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A decision made 14 January 2009 regarding: Bel Royal Housing Development - variation of planning conditions.

Decision Reference: MD–PE–2009-0XXX
Decision Summary Title :	DS – Category A Housing Development at Bel Royal – Request to vary condition 55 P/2006/2489 RC/2008/2599		Date of Decision Summary:	14th January 2009
Decision Summary Author:	Roger Corfield Principal Planner: Policy and Projects		Decision Summary: Public or Exempt?	Public
Type of Report:	Written and Oral		Person Giving Oral Report:	Roger Corfield, Principal Planner
Written Report Title :	WR – Category A Housing Development at Bel Royal, St. Lawrence – Request to vary Planning Condition 55 (Foul Drainage).		Date of Written Report:	14th January 2009
Written Report Author:	Roger Corfield Principal Planner: Policy and Projects		Written Report : Public or Exempt?	Public
Subject: An application from the developer to vary Planning Condition No.55 to allow for Plot 95 to be added to the list of homes that may be occupied in advance of the remainder of the development and of the completion of the approved foul drainage system.
Decision(s): The Minister for Planning and Environment decided to: (1) Approve the application to vary planning condition no. 55 (Foul Drainage) to read as follows: “No dwelling shall be occupied until the foul drainage works to serve the development have been designed, constructed and completed to the extent necessary to permit the occupation and enjoyment of that particular dwelling unit, to the satisfaction of the Minister for Planning and Environment, in consultation with Transport and Technical Services (Drainage). Prior to the completion of the development hereby permitted, the foul pumping station shall be designed and constructed to the specification of Transport and Technical Services (Drainage) and connected to the 27 inch public gravity foul sewer adjacent to the sea wall. For avoidance of doubt, the foul water disposal shall meet the requirements set out in the comments sheet from PSD(Drainage) dated 13th October 2005 and the additional comments set out in the letter from TTS(Drainage) dated 5th December 2006 (see attached). Units 50, 52-58, 60, 62, 76, 81, 91, 94, 95 and 96 may be occupied in advance of the remainder of the development and of the completion of the approved foul drainage system, provided the sewage waste from these units is discharged through the permanent foul drainage system into a temporary storage tank / tight-tank formed from an adaptation of the approved foul pump station and with suitable provision for emptying the tank. Any such temporary arrangement shall be designed and implemented to the satisfaction of Transport and Technical Services (Drainage) and the Building Control department.” (2) Vary Planning Condition No.31 (Noise Exposure) to allow compliance with the requirements for an approved Noise Protection Scheme and the implementation of that scheme “prior to the occupation of the development hereby permitted, with the exception of plot numbers 50, 52-58, 60, 62, 76, 81, 91, 94, 95 and 96.” (3) Vary Planning Condition No.31 (Noise Exposure) to make it clear that unit 95 as well as units 50, 52-58, 60, 62, 76, 81, 91, 94, and 96 “shall be made to comply fully with the approved Noise Protection Scheme.” (4) Vary Planning Condition No.14 (Security of rear access paths) to require the approval of details “prior to the occupation of the development hereby permitted, with the exception of plot numbers 50, 52-58, 60, 62, 76, 81, 91, 94, 95 and 96.” (5) Make it clear to the developers that the decision to permit occupancy of Plot 95 is dependent on the property being signed off for occupancy by the Planning Department and the Building Control. (6) Advise the developers that he will not permit any further release of plots for early occupancy in advance of the satisfactory implementation of the approved permanent foul drainage system.
Reason(s) for Decision: · To permit the owners of Plot 95 to complete their purchase and occupy the home in question and assist in making available a much needed affordable first-time buyer home; · To regularise the current position so that the developers and the purchaser of Plot 95 will not be in breach of the planning conditions and obligations to which the approved development is subject; · To ensure that, whilst allowing for the early occupancy of Plot 95, the conditions attached to the grant of planning permission and the clauses in the associated Planning Obligation Agreement remain fair, reasonable and appropriate and continue to: · Ensure adequate provision for the disposal of foul water; · Protect the amenities of future occupants of approved properties; and · Ensure secure controlled access to private rear gardens and courtyards.
Resource Implications: None
Action required: 1. Inform the developer, TTS(Drainage) and local political representatives of the Minister’s decision. 2. Issue a Planning Permit with the varied conditions. 3. Advise the Law Officers to take account of the variations in its on-going considerations of how best to address modifications to the terms of the existing ‘Planning Obligation Agreement’.
Signature:		Position:
Date Signed:		Date of Decision (If different from Date Signed):

Bel Royal Housing Development - variation of planning conditions

	Item No:
		Date: 14/01/09

PLANNING AND ENVIRONMENT

Category A Housing Development at Bel Royal, St. Lawrence –

Request to vary Planning Condition 55 (Foul Drainage)

Purpose of the Report

To consider an application from the developers (Bel Royal (Jersey) Ltd) to vary Planning Condition No.55 to add Plot 95 to the list of units that may be occupied in advance of the remainder of the development and of the completion of the approved foul drainage system. The application is accompanied by a letter from the developer explaining the circumstances of the prospective owners of Plot 95, the existing Planning Condition No.55 and the proposed variation (see Appendix 1).

Background

1. 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.

2. A permit was issued on the 8th May 2007, subject to numerous planning conditions, including condition No.55 governing foul drainage.

3. Planning Condition No.55 originally required that no dwellings shall be occupied until the permanent foul drainage works to serve the development had been designed and completed to the satisfaction of the Minister, in consultation with TTS(Drainage).

4. In September 2008, the Minister decided to grant a request by the developer to permit the early release of 15 homes for occupancy, using a temporary foul drainage system and to vary relevant un-discharged planning conditions accordingly (MD-PE-2008-0202). He did so, in order to avoid the loss of mortgage offers to 15 potential purchasers, which were due to expire. There was evidence that in most cases, upon expiry, the lender would not extend the mortgage offer and the client could not have afforded the new repayment terms. The planning conditions which were varied included No.55 (Foul Drainage), No.31 (Noise Exposure) and No.14 (Security and rear access paths), which were all originally tied to first occupancy. The requirements set out in the first two conditions were also covered by a Planning Obligation Agreement.

5. The fifteen plots in question were nos. 50, 52-58, 60, 62, 76, 90, 91, 94 and 96. Since then, the Planning Department has given consent to transfer the early occupancy of Plot 90 to Plot 81 in a straight swap.

6. The temporary foul drainage system upon which these decisions rely, involves sewage waste from the homes being discharged through the permanent foul drainage system into a temporary storage tank / tight tank formed from an adaptation of the approved foul pump station. Suitable provision has been made for emptying the tank. These temporary foul drainage arrangements have had to satisfy both TTS(Drainage) and Building Control.

4. Work to secure the permanent foul drainage system has been the subject of protracted negotiations between the developers and Property Holdings and is ongoing. The required works involve constructing a rising main to connect the approved foul pumping station to the main public gravity sewer adjacent to the sea wall.

Discussion

Although not material planning factors, the prospective owners of Plot 95 wish to occupy their home as soon as possible, because they have had to vacate their former accommodation, place their furniture in storage and move into a hotel with their new born baby. This is putting the family under considerable stress.

Any proposal to permit early occupancy of Plot 95 will not only require a variation to Planning Condition No.55 (Foul Drainage), but also No.31 (Noise Exposure) and No.14 (Security and rear access paths).

These conditions were attached to the original permit to:

· Ensure adequate provision for the disposal of foul water;

· Protect the amenities of future occupants of the approved properties from harmful noise emissions from Jersey Steel; and

· Ensure secure controlled access to private rear gardens and courtyards.

The Minister’s previous decision to allow the early release of 15 specified properties for occupancy and to vary the above conditions accordingly, effectively establishes the principle of making available completed first-time buyer homes at the site, where considered appropriate and practicable.

The key to the release of these homes has been the temporary foul drainage arrangements, which have been approved and established on the site with the agreement of TTS(Drainage). It was originally agreed that these arrangements would only have the capacity to accept 15 homes.

In support of the current application, the developers have submitted revised details showing the capacity of the temporary foul drainage arrangement to accept 16 homes, which would, in practice, require the removal of less than 1 additional tanker load of sewage per month (see Appendix 2).

TTS(Drainage) has no objections to allowing Plot 95 to be connected to the temporary foul drainage arrangement. However, it would oppose any further connections to this system.

In the circumstances, it appears reasonable to permit the early release of Plot 95 for occupancy, whilst continuing to apply original occupancy conditions to the remaining 86 homes approved for this development.

Legal implications

There are no substantive legal implications arising from varying planning condition No.55 and other relevant conditions in association with the current proposal to allow the early occupancy of one additional home.

The Law Officers have previously advised, informally, that it is would be messy and time consuming to modify the Planning Obligation Agreement to cover the early release of homes. They have suggested that the matter may best be addressed by the Minister writing to the developers and the home owners granted early occupation and have agreed to provide a suitable form of words.

Consultation

The Department has consulted with TTS(Drainage). They initially objected to more properties being connected to the temporary tight tank until certain infiltration problems on the site had been identified and addressed and inflows returned to acceptable levels. These matters have already been addressed by the developers, who entered into follow up consultations between TTS(Drainage). In a subsequent revised written response to the developers (see Appendix 3), TTS(Drainage) confirmed that it:

· is happy to allow the connection of Plot 95 to the temporary drainage system; and

· cannot entertain any further connections to the temporary system.

Representations

The Department has received no written representations in connection with this application.

Recommendation

The Minister for Planning and Environment decided to:

(1) approve the application to vary planning condition no. 55 (Foul Drainage) to read as follows:

“No dwelling shall be occupied until the foul drainage works to serve the development have been designed, constructed and completed to the extent necessary to permit the occupation and enjoyment of that particular dwelling unit, to the satisfaction of the Minister for Planning and Environment, in consultation with Transport and Technical Services (Drainage). Prior to the completion of the development hereby permitted, the foul pumping station shall be designed and constructed to the specification of Transport and Technical Services (Drainage) and connected to the 27 inch public gravity foul sewer adjacent to the sea wall. For avoidance of doubt, the foul water disposal shall meet the requirements set out in the comments sheet from PSD(Drainage) dated 13th October 2005 and the additional comments set out in the letter from TTS(Drainage) dated 5th December 2006 (see attached). Units 50, 52-58, 60, 62, 76, 81, 91, 94, 95 and 96 may be occupied in advance of the remainder of the development and of the completion of the approved foul drainage system, provided the sewage waste from these units is discharged through the permanent foul drainage system into a temporary storage tank / tight-tank formed from an adaptation of the approved foul pump station and with suitable provision for emptying the tank. Any such temporary arrangement shall be designed and implemented to the satisfaction of Transport and Technical Services (Drainage) and the Building Control department.”

(2) Vary Planning Condition No.31 (Noise Exposure) to allow compliance with the requirements for an approved Noise Protection Scheme and the implementation of that scheme “prior to the occupation of the development hereby permitted, with the exception of plot numbers 50, 52-58, 60, 62, 76, 81, 91, 94, 95 and 96.”

(3) Vary Planning Condition No.31 (Noise Exposure) to make it clear that unit 95 as well as units 50, 52-58, 60, 62, 76, 81, 91, 94, and 96 “shall be made to comply fully with the approved Noise Protection Scheme.”

(4) Vary Planning Condition No.14 (Security of rear access paths) to require the approval of details “prior to the occupation of the development hereby permitted, with the exception of plot numbers 50, 52-58, 60, 62, 76, 81, 91, 94, 95 and 96.”

(5) Make it clear to the developers that the decision to permit occupancy of Plot 95 is dependent on the property being signed off for occupancy by the Planning Department and the Building Control.

(6) Advise the developers that he will not permit any further release of plots for early occupancy in advance of the satisfactory implementation of the approved permanent foul drainage system.

Reason(s) for Decision

· To permit the owners of Plot 95 to complete their purchase and occupy the home in question and assist in making available a much needed affordable first-time buyer home;

· To regularise the current position so that the developers and the purchaser of Plot 95 will not be in breach of the planning conditions and obligations to which the approved development is subject;

· To ensure that, whilst allowing for the early occupancy of Plot 95, the conditions attached to the grant of planning permission and the clauses in the associated Planning Obligation Agreement remain fair, reasonable and appropriate and continue to:

· Ensure adequate provision for the disposal of foul water;

· Protect the amenities of future occupants of approved properties; and

· Ensure secure controlled access to private rear gardens and courtyards.

Action Required

· Inform the developer, TTS(Drainage) and local political representatives of the Minister’s decision.

· Issue a Planning Permit with the varied conditions.

· Advise the Law Officers to take account of the variations in its on-going considerations of how best to address modifications to the terms of the existing ‘Planning Obligation Agreement’.

Written by:	Roger Corfield, Principal Planner – 14th January 2009

Approved by:	Kevin Pilley, Assistant Director – Policy and Projects

Endorsed by:

Attachments:

· Appendix 1: Cover letter from the developer for the application, dated 4th December 2008.

· Appendix 2: Details from Bellpumps Ltd (on behalf of the developer) of the temporary drainage arrangements and their capacity to store sewage, December 2008.

· Appendix 3: Formal comments of TTS(Drainage), dated 12th January 2009.

File ref: RC/2008/2599 (main file - P/2006/2489)