This Report will be made
public on 21 January
2013
Report Number
To:
Date:
Status:
Head of Service:
DC/12/17
Development Control Committee
29 January 2013
Non-executive Decision
Chris Lewis, Planning
SUBJECT: UNAUTHORISED CHANGE OF USE OF LAND KNOWN AS LAND
OPPOSITE WEST HYTHE DAM, ROYAL MILITARY ROAD, WEST
HYTHE KENT
SUMMARY: This report considers the appropriate action to be taken regarding
the unauthorised change of use that has taken place of a section of land opposite
West Hythe Dam, on the Royal Military Road, West Hythe, for residential
accommodation. The land subject of this report would have originally have been
agricultural land. However, there appear to have been caravans and other
structures on it for a number of years and it appears it may have been used for
recreational/leisure purposes by previous owners. However, no planning
permission has been granted for the use of the land for residential
accommodation. This report recommends that an Enforcement Notice be served
to:
1) Cease the unauthorised residential use of the land;
2) Remove all domestic paraphernalia from the land, including from the
sheds and summerhouse;
3) Cease the use of the caravans/mobile homes on the land.
4) Remove the summerhouse from the land.
REASONS FOR RECOMMENDATIONS:
The Committee is asked to agree the recommendations set out below because:
a) The current unauthorised use of the land for residential accommodation is
detrimental to the character and appearance of the area, and is contrary to
policies SD1; BE7; CO1; CO10; CO13; and U3 of the Shepway District Local
Plan Review together with National Planning Policy Framework. The land is
also in an area at risk of flooding and is shown to be at significant risk in the
Council’s Strategic Flood Risk Assessment (SFRA). In the event that an
Enforcement Notice is not served within the required timescale the use will
gain immunity from enforcement action and could continue.
RECOMMENDATIONS:
1.
To receive and note report DC/12/17.
2.
That an Enforcement Notice be served requiring the cessation of the
use of the land for residential purposes; the removal of the
3.
4.
5.
summerhouse; the removal of all domestic paraphernalia from the land
and buildings connected with the residential use of it; and the
caravans/mobile homes cease being used for residential
accommodation.
The Head of Planning be given delegated authority to determine the
exact wording of the Notice.
That the period of compliance with the Notice be (six) 6 months.
That the Head of Administration be authorised to take such steps as
are necessary including legal proceedings to secure compliance with
the Notice.
1.
LOCATION AND DESCRIPTION OF SITE
1.1 The site is on the edge of West Hythe and the land in question is opposite
West Hythe Dam, to the south of the Royal Military Canal. It lies between the
settlement of West Hythe and the Royal Military Canal and is outside the
settlement boundary. The land has an established and lawful use for
agriculture, and the most recent planning application was for the retention of
a summer house and access drive, which was withdrawn. No planning
permission exists for any residential use of the land.
1.2 The site is affected by the following designated areas
1)
2)
3)
4)
The Romney Marsh internal drainage area;
Archaeological potential;
The Royal Military Canal Local Wildlife site.
At risk of flooding
The site does not fall within the North Downs Area of Outstanding Natural
Beauty and Special Landscape Area, the boundaries of which are on the
northern side of the canal.
1.3 The site is accessed from a public car park along the towpath of the Royal
Military Canal which leads to the gated entrance to the site. There is no
lawful vehicular access to the site. It is surrounded by dense vegetation and
is only accessible via the entrance gate. It contains two caravans/mobile
homes (referred to as Caravan 1 and 2 in this report) and both are used for
habitable accommodation. There are also two sheds (referred to as Building
1 and Building 2 in this report) and a summerhouse that contains domestic
paraphernalia.
1.4 Caravan 1 is located in the west part of the site. The owner refused the
Council officers entry to this caravan, although from looking through the
glass to one of the doors there was domestic paraphernalia in the form of a
lamp, settee and TV, indicating a residential use. Caravan 2 is located to the
east of the site, and again entry was refused by the owner. From looking
through a window to the caravan, there was a kitchen that was evidently
being used since there were table and chairs with domestic paraphernalia on
them, and some of the cupboards in the kitchen were partially open showing
they were being used, with items in the cupboards. This caravan also clearly
displayed a satellite dish. Both caravans were connected to what the owner
indicated was a septic tank via piping.
On the land between the two caravans were a trampoline and clothes
washing line. To the south of caravan 1 was a large shed (shed 1). This
shed contained various items that included weight lifting equipment;
bicycles, and a motorbike, amongst miscellaneous items. To the rear of
caravan 2, a second shed (shed 2) contained a bicycle; bits of wood; and a
large blue hose pipe. There were also two trailers full of wood by this shed.
To the right of caravan 1 is a summerhouse that is used for domestic
storage.
2.
THE BREACH OF PLANNING CONTROL
2.1 Aerial photographs for 2003, 2006 and 2008 all show what appear to be 3
caravans and 2 buildings along the western boundary of the site and two
other structures adjacent to the eastern boundary. In October 2011 the
Council received complaints that the land was being used for residential
purposes. As a result, a Planning Contravention Notice was served on the
owner of the site, a Mr Archbold. This was returned without being filled in as
the owner claimed that there was no breach of planning control and,
therefore, the Council had no justification for serving the notice. A second
Planning Contravention Notice was served. When it was returned the owner
claimed in it that the site had been used as a static caravan site since 1977,
and is used for recreational purposes. In May 2011, a retrospective planning
application was submitted for the retention of a summerhouse and access
drive by Mr T Archbold. The site was visited on the 11th of May 2011 by the
case officer for the application. From the Officer’s notes made during that
visit, Mr Archbold had owned the site since December 2010, and used it for
recreational purposes that included storage, fishing for the weekend and
evening, gardening and barbeques. The summerhouse subject of the
application was used the storage of domestic items such as a washing
machine, clothes and books. There were two caravans on the site but were
empty, and did not appear to have any particular use. It was noted that at
the time of the visit there was no strong evidence of the site being used for
residential. The application remained undetermined while the use of the site
was investigated and has now been withdrawn by the applicant.
2.2 In August 2012 the Council’s then Senior Planning Investigation Officer and
the Development Control Manager met a local agent, Mr Quaye, who was
acting on behalf of Mr. Archbold. He advised that Mr Archbold was living on
site in the caravan; that this was his only place of residence and that a
planning application for residential use would be submitted by the end of
September 2012. No application was submitted and the Council’s new
Enforcement Officer arranged a site meeting so that he could carry out an
inspection. However, when he arrived at the site with a planning officer, Kent
County Councillor Cllr Capon was present with Mr Archbold and access was
denied.
2.3 On the 2nd of January 2013, the site was visited again, this time by the
Enforcement Officer and Development Control Manager and access was
allowed. The land was inspected in the presence of the owner, Mr Archbold,
and Cllr Capon. Cllr Capon appeared to be there to advise Mr Archbold,
although the reason for his presence was not clarified by him. The
inspection showed that the site was occupied by two caravans that were
connected to a sewage system that the owner indicated consisted of a septic
tank; and had water and electricity supplies. The owner did not allow entry
into the caravans for further inspection, although it was evident from looking
through the windows to the caravans that they were being used for
residential purposes having residential paraphernalia in them, and one
displaying a satellite dish. There were also two sheds on the site which upon
inspection were used for the storage of items which the owner confirmed
were for his own personal use. Outside, there was a clothes washing line
and a childrens’ trampoline. All this indicates residential use of the site.
2.4 When questioned about the use, Mr Archbold has stated that he is not living
on the site but merely sleeps there sometimes and goes there during the day
as he works nights. He stated that he had to go there every day to feed the
dogs which are kept on the site. However, he has no other permanent
address and says that he sometimes stays with his sister in Lydd or with
friends, when he is not working away from the area. When asked about the
number of times he stays overnight on the site he was unable to provide an
answer. Information from local residents is that there are regularly lights on
in the caravans at night and they seem convinced that the site is being lived
on. When questioned Mr. Archbold agreed that the site did have the
appearance of a residential use. He stated that he had purchased the site
circa 2010 and as far as he was aware at that time he could live on it. Given
all of the above it is probable that the site is being used for residential
purposes and that there has been a material change in the use of the land.
Aerial photographs indicate that there had been three caravans on the site
since at least 2003 and there are indications that these were used by the
previous owner when he visited the site for recreational purposes. Mr
Archbold has stated that he replaced these with two caravans and the
summerhouse.
2.5 Under section 171B(3) of the Town and Country Planning Act 1990 (as
amended), immunity is given from formal enforcement action, such as
against an Enforcement Notice, for changes of use of land subject to certain
time limits. Therefore, if the owner can provide evidence to show that on the
balance of probabilities the site has been used continuously for ten years for
residential accommodation, no formal action can be taken by the Council.
Since Mr Archbold alleges that he bought the land in 2010, ten years
continuous use cannot be proven by him of the land for residential purposes,
and there is no evidence or indication that the previous owner used the land
for residential purposes. Therefore there is no evidence that a residential
use on the site has become lawful. However, it is likely that the use of the
land for the stationing of 2 caravans has become lawful, as has the larger
storage building.
3.
RELEVANT POLICY GUIDANCE
3.1 National Planning Policy Framework seeks to protect valued landscapes.
The Shepway District Local Plan seeks to restrict development in open
countryside unless there is an exceptional need and direct development to
existing sustainable developments.
3.2 Policies SD1, CO1; CO10 and C013 of the Shepway District Local Plan
Review seek to protect and enhance areas of countryside, particularly Local
Landscape Areas. The policies seek to sustain the character and diversity of
the wider countryside in general; protecting it for its own sake; to manage
growth in the countryside and to achieve appropriate and sustainable
patterns of development and to conserve the landscape and nature
resources of the rural area.
3.3 Policy U3 of the Shepway District Local Plan states that planning permission
will not be granted for the use of sceptic or settlement tanks unless it can be
demonstrated that the ground conditions are such that discharge can be
absorbed through the year without causing odour nuisance and without
polluting ground or surface waters.
3.4 Policy BE1 of the Shepway District Local Plan seeks to ensure that any new
development is of a high standard of layout and design. Development should
accord with existing development in the locality, and should provide for
balance and unity within the street scene.
3.5 Policy HO1 of the Shepway District Local Plan seeks to restrict new
residential development to existing urban areas. This is reflected in the
NPPF which requires that local planning authorities should avoid isolated
new homes in the countryside unless there are special circumstances such
as there is an essential need for a rural worker to live at or near their place
of work.
3.6 Paragraph 100 of the NPPF seeks to avoid inappropriate development in
flood risk areas by directing development away from areas at highest risk
and advises on a sequential based approach to development to steer
development towards areas with the lowest probability of flooding. Technical
Guidance accompanying the NPPF provides more detail on this.
4.
APPRAISAL
4.1 The breach of planning control that has taken place is the change of use of
land for residential accommodation. For the avoidance of doubt, Section 55
(1) of the Town and Country Planning Act 1990 states that “development
means the carrying out of building, mining, engineering, or other operations
in, on, over, or under land, or the making of any material change in the
use of any buildings or land”.
4.2 Both local and national planning policy seek to direct new residential
development to existing settlements, both on the grounds of sustainability
and in order to safeguard the character and appearance of the countryside.
Any new development must be appropriate in scale and appearance to its
surroundings, having particular regard to the District’s Local Plan
environmental policies and preserve, and as far as possible enhance, the
character and amenity and functioning of settlements and the countryside.
The application site lies beyond the settlement boundary identified for West
Hythe and the current use of the land results in an unjustified residential use
in the countryside, and as such is contrary to the policies set out in the
Shepway District Local Plan and the aims of the NPPF.
4.3 Policy CO10 states that permission will not be granted for development in or
near wildlife sites or local nature reserves where such development would
be detrimental to nature conservation, unless it can be shown that there is
an exceptional need for the development which overrides the value of the
local nature conservation resource. No exceptional need has been proven
by the owner to justify the use of the land for residential accommodation or
that this residential use overrides the value of the local wildlife site. As a
result the impact of this new use cannot be properly assessed since no
application has been submitted by the owner and no measures or surveys
carried out to identify any impacts and mitigation measures. Since the
impact of this residential use on the local wildlife site cannot be properly
assessed, it is considered to be unacceptable.
4.4 Paragraph 109 of the NPPF encourages the planning system to contribute
and enhance the natural and local environment by protecting and enhancing
valued landscapes. The site lies close to the boundary of the North Downs
AONB and SLA and the owner has not provided any reasons as to how this
use outweighs any harm to the local environment.
4.5 The original use of the land was for agriculture. It appears that the previous
owner used it for leisure/recreational purposes. There have been no special
circumstances put forward by the owner to justify this new residential use in
the countryside. The owner has provided no evidence to justify the new use
and how it is required in connection with the permitted use of the land. No
justification has been given as to why a residential use needs to be located
on this site, as opposed to being located in the existing settlement of West
Hythe, nor has any been provided to justify its existence for social or
economic reasons.
4.6 Paragraph 28 of the NPPF encourages local plan policies to support
economic growth in
rural areas to support new jobs and prosperity by
supporting sustainable growth and expansion of all types of business rural
areas; and encouraging diversification. In this instance, the use of the land
for residential purposes is not considered to support the creation of a
prosperous rural economy for the reason that it is a use that has no apparent
or intended connection to the use of the land; a use for which there is no
justification for its siting there as opposed to the nearby settlement of West
Hythe.
4.7 Policy CO13 states that where development is likely to have a harmful effect
on the freshwater environment, including water courses and canals,
permission will only be granted where the harmful impact will be minimal. In
this instance, the site is adjacent to the Royal Military Canal which has been
designated a local wildlife site to provide a higher degree of protection from
interference from such development. This designation provides for a positive
step towards maintaining and enhancing the nature conservation value of
the area. In this instance, the impact of this new residential use cannot be
judged for the reasons stated in section 4.3 above. The nature of a
residential use will result in, for example, extra sewage discharge from the
site as well as extra movements to and from the site that may include the
occupants leaving for work every day, or having visitors to the land. This
activity is likely to have a serious negative impact on the freshwater
environment of the canal that may include increased water runoff from the
site and sewage discharge that may seep into the freshwater system. With
no details as to how the activity described above does not impact on the
surrounding area, in this instance the use of the land is considered to be
unacceptable.
4.8 The owner has indicated that the sewage discharge from the caravans on
the site is to a cess pit/ sceptic tank. Policy U3 states that planning
permission will not be granted for the use of sceptic or settlement tanks
unless it can be shown that the ground conditions are such that the
discharge can be absorbed through the year without causing odour nuisance
or polluting the ground or surface waters. In this instance, the Council have
no details of how the discharge of sewage from the caravans is dealt with.
However, with no details of this tank/ pit, and the proximity of it to the canal,
the facilities for the discharge of sewage is not considered acceptable in this
case. The impact on the canal and the surrounding land is not known as a
result, and therefore the use of the land for residential accommodation is not
acceptable.
4.9 The land subject of this report has been adapted for residential
accommodation. Policy BE1 seeks to ensure that there is a high standard of
design and layout for all new development, where there has been
consideration of local landscape character and distinctiveness. In this
instance, for the reasons given above, the use of the land for residential
accommodation is not considered to safeguard the local landscape
character and maintain its distinctiveness because the change of use is in a
sensitive area being beside the Royal Military canal and within a local wildlife
site. There are no residential properties or uses of land adjacent to the site
and therefore this use is an alien addition to the landscape, seriously
impacting on it’s identify and special character.
4.10 With regard to flooding, the Government’s Technical Guidance referred to
above classifies caravans intended for permanent residential use as highly
vulnerable uses and requires that the sequential test should be applied to
any such development. The site is identified as being of significant risk of
flooding in the SFRA both now and in 2115 when taking account of climate
change. The western edge of the site is shown to be at extreme risk in 2115.
It would be difficult to argue that there aren’t any sites capable of
accommodating a single dwelling in areas of lower probability of flooding in
the locality. There are no sustainable reasons why the development cannot
be located elsewhere. Therefore the site does not pass the sequential test.
4.
CONCLUSION
4.1 The evidence indicates the site is being used for residential purposes. The
reasons why this is believed to be the case are explained in detail in section
2 of this report. From the evidence and information gathered so far it
appears clear that the owner, Mr Archbold, bought the site in December
2010, and he is now using it for residential accommodation. There are two
caravans on the site used for residential accommodation, along with a
summerhouse and two sheds which are used for the storage of domestic
paraphernalia in connection with the residential occupation of the site. This
use was not evident when a visit was made by Council Officers in 2011 in
response to a retrospective planning application submitted by Mr Archbold
for the retention of the summerhouse. That application has since been
withdrawn. The site does not have planning permission for residential
accommodation and as the use is unacceptable and has not been ongoing
continuously for ten years, an enforcement notice to require the use to cease
recommended.
5.
RISK MANAGEMENT ISSUES
5.1 A summary of the perceived risks follows:
Perceived risk
The use of the land
becomes immune
from enforcement
action
6.
Seriousness
Likelihood
Preventative
action
High
Serve an
enforcement
notice
High
LEGAL/FINANCIAL AND OTHER CONTROL/POLICY ISSUES
6.1 Legal Officer’s Comments (LM)
Section 171B of the Town and Country Planning Act 1990 states that:
(1) Where there has been a breach of planning control consisting in the
carrying out without planning permission of building, engineering, mining
or other operations in, on, over or under land, no enforcement action
may be taken after the end of the period of four years beginning with the
date on which the operations were substantially completed.
(2) Where there has been a breach of planning control consisting in the
change of use of any building to use as a single dwelling house, no
enforcement action may be taken after the end of the period of four
years beginning with the date of the breach.
(3) In the case of any other breach of planning control, no enforcement
action may be taken after the end of the period of ten years beginning
with the date of the breach.
Where there is a breach of planning control, failure to take enforcement
action within the statutory time limits will result in the unauthorised use
becoming immune from enforcement action.
6.2 Finance Officer’s Comments (MF)
There are no financial implications as a result of this report.
6.3 Diversities and Equalities Implications
None.
7.
HUMAN RIGHTS
In reaching a decision on a planning matter the European Convention on
Human Rights must be considered. The Convention Rights that are relevant
are Article 8 and Article 1 of the first protocol. The proposed course of action
is in accordance with domestic law. As the rights in these two articles are
qualified, the Council needs to balance the rights of the individual against the
interests of society and must be satisfied that any interference with an
individual’s rights is no more than necessary. Having regard to the previous
paragraphs of this report, it is not considered that there is any infringement
of the relevant Convention rights.
8.
CONTACT OFFICER AND BACKGROUND DOCUMENTS
Councilors with any questions arising from this report should contact the
following officer prior to the meeting.
John Macauley, Planning Enforcement Officer
Telephone: 01303 853572
Email: [email protected]
The following background documents have been used in the preparation of
this report:
Town and Country Planning Act 1990
Shepway District Local Plan Review
National Policy Framework