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APPLICATION:       MA/11/0806         Date: 16 May 2011             Received: 4 July 2012

 

APPLICANT:	Mr David Allen, Fernham Homes Ltd
LOCATION:	Land At Andromeda Heath Road COXHEATH
PARISH:	Coxheath
PROPOSAL:	Removal of condition 1 of MA/03/2258 CO4 and Variation of Conditions 8 & 9 of MA/03/2258 to allow varied landscaping scheme on site.
AGENDA DATE:   CASE OFFICER:	1st November 2012   Amanda Marks

 

The recommendation for this application is being reported to Committee for decision because:

 

·         It is contrary to the views of the Coxheath Parish Council for the reasons set out in the report

 

1.           POLICIES

 

·         Maidstone Borough-Wide Local Plan 2000: ENV6

·         South East Plan 2009: CC1, CC6, H4, H5, T4

·         Government Policy: The National Planning Policy Framework

 

2.           HISTORY

 

MA/03/2258 - Land at Andromeda, Heath Road, Coxheath.  Demolition of existing dwelling and erection of 12 no. new dwellings.  APPROVED 15/2/2005

 

Background information

 

This application has been with the Council for consideration in excess of 12months.  The reason behind this relates to issues over serving the Article 6 Owner’s Notice correctly.  The application was made invalid due to the notice not being served, then the notice had to be served again making the correct references to the planning conditions to be varied.   The application was revalidated on 4 July 2012.  Additional information was then required in order to fully assess the application and therefore it was not until the last two months that the application was in a position for a decision to be made.  

 

3.           CONSULTATIONS

 

Parish Council: ‘Coxheath Parish Council has considered these proposals and has some concerns at the approach which is being taken.  It has always been our contention that this development was overcrowded and out of keeping with the immediate neighbourhood. It is very important to maintain the rural character of Heath Road and any diminution of landscaping will only serve to add to the urbanisation of the area.

 

The other consideration, however, is the fact that the developers have failed to meet the conditions of the original planning permission.  The Parish Council feels that it is wrong to ‘let developers off the hook’ by merely changing the conditions when they fail to meet them.  It is our understanding that developers could be fined for failing to meet conditions and we would wish to see these sanctions applied before other actions are taken.  For these reasons, Coxheath Parish Council recommends that in the first instance this application should be refused.’

 

4.           REPRESENTATIONS

 

Valley Conservation Society: raises objections on the following grounds (in summary):

 

The developer should not be allowed to be relieved of their obligations;

The hedge should still be replaced but within the site;

The hedge is within joint ownership;

The developer has had six years to sort out the problem and should be responsible for this planting.

 

Several letters on behalf of one neighbour who adjoins the application site raising the following issues:

 

·         Fernham Homes are trying to avoid their obligations

·         The hedge should be replanted on the application site

·         Unfair and unjust if the hedge is not reinstated

 

5.           CONSIDERATIONS

 

5.1       Site & Surrounding Area

 

5.1.1  The site is located within the village of Coxheath and fronts Heath Road which is the main road running through the village from east to west.  The site is at the western end of Heath Road and is situated in a predominantly residential area.  In total there are now 15 dwellings in the development known as Orchard Place.    Planning permission was granted in 2005 for the 12 dwellings which are affected by this current application.    The dwellings have been completed and occupied for approximately 5-6 years. 

 

5.1.2 To the east of the application site there is a hawthorn hedgerow which runs adjacent to the boundary. This hedgerow has gaps within its length.  It is situated between two bungalows and the application site.  One of the bungalows fronts Heath Road (no.80) and the other (no.78) is set behind no.80 and obscured from view from Heath Road.  There is also 1.8m high close board fencing along this boundary in part.

 

 

5.2       Proposal

 

5.2.1 This is an application to vary two landscaping conditions imposed on an original planning permission for the residential development comprising 12 dwellings.  In addition to the original conditions, a further condition was applied when approval of a landscaping scheme was given; removal of this later condition is also sought through this application.  The relevant conditions are as follows:

 

5.2.2 Condition 8 of MA/03/2258 states:

 

No development shall take place until there has been submitted to and approved in writing by the Local Planning Authority a scheme of landscaping, using indigenous species which shall include indications of all existing trees and hedgerows on the land, and any to be retained, together with measures for their protection in the course of development and a programme for the approved scheme’s implementation and long term management. The scheme shall show retention of the hedge along the eastern boundary of the site;

 

Reason: No such details have been submitted and in accordance with Policy ENV2 of the Maidstone Borough-Wide Local Plan 2000.

 

5.2.3 Condition 9 of MA/03/2258 states

 

All planting, seeding or turfing comprised in the approved details of landscaping shall be carried out in the first planting and seeding seasons following the occupation of the building(s) or the completion of the development, whichever is sooner; and any trees or plants which within a period of five years from the completion of the development die, are removed or become seriously damaged or diseased shall be replaced in the next planting season with others of similar size and species, unless the Local Planning Authority gives written consent to any variation;

 

Reason: To ensure a satisfactory setting and external appearance to the development in accordance with Policy ENV2 of the Maidstone Borough-Wide Local Plan 2000.

 

5.2.4 In response to Condition 8 a scheme of landscaping was duly submitted by the applicant to the Council for consideration in 2005.  At the time of the submission, representation was made by the owner of the property on the eastern boundary ‘Courtstones’ (78 Heath Road); the issue of ownership of the existing hedge on this boundary was being challenged. The significance of the ownership of the hedge was that the applicant showed it to be retained as part of the landscaping scheme; the objector claimed that they had no control over whether the hedge stayed or went as it was not within the applicant’s ownership.   Issues of land ownership are not strictly a matter for planning – aside from the serving of notice where apparent.  In this instance it was considered that on the basis of the plans that had been submitted, regardless of who owned the hedge on the eastern boundary, that there was still sufficient room running the length of the boundary to provide a replacement hedge if necessary on the applicant’s land.  In light of this and in order to progress the application a further condition was imposed on application MA/03/2258/C04 which read as follows:

 

Should the hedge on the eastern boundary, which is shown to be retained, be removed at anytime, a replacement hedge within the application site will need to be planted in accordance with a scheme to be agreed in writing with the Local Planning Authority.  The approved scheme will be fully implemented in the first available planting season and retained thereafter.

 

Reason: In the interests of visual and residential amenity and in accordance with Policy ENV6 of the Maidstone Borough-Wide Local Plan 2000. 

 

5.2.5 Subsequent to the discharge of the landscaping condition above, the owner of ‘Courtstones’ made a successful legal case and it was defined in law that the hedge was outside the application site.

 

5.2.6 Prior to the Council being aware of the results of the legal challenge, a complaint was received by the Council’s planning enforcement team that sections of the hedge were missing and as a matter of procedure the Council wrote to the applicant to seek its replacement.   It was then that the applicant divulged the outcome of the court case and it became apparent that there was a problem in that the terms of the condition could not be met.  In fact the development of 12 houses also comprised built development which was adjacent to the lawfully proven boundary and due to the siting of garage structures it would not be possible to plant a replacement hedge on the eastern boundary.  In addition to this, the occupiers of the new houses had undertaken their own planting within their private gardens on this boundary which would further prohibit a new hedge. 

 

Other landscaping issues

 

5.2.7 In addition to the above, it also became apparent to the Council’s Enforcement Officer that other landscaping details had not been fully complied with and that there was a further breach taking place.   The Council’s enforcement officer wrote to Fernham Homes on 30 March 2011 advising them of the missing planting and the requirement to undertake it within 21 days.  However, on writing to the residents to inform of the planting to be undertaken, two of the new owners decided against the approved landscape scheme or replacement of trees that should have been retained and refused the planting on their private property.  The remainder of the missing planting appears to have been carried out.

 

5.2.8 This application also therefore seeks an amendment to the approved landscaping scheme which would allow the outstanding planting not to take place.   The initial request by planning enforcement to undertake the missing planting was by letter dated 30 March 2011,this  included the infilling of gaps in the hedge and together with missing on site planting that was considered on the face of it essential.  The letter was written prior to any formal planning assessment as to whether the variation of condition would in fact be acceptable. The enforcement officer had discussed the matter with the council landscape officer. As a follow up to the initial letter dated 30 March 2011, the enforcement officer then met with the applicant on site to assess the extent of missing landscaping and in a further letter dated 6 May 2011 set out what had been discussed.   In summary, it was agreed that the eastern hedgerow should be dealt with through an application to vary or remove the planning condition, and that the remainder of the on site planting should be undertaken in the next available planting season (October 2011) – although it was understood that more information may be forthcoming relating to property owners refusing planting on their land.    Due to the submission of the planning application it was deemed not appropriate to pursue enforcement action until detailed consideration could be given to the breach.  The planning officer then advised the applicant that both elements of the breach (the hedge and internal landscaping) could be considered under one application.  

        

5.2.9 Annotated drawing no. BS-181-21 Rev D date stamped 11 May 2012 shows the extent of planting which the applicant has not been able to complete; namely, one maple tree (a replacement for that which was removed) and two birch trees.   The two birch trees were to be located close to the eastern boundary of the site in the front amenity area belonging to no.8 (Orchard Place.) The maple tree should be located in the front garden of no.  Orchard Place  at the front of the site. The Council has been given copies of letters from the private home owners refusing for the planting of these 3 trees to be undertaken.  It is important to note that planning permission runs with the land and that if the Council considers the 3 trees essential to the completion of the scheme then the homeowners would be required to comply with the conditions or risk being served with a Breach of Conditions Notice.

 

5.3       Determining Issues

 

5.3.1 The main issues for consideration are whether there is any reason why the Council would no longer require the implementation of the condition relating to the provision of a hedgerow on the eastern boundary or the completion of the approved landscaping scheme.   It is important to consider why the conditions on landscaping were considered appropriate at the time.  The original landscaping condition was cited as being in the interests of amenity and in accordance with Policy ENV2 of the Maidstone Borough-Wide Local Plan 2000.  This policy has not been saved, but amenity is still an issue for consideration.   The latter condition for a replacement hedge was in accordance with Policy ENV6 of the MBWLP 2000.  

 

 

5.3.2 In terms of the impact of the development on the objector at no. 78 Heath Road (Courtstones), the hedge was considered to soften the development to a degree and therefore it was perceived as an important feature to try and retain through the landscaping condition.  It also acted as an additional barrier to protect privacy between the objector and the development site. It’s importance was of course, assessed  on the basis that the applicant could have removed it through their development plans.   The fact that it has now been proven that the objector owns the hedge then it is under their control and can still be retained if considered necessary.  From a public amenity view point, the main impact of the hedge is the first 3-4 metres back from the public footpath at the front of the site, as this is where it has its greatest impact.  I note there is low level shrub planting at the front of the site and small grassed front gardens.  

 

5.3.3   When travelling along Heath Road in either direction this is a well developed area with dwellings and built form flanking this busy road.   The character of the area is such that there are some dwellings with a large expanse of green front gardens and others which have been entirely hard surfaced over.   The proposal to retain the hedge was partly in an attempt to ‘soften’ the overall impact of this development, however there is a limit to how much any hedge can achieve, particularly when the majority of it can only be viewed from private land.  The desire to retain the hedge where viewed from private land was primarily to protect the objector – however, the objector no longer needs the planning system to achieve this as they are in control of the hedge. 

 

5.3.4   This application has therefore arisen as the developer formally needs the condition to be removed in light of the realisation over the implications of the hedge ownership and that the terms of the condition could never be met if the objector removed their existing hedge.  That is, the condition can never be met unless the applicant were to come to an arrangement with the owner of Courtstones over purchasing the strip of land from them.  The owner of Courtstones has made it clear that it would be unfair and unjust if Fernham Homes are not made to reinstate the hedge on their land.  However, in order to do this the only alternative that I can see would be to set a hedge inside the boundary fence, this would mean new planting in private garden or car park areas.   The only purpose this type of planting would serve would be to make a point that the condition should be adhered to.  The hedge would not be able to run the entire length of the eastern boundary.   Planting in this manner would not contribute to the amenity of the newer dwellings and not be visible from the property of Courtstones. 

 

5.3.5   The owner of Courtstones has stated that the Council should stand by its decision and considerations at the time when it applied the condition on MA/03/2258/C04. However, whilst the Council was clearly aware that there was a claim on the ownership of the hedge, there was no indication that the boundary would change such that a replacement hedge could not be implemented.  I do not agree with the objectors comments that the Council has no choice but to refuse this application.   It is my view that the underlying need and purpose for a hedge has to be considered in light of the material circumstances at this time.  I am also of the view that had the ownership of the hedge been established in 2005 then it would not have formed part of the application site.  As a result the condition to retain the hedge would not have been imposed as it was not in the control of the applicant, and the treatment of the boundary would have focused on providing an appropriate boundary from within the application site with an acceptable visual and amenity impact from outside the site.  Arguably this has now taken place by virtue of the close board fencing which can be seen from within the application site along the majority of the boundary and is obscured in part by the hedge on the outside.

 

5.3.6 I have visited the site on more than one occasion, and walked adjacent to the site considering the views from the neighbours in addition to within the site and from the environment of the newer dwellings in Orchard Place. It is my view that the development has assimilated into the built environment.  With specific regard to the hedgerow I consider it has limited amenity value whether it stays or goes.   It does act as a visual buffer between the sites, but I consider the matter has become one more of principle than planning merit.   I do not consider that the loss of the hedgerow has any detrimental impact in terms of loss of privacy to the objector and as mentioned it is within their control to retain or replace. 

 

5.3.7 Turning to the other matters of incomplete landscaping within the application site, I advise as follows.   The Council’s enforcement officer advised the applicant that the approved landscaping was incomplete.  It seems that some 20 species were missed when planting took place in 2006.   The applicant has provided copies of the letters sent to all residents on the site (April and November 2011) advising them that planting would be taking place to avoid any action being taken by MBC.   In response to this, it appears that two of the residents refused for the landscape contractor to implement planting on their property and as a result two birch trees and a Maple tree have not been planted.   The maple tree should have been close to the site entrance and the birch trees in the rear of the site, in the front side garden of no. 8 Orchard Place.   I am concerned that the two areas where the trees should be planted are area of public amenity –albeit that they are on private land.   The two birch trees would help to soften the setting within the development and the maple tree is to replace one that should never have been removed and was in a prominent location at the front of the site.     Whilst I acknowledge that had the trees been planted in the first planting season following the development, they could now be lawfully removed, I do not consider this is justification for them not to be planted as agreed.  Their siting would enhance the character of the site and it is therefore my view the three trees in question should still be planted.

 

5.4       Other matters

 

5.4.1 I have considered the comments received by the Parish Council, however, on balance and for the reasons outlined in this report, I do not consider there is sufficient grounds to refuse this application in relation to the provision of the hedgerow on the eastern boundary.

 

5.4.2 Having considered the concerns expressed by the objector, I do not consider there will be a loss of amenity afforded to their property by virtue of not securing a replacement hedge on the development site. 

 

5.4.3 It is also worth noting that a later planning application (MA/06/0388 refers) granted permission for an additional 3 dwellings to be served from this development in the north west corner of the site.  I understand that there are issues relating to landscaping within this part of the development that are also subject to planning enforcement.  The current application, site area and all references to planning permissions only relate to the 12 dwellings.  The 3 dwellings will need to be considered as a separate matter.

 

6.           CONCLUSION

 

6.1    In light of the above considerations, I consider on balance that it is now appropriate to vary condition 8 of MA/03/2258  and condition 1 of MA/03/2258/C04 in so far as they  relate to the retention or replacement of the hedgerow on the eastern boundary. With regard to the other landscaping details within the site I consider that a condition should be imposed requiring the undertaking of the two birch trees on the eastern boundary within land owned by plot 8 and the replacement Maple Tree on land owned by plot 1 as shown on drawing no. BS-181-21 Rev D and date stamped 11 May 2012.   With regard to condition 9 this relates to the timing of undertaking the planting and it’s retention for a period of 5 years. This condition is also now varied by virtue of imposing an updated condition to reflect the manner and time frame in which the planting has been undertaken on site.

 

7.           RECOMMENDATION

 

APPROVE subject to the following conditions:       

 

1.           Notwithstanding the wording of Condition 8 of planning permission MA/03/2258, the submitted landscaping scheme reference MA/03/2258/C04 remains in force aside from the requirement to retain the hedgerow on the eastern boundary which is not within the applicant's ownership. All planting undertaken in the planting season October 2011 - March 2012 as shown on drawing no. BS-181-21 Rev D  date stamped 11 May 2012 shall be retained for a period of five years from the date of this decision, in the event that any trees or plants die, are removed or become seriously damaged or diseased they must be replaced in the next available planting season with others of similar size and species, unless the Local Planning Authority gives written consent to any variation.  

Reason: To ensure satisfactory integration of the development into the locality and in accordance with Policy ENV6 of the Maidstone Borough-Wide Local Plan 2000.

2.           Within the current planting season the applicant is required to undertake the planting of 2 birch trees within the ownership of Plot 8 shown on drawing no. BS-181-21 Rev D and the replacement maple tree on land within the ownership of Plot 1also shown on this drawing and in accordance with the planting scheme approved under reference MA/03/2258/C04.  In the event that these trees die, are removed or become seriously damaged or diseased they must be replaced in the next available planting season with others of similar size and species, unless the Local Planning Authority gives written consent to any variation.

Reason: To ensure a satisfactory setting and external appearance to the development in accordance with Policy ENV6 of the Maidstone Borough-Wide Local Plan 2000.

 

The proposed development, subject to the conditions stated, is considered to comply with the policies of the Development Plan (Maidstone Borough-Wide Local Plan 2000 and the South East Plan 2009) and there are no overriding material considerations to indicate a refusal of planning consent.