Agenda item

To consider the planning conditions to be attached to the planning permission granted on 6 October 2021 in relation to the erection of a 198 bed Registered Care Home (Use Class C2), landscaping, parking facilities and associated works on the St. Asaph Business Park (copy attached).

A report was submitted seeking approval of planning conditions to be attached to the planning permission granted on 6 October 2021 in relation to the erection of a 198 bed Registered Care Home (Use Class C2), landscaping, parking facilities and associated works on the St. Asaph Business Park.  A correction to condition 1 had been referenced on the blue sheets.

The Chair reminded members that planning permission had been granted, contrary to officer recommendation, subject to the planning conditions being brought back to the Committee for approval based on that debate, and the imposition of those conditions on the planning consent represented a continuation of that process.

General Debate – Councillor Merfyn Parry expressed some concerns, supported by Councillors Peter Scott and Brian Jones, regarding the proposed imposition of noise condition 9 – “All habitable rooms in the development hereby approved shall be fitted with windows which are non-opening and retained as such at all times, unless for emergency evacuation.”  It was submitted that for residents’ wellbeing some restricted opening of the windows should be permitted to allow for the circulation of fresh air.  Councillor Scott drew comparisons with the residential area Pant Glas, St. Asaph situated near the A55 which the North and Mid Wales Trunk Road Agency (NMWTRA) had determined did not require a noise reduction scheme and yet would have higher noise levels than the care home site.  Councillor Brian Jones deferred to NMWTRA as the experts on noise from the carriageway and also advised that the Council itself housed residents in private care homes without mechanical ventilation and where windows were not sealed.  On that basis he proposed, seconded by Councillor Merfyn Parry, that proposed noise condition 9 be removed from the suggested conditions.

Officers reminded members of the background to the application, noting that not all members had been present when planning permission had been granted.  The noise assessment report submitted with the application accepted there could be unacceptable noise from the A55 and surrounding industrial uses and officers had recommended the application be refused.  The Committee had granted the application on the basis that noise could be mitigated through planning conditions and non-opening windows had been discussed at length as a means of noise reduction.  Consequently there was a legal legitimate expectation that such a condition be imposed given what had been agreed previously.

During further debate Councillor Brian Jones considered it would be appropriate, in light of new information on the matter, for the proposed condition with regard to non-opening windows to be revisited and removed, and he also highlighted alternative means of noise mitigation measures including sound proofing/deadening barriers as opposed to non-opening windows.  Officers reminded the Committee of the consultation responses to the application, in particular the Welsh Government’s response as highway authority for the A55 trunk road in which it identified an issue with noise and had directed that any permission include adequate noise mitigation measures due to the site’s proximity to the A55.  Welsh Government had accepted the Applicant’s suggested noise mitigation for ventilation through mechanical means and therefore had effectively directed that non-opening windows be in place.  Consequently to not impose that condition would be contrary to the direction of the Welsh Government who would need to be informed prior to progressing the set of conditions for the consent.  Officers reiterated that planning permission had been granted on terms for mitigation of the noise concern by way of conditions, any departure from that determination at this point and removal of that proposed noise condition would lead to a greater risk of judicial review from interested parties which may extend to the Welsh Government.   There would also be a risk of legal challenge and financial/reputational risk of harm to the authority.

In considering the way forward officers referred to options open to the Applicant following the imposition of planning conditions.  This included the Applicant’s right of appeal against any planning conditions imposed or the submission of an application to vary any planning condition – this would provide the opportunity to re-consult with the Welsh Government and others.  Councillor Merfyn Parry pointed to a previous case where a condition had been removed by officers but it was clarified that conditions could be varied and removed post decision but not at this stage in the process given that permission had yet to be issued. It was clear from the Welsh Government directive that noise mitigation needed to be in place and whilst there may be other sites with different mitigations at present only the proposed condition appeared to be workable.  Officers suggested that permission be issued with condition 9 in place and the Applicant encouraged to submit a variation application at a later stage with an alternative means of noise mitigation which could be appropriately tested and consulted upon.  There remained a mix of views from members as to removal of proposed condition 9 and the Chair moved to the vote.

Proposal – Councillor Brian Jones proposed, seconded by Councillor Merfyn Parry that proposed noise condition 9 be removed from the suggested conditions contrary to officer recommendation.

VOTE:

FOR REMOVAL – 6

AGAINST REMOVAL – 7

ABSTAIN – 0

The proposal to remove proposed noise condition 9 from the suggested conditions was LOST.  The Chair looked to a vote on the full set of proposed conditions.

Proposal – Councillor Peter Scott proposed, seconded by Councillor Christine Marston that the proposed conditions as set out in the report, in accordance with officer recommendations, be approved in full including with regard to proposed condition 9.

VOTE:

FOR – 13

AGAINST – 0

ABSTAIN – 0

RESOLVED that the proposed full conditions to be imposed on the planning consent as detailed within the report and correction in the supplementary papers be approved as planning conditions.