Agenda item

Report ES13069

In 2011, Robust Developments Ltd applied for planning consent to build two pairs of semi-detached houses adjacent to the site of 2, Station Cottages, Chelsfield (Planning reference 11/01628). As the site is only accessible via an unadopted access road which is narrow and unlit, officers recommended refusal on safety grounds. The application was refused by the Development Control Committee.

The developer had appealed the Council’s decision and The Planning Inspector allowed the development but agreed with the Council on the need for a passing bay and lighting. The Inspector placed conditions on the permission that these had to be in place ahead of the development commencing. It was expected the developer would be able to negotiate with the owners of the access road (i.e. the several owners of the various dwellings/gardens fronting the road) to secure agreement enabling a passing-bay to be constructed and street lighting to be installed. However, no agreement had been reached.

Report ES13069 advised that the passing-bay issue was now being dealt with by the Council providing a suitable area of land for the developer to construct a passing-bay at his own expense. The matter of street lighting could be addressed by means of the Private Street Works Code. Legal advice indicated that the Council should use its powers, albeit the lighting would not be adopted upon completion, and the developer would be required to meet the Council’s costs in full. It was not proposed to make-up the road for adoption but only to light it to enable the development to proceed.

As the developer would be required to meet all the costs of a scheme to light the access road, including any costs involved to appear before Magistrates to resolve any objections, no costs would fall to the Council. Additionally, the future cost of electrical energy for the lighting would not fall to the Council but would have to be met by the developer possibly by an arrangement involving the purchasers of the new houses.

In discussion a number of comments were made.

Councillor Grainger was not supportive and had particular concerns. He suggested that the Planning Inspector’s conditions (that the passing bay and lighting had to be in place ahead of the development) were not a direction and further suggested that the making up process can lead to objections being made as the process is taken forward. He saw it as the responsibility of the applicant to meet the Planning Inspector’s conditions and he was concerned that the Council had provided an area of its land for the developer to construct a passing-bay. Councillor Grainger felt that it was for the applicant himself to meet the conditions required by the Planning Inspector.

The Vice-Chairman sought further background to the advice at paragraph 3.4 of Report ES13069 that “the issue of the passing-bay has now been dealt with by means of the Council providing a suitable area of land, upon which the developer will construct a passing-bay at his own expense”. Members were advised that provision of the land for the passing bay had been referred to the Council’s Valuers and the Head of Highways understood that no decision had yet been made on whether to sell or licence the land to the developer.

Councillor Ellis suggested there was a similarity of principle between this case and Members’ opposition to the development of a restaurant complex at Queen’s Gardens Bromley. She was not supportive and felt that providing land for the developer to construct a passing bay should not proceed.

Aware that the recommendation for a First Resolution concerned solely lighting for the access road, the Chairman enquired whether not agreeing to provide the land on the basis of a loss of green space would be in keeping with requirements for the process. He asked whether the Council would be open to legal challenge by not agreeing to provide the land and he sought clarification there was no legal obligation to sell the land.

Members were advised that the recommendation in Report ES13069 was purely concerned with facilitating a lighting scheme. There would be a strong risk of challenge for frustrating the developer (and frustrating the implementation of planning consent) if it was decided to not proceed with providing land for a passing-bay. The Assistant Director (Transport and Highways) referred to such advice in Report ES13069 (paragraph 6.1).

Concerning a basis to provide any land for the passing-bay e.g. leasing to the developer, the Assistant Director suggested there might possibly be some form of licence although he felt that a sale might be a neater arrangement. He added that advice was awaited from the Council’s Estates and Valuation team.

Referring to paragraph 3.3 of Report ES13069 the Vice Chairman suggested that the Planning Inspector’s decision made no reference to the Council providing land for the developer to construct a passing-bay. Paragraph 3.3 included reference to an expectation “that the developer would be able to negotiate with the owners of the access road (i.e. the several owners of the various dwellings which front onto the road) to secure agreement to enable a passing-bay to be constructed and street lighting to be installed”. The Vice-Chairman added that no other residents along the road wanted street lighting and given the Council’s previous refusal of the development application she felt that existing residents would be let down if the report was enthusiastically supported. She would not support the Council selling land for a passing place; instead she felt that the developers should continue to negotiate with the owners of dwellings fronting the road (owners of the access road). If it was necessary to sell amenity land for the passing place, she indicated that it would be more than amenity land to the developer.

With further reference to paragraph 3.3 of Report ES13069, Councillor Adams understood from the text that that the Planning Inspector expected the developer to be able to negotiate with the owners of the access road for a passing-bay; effectively, the consent could only proceed if the developer negotiates with owners of the access road. The Assistant Director confirmed there was evidence of the developer going through this process. He also suggested that the developer could go back to the Planning Inspector to try and have the conditions removed. 

Summarising the views of Members, the Chairman suggested a recommendation that the Committee was against the Council providing land for a passing-bay. The Head of Highway Management suggested that a First Resolution would start the process under the Private Street Works Code and give opportunity for the owners to oppose the lighting if it were to spill on to their properties. The issues could thereby be tackled by simply dealing with lighting under the Street Works Code.

Councillor Jefferys felt that a fuller report was necessary setting out the facts. The Vice-Chairman highlighted that the passing-bay and lighting had both caused concern. She recommended that no further action be taken on facilitating a passing bay or street lighting – no resident had asked for lighting. 

RESOLVED that the Environment Portfolio Holder be recommended to not proceed with the recommendation outlined in Report ES13069.