was made that when the committee considered the risks to the Council at committee they should consider the risks to the applicants with the potential risk of loss of the home which they purchased.

 

Secondly it was simple case of a dilapidated building in Denbighshire that someone wants to renovate and live in. It has mushroomed out of all proportion, however that was the bottom line that it was a rundown building that two people in the County want to do up and live in.

 

Thirdly one committee member on the last occasion referenced the Council’s commitment to bring 500 homes back into use. It was the empty home delivery plan, launched in April last year, and the Committee were invited to bear that in mind when considering the application.

 

Finally, with regard to the point which was made at the previous meeting, that simply because a mistake had been made when assessing Bwlch Du as a dwelling house during the windfarm consenting progress, this should not prejudice the applicants in their application this time, and the committee were invited to bear all of the points in mind when considering their decision.

 

Turning back to the four grounds of refusal set out in the officers’ report: 

First, in relation to the matter of abandonment, Councillor Welch spoke on the issue previously and the details are set out in minutes which have been previously approved. In relation to the physical condition of Bwlch Du, for a building 1,400 feet above sea level it is good, it has a roof, chimney and four solid walls. Another member seconded that assessment when looking at the building on the monitors.

On the second test it was clear it had only been used for residential purposes.

On the third test, in respect of the length of time it had been unoccupied, there was evidence that it had been occupied into the 1960’s with reliable witness evidence that it had been used as a weekend cottage more recently.

Finally in respect of the intentions of the owners, here an important point raised previously was the payment of council tax. If the property was not a house, it was questioned why would the owner continue to pay that amount.

In conclusion, Mr Davies invited the Committee to consider the submissions and any others whicjh may be relevant and make a definitive finding that Bwlch Du was not and never has been abandoned.

 

Secondly in relation to the setting of the listed building, it was suggested that impacts of the proposals should be balanced against the presence of a wind farm situated about 600m away. It was suggested the turbines do form part of the setting and that was a perfectly legitimate consideration, and members were invited to give the setting considerable importance and weight as required, and conclude that there was no adverse impact.

 

In regards to ecology, attention was drawn to Policy VOE5 and technical advice note 5, taken together unless it was evident the proposals would cause serious harm, this was not a reason for refusal.

 

General Debate:

 

Planning officers introduced the item and offered members additional information about the report and why it had been returned to Planning Committee following previously being discussed in September 2019. This was in line with the adopted scheme of delegation as there was a potential risk to the Council as outlined in the report. The officers’ recommendation was to refuse the application, as set out in the report. Members were asked to give consideration to the report and if they decided to go against officer recommendations, it was requested that the reasons should be clear.

 

Councillor Joe Welch (Local Member) commented that as some members were not in attendance for the previous Planning Committee in September he would reiterate points which were covered. The reference to Councillor Richard Welsh was incorrect. 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. It was also highlighted that the decision which was reached at the last meeting was clear and concise.

 

Members queried with officers why the windfarm application had not been returned to be discussed, similar to the application for Bwlch Du.

 

Officers responded to the queries and points raised. It was suggested that the appropriate mechanism for testing abandonment was through an application for a certificate of lawfulness of use, which had never been submitted. When the Windfarm applications were under consideration, receptors were identified for assessment of impacts. Bwlch Du was referred to as derelict and was not included. The Council dealt with the information as presented and had no evidence submitted to challenge this. The windfarm applications had been determined and could not now be revisited. 

 

Members who attended the site visit to Bwlch Du were impressed with the integrity of the building. It was also mentioned that the building was listed on the 15^th December 1998 and was described as a domestic property, and it had not been taken from the list. It was also highlighted that the issue of Bwlch Du being a permanent dwelling was irrelevant as a semi-permanent dwelling was still a dwelling. The question of Council tax payments was queried and why was this was still being collected if the property was deemed as abandoned.

 

Officers advised that Council tax had been collected on Bwlch Du until 2016 when the current owners challenged payments.

 

Councillor Mark Young felt that the comments that the previous decision the committee came to were not clear, were unfair and incorrect. The issues were very difficult, and it was necessary to conduct a balanced debate for all involved with the matter. He stated that a building would need to be defined as a dwelling for council tax to be collected, and the valuation office would only delete a property off the list if they believed it was truly beyond repair.

 

Councillor Joe Welch (Local Member) commented on the four tests of abandonment as follows –

 

·         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 and four walls in good condition, and overall it was in pretty good condition.

·         Length of time for which the building had not been utilised for residential purposes: there was a statement by a local resident Mr Emyr Pierce who said the building had been used as a weekend cottage.

·         The third point of abandonment was not argued.

·         The owners’ intention was clear, that they intended to make a home in Bwlch Du.

 

Councillor Welch suggested there were two options open to Members - the committee could either agree with officers that the building was abandoned or not;  if the committee disagreed, then there would have to be clear reasons why the committee concluded thus. In relation to the reasons:

 

·         The first reason given by officers was on abandonment, and it was clear the four tests were not met as above, with council tax having being collected.

·         The second reason was in respect of the log cabin and the siting and scale of the proposed ancillary building having an adverse visual impact in an area of remote open countryside. It was noted that the log cabin would be temporary, and would be removed once Bwlch Du was completed. In appreciating the issue, it was felt the impact was not severe enough to refuse planning permission. The ancillary building could be screened to alleviate concerns. The visual amenities of the building was harmed by the windfarm which was built near to Bwlch Du.

·         The third reason was that there was insufficient information submitted to demonstrate that the proposed development would not adversely impact on protected species. Natural Resources Wales (NRW) had been consulted and  objected to the application originally. However on receipt of additional information they had changed their opinion, their response being “as this was a lower risk case for bats, we consider that the development was not likely to be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in its natural range. Furthermore we advise that the proposed development is not likely to harm or disturb the bats or their breeding sites and resting places at this site”. It was noted that the County Ecologist disagreed with NRW’s assessment, but Councillor Welch was happy to support NRW’s stance, especially considering that this had changed after receiving additional information.

·         In relation to the fourth reason, if the committee agreed that the building was not abandoned then the property would have been there prior to the wind turbines, and the reason would not be appropriate.

 

PROPOSAL – Councillor Joe Welch proposed the application be granted, contrary to officer recommendation for the reasons he had stated in the debate. Seconded by Councillor Gwyneth Kensler.

 

Councillor Andrew Thomas queried whether the financial risk to the Council should be considered as a material planning matter. Members also queried if Bwlch Du was developed as a dwelling whether some of the nearby wind turbines would need to stop being used.

 

Officers advised that financial risk was not a material planning matter, but Officers had a duty to outline all risks to the Council which could be involved with the application. It was also clarified that the matter was brought back to Committee to ensure that there were no flaws in the decision made by Planning Committee. In regards to the wind turbines, it was suggested there would be issues in regards to wellbeing and noise levels at Bwlch Du. Councillor Mark Young stated that on occasions blades of turbines have been changed to lower the noise created.

 

Proposal Councillor Gwyneth Kensler proposed a recorded vote be carried out. The proposal was not seconded and a recorded vote was not taken.

 

Members requested that if the application was granted, an item be returned to  committee for members to ratify the conditions to be attached to a permission.

 

VOTE:

GRANT – 12

REFUSE – 2

ABSTAIN – 0

 

RESOLVED that permission be GRANTED, contrary to officer recommendation on the following grounds that the property has an existing lawful residential use, any impact of the proposed development, on the visual amenity on the listed building and wider open landscape can be mitigated and it is not likely to have a detrimental effect on a protected species.