Agenda item

Application Type:     s73 – Major

 

Proposal: Application under s73 for the Variation of Conditions 1 (Approved Drawings) of permission B/22/0393 (works already started)

Application Type: S73 – Major

 

Proposal: Application under s73 for the Variation of Conditions 1 (Approved

Drawings) of permission B/22/0393 (works already started)

 

Site: Land North of Tytton Lane East, Wyberton Boston PE21 7TD

 

The Principal Planning Officer presented the report and explained that full planning permission and reserved matters approval had already been granted for 132 dwellings on the site (initial outline consent in June 2022 and reserved matters approval in February 2023). A start had been made on site, but no substantive construction had yet occurred. The current application sought:

 

1.     Minor design amendments to a number of approved house types, involving small changes such as the loss of chimneys and window adjustments; and

2.     Removal of all Section 106 contributions (affordable housing, education, health and monitoring) on viability grounds.

 

It was emphasised that the design amendments were very minor and did not materially affect the appearance or character of the development. The principal matter before the Committee was the viability evidence submitted by the developer.

 

The Officer outlined the viability appraisal in detail. Cyden Homes had submitted evidence stating that the scheme was not viable if required to provide:

·        20% affordable housing (20 affordable rent units and 6 intermediate units)

·        £540,083 plus indexation for education

·        £87,120 plus indexation for health

·        Monitoring fees

 

The Council had commissioned an independent viability review, which concluded that:

·        Abnormal costs, particularly abnormal foundation costs, were significantly higher than typical;

·        Even after the independent assessor reduced the abnormal costs from approximately £5 million to £3 million, the scheme still could not support any S106 contributions;

·        With no contributions at all, the residual land value remained below the benchmark land value, meaning the scheme was technically unviable.

 

The Officer confirmed that Lincolnshire County Council and the NHS had objected due to the loss of education and health mitigation. Both had indicated the removal of contributions would have adverse impacts on local service capacity.

 

However, he noted that Policy 6 of the South East Lincolnshire Local Plan allowed the Council to take into account viability when determining the level of contributions required, and that the Council’s five?year housing land supply currently stood at 4.6 years, meaning that deliverability carried significant weight.

 

Members were advised that the Officer recommendation included a Deed of Variation containing a clawback clause, requiring a further viability review at a future trigger point to ensure that if the development became more profitable than expected, some contributions could be reclaimed.

 

There were no registered public speakers on this item.

 

The Chairman opened the debate.

 

Several Members expressed strong concern at the loss of affordable housing, together with the education and health contributions, and at the broader pattern of developers revisiting viability after planning permission had been granted. One Member commented that this was becoming common across the country and placed councils in difficult positions.

 

Members asked questions about:

·        Whether the developer had known about ground conditions earlier.

·        How the independent viability assessor was appointed and funded.

·        Whether the loss of infrastructure funding could be mitigated in other ways.

·        Whether refusal would realistically prevent the developer building or simply prompt an appeal.

 

Officers confirmed:

·        The independent viability assessor was appointed by the Council under contract and funded by the developer, ensuring independence.

·        There was no evidence that the developer had withheld information during previous applications; some abnormal costs only became clear when ground investigations progressed.

·        If the application were refused, there was a significant risk of a successful appeal, given the independent evidence supporting the developer’s case and the housing land supply position.

·        In such circumstances the Council risked an award of costs.

·        Without the variation, there was a real possibility that the site would not be delivered at all.

 

One Member remarked that while they considered the situation “appalling”, they could not see how the Committee could reasonably refuse the application. Another Member described the decision as having “a shotgun held to your head”, reflecting the difficult balance Members faced between protecting infrastructure contributions and ensuring housing delivery.

 

Members also noted that the wider area had already seen reductions in S106 contributions for other developments and that this cumulative loss placed strain on local schools and health services.

 

The proposal to include a clawback clause within the Deed of Variation was widely supported as the only mechanism available to protect the Council’s position in the event the development outperformed viability assumptions.

 

 

The recommendation was moved by Councillor Stephen Woodliffe and seconded by Councillor Barrie Pierpoint.

 

Resolved:

 

That the application be granted subject to the conditions outlined below and the completion of a Deed of Variation to the Section 106 agreement, including a clawback clause to allow for the recovery of contributions should the scheme viability improve.

 

Conditions:

 

1 The development hereby permitted must be begun not later than the 24th February 2025.

 

Reason: Required to be imposed pursuant to Section 51 of the Planning and Compulsory Purchase Act 2004 and to accord with Planning Permissions B/20/0235 and B/22/0393.

 

2 The development hereby permitted shall be carried out in accordance with the following approved plans and documents:

 

? Drwg no 184/002 Rev H Proposed Layout - Reserved Matters

? Drawing No. 184/011 PROW and Cycle path provision

? Drwg no 184/120 Garages Sheet 1 of 2 Home Office Studios

? Drwg no 184/121 Garages Sheet 2 of 2 Garages & Pump Station

? Drwg no 184/101 House Type dH402 Plots 1, 3, 14, 15, 73, 74, 76, 77, 78, 80, 81, 91, 92, 118 & 119

? Drwg no 184/102 House Type dH401 Plots 30, 31, 38, 39, 66, 67, 68, 70, 71, 75, 79, 99,

100, 101, 107, 108 & 109

? Drwg no 184/103 House Type dH403 Plots 69, 83, 97 & 128

? Drwg no 184/104 House Type dH404 Plots 5, 6, 12, 13, 72, 82, 98 & 102

? Drwg no 184/105 House Type dH408 Plots 16, 84, 96, 104 & 131

? Drwg no 184/106 House Type dH409 plots 2, 10, 120 & 132

? Drwg no 184/107 Rev A House Type dH418 Plots 11, 29 & 130

? Drwg no 184/108 House Type dH420 Plots 4, 7, 93, 103 & 129

? Drwg no 184/109 House Type dH422 Plot 120

? Drwg no 184/110 House Type sH430 Plot 25-26

? Drwg no 184/111 House Type sH303 Plot 27-28, 54-55, 110-111 & 126-127

? Drwg no 184/112 House Type sH304 Plot 105 & 106

? Drwg no 184/113 House Type sH322 Plots 8-9, 34-35, 56-57, 85-86, 87-88 & 116-117

? Drwg no 184/114 House Type sH329-322 Plots 32-33, 89-90, 94-95. House type sH322-329 Plots 36-37, 52-53

? Drwg no 184/116 Rev A House Type tH303-302-201-303 Plots 48-51, 58-61, 62-65, 112-115

? Drwg no 184/117 House Type tH205-302-201-201 Plots 40-43, 122-125

? Drwg no 184/118 Rev A House Type tH201-201-202-205 Plots 44-47

? Drwg no 184/119 Rev A House Type Ground Floor sgF112 Plots 17, 20, 21, 24 House Type First Floor sfF113 Plots 18, 19, 22, 23

? Drwg no 184/012 Proposed Site Levels

? Drawing no 184/004 Rev B Landscape & Biodiversity Layout Plan

? Drwg no 184/005 Materials Layout Plan

 

Reason: To ensure that the development is carried out in accordance with approved plans in accordance with Polices 2 and 3 of the South East Lincolnshire Local Plan 2019.

 

3 The development shall proceed in strict accordance with Written Scheme of Investigation agreed as part of B/20/0235/CD1, including measures relating to the submission and agreement of final reports where necessary and the provision for archives deposition.

 

Reason: To ensure that a suitable programme of archaeological investigation is implemented prior to the commencement of any construction works in order to record and advance the understanding of the archaeological and historical significance of the site for archival and

research purposes in accordance with the requirements of Policies 2 and 29 of the South East Lincolnshire Local Plan 2019.

 

4 The development shall proceed in strict accordance with Construction Management Plan agreed as part of B/20/0235/CD1.

 

Reason: To satisfy Policy 2 and 30 of the South East Lincolnshire Local Plan (2011-2036) and to ensure that appropriate measures are put in place before any development commences to limit noise, nuisance and disturbance to the occupiers of neighbouring properties during the

construction of the development and to prevent any obstruction of or disturbance to the operation of the Highway.

 

5 The development shall proceed in strict accordance with Surface Water Drainage Scheme agreed as part of B/20/0235/CD2. The development shall be conducted in accordance with the approved drainage scheme and no

dwelling shall be occupied until the approved scheme has been completed or provided on the site in accordance with the approved phasing. The approved scheme shall be retained and maintained in full in accordance with the approved details.

 

Reason: To ensure residents of the permitted development, neighbouring land and neighbouring properties are not adversely affected, by reason of flooding, by the construction of the permitted development in accordance with Policies 2 and 4 of the South East Lincolnshire Local Plan 2019.

 

6 The development hereby approved shall be undertaken in complete accordance with the biodiversity measures shown on drawing no 184/004 Rev B Landscape & Biodiversity Layout Plan. The measures shall be implemented prior to occupation of the dwelling to which it relates

and retained in perpetuity thereafter.

 

Reason: In the interests of biodiversity and in accordance with Policy 28 of the South East Lincolnshire Local Plan 2019.

 

7 The development hereby approved shall be carried out in strict accordance with the tree and hedgerow protection measures detailed in the Arboricultural Report dated 27th February 2020, unless otherwise agreed in writing by the Local Planning Authority before any clearance or

development takes place (whichever is sooner). The identified tree protection measures shall be implemented before any development takes place and maintained as such thereafter for the entirety of the construction period.

 

Reason: To ensure that adequate measures are put in place to protect existing trees which are to be retained as part of the development before any construction works commence in accordance with the requirements of 2, 3 and 28 of the South East Lincolnshire Local Plan 2019.

 

8 The development shall proceed in strict accordance with Travel Plan agreed as part of B/20/0235/CD1.

 

Reason: The Travel Plan is conditioned to ensure that access to the site is sustainable and reduces dependency on the car in accordance with Policies 2, 31 and 33 of the South East Lincolnshire Local Plan 2019.

 

9 The details in relation to the Public Right of Way and Cycle path shall be implemented in accordance with Drawing no 184/011 PRoW and Cycle Path Provision prior to the occupation of the first dwelling on the site. The details hereby approved shall be retained in perpetuity thereafter.

 

Reason: In the interests of pedestrian and cycle connectivity in accordance with Policy 2, 3 and 32 of the South East Lincolnshire Local Plan 2019.

 

10 The development shall proceed in strict accordance with Supplementary Transport Assessment agreed as part of B/20/0235/CD2.

 

Reason: In the interests of safe and suitable pedestrian connectivity, to facilitate, as far as is possible, a safe and suitable pedestrian route between the development hereby permitted, the existing footway on Stephenson Close, the wider footway network on Wyberton Low Road and

access between the application site and the Allotments. This would ensure the development accords with Policy 2, 32 and 33 of the South East Lincolnshire Local Plan 2019.

 

11 The development shall proceed in accordance with the EV Charging Point Statement agreed as part of B/20/0235/CD1.

 

Reason: To help reduce pollution and promote renewable and low carbon energy in new development schemes and to accord with Policies 2, 3, 30 and 31 of the South East Lincolnshire Local Plan 2019 and to accord with the intentions of the National Planning Policy Framework 2024.

 

12 The water consumption of each dwelling hereby permitted should not exceed the requirement of 110 litres per person per day as set out as the optional requirement in Part G of the Building Regulations (2010) and the South East Lincolnshire Local Plan 2019. The person carrying out the work must inform the Building Control Body that this duty applies.

A notice confirming the requirement for the water consumption has been met shall be submitted to the Building Control Body and Local Planning Authority, no later than five days after the completion of each individual dwelling.

 

Reason: To protect the quality and quantity of water resources available to the district. This condition is imposed in accordance with Policy 31 of the South East Lincolnshire Local Plan 2019.

 

13 The scheme of landscaping and tree planting shown on dwg. no. 184/004 Rev B Landscape & Biodiversity Layout Plan shall be carried out and completed in its entirety during the first planting season following practical completion of the development. All trees, shrubs and bushes shall

thereafter be maintained in accordance with the Landscape Management & Maintenance Plan agreed as part of B/20/0235/CD1.

 

Reason: To ensure that the development is adequately landscaped, in the interests of its visual amenity and character in accordance with Policies 2 and 3 of the South East Lincolnshire Local Plan 2019.

 

14 The development hereby approved shall be carried out in full accordance with the measures (including their timetable for implementation) detailed within the Ecology and Protected Species Survey – prepared by Helen Scarborough June 2020.

 

If any development has not commenced within 12 months of this permission then no development and/or site clearance shall take place until further survey(s) have been undertaken to establish whether features/habitats on the site are utilised by protected/unprotected species of wildlife and the results submitted to and approved in writing by the Local Planning Authority.

Any further survey(s) shall take place during the optimum period for wildlife activity (generally between March to September). If such a use is established, then no development shall take place until a comprehensive method statement indicating how the species are to be safeguarded

during the construction period and how appropriate mitigation measures (including habitat compensation and enhancement) are to be incorporated into the development has been submitted to and approved in writing by the Local Planning Authority.

 

The duly approved method statement shall be implemented in full accordance with the details, recommendations and timescales contained therein and any mitigation measures shall be fully implemented before any of the dwellings hereby approved are first occupied, and retained as

such thereafter.

 

Reason: To ensure that appropriate measures are taken to establish whether habitats on the site which are suitable to support protected species are (or become) used by these species in cases where development is delayed, and to ensure that adequate mitigation measures are

introduced as part of the development in order that it does not adversely affect the favourable conservation status of any protected species in accordance with Policy 28 of the South East Lincolnshire Local Plan 2019.

 

15 Remediation of the site shall be carried out in accordance with the approved remediation strategy as agreed as part of B/20/0235/CD1. No deviation shall be made from this scheme without the express written agreement of the Local Planning Authority.

 

Reason: To ensure site remediation is carried out to the agreed protocol and to accord with Policies 2 and 30 of the South East Lincolnshire Local Plan 2019.

 

16 On completion of remediation, two copies of a closure report shall be submitted to the Local Planning Authority. The report shall provide validation and certification that the required works regarding contamination have been carried out in accordance with the approved Method Statement(s). Post remediation sampling and monitoring results shall be included in the closure

report.

 

Reason: To provide verification that the required remediation has been carried out to the required standards and to accord with Policy 2 and 30 of the South East Lincolnshire Local Plan 2019.

 

17 If, during development, contamination not previously considered is identified, then the Local Planning Authority shall be notified immediately and no further work shall be carried out until a method statement detailing a scheme for dealing with the suspect contamination has been submitted to and agreed in writing by the Local Planning Authority.

 

Reason: To ensure all contamination within the site is dealt with and to accord with Policies 2 and 30 of the South East Lincolnshire Local Plan 2019.

 

18 The development permitted by this planning permission shall be carried out in accordance with the approved Flood Risk Assessment (FRA) February 2020/Version 1/RM Associates and the following mitigation measures detailed within the FRA:

? Finished floor levels to be set no lower than 3.5m above Ordnance Datum (AOD)

? The development to have at least two storeys

? Demountable defences to be provided to a height of 600mm to cover all ground floor doors

? Flood resilience and resistance measures to be incorporated into the proposed development as stated

The mitigation measures shall be fully implemented prior to occupation and subsequently remain in place.

 

Reason: To reduce the risk of flooding to the proposed development and future occupants in accordance with Policy 4 of the South East Lincolnshire Local Plan 2019.

 

19 The development hereby approved shall be undertaken in accordance with the Acoustic Assessment Report P22-287-R01v1 July 2022. The recommendations of the acoustic report shall be implemented in full prior to the occupation of plots 14-27 inclusive and shall be retained in perpetuity thereafter.

 

Reason: In the interests of residential amenity in accordance with Policy 2, 3, and 30 of the South East Lincolnshire Local Plan 2019.

 

20 The development hereby approved shall be carried out in accordance with the materials specified within the application form and following drawings: ? Drwg no 184/005 Materials Layout Plan

 

The materials shall be implemented and thereafter retained as approved unless otherwise agreed in writing by the Local Planning Authority.

 

Reason: In the interests of visual amenity and character in accordance with Policies 2 and 3 of the South East Lincolnshire Local Plan 2019.

 

BNG doesn’t apply

No BNG1 - Paragraph 13 of Schedule 7A to the Town and Country Planning Act 1990 states that planning permission is deemed to have been granted subject to the “biodiversity gain condition” which means development granted by this notice must not begin unless:

 

(a) a Biodiversity Gain Plan has been submitted to the planning authority, and

(b) the planning authority has approved the plan.

 

Under Regulation 4 of the Biodiversity Gain Requirements (Exemptions) Regulations 2024 the statutory biodiversity gain condition required by Schedule 7A to the Town and Country Planning Act 1990 (as amended) does not apply in relation to planning permission for development which:

 

(a) the original planning permission (a planning permission which is the first in a sequence of two or more planning permissions, where the second and any subsequent planning permissions are section 73 planning permissions) to which the section 73 planning permission relates was granted before 12th February 2024; or

(b) the application for the original planning permission to which the section 73 planning permission relates was made before 12th February 2024.

 

Based on the information submitted in the planning application documents, the Planning Authority considers that this permission is exempt from biodiversity net gain, and as such does not require approval of a biodiversity gain plan before development is begun.

 

BNG3 Statutory exemptions and transitional arrangements

 

There are statutory exemptions and transitional arrangements which mean that the biodiversity gain condition does not always apply. These can be found at Paragraph: 003 Reference ID: 74-003-20240214 of the Planning Practice Guidance, which can be found at

https://www.gov.uk/guidance/biodiversity-net-gain

 

Irreplaceable habitat

If the onsite habitat includes irreplaceable habitat (within the meaning of the Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024) there are additional requirements for the content and approval of Biodiversity Gain Plans.

 

Effect of Section 73(2D) of the 1990 Act

 

Under Section 73(2D) of the Town and Country Planning Act 1990 (as amended) where -

(a) a biodiversity gain plan was approved in relation to the previous planning permission (“the earlier biodiversity gain plan”), and

(b) the conditions subject to which the planning permission is granted:

(i) do not affect the post-development value of the onsite habitat as specified in the earlier biodiversity gain plan, and

(ii) in the case of planning permission for a development where all or any part of the onsite habitat is irreplaceable habitat within the meaning of regulations made under paragraph 18 of Schedule 7A, do not change the effect of the development on the biodiversity of that onsite habitat (including any arrangements made to compensate for any such effect) as specified in the earlier biodiversity gain plan.

 

- the earlier biodiversity gain plan is regarded as approved for the purposes of paragraph 13 of Schedule 7A of the Town and Country Planning Act 1990 (as amended) in relation to the planning permission.