PLANNING AND ENVIRONMENT
Category A Housing Development at Bel Royal, St. Lawrence –
Request to vary Planning Condition 28 (Community Hall - Completion)
Purpose of the Report
To consider an application from the developers (Bel Royal (Jersey) Ltd) to vary Planning Condition No.28 to allow the community facilities to be made available within 3 years of the foul and surface water drainage works being in place and operational (see Appendix 1).
Background
- On 21st March 2007, the Minister for Planning and Environment (The Minister) decided to grant planning permission for development at the site comprising inter alia 102 Category A homes.
- A permit was issued on the 8th May 2007, subject to numerous planning conditions, including condition No.28 governing the completion of the community hall.
3. Planning Condition No.28 (see Appendix 2) requires that the hall shall be completed and made available for community use once 75% of the housing development is occupied.
4. This requirement is backed up by a legally binding Planning Obligation Agreement (POA).
5. A community facility has been a requirement for the housing development from the outset. It featured in the development brief for the project and is intended for use by the new residents and the wider public.
6. The developers have put considerable efforts into finding a suitable use and end user for the community facilities over a protracted period of time. There has been a lack of interest shown by the States and the Parish. This prompted the developers to consider the possibility of offering the building to a suitable third party for appropriate community uses, as opposed to apportioning the ownership between the 102 homes and providing for future maintenance by a Management Company funded by the new residents).
7. The developers now have a potential client who wishes to operate the building as a children’s nursery for 0-5 year olds. This use effectively sits within the meaning of ‘community use’ as set out in the POA.
8. The proposed use requires significant alterations to the approved building and its surroundings and these are the subject of a current revised application for planning permission (RP/2008/2411).
Discussion
The requirement for a community facility for use by existing and proposed residents of the area and the wider public has featured throughout the protracted planning process for the La Providence development.
This has always been considered a reasonable requirement given the scale of the housing development.
The planning consent for the development duly included permission for a community hall on land immediately to the east of the housing development and close to the main access point from St. Peter’s Valley Road.
The planning permit (dated 8th May 2007) carried a condition to ensure that the required facility is provided and made available in a reasonable time frame (i.e. by 75% occupancy). This requirement of the Minister for Planning Environment was negotiated with the developers at the time and also featured in the associated and legally binding Planning Obligation Agreement.
Clearly, in reaching this agreement, the Minister was looking to guarantee that the community building is provided as soon as practicable. He did not wish to see a situation arise whereby the housing was completed and occupied without the facility being available and with the future provision of the facility being placed in doubt.
Such a situation has arisen at the other large scale H2 Category A housing development at Le Close Vaze, where a similar facility was approved, but was not constructed before occupancy of the homes and is now being resisted by the new residents.
The developers have consistently shown goodwill in trying to resolve the issues relating to the future use of the community building, as they have with numerous other issues arising throughout the development process. They have also given informal indications that they are keen to pursue the development of the community facility, which is a commercial venture in its own right and in their interests to build. However, any delay in the requirements for completion will naturally add additional risks relating to the eventual satisfactory implementation of the scheme.
The housing development is currently nearing completion with all the homes due to be finished by the end of April, or just after. Occupancy of the homes (excluding the small number of agreed exceptions), will depend on various planning conditions being met, including those relating to permanent foul drainage (No.55), noise exposure (No.31) and security of rear access paths (No.14).
Resolving the permanent foul drainage for the housing development, which involves routing a rising main from the site to the main public gravity sewer adjacent to the sea wall has proved problematic for the developer. The preferred routes involve use of public land and the costs of drainage rights have been the subject of protracted negotiations between the developer and Property Holdings. Whilst the developers believe an amicable agreement can be reached, in the interim they are unable to agree a definitive entry date with their client for the purposes of a legal contract. It is with this in mind that they have applied to vary the planning condition to allow for completion within 3 years of the foul and surface water drainage being in place and operational.
This application to vary the condition supersedes an earlier one which simply sought to require completion of the community facility before completion of the development (RC/2008/ 2528). This was abandoned in favour of the current application, following lack of support from the case officer because it would offer no guarantees that the building would be completed.
The Department has received one letter of objection from a local resident to the current request to vary condition governing the completion of the community building. The objector has called into question how a delay in the provision can be justified, given that this is an “amenity which was lauded as a generous and compelling factor in favour of the development”. Following receipt of this objection, the Minister has made it clear that he does not wish to authorise any significant delay in the community centre.
If all these outstanding conditions are met, and the current requirement for completing the community building is maintained, it will mean that the occupancy of some 26 completed homes will be delayed for up to 12 months until the facility has been completed and made available (provided the current plans for the centre are approved and there are buyers for all the homes).
One could argue that it would not be unreasonable to maintain this condition and the related planning obligation agreement, particularly as an agreement on the outstanding drainage issue is getting closer. The developers and Property Holdings will soon be going to Binding Arbitration over the outstanding matter of payment for drainage rights on public land once the conditions for the arbitration have been agreed. Furthermore, the developers have informally implied that they would wish to (and it would be in their interests to) commence the development of the community facility as soon as they are able to avoid leaving the site after completion of the remainder of the development and then having to return. Of course, there would be pressures put on the Minister to release remaining properties for occupancy by or on behalf of prospective purchasers.
Delaying the completion of the community building for up to three years after the foul and surface water drainage works are in place, as currently proposed, could be regarded as a potentially significant delay, which is not, therefore, in accordance with the Minister’s recently expressed wishes. Furthermore, in order to avoid further potential delays, it would be necessary to confirm that, in this instance, surface water drainage works do not include the surface water pumping station required for flood mitigation. Under the terms of the current consent, this does not have to be in place and operational until the housing development is complete.
In the present circumstances there appear to be insufficient grounds for the Minister to vary the current planning condition. However, this position (including the extent to which occupancy is permitted in advance of completion) could be reviewed at a later date when the Community Facility is under construction.
Legal implications
Any variation to the condition governing the completion of the community facility will require a modification to the relevant Planning Obligation Agreement.
Consultation
None.
Representations
The Department has received one written representation in connection with this application (see discussion above).
However, there were two other written representations received in response to the original superseded application which remain relevant. One objector commented on the reasonableness of the current condition and makes the point that allowing the developer to sell all of the properties before completing the community facilities “may put the provision at risk”. He suggests that in such an event the Department would have little control over the quality of the provision and refers to “numerous sites on the Island where the developer has walked away without finishing promised projects”.
The second objector states that the original condition was made for good reason and points to one of the findings of the Committee of Inquiry that ”the Minister partially undermined the process as a transparent and reliable one by going back on his stated commitment that the developers would be required to adhere strictly to any planning condition”.
Recommendation
The Minister for Planning and Environment decided to:
- refuse the application to vary planning condition no. 28.
Reason(s) for Decision
- To help ensure that the community facility required by the Minister for Planning and Environment in association with the Category A housing development (La Providence) is completed and made available at the earliest opportunity for the benefit of existing and proposed residents of the area and the wider public;
- To help avoid putting the provision of the required community facility at increased risk.
Action Required
- Inform the developer, local political representatives, objectors and the Law Officers’ Department of the Minister’s decision.
Written by: | Roger Corfield, Principal Planner – 23rd April 2008 |
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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 31st March 2008.
- Appendix 2: Planning Condition No.55 (Foul Drainage).
File ref: RC/2009/0747
(main app. Ref. P/2006/2489)
APPENDIX 2: PLANNING CONDITION No.28 (Community Hall - Completion)
The community hall hereby approved shall be completed and the facilities it provides made available for community use once 75% of the development hereby permitted is occupied.
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