Like the proverbial bus, you wait around for an appeal decision, then 2 come along at once…
The latest decisions on applications for discharge, both issued last Thursday, may make uncomfortable reading for Councils – or more particularly councillors. In each case the application had been recommended for grant by the planning officer, only to be refused at committee.
The first case, involving development in the countryside, is similar in kind to the previous appeal cases which have reach DPEA, albeit involving a more extreme obligation. Planning permission had been granted for an equestrian centre in 2002 with temporary residential accommodation. A section 75 agreement entitled the planning authority to require demolition of all buildings erected on the site in the event of the failure of the business. Subsequently, consent was granted for a permanent dwelling, subject to an occupancy condition tying it to the business.
Unsurprisingly, the Reporter found the obligation to be unreasonable, and also unnecessary given that the link between the business and the permanent dwelling was achieved by another route (the planning condition). The fact that the authority had not used this type of onerous obligation in other similar circumstances was noted, and speaks for itself.
The second case is notable for being the first discharge appeal involving a major developer, Stewart Milne. (So far the predicted stampede by developers looking to unravel planing gain packages has simply not happened). However this application did not involve developer contributions but an obligation requiring part of a large housing development at Westhill, Aberdeenshire, to be reserved for retail use. Since the grant of consent, the developer had marketed the retail site for sale, but without success. The planners had been satisfied with the efforts made, and recommended grant of the discharge.
The Reporter agreed with the planners, despite sympathising with the view that the housing development would benefit from some form of community facility. He also noted that there was no development plan requirement for retail provision as part of the scheme, and there was even some concern that retail units might prejudice the nearby Westhill centre.
No doubt councillors will feel aggrieved that their decision making can be undermined by yet another route, but developers will be even more relieved that planning obligation cases steer clear of the LRB system. Reporters are being consistent in applying the 5 policy tests set out within Circular 1/2010. Planning authorities may need to up their game.
On March 25, 2012