Proposed single track vehicular access.  Variation of condition 7 of planning permission DCSE2007/3932/F

Proposed single track vehicular access.  Variation of condition 7 of planning permission DCSE2007/3932/F

The Southern Team Leader reported the following updates:

• Further communications had been received from Mrs Jackson, regarding her legal use of the right of way. It was reiterated that the use was not restricted solely to timber haulage.

The following Officer comments were also reported in the update sheet:

• The unrestricted nature of the legal rights of the third party are acknowledged and the Council’s legal department have confirmed this to be an acceptable interpretation.

• The rights of the third party to pass and re-pass along the private right of way to Birchwood are noted. However, use of the existing access by the third party would still be evident on site to the applicants, who would then, in accordance with the Unilateral Undertaking, only use the existing access.  When the third party was not using the existing access the applicants could use the new access.  In light of the likely frequency of such use by the third party, together with that of the applicants’ relatively infrequent use of the new access, it is considered that the Unilateral Undertaking would satisfactorily control the use of the accesses in highway safety terms and enable the use of the new access, which provides significantly better visibility than the existing, when the existing access is not in use by the third party.

The Southern Team Leader introduced the report and gave Members a detailed background of the planning history of the site. He explained in detail the way in which the unilateral agreement would ensure that the two accesses would not be used at the same time without impeding on the third party.

In accordance with the criteria for public speaking Mr Jackson and Mr Glover, spoke in objection to the application and Mr Jones and Mr Day spoke in support.

Councillor BA Durkin, the Local Ward Member, had concerns in respect of highway safety on the site as a result of both accesses being used. He also had concerns in respect of the wording of the unilateral undertaking and questioned if it could be deemed to be an unreasonable condition and therefore unenforceable. Councillor Durkin also asked for clarification as to who would monitor the site to ensure that the unilateral undertaking was being complied with and had concerns that the applicant could fail to comply with the unilateral undertaking through no fault of his own.

Councillor RH Smith felt that the unilateral undertaking was misconceived and unenforceable. He noted that both parties had permission to use the new access and felt that it would be beneficial for both parties to use the new access instead of the old access.

Councillor H Bramer concurred with the comments raised by Councillor Smith although he proposed that both parties continue to use their respective accesses.

In response to a question, the Area Engineer advised that there were no reports of any accidents relating to the access being considered in the application.

Councillor PD Price voiced concerns in respect of the unilateral undertaking. He felt that it was not a workable option and that the application could not be approved in the proposed format. He felt that the issue regarding the right of way should have been noted during the previous application stage.

The Southern Team Leader advised Members that the unilateral undertaking was enforceable and that it had been devised in consultation with the Council’s legal department. He noted that members had suggested permitting the applicant to use the new access and the third party to use the old access and felt that this could be resolved by approving the planning application with the removal of the unilateral undertaking condition. He however added that he did not feel that it was appropriate to remove the condition and ensured Members that the condition was enforceable.

Councillor Durkin noted that there may be difficulties enforcing the unilateral undertaking if the applicant was away from the site or if he sold the land in the future.

The Southern Team Leader reiterated that the unilateral undertaking was enforceable and ensured that the third party’s right of way was maintained. He felt that it would be an improvement on the current situation and questioned whether Councillor Bramer’s proposal would improve highway safety to the same level as the unilateral undertaking would.

RESOLVED

That planning permission be granted.

INFORMATIVES:

1          N15 Reason(s) for the Grant of Planning Permission

2          N19 Avoidance of doubt - Approved Plans