PLANNING AND ENVIRONMENT
La Providence Housing Development, Bel Royal, St. Lawrence –
Request to vary Planning Condition 28 (Community Hall – Completion).
Purpose of Report
To consider an application from the developer (Dandara Jersey Ltd.) to vary Planning Condition No.28, in order to allow occupation of the remaining completed first-time buyer and lifelong homes at the site. The application is accompanied by a letter from the developer detailing the proposed variation (see Appendix 1).
Background
1. On 8th May 2007, a planning permit was issued for the development of 102 Category A homes at the site (P/2006/2489). This was subject to numerous planning conditions, including condition No.28 governing the completion of the approved community hall.
2. Planning Condition No.28 requires the community hall to be completed and the facilities it provides to be made available for community use once 75% of the development is occupied (i.e. up to 76 homes).
3. This is backed up by a planning obligation agreement (POA) which requires the developer to provide and layout the community building to at least a shell state, on or before the date upon which 75% of the development is occupied.
4. The sale and occupation of first-time buyer homes at the development has been adversely affected by the fall-out from the Credit Crunch and restrictions on mortgage finance, although there has been an increase in interest over recent months from potential purchasers.
5. As at 23rd April 2010, 75 of the 102 homes were occupied (i.e. 1 short of the occupancy threshold under condition 28).
6. On the same date, there were five households seeking to complete contracts for the purchase of homes at the site and, following a request from the developers, the Minister agreed to increase the occupancy threshold in Condition 28 from 75% (up to 76 homes) to 85% (up to 86). This was effectively an interim agreement, pending his decision on the formal application to vary the permit.
7. The POA restricts the use of the community building to community uses, which are defined as:
“suitable education or health or welfare or social services or community activities or retail activities to meet local community needs, which contribute to meeting the needs of residents of the dwelling units and the wider public.”
8. Revised plans for the design and layout of the community building were granted planning permission on 2nd June 2009 (RP/2008/2411), with the intent of providing a purpose-built children’s nursery. At the time, the developers had found an appropriate end user, having previously made various attempts over many months to find a suitable third party to operate and maintain the building.
9. The developers advise that they are currently in negotiations with another client who wishes to operate the Community Building.
10. The site of the community building has been cleared and prepared for construction to begin, following agreement on external form and design details and the recent granting of building permission.
11. The developer has applied to vary condition 28 to require completion of the community building to at least shell state and associated facilities, within 18 months of the approval of the revised plans for the community building (i.e. before 2nd December 2010). If agreed, therefore, completion of the building would no longer be tied to occupancy.
Discussion
12. The basic starting point for considering any variation to a planning condition is to ensure that the condition remains necessary, relevant, fair, reasonable, enforceable and appropriate in the present circumstances.
13. Any varied condition must continue to meet the main relevant planning objectives associated with the matter in hand, which include:
· to ensure that the community building is developed and made available for an appropriate community use within the definition set out in the POA. This was a requirement of the development brief and forms an integral part of the overall development design and layout. It will contribute to meeting the social needs of new / existing residents of the area and the wider public.
· to provide for the effective future maintenance of the community building. In the absence of the regular attentions of a management agency, the community building and its associated external spaces would be vulnerable to misuse and ongoing maintenance problems.
· to ensure that sufficient suitable homes are genuinely available to help meet identified requirements for first-time buyer accommodation. There is a long-standing strategic States commitment to encourage more home ownership and the homes in question have been specifically developed for this purpose. The draft Island Plan points to a requirement for between 765 and 820 first-time buyer homes for the first five years of the Plan. A recent review of residential land availability suggests that Category A demand can be met from existing commitments (including La Providence) and other supply sources identified in the draft Island Plan (including sites proposed for rezoning, or their equivalent). Ultimately, however, satisfying demand for first-time buyer homes will depend on their affordability. The prevailing economic climate has created serious challenges in this regard for aspiring home owners on average incomes, particularly in the light of current restrictions on mortgage lending.
14. In view of the above, it is contended that to be fair and reasonable, any variation to the condition must:
· Secure completion of the community building; and
· Prevent the completed first-time buyer homes unnecessarily continuing to lie empty for many more months.
15. On first examination, the proposed variation would seem to fit in well with these objectives and the approach outlined above, because:
· It provides for completion of the community building to at least a shell state, by the end of the year, whilst developer continues negotiations with the client who wishes to operate from the building. The fact that the community building site has been prepared for construction appears to demonstrate a genuine commitment on the part of the developer to delivering the facility.
· The future maintenance of the community building is covered by the POA, which allows for future conveyance to an appropriate body, subject to the prior approval of the Minister. Until then, responsibility for long term management will remain with the owner. As a backstop, the POA also allows transfer of the community building to the management company formed by the developer and apportioned between the new home owners.
· The proposed variation would remove otherwise restrictive occupancy constraints for interested first-time buyers (i.e. from those 11-16 first-time buyer homes which would otherwise exceed the new 85% occupancy threshold). In this regard, it could be argued that the recent increase in interest among potential purchasers of these long completed homes and other first-time buyer homes is encouraging and, where possible and appropriate, efforts should be made to remove obstacles (including planning conditions) which may unduly prevent future purchases, in order to assist in making available much needed first-time buyer homes.
16. Notwithstanding the above, it is important to recognise that securing completion of the community building is best served by a condition that requires both ‘carrot’ and ‘stick’, as in the existing condition (i.e. if the building is completed, the remaining homes can be sold and occupied and if not, they can not).
17. Despite the stated good intentions of the developer, the proposed variation to the condition to require completion by a certain time does not involve any effective ‘carrot and stick’ to secure completion of the building. The proposed condition may be difficult to enforce if the work on the community building is not completed and/or deferred by the developer because of unforeseen difficulties relating to finance, market changes, negotiations with potential users, or other matters.
18. In the circumstances, it would seem reasonable at this time to adopt a more cautious compromise position, which allows for some further relaxation of the current condition, whilst retaining an element of enforceable control to assist in securing the completion of the building.
19. Therefore, rather than accepting the proposed variation, there would appear to be merit in simply raising the occupancy threshold in the current condition (as recently amended) from 85%.
20. Raising the threshold to 95% or 90% would allow for all but 5 or 10 of the homes to be occupied respectively and there is something to be said for not conceding too much at this time.
21. Such a condition can always be reviewed again at a later date, as events unfold, and its reasonableness at this time is given added weight if one bears in mind:
· previous informal indications that it will only take a few months to construct the building; and
· the current economic climate and restrictions on mortgage finance which continue to constrain the ambitions of first-time buyers to purchase family homes.
Legal Implications
22. As inferred above, it would be prudent to ensure that the existing condition is not relaxed too much at this time, so that the developers are encouraged to get on with the development of the community building. Maintaining an occupancy threshold means the developers have an incentive to comply and so allows the Minister to retain some influence over the final outcome. This would not be the case if the requirement were for completion by a certain time and such a condition might be difficult to enforce in the event of failure to comply.
23. Any change to the current condition (including the interim concession already made by the Minister) should necessitate an amendment to the POA. Unfortunately, this would involve significant practical difficulties, given the number of owners now occupying the La Providence site.
Consultations
The Department has consulted with the Law Officers Department (see above) and Health Protection. Health Protection has no objections to the proposed variation.
Representations
The Department has received no written representations in connection with this application.
Recommendation
The Minister for Planning and Environment decided to refuse the proposed variation to condition 28, but approved amendments to the condition, as follows:
“Community Facilities – Completion
The layout of the Community Facilities Land and the construction of the community building to at least shell state shall be completed once 90% of the homes hereby permitted are occupied and prior to any further occupancy.”
Reason(s) for Decision
· To comply with the requirements of the Minister for Planning and Environment for a suitable community facility to help meet the social needs of new and existing residents of the area and the wider public.
· To permit prospective owners to purchase and occupy the completed homes at the development and so assist in making available much needed first-time buyer homes.
Action Required
· Inform the developer and local political representatives of the Minister’s decision.
· Issue a Planning Permit with the varied condition.
· Advise the Law Officers of the variation so that they may take it into account in considering how best to address modifications to the terms of the existing POA.
Written by: | Roger Corfield, Principal Planner – 28th May 2010 |
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Approved by: | Kevin Pilley, Assistant Director – Policy and Projects |
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Endorsed by: | |
Attachments:
· Appendix 1: Cover letter from the developer for the application, dated 6th April 2010.
File ref: RC/2010/0469 (main file – P/2006/2489)
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