Decision Maker: Development Panel
Decision status: Recommendations Approved
Is Key decision?: No
Is subject to call in?: No
A written statement was read out from Ward Councillors Alan and Christine Smith against the application
The applicants David Hayward, Adam McNally and Graham Parker of Story Homes spoke in support of the application.
The report recommended that the Public Path Order for the stopping up (i.e. permanent extinguishment) of a section of Public Right of Way (PROW) 223003 be made, subject to the approval of reserved matters application 2/2018/0155 and the conditions therein.
The Planning and Building Control Manager introduced the item and advised members that this recommendation was to make the Order; the Council were not able to confirm it without the statutory publicity being undertaken. He also advised that, if there was one unresolved objection to the making of the Order following the expiration of the statutory period, the matter would be referred to the Secretary of State.
The Planning and Building Control Officer went on to advise that significant publicity had already been undertaken but this did not negate the need for the statutory publicity to be undertaken in the event that the Order was made.
He detailed the two tests that needed to be passed:-
· The relevant authority cannot confirm an order unless satisfied that a planning permission exists for development and that it is necessary to authorise the stopping up (or diversion) of the public right of way by the order so as to enable that development to take place in accordance with that permission.
· Necessity should be interpreted in accordance with the plans and conditions of a planning permission which allow the development to be carried out. Thus, the necessity test is concerned with whether such an order is necessary for that purpose;
· A Grampian planning condition can satisfy the necessity test; and
· The word “necessary” does not mean “essential” or “indispensable” but instead means “required in the circumstances of the case. “Those circumstances must include the relevant terms of the planning permission.
Following the resolution to approve the reserved matters, the specific layout approved effectively meant it was necessary to stop up (or divert) the public right of way. Members were also referred to the relevant reserved matters Grampian conditions.
The second test was the Merits Test
· The relevant authority has discretion as to whether to make the order and therefore may refuse to do so.
· In the exercise of that discretion the relevant authority is obliged to take into account any significant disadvantages or losses flowing directly from the stopping up order which have been raised, either for the public generally or for those individuals whose actionable rights of access would be extinguished by the order. In such a case they must also take into account any countervailing advantages to the public or those individuals, along with the planning benefits of, and the degree of importance attaching to, the development. They must then decide whether any such disadvantages or losses are of such significance or seriousness that they should refuse to make the order, and
· The confirmation procedure to re-open the merits of the planning authority’s decision to grant planning permission, or the degree of importance in planning terms to the development going ahead according to that decision.
Members noted the representations received in respect of the application, the main grounds of which were set out in the report.
Questions had been asked by the members to the speakers and the officers. In the ensuing debate there was member discussion in relation to safety, safeguarding and the current use of the PROW as the merits test was considered.
Having agreed that the necessity and merits tests were passed, Councillor Jenkinson moved to approve the application as per officer’s recommendations; this was seconded by Councillor Annison.
A vote was taken on the motion to approve, 9 voted in favour, 0 against, 0 abstentions.
The motion was carried.
Made as per officer’s recommendation.
1. No development shall commence on plots 51 – 57, 58 – 92, plots 100 – 105, 113 – 122, or on the proposed highway beyond plot 50 unless and until a footpath Stopping Up Order for Public Right of Way 223003 has been made and confirmed by the LPA or the Secretary of State for its full length where is crosses the application.
Reason: To ensure that the development does not obstruct PROW 223003 which presently crosses the site.
2. Should a Stopping Up Order for Public Right of Way 223003 (where is crosses the application site) be made and confirmed by the LPA or the Secretary of State, a temporary permissive pedestrian footpath shall be made available for immediate public use through the site from Bellbrigg Lonning in the West (adjacent to 36 Bellbrigg Lonning) to PRoW 223003 at the Eastern boundary, until such a time as the permanent permissive route through the site as shown on drawings PROW Strategy Rev A, received on the 3rd January 2019, is made available for use along its entire length. The temporary footpath route shall either follow the alignment of PRoW 223003 as presently exists across the site, or the temporary route as shown on Management Layout Plan Rev C.
Reason: To ensure that a permissive pedestrian footpath through the site connecting Bellbrigg Lonning to PROW 223003 is retained and at all times.
3. Prior to the stopping up of PRoW 223003 where it crosses the site, a detailed Footpath Management Plan shall be submitted to and approved in writing by the Local Planning Authority. The Footpath Management Plan shall detail how the temporary permissive footpath through the site from Bellbrigg Lonning in the west (adjacent to 36 Bellbrigg Lonning) to PRoW 223003 at the eastern boundary as specified in condition 17 will be managed through all phases of the construction of the development, including details of any temporary closures, signage, and notification to the public. The development shall be completed only in accordance with the approved Footpath Management Plan.
Reason: To ensure that any closure of the temporary permissive footpath is minimised, that sufficient notice and publicity is provided to the public and that the safety of pedestrians is duly considered.
Report author: Shona Reid
Publication date: 23/01/2019
Date of decision: 22/01/2019
Decided at meeting: 22/01/2019 - Development Panel