Agenda item


            (Councillor Spratt, having declared an interest, left the meeting for the duration of this item)


            The Planning Manager explained that the application for full planning permission had previously been listed for consideration by the Committee on 15th February and 14th April.  The application had, however, been withdrawn from the meeting of 15th February meeting to allow officers time to consider a speaking note provided on behalf of the objector at 26 Malone Park. It was then deferred by the Committee at the 14th April meeting to allow it to undertake a site visit.


            The Planning Manager outlined the details of the application to the Committee.


The site was a 2.5 storey semi-detached residential home finished in red brick on a large plot. The dwelling contained an existing two storey rear return. There was parking to the side elevation and extensive gardens forming the front, side and rear elevations. The surrounding area was residential and comprised large semi-detached and detached properties within large plots. The site was within the Malone/Adelaide Park Conservation Area.


The proposed single storey rear extension measured 11.95metres in length with a height of 5.75metres.  When the proposed demolition was taken into account, he explained that the existing rear return of the property would be increased in length by 4.95metres.  The proposed garage measured 9.5metres x 6.35metres with a height of 4.49metres. The proposed pillars measured a height of 2.02metres with the gates a height of 1.8metres.


The key issues which had been considered during the assessment of the application included:

·        character and appearance;

·        design;

·        impact on amenity;

·        impact on Conservation Area; and

·        objections.


The Members were advised that the proposal was considered to be in compliance with the relevant legislation, policy and guides. The proposed extension, garage and gates/pillars were deemed to be of an acceptable scale and massing to not detract from the character and appearance of the surrounding area. The proposed footprint of the extension and garage were deemed to be within the 1.5 times limit as set out in the Adelaide/Malone Park Conservation Guide.


The Conservation Officer had been consulted and objected to the proposed ibex fencing.  The Committee noted that that had been amended and removed from the drawings.


The Committee was advised that eight objections and two letters of support were received and were addressed within the report.


The Planning Manager outlined that the application had been withdrawn by officers from the meeting of 15th February, to allow officers time to consider correspondence from an objector. 


He explained that it was alleged that the officers’ analysis of the application was misconceived and, in short, that the garage, which was described as an outbuilding in the original Committee report, should not have been included in calculating the amount of permitted building coverage.  He explained that officers did not necessarily accept that was the case, for the reasons set out in the original report.  Notwithstanding that position, the original report had also assessed the application by excluding the garage.


The objector also alleged that officers had failed to explain that the Guide was underpinned by the statutory duty in Section 104 (11) of the 2011 Act.  However, the Planning Manager outlined to the Committee that paragraph 9.35 of the original report advised that that duty was reflected within paragraph 6.18 of the SPPS and BH12 of PPS6, both of which were discussed in the original report.


The Planning Manager reported that officers were of the view that the proposed extension and garage presented a modest development which was sympathetic to both the existing site and the surrounding area, which contained both larger extensions and garages. The rationale behind the provision within the Guide was to allow landscape to remain dominant by the reference to the relationship between the proposed building mass and gardens. While the permissible building coverage would be exceeded in that calculation, in officers’ opinion, it remained the case that the landscaping would still remain dominant. The proposed building coverage would make up 17% of the site.


The Committee was advised that it was considered that the proposal would preserve the character of the site and the wider Conservation Area. As set out in the original report, the proposed extension almost mirrored the extension of the neighbouring semi-detached property and therefore brought an element of symmetry to the rear of the dwellings. The garage had been set behind the building line of the existing dwelling and a sufficient distance from the dwelling to ensure that views of the dwelling were not impacted.


The Planning Manager explained that regard had been given to the other guidance in the same section of the Adelaide/Malone Park Conservation Guide. It was considered that the extension had been designed as an integral part of the original dwelling.  Officers felt that the extension and alterations would not detract from the character of the Conservation Area. The proposal would not give rise to unsatisfactory proportions, or seriously infringe on the setting, and would not be overbearing in relation to the form of the original building.


            The Committee was advised that large garages to the side elevations were part of the character of the surrounding area. Most notably in the immediate surrounding area, garages in similar locations had been approved at 20, 21, 22 and 26 Malone Park.  The proposed pillars and gates to the front of the property were considered sympathetic, the design of the pillars was of a high standard and the railings would allow views of the dwelling to be retained.


The Planning Manager explained that it was considered that the proposal complied with Section 104(11) of the 2011 Act in that the proposal would preserve the character or appearance of the Conservation Area where an opportunity for enhancing its character or appearance did not arise.  By its nature, the proposal for an extension and the garage would give a limited opportunity for enhancement of the Conservation Area. However, given the considerations provided in the addendum and the main reports, it was considered that the proposal would preserve the character and appearance of the Conservation Area.


He added that a further objection had been received from the Malone Park Residents Association and which had been considered in the addendum report which was submitted to the April meeting.


The Committee’s attention was drawn to the Late Items pack, whereby correspondence had been received from an objector, requesting confirmation as to which plans had been taken into account to reach the recommendation to approve the application.  The objector also queried whether officers had had regard to further detailed Building Control plans and stated that it was unclear from the 1947 Building Control Plan whether the original garage had been accurately depicted.  The objector also stated that the 1.5 times guidance had been applied by officers in different scenarios which was an unsatisfactory approach.  It stated that officers’ repeated attempts to count a non-dwelling garage in a manner that made a contrived calculation was contrary to the evidence of the location plan, to the policy and double counted the garage, allowing the very incremental development that the Court of Appeal had warned about.


The Committee was advised that officers had liaised with Building Control to check the existence and availability of any relevant drawings which might have reflected the original footprint.  The assessment has been based on the earliest drawings which concurred with the OSNI historical maps.  The Members were also advised that the 1947 Building Control map showed the proposed summer house, which was not built, but also the projection to the east side of the house.  The resolution of the maps was such that an assessment of the projection could not accurately be made. The Committee was advised that the Council reference map (1937) and Building Control application (1947) showed a garage in a similar location as to the side projection shown in the OSNI historical maps. It could therefore be reasonably deduced that the side extension shown was a garage. The 1947 Building Control Application contained a scaled block plan showing the dimensions of the garage and officers had no reason to doubt the accuracy of that plan.


While officers were of the opinion that the original garage was included in the definition of the term dwelling, an assessment had also been provided that excluded the garage from the calculation.  In both cases, officers had found that the proposal was acceptable for the reasons stated in the Committee report.


The Planning Manager also referred to an additional representation in support of the application, which had been reported to the Committee in the Late items pack to the meeting on 14th April 2022.


The Chairperson welcomed Councillor Lyons to the meeting.  He advised that he objected to the application for the following reasons:


·        the planning policies regarding the Conservation Areas had been drafted and agreed to protect the shared interests, both immediate in the wider area, such an environmental protections and the wider eco system;

·        when you deviated from the protective policies, that could lead to a diminution or loss of protections;

·        planning policy states that, when managing development within a Conservation Area, there was a general presumption against the granting of permission for the demolition of unlisted buildings where proposals were in conflict with that principle; and

·        there was a general presumption that the policy should only be relaxed in exceptional circumstances and that the application did not meet that.


The Chairperson thanked Councillor Lyons for his contribution.


He then welcomed Councillor McAteer to the meeting.  She advised that she also objected to the application for the following reasons:


·        the Malone Park Residents Association wished to protect and conserve the built heritage of the Park;

·        the Association was charged with the maintenance and management of the public areas such as the verges, footpaths and trees, as well as the preservation of the character of the Malone Conservation Area;

·        Malone Park was a special and unique place with many individually designed residences with mature landscapes and a tree-lined avenue, producing the distinctive townscape character which was worthy of the utmost protection;

·        the Conservation Area provided the Park with statutory protection to ensure that the character of the area was maintained; and

·        the residents were particularly concerned that if the current application was permitted, which they believed to be over and above the 1.5 times the original size, it would set a worrying precedent.


            The Chairperson thanked Councillor McAteer for her contribution.


            The Chairperson advised the Committee that Mr. S. Beattie QC and Mr. M. Worthington, who represented the Malone Park Residents’ Association, were in attendance to object to the application.


            Mr. Beattie QC advised the Committee that:


·        the policy in relation to ratio was extremely clear as it stated that “In no circumstances should building coverage be more than one and a half times that of the original dwelling”;

·        the officers’ own presentation illustrated that it was a separate garage, and not a dwelling, as shown in the 1937 and 1947 maps;

·        further, that the applicant was relying on a 1907 valuation of the property, which included “a rear yard, stables and stores” which did not make it a dwelling either;

·        page 23 of the policy required that the landscaping be protected and preserved and that officers had not paid heed to that;

·        whilst the officers had referred to Article 104 of the Planning Act, they had not referred to Article 104 part 7, whereby it was clear from the application that the boundary for the Conservation Area had gone, subsumed into two dwellings, one of which sat outside the Conservation Area and the boundary had indisputably changed;

·        the Court of Appeal case on the policy had made abundantly clear that the reasonable lawful approach to the policy must be taken into account and that there must be a guard against incremental accretion of building development;

·        the floorspace calculation of the original building, carried out by officers and the applicant, was different but that the Committee should be mindful that the policy clearly stated that there should be no incremental accretion of built development, that it was in fact a separate garage and not part of the original dwelling; and

·        the reference to PPS6 was a red herring as the PPS did not in any way displace the planning policy or the Conservation Area guidance.


            Mr. Worthington advised the Committee that the Malone Park Residents’ Association felt that:


·        the Park was under significant development pressure on a scale which had not been seen in quite some time and that the application represented a pivotal point in time for the Conservation Area;

·        there were a number of applications for which the decision in this application would be critical;

·        its approval would allow for the incremental increase in larger developments which would negatively impact on the relationship of buildings and landscape and which, when combined, would decimate the character and appearance of the area;

·        its approval would pave the way for the death of the Conservation Area;

·        the design guide was absolute, stating the words “in no circumstances”; and

·        building coverage related to all of the buildings proposed and the original dwelling related only to the original dwelling as it was originally built, in the late 1800s.


            A Member asked the representatives whether the garage was built as part of the original buildings on the site and, if it was, did it, in their view, constitute part of the original dwelling.  Together, Mr. Beattie and Mr. Worthington advised the Committee that the 1907 map showed a blurred drawing.  The 1937 and 1947 maps showed a clearly separated building and that it could not be said with any certainty that it was original to the site.  He outlined that officers had consistently said that it was a garage and that the applicant had stated that it was stables, rear yard or stores.  He explained that he found that it was therefore hard to accept as original, as the maps showed that the building was either not there at all or was separate.  They did not accept that it was a “dwelling”.


            The Chairperson thanked Mr. Beattie and Mr. Worthington for their contributions.


            He advised the Committee that Mr. W. Orbinson QC, Mr. D. Stelfox (Architect) and Mr. L. Brown (neighbour) were in attendance on behalf of the agent and applicant.


            Mr. Orbinson QC advised the Committee that:


·        the Court of Appeal had said, in its Gilligan judgement, that policy was not mandatory, that the Council was free to override or depart from any part of it if it considered it justified and that the Council was entitled to attribute such weight as it thought fit to any consideration;

·        that was entirely consistent with what the Court of Appeal had said in Stewart, whereby planning policies did not have to be slavishly followed;

·        the Court of Appeal, in Gilligan, did not say anything about the meaning of the term “original dwelling”in the Guide, nor say that that meaning was limited to the dwelling-house itself and excluded ancillary outbuildings dating back to the time the dwelling was built;

·        the objector was wrong to say that including the outbuildings had opened up the same precedent that the Court of Appeal had warned against;

·        as the Nelson decision had confirmed, the Guide must be interpreted by reference to its intended purpose and that the ratio’s purpose was to allow the landscape to remain dominant as compared to building mass. Original outbuildings were, of course, part of the established relationship between building mass and gardens, as what would be the logic in the Guide intending to exclude original outbuildings in order to respect and retain the established relationship between building mass and gardens. That would, in fact, fundamentally distort the relationship;

·        the Guide itself used the words “dwelling”, “buildings” and “property” interchangeably to refer to historic built form, with no intent to distinguish between the living part of a house and ancillary outbuildings. It referred to refusing extension proposals which were “considered overbearing in relation to the form of the original buildings”, plural, which was not consistent with the notion that the only original built form that mattered was the house itself;

·        nothing prohibited garages from being separate from the main house;

·        the Moore judgement by the English Court of Appeal had held that converting the outbuildings of a house to holiday units involved a change of use from a single dwelling-house to use as two or more dwelling-houses, so the English Court of Appeal plainly treated the outbuildings as part of the dwelling;

·        in Creighton, the PAC included a garage within the ratio;

·        as the Planning officers had advised within their report, the Council could lawfully grant permission even if the Committee felt that the 1.5x ratio had been exceeded.  Paragraph 7.12 of PPS 6 stated that, while the planning authority would attach ‘great weight’ to the need for proposals for new development to accord with the specific guidance drawn up for each particular Conservation Area, it was entitled to depart from guidance where material considerations indicated otherwise;

·        the officers had agreed that the proposal was modest and sympathetic both to the site and to the surrounding area and, with 17% building coverage, would allow landscaping to remain dominant; and

·        the proposal’s design would in fact enhance the character of the Conservation Area, in large part because the extension almost mirrored the extension of the neighbouring semi-detached property and therefore brought an element of symmetry to the rear of the dwellings.


            Mr. Stelfox advised the Committee that he was an accredited conservation architect and that both planning officers and the Conservation Officer had agreed that the proposal was entirely in keeping with the Conservation Area.


            Mr. Brown explained that he lived in the adjoining semi-detached property to the application site and that he was supportive of it.  He outlined that it was a modest refurbishment and extension, which closely mirrored the design of his property.


            Councillor Groogan sought clarity on what constituted the original dwelling.


            Mr. Stelfox advised the Committee that, as part of his submission to the application, the Council’s valuation books had first described the site as “house and offices”.  He explained that offices was the term used for ancillary accommodation such as outbuildings, stores, sculleries and larders and were included as part of the original dwelling.


            The Planning Manager clarified a number of points to the Committee that the Guide did not specifically define what a dwelling was.  From the maps available from the early 1900s, officers believed that it was reasonable to deduce that that the garage was part of the original dwelling.  Notwithstanding, if the Committee was to take a more precautionary approach, it could take the view that the garage was not part of the original dwelling and that the ratio was therefore in excess of the 1.5 permitted. He outlined that the statutory test in Section 104 which placed a duty on enhancement of the Conservation Area where an opportunity arose and preservation of the Conservation Area where such an opportunity did not arise. In that case, the advice from officers was that the proposal, by its nature, did not provide opportunity for enhancement and so the key question was whether the character and appearance of the Conservation Area would be preserved.  If the Committee took the view that planning permission should be refused then it would need to evidence harm and why the Conservation Area would not be preserved. Having regard to the Malone Park Conservation Area guidance, the Committee needed to ask itself if the landscape would remain dominant as a result of the approval of the application and whether the ratio of building mass to landscaping would remain respected.  He explained that officers believed that the landscaping would remain dominant and that the application would not upset the balance.


            The Chairperson put the officer’s recommendation to approve the application and to grant delegated authority to the Director of Planning and Building Control to finalise the wording of the conditions to the Committee. 


            On a vote, eight Members voted for the recommendation, two against and one no vote and it was accordingly declared carried.


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