For:      S & A Produce (UK) Limited per Antony Aspbury Associates 20 Park Lane Business Centre Park Lane Basford Nottingham NG6 0DW

 

Ward: Leominster South

The Principal Planning Officer presented the report of the Head of Planning and Transportation.  He reminded the Committee that at a previous meeting the application was deferred on Counsel’s advice in order that time could be given for the Officers to consider the additional representations that had been received.  The application as originally submitted related to an area of land amounting to 67 hectares of Grade 1 and 2 agricultural land.  On 14th August, 2009, an amended application was recived which reduced the area to 35 hectares.  The revised scheme will mean that the tunnels are to be fixed permanently in one position rather than rotated as has previously occurred.  The planning statement supporting the application advised that there was a willingness to accept a condition precluding the siting of polytunnels on any other field parcels other than those of the application site. He outlined the main points of the application and the views which had been received during the consultation process.  He presented the following updates regarding further representations that had been received since the report had been prepared:

ADDITIONAL REPRESENTATIONS

 

Additional correspondence has been received from Justin Sacks inventor of the LM3 methodology, submitted on behalf of Arrow Valley residents Association (AVRA).

 

In summary:

 

1.      S&A has failed to rectify previous errors for calculating the local economic contribution of Brierley Court Farm.

 

2.      There is no economic evidence to suggest that the Council should overturn previous decisions rejecting planning permission to S&A’s proposals at Brierley Court Farm.

 

3.      S&A has failed to rectify previous errors for calculating the local economic contribution of the farms under consideration.

 

4.            4My previous two responses have pointed out where S&A has misinterpreted, inadvertently or wilfully, the LM3 methodology and their local economic contribution.

 

5.           The figures S&A continues to present are for their impact as an entire business rather than the impact of Brierley Court Farm only. I have highlighted this error in the previous responses, which S&A has disregarded.

 

6.           Even within S&A’s calculation of its overall impact, there remain errors that I have highlighted previously that remain unchanged. For instance, their local spending figures are based on a ‘sample of local businesses’ rather than their actual suppliers.

 

7.           None of the figures that S&A have submitted in this latest appraisal shed any new light on the economic contribution of Brierley Court Farm to the local economy.

 

6.            There is no economic evidence to suggest that the Council should overturn previous decisions rejecting planning permission of S&A’s proposals at Brierley Court Farm.

 

7.            S&A alleges that failure to secure planning permission for Brierley Court Farm would ‘force the business to restructure and reduce numbers employed’. There is no economic basis, however, for granting planning permission to a business solely to ‘prop up’ the business if it relies on production methods considered unacceptable.

 

8.           The Council has already rejected previous planning applications and issued enforcement action, and S&A has presented no new data concerning Brierley Court Farm that demonstrate why precedent should be overturned in this instance.

 

9.           There is already proof that S&A’s restructuring would not necessarily be detrimental to the local economy. The sale of Brierley Court Farm in October 2009 for £3.4 million to a conventional farmer demonstrates that there are other commercially viable uses for land under consideration. The new owner has signalled they will farm Brierley Court Farm conventionally if S&A’s planning application is refused.

 

10.       As stated previously, now more than ever, a thorough comparison of options for the land at Brierley Court Farm would be necessary to overturn planning precedent on the basis of business support. Such comparisons may in fact find that S&A contributes less to the local economy than alternative business models.

 

Correspondence has also been received from Mr Greene as chairman of AVRA.  In relation to this application the relevant paragraphs read as follows:

 

Ownership – Brierley Court Farm has been sold. This is fundamental to the way the application is determined in relation to the poplar plantation in particular and the undertaking on not including polytunnels on the other land which will not be in the applicants control. But also in relation to landscaping and habitat management (condition 3 of DCNC2009/0167). The committee report includes a plan showing ownership which DPDS believe to be now incorrect. It is labelled “land in the ownership of the applicant” which is clearly incorrect, but it raises the issue of how far the Council has been kept up to date. No consideration at all of the issues raised our DPDS letter of 6^th October. This has obvious implications for the management agreement for the Poplar Plantation, the restrictions on other land but also conditions generally as DPDS spelt out in the October letter.

 

Bias and Consultation – The failure to understand the consultee’s case is demonstrated in para 6.14 and following paras of the report on DCNC2009/0167.  The point that AVRA made is that it is not sufficient that there would be economic benefits, but that the Council must understand with some accuracy how great these benefits are before it can balance them against the harm. Those benefits have to be assessed effectively as a net benefit above that which would be achieved by farming without polytunnels.

 

Furthermore the Council has prepared a Committee report and made recommendations while a document (the revised economic assessment) is still out for public consultation. Since it is accepted that the proposal would have an adverse landscape impact, the economic case and in terms of accommodation would be contrary to policy H7, this must be fundamental to any case to permit the application.  Para P62.83 of the Planning Encyclopaedia quotes Webster J  that sufficient time must be given to the consulted party to prepare a helpful advice and to for the consulting party to consider it.  

 

Failure to provide the planning obligation under S106 for reasonable consultation.

 

Condition 3 – Unenforceable because of ownership and because there is no time limit for implementation.

Condition 6 – Impossible to measure whether run off exceeds the stated rate and therefore unenforceable. Works, measures or procedures should be specified.

           

Landscape – leaving aside whether the landscaping offered by the applicant is effective even after 15 years, failure to record that DPDS consider the 15 year landscape assessment period excessive for development which has such extensive effects to consider the reasonableness of a 15 year assessment when the permission is limited to 10 years. It is irrational to base a visual impact assessment on 15 years planting growth for a development with a 10 year life span.

 

It appears unreasonable to parcel up the land as in paras 4.10 & 6.10. of the report on DCNC2009/1067. A development which can be seen from one type of landscape character will affect that character regardless of whether it is in Principal Wooded Hills, which is not resilient to change, or Principal Settled Farmland, which is.

 

Correspondence has also been received from AVRA’s legal advisors, BrookStreet des Roches LLP.  In summary the points it raises in addition to those raised by Mr Greene and Mr Sacks are as follows:

 

·               The Council has not dealt with AVRA’s concerns that the application is flawed and incomplete.

·               The Council has not acted consistently in relation to enforcement action taken on the site.

·               The suggestion by the Council that the initial enforcement action taken in 2007 was to prevent the polytunnels receiving retrospective permission after four years misunderstands the purpose of serving an enforcement notice.  The author considers that their purpose is to prevent development that a local authority would not conceive granting planning permission for.

·               A further issue arises in relation to the ownership as it would seem that the farm itself is no longer within the sole ownership of the applicant.  This has implications on the validity of the Unilateral Undertaking and the proposed conditions.

·               The Council has inconsistently reported AVRA’s objections by failing to report comments adequately or to consider the issues raised by them.

·               Considers that condition 3 is unenforceable due to land ownership issues and a lack of a time limit for implementation.

·               Condition 6 is unenforceable as run off rates are impossible to measure.

 

OFFICER COMMENTS

 

It is clear that there is a fundamental disagreement between the applicant and objectors about the application of the LM3 economic model.  Notwithstanding this, it falls to your officers to make a judgement based on the information provided.

 

The economic appraisal has aided officers in making an assessment of the weight to be given to Guideline 1 of the Polytunnel SPD. The reduction in the land take and workers associated with the amended scheme has had an impact on this factor.  It remains your officers view that the proposal will have a positive economic impact and that this is an important material planning consideration to which weight has been given when considering the scheme against other factors such as landscape impact.

 

With regards to ownership issues, the schedules contained within the Unilateral Undertaking not only refer to first and second owners, but also successors in title.  Your officers are satisfied that this ensures that its requirements are incumbent upon any future owners.  Similarly the conditions are not specific to the applicant and therefore run with the land. 

 

The application has attracted considerable interest from third parties and their representations have been summarised in the report.  It deals with all of the relevant issues in details and your officers are satisfied that these have been dealt with comprehensively and in response to the objections received.

 

The supposition that enforcement notices are served against developments that local authorities would not conceive granting planning permission for is incorrect and there is nothing to suggest that a local planning authority cannot grant planning permission for development on land that it has previously served an enforcement notice on.

 

There is a need to amend condition 3 to include a time limit for implementation.

 

CHANGE TO RECOMMENDATION

 

Condition 3 to be amended to read as follows:

 

Within three months of the date of this permission, a full habitat management and enhancement scheme (based upon the Outline Landscape and Ecological Management Plan dated December 2008) shall be submitted to and approved in writing by the local planning authority.  This shall include mitigation and protection measures for protected species and a timetable for their implementation.  The scheme shall be implemented in accordance with the approved timetable and continued thereafter unless otherwise agreed in writing by the local planning authority.

 

In accordance with the criteria for public speaking, Mr Greene and Mrs Jackson of AVRA spoke against the application and Mr Snow spoke in favour on behalf of the applicants.

 

Councillor RC Hunt one of the Local Ward Members said that the scale and massing of the original proposal had proved to be very controversial locally because of its detrimental visual impact for a considerable distance from the site.  He felt that the considerable reduction of the polytunnels and accommodation coupled with screening and the removal of the plastic sheeting for four months of the year was welcome.  It was essential however that if approval was granted, all the conditions were properly enforced.  Councillor PJ McCaul the other Ward Member also welcomed the reduction and attempt to locate the operation in the lowest part of the site rather than on higher ground.  He noted that the method of fruit production was necessary to meet demand but felt that the process was equally suited to a concrete surface and questioned the need to use prime agricultural land which would be better used for the production of traditional crops.  He also agreed that the conditions needed to be properly enforced.

 

Councillor JP French, one of the Leominster Ward Members, also felt that the course of the application had proved to be lengthy and controversial.  She welcomed the approach of the new company and outlined the problems that had previously arisen with issues around the accommodation for seasonal workers and the hours worked.  Agriculture was relied upon to preserve the countryside but was also a place of work.  She also welcomed the reduced land and the proposed tree screening. She requested that condition No.2 should also require the polythene to be cleared from the land between each growing season during the period 31st October to 1st March.  She also welcomed the proposals for greater pedestrian safety.  A friendship centre had previously been established to welcome the seasonal workers and she felt that in was important to continue to develop community relations.  If the application was approved she also suggested that there was a need for the establishment of a local reference group involving Members to enable any issues to be aired. 

 

Councillor Brigadier P Jones, another of the Leominster Ward Members supported the application with its reduced area and Councillor Greenow commended the applicants for listening to the views of the local community and objectors and making every effort to minimise the effect of the scheme. He drew particular attention to contribution that this type of growing had made to the domestic production of fruit and had reduced the need for importing.  Councillor Chappell pointed out that the use of polytunnels was common place in agriculture now and considered the proposals to be an important part fruit production.  Councillor PGH Cutter agreed with the views of Councillor French about the need to make every effort that seasonal workers were integrated into the local community during their stay.  He noted that the objectors had indicated that they would be seeking a judicial review if the Committee decided to grant permission and had some sympathy for them but felt that the application should be approved.  The Interim Head of Legal and Democratic Services drew attention to the fact that judicial review was not a material planning consideration in reaching a decision on the application.  Councillor RI Matthews noted that the applicants had gone so far in allaying the concerns that had been raised but felt that there was still a long way for the applicants to go before the impact of the proposals on local residents and the community was reduced.  He felt that a reduced scheme on smaller pockets of land would be more appropriate.

 

The Head of Planning and Transportation summarised the merits of the application and the Unitary Development Plan issues that related to it. The proposals had changed considerably from the first application and needed to be considered on their own merits in the light of the Councils planning policies.  The changes were fully explained in the report and updates.  He was confident that there would be the capacity to ensure that the planning conditions within the recommendation and suggested during the debate were enforced and would ensure the appropriate monitoring was undertaken.

 

Having considered all the issues relating to the application, the Committee was satisfied that it should be approved with the amendments proposed to the planning conditions. It was also agreed that there should be a liaison group established as suggested by Councillor French.

 

RESOLVED THAT

 

Subject to the completion of the Unilateral Undertaking as submitted by the applicant in accordance with the provisions of Section 106 of the Town & Country Planning Act 1990 in relation to the provision of a Woodland Management Plan, an undertaking not to develop any Raised Crop Protection Structure or Polytunnel on any other land in their ownership at Brierley other than that applied for and appropriate linkages between the use of land for polytunnels and the use of land for worker’s accommodation the officers named in the Scheme of Delegation to Officers be authorised to approve the application subject to the following conditions and any further conditions considered necessary by officers.

 

1       F20 (Temporary permission and reinstatement of land) (10 years)

 

        Reason: In order to clarify the terms under which this permission is granted and in accordance with Policies DR1, LA2 and E13 of the Herefordshire Unitary Development Plan.

 

2       The polythene shall be removed by 31st October each year and not replaced until or after 1st March in the following year unless otherwise agreed in writing by the local planning authority.

 

        Reason: In order to protect the visual amenity of the area in accordance with Policy LA2 of the Herefordshire Unitary Development Plan.

 

3       Within three months of the date of this permission, a full habitat management and enhancement scheme (based upon the Outline Landscape and Ecological Management Plan dated December 2008) shall be submitted to and approved in writing by the local planning authority.  This shall include mitigation and protection measures for protected species and a timetable for their implementation.  The scheme shall be implemented in accordance with the approved timetable and continued thereafter unless otherwise agreed in writing by the local planning authority.

 

        Reason: To ensure the protection of European and nationally designated sites and to comply with Herefordshire Council's Unitary Development Plan Policies NC2 and NC3. To ensure that all species are protected having regard to the Wildlife and Countryside Act 1981 (as amended), the Conservation (Natural Habitats, & C) Regulations 1994 (as amended) and Policies NC1, NC5, NC6 and NC7 of Herefordshire Council's Unitary Development Plan. To comply with Herefordshire Council's Policies NC8 and NC9 in relation to Nature Conservation and Biodiversity and to meet the requirements of PPS9 Biodiversity and Geological Conservation and the NERC Act 2006.

 

4       No polytunnels shall be erected within 2 metres of the centre line of a public right of way or 3 metres in the case of a bridleway.

 

         Reason: In order to protect the Public Right of Way in accordance with Policy T6 of the Herefordshire Unitary Development Plan.

 

5       The Public Right of Way shall be maintained strictly in accordance with the submitted drawings L09, L10A, L10B, L11A and L11B unless otherwise agreed in writing by the local planning authority.

 

         Reason: In order to protect the Public Right of Way in accordance with Policy T6 of the Herefordshire Unitary Development Plan.

 

6       All surface water shall be limited to the relevant Greenfield run-off rate, with attenuation for the 1% plus climate change storm event, in accordance with the Flood Risk Assessment dated July 2009, unless otherwise agreed in writing by the local planning authority.

 

         Reason: To prevent flood risk and ensure sustainable disposal of surface water run-off and to conform with Policy DR7 of the Herefordshire Unitary Development Plan.

 

7       H30 (Travel plans )

 

         Reason: In order to ensure that the development is carried out in combination with a scheme aimed at promoting the use of a range of sustainable transport initiatives and to conform with the requirements of Policy DR3 of Herefordshire Unitary Development Plan.

 

8       G10 (Landscaping scheme )

 

         Reason: In order to maintain the visual amenities of the area and to comply with Policy LA6 of Herefordshire Unitary Development Plan.

 

9       G11 (Landscaping Scheme – implementation)

 

          Reason: In order to maintain the visual amenities of the area and to comply with Policy LA6 of Herefordshire Unitary Development Plan.

 

10    Amended Plans 14^th August, 2009.

 

INFORMATIVES

 

1       N19 - Avoidance of doubt - Approved Plans

 

2       N15 - Reason(s) for the Grant of Planning Permission

 

3       HN25 - Travel Plans

 

4       HN26 - Travel Plans