Agenda item

Proposal: Certificate of lawfulness for the existing use of site as a mixed use of residential and retail with ancillary storage.

The Area Lead presented the application and explained what a Certificate of Lawfulness (COL) is. With the aid of photographs he provided a summary of the planning history for the site, noting that wider usage of the site for storage had occurred over a period of about 20 years. With regard to the COL, he noted the LPA had no evidence to disprove the use as detailed in the submitted site plan. With reference to use, officers had seen accounting books which indicated there was an active business, and Business Rates indicated a shop was running and had been on the site for a number of years. The officer acknowledged there was more stock going into the site than going out.

It was explained there were limited considerations for COLs, was the existing mixed use with ancillary storage lawful? Previous historical planning permissions had been silent on the view of the amount of external storage ancillary to the business. Legal and Counsel opinion had been sought and advice received was clear that the existing use was lawful planning use.

Mr P Monkton and Mr J Pilton addressed members in objection to the application. Their comments included:

·         Fire risk, health and safety are a concern for neighbours

·         Query if the site owner has insurance

·         Site is out of control and items are starting to encroach and damage boundaries of all three neighbours

·         There is more stock in than out

·         It’s a disaster waiting to happen

Mr D Stephens, agent, thanked the officer for his comprehensive report and for explaining the difference between a planning application and a COL. He noted that health and safety matters were not relevant in this case.

Ward member, Councillor Sylvia Seal, commented that fire safety issues were very relevant at the current time. She also referred to comments made by the Inspector regarding his reluctant decision to dismiss the enforcement appeal. To her it was obvious that the current use was never what was intended and the site was now a dumping ground, and wanted to know why, in legal terms, something could not be done about the site. She felt the COL should be refused.

During a long discussion varying views were expressed and members sought clarification on several points from the officers. Some of the comments made included:

·         Neighbours shouldn’t have to put up with it, site is an abomination,

·         Long history of temporary permissions and planning enforcement has failed in the past.

·         If COL approved how can the site be cleared?

·         If COL approved may put us in a position whereby some other positive action could be taken.

·         If refused the use will continue

In response to comments made, the Legal Services Manager, Development Manager and Area Lead provided some further information and clarification including:

·         COL would provide a defined point to start from if taking action in the future.

·         The advice was that the description in the COL was lawful but it did not give the owner freedom to do anything he wanted.

·         The COL, if approved, would clarify what we accept as a lawful position.

·         There was still action that could be taken for example by Environmental Health or the Fire Service.

·         The legal advice to Committee was we need to agree the lawful position in advance of action.

·         This application had to be about evidence and facts, and members should not dwell on what was intended by historical planning permissions.

·         A Section 215 notice had been served and was currently being appealed at the Magistrates Court. However the magistrates were waiting for us to determine what is lawful use, and we could still say the site is visually unacceptable.

·         Businesses run in different ways and the planning use class system is quite broad.

·         Acknowledge views that this use is unconventional and many would doubt the viability of the business.

·         Acknowledge a material change of use may have happened but there were time limits to enforce which had lapsed.

·         The COL application was asking if the current use on site had occurred for 10 years and therefore lawful in planning terms.

·         Counsel concurs that what is proposed by officers is a reasonable way forward to confirm use.

·         Members were only being asked to conclude what is lawful in planning terms and not what is acceptable. Granting the application did not absolve the owner of other legal responsibilities.

At the conclusion of debate it was proposed and seconded to approve the application as per the officer recommendation. On being put to the vote the proposal was carried 8 votes in favour, 4 against with no abstentions.

(Voting: 8 in favour, 4 against, 0 abstentions)