Mr Ling,

My apologies as I forgot to attach the neighbour consultation letter. Please find this now attached.

Best Wishes,

Esmeralda Guds

From: Essie Guds
Sent: 22 October 2019 15:41
To: '[email address]' <[email address]>
Subject: FW: Response to Mr Ling's comments on the Stage 2 response

Dear Mr Ling,

On the 8th October you emailed a response to Authority’s reply to your Stage 2 Formal Complaint regarding the development at Caldecott Road, Lowestoft.

Your email contained six further questions which have been carefully considered and I have set out below detailed responses..

Can you please review these responses and consider whether you still wish to pursue a Stage 3 Complaint. If you still want the Chief Executive to review the matter can you please set out what issues remain of concern.

Yours sincerely

Esmeralda Guds

Question 1.

In the Delegation Decision, it was stated -

"When the previous application was considered, it was determined that there was the possibility that the more intensive residential development of this site would have an adverse impact on the amenity of adjoining residential properties by virtue of overlooking and loss of privacy, overshadowing and loss of daylight"

My question is - If the earlier application identified this as an issue, how come the subsequent application which was significantly more ‘Intensive’ was approved ?

Response:  Application 2014/0195/FUL was for “Demolition of existing dwelling and erection of 4no new dwellings” and was refused pp on 4 September 2014.  The second ground for refusal was:

“The application site Is in a location where, due to the relationship, orientation and design of the neighbouring building, new development of the scale proposed has the potential to have an unacceptable impact on the amenity of neighbouring occupiers through overshadowing and loss of light. The applicant has provided no evidence in this regard and, given the potentially significant Impacts on existing occupier's amenity, it is cannot be concluded that the proposal would secure a good standard of amenity for existing neighbouring occupants. Consequently, the application is not considered to satisfy the requirements of policy DP28 of the Broads DM DPD nor paragraph 17 of the NPPF”.

The application which was subsequently approved, and which is the subject of this correspondence, is BA/2015/0277/FUL and was for “Demolition of detached bungalow and garage and construction of 4 no. Dwellings, associated car parking bays and associated works”.

I have looked at the plans for both schemes. 

The first scheme proposed a bungalow with a ridge height of 8m set directly in front of the properties to the rear, and a staggered terrace of three 2.5 storey properties with a ridge height of 11m set broadly centrally across the site.  This scheme was refused.

The second scheme proposed a bungalow with a ridge height of 6m set in the western corner of the site, and a group of 3 x 2.5 storey properties which are set slightly further forward on the site than the previous scheme.  The western 2 properties had a ridge height of 11.56m, with the third set further back on the site with a lower ridge of about 10m.  This application also included a shadow cast analysis which demonstrated how the shadows from the proposed development would effect properties locally.  This scheme was approved.

It is clear from the two files that amendments were made to the first scheme in order to address the reasons for the refusal of planning permission.  The case officer was satisfied that the cumulative effect of these changes was sufficient to overcome the concerns and planning permission was granted.  Planning decisions such as this are often a matter of judgement by the planning officer, based on the facts of the case and the degree of the impacts; in the delegated decision report the case officer is not saying that there is no impact, but that the impact is not unacceptable.

Question 2.

How was the ‘Case Officer’ able to make a ‘professional’ judgement, and using what criteria ?

I do not see how, by just stating in the Delegate Decision, that -

“ The only windows to be included in the eastern elevation would be small secondary living room window, and a bedroom window “ 

is demonstrating any mitigation or consideration for the neighbouring residents.?

Response:  When considering issues of overlooking, loss of amenity and privacy, a planning officer will consider where the overlooking will come from and this will include an assessment of the impact of any proposed windows.  It is, however, the case that not all windows are equal.  There is more potential for overlooking from windows to ‘principal habitable rooms’ than from windows to other rooms.  ‘Principal habitable rooms’ are defined as the room/s used most for day to day living by occupants.  There is usually only one ‘principal habitable room’ per dwelling and these are usually considered to be the living room.  In this case, the living room of the easternmost dwelling in the terrace of 3 would have a large window with balcony overlooking the Broad and it is reasonable to expect that this will be the principal window from which views are taken, rather than the smaller secondary one. Similarly, bedroom windows are not usually window from which views are taken, but serve primarily to light the space.    On this basis, it is not to be expected that there would be significant overlooking arising from either of these windows.  The consideration for the neighbours and/or mitigation of any impacts comes from the fact that the case officer has ensured that there are no primary windows to ‘principal habitable rooms’ in this elevation.

BA/2015/0277/FUL

Question 3.

I requested a copy of the Notice of Application that was served to local residents -

I understand that letters are automatically generated for name, address etc., using a Microsoft Word Doc. Formats, but the letter content giving specific details for the application would remain the same in all cases.

I do not understand why this would not be available ??

Response:  We are perfectly happy to send you a copy of the template.  Please find a copy attached. You will notice that it automatically puts in the current date, hence today’s date as it was printed this morning.

Question 4.

Neighbour Impacts -

Referencing to the Delegate Decision - again, I do not understand how just mentioning particular issues in this ‘Decision’ demonstrates any consideration for the potential impacts to neighbouring residents ?

Response:  The Delegated Decision Report itemises the issues raised and the assessment section of the report explains how they have been assessed.

Question 5.

Ground works was recorded as being commenced 25th October 2018 - 2 days prior to the deadline of the planning expiry date of 27th October 2018 …. ( cutting it VERY fine by anyones standards ) 

The ‘Building Control Officer’ verified this using two photographs -

I understood, that the trench depicted in the photographs was ‘loosely’ related to the bungalow build by being located in the vicinity of where the bungalow was intended to be, but could not see any direct relation to the Plan, of the works now underway.

The pictures show a pretty shallow excavation, nothing that indicates a footing of any kind. The depth of which, would not have been sufficient for a building footing on this type of ground. The current excavation for footings is roughly 4-5ft below the original ground level.

Response:  The works does not need to be extensive to constitute the making of a start.  The law says that  the development can be said to have commenced when a ‘material operation’ is carried out and this ‘material operation’ can include any work of construction including quite minor works.

Question 6.

Also, as I said previously - Condition No3 of the delegate Decision states the - “ No development shall be commenced until precise details of materials used in construction were both submitted and approved’

The sign off for this condition did not come until 8th July 2019 when Jack wrote to Richard Smith at Tredwell, confirming that conditions 3,4,5,6 and 15 had been met.

I do not understand the disparity between these two events - ??

Response:  Planning permissions are usually subject to conditions and often subject to ‘pre-commencement conditions’, which stipulate information to be provided or works to be done before the development can commence.  The way in ‘pre-commencement conditions’ are used varies widely across planning authorities and the Government are very keen for planning authorities not to use them unless really necessary; they have introduced a requirement for an applicant to have to agree them and this has been in place for around a year.

The legal position is that if a ‘pre-commencement condition’ is fundamental to the development, then the development cannot go ahead without it being discharged.  If the development does go ahead without any ‘pre-commencement conditions’ being discharged then that development is unauthorised.   This is explained on the back of the planning permission.

This does not apply, however,  if the ‘pre-commencement condition’ is not fundamental to the development.  The legal wording is that the issues covered by the ‘pre-commencement condition’ must ‘go to the heart’ of the permission.

It is necessary here, therefore,  to look at what matters were covered under the pre-commencement conditions and decide whether they are fundamental.  I have done this in the table as follows:

Condition

Matters covered

3

Details of materials for external walls and roofs

4

Scaled drawing of windows and doors, including section

5

Details of design of balconies and balustrades

6

Scaled drawing of projecting brickwork, including section and elevations

9

Landscaping scheme

12

Arboricultural method statement

13

Details of no-dig construction

14

Details of patio retaining structure

15

Contamination survey

I am of the view that none of the matters covered in the ‘pre-commencement conditions’ are fundamental to the development in legal terms – it is accepted that they constitute details of the scheme, but they could be changed without there being a big change to the development.  It is also the case that a lot of this information was provided as part of the planning application – for example, the details of the materials – an all that is being requested is final clarification.

The only condition which could potentially be regarded as fundamental to the development and a true ‘condition precedent’ is condition 15 around the Contamination Survey.  This is capable of ‘going to the heart’ of the permission.  I have reviewed the application file, however, and see that a detailed Contamination Scoping Assessment was prepared by WAS Ltd and submitted in support of the application, meaning that the ‘pre-commencement condition’ was in effect just requiring further detail as the principle issue had already been addressed.

Overall I would therefore conclude that whilst the process was not as it should have been – in that the details should have been approved prior to commencement – the effect of this has not been to invalidate the planning permission.

I note that an application was submitted on 16 October 2018 to discharge conditions 3, 4, 5, 6 and 15 (2018/0408/APPCON) and on 19 October 2018 to discharge conditions 9, 12, 13 and 14 (2018/0416/APPCON).