The report which can be found on pages 43 – 90 of the Agenda was presented by Matthew Gallagher. The Officer’s recommendation was to refuse planning permission as outlined on page 59 of the Agenda.

Caroline Robins advised Members to be mindful that the decision they would make was lawful as an unlawful decision would not stand. An unlawful decision could also result in a section 5 report (under the Local Government and Housing Act 1989) from the Monitoring Officer or a judicial review which would be costly to the Council. Members also had to ensure that their decision would stand up to scrutiny and the decision made was supported by robust evidence. The legal implications of the decisions on pages 55 – 58 of the Agenda were highlighted.

(Following Chapter 5, Part 3, para. 13.5 of the Constitution, Councillor Churchman and Councillor Potter could not participate or vote on this item).

Councillor Rice referred to legal advice from Paul Shadarevian QC and said that Members were not bound to accept the officer’s recommendation and had the power to move away from this provided that Members acted rationally in their decision making. The Chair disagreed and said that it would be difficult to rationally overcome the issue of an acoustic barrier proposed for the site. He agreed that more homes were needed in the Borough but it would be irrational and irresponsible to allow homes to be built on the Green Belt which most Members aimed to protect on behalf of their constituents. The Chair referred back to 19/01662/FUL where Members had voted to approve development on the Green Belt and highlighted that application differed and that the application before the Committee (19/01373/OUT) was simply a housing development with no special type of design/

The Vice-Chair sought clarification on whether the Committee’s reasons for a decision to approve the application were not material considerations relevant to the consideration of whether very special circumstances existed or if it was a matter of a difference in opinion on the weight to be attached to of each the factors highlighted by the officer.

Matthew Gallagher explained that it was combination of both and went on to say that one of the reasons given for approval by the Committee included reference to the scheme as being ‘shovel-ready’. However, officer’s research indicated that the scheme would not be covered by that recent Government initiative so was immaterial as a benefit. The other factors had common features such as the lack of a 5 year housing supply along with the need for affordable housing and the  housing waiting list. Although, significant weight was afforded to the factor of a lack of a 5 year housing supply, recent appeal decisions had shown that this factor on its own was not enough to clearly outweigh the harm to the Green Belt.

Continuing on, Matthew Gallagher explained that the Committee had ascribed limited harm to the purposes of the Green Belt,  but officer’s view was that it could not be concluded that there would be a lesser degree of harm to two of the purposes of the Green Belt. The site was an open site and on the edge of a built-up area and if extended, it would conflict with the purpose of the Green Belt on checking unrestricted sprawl of large built-up areas and to safeguard the countryside from encroachment. He went on to say that the Committee’s reason of ‘contribution towards sustainable development’ because of the lack of a 5 year housing land supply, did not apply to the Green Belt either. Regarding the reason that the scheme would create employment during the construction phase, this would be on a short term basis. It was officer’s view that the factors given by the Committee and the Applicant were not enough to clearly outweigh the harm to the Green Belt. The NPPF was very clear about substantial weight being given to harm and the balancing exercise for the application showed that the  benefits identified did  not clearly outweigh the harm.

Councillor Lawrence questioned whether there was acoustic fencing in place for the properties built on the site of the former Thurrock Technical College. Matthew Gallagher answered that the properties had been built c.10 years ago but for the current site before the Committee, the Council’s Environmental Health Officer had assessed the Applicant’s submitted noise report and had advised that noise attenuation was needed.

Councillor Lawrence felt that the site before the Committee was a small patch of land and that the former Thurrock Technical College had been a large Green Belt site which now had over 300 homes on the site. She went on to say that the Core Strategy outlined the guidance for Very Special Circumstances (VSC) and that in the NPPF, parcel 31 was considered to be of small importance that did not undermine the importance of the Green Belt. She also mentioned the Council’s housing waiting list.

Matthew Gallagher explained that the former Thurrock Technical College had been a planned release of the Green Belt through the Core Strategy and at the time, the college needed a new campus in a sustainable location which was now in Grays Town Centre and therefore, justified the release from the Green Belt. The need for housing developments should currently be going through the Local Plan and not ad-hoc planning applications. He went on to say that VSC was not set out in any specific policy, but instead it was for the Applicant to promote the benefits or factors to support their scheme and a combination of factors could create VSC but there was no set list for this. Referring to the Council’s Green Belt assessment and parcel 31, Matthew Gallagher explained that consultants had been engaged to look at  parcels of land across the Borough and the Applicant had relied on this information to support their application. However, this could not be taken into consideration as the consultation only informed  the potential options for changes to Green Belt boundaries. Regarding the Council’s housing land supply, Matthew Gallagher referred back to previous appeals that had also relied on this factor and said that the Planning Inspectorate had recognised this was a benefit of the development but was not enough to clearly outweigh the harm to the Green Belt.

Steve Taylor noted that the application was for outline planning permission and queried whether the highlighted benefits or contributions would change as there were no design plans in the scheme. He also queried a scenario where a viability study could change agreements within the s106 and heads of terms. Matthew Gallagher explained that an outline planning application established the principle and the parameters. In the application before the Committee, one of the parameters were the 75 units proposed and from this, education contributions, healthcare contributions and affordable housing could be calculated. Regarding changes to s106 agreements, he said that the Committee had seen applications come back to Committee where it was requested that previously agreed s106 contributions be amended. With the application before the Committee, it was an open site and it was presumed the Applicant would have surveyed the site and taken issues and factors into consideration so that there would not be any unexpected costs. However, the proposed s106 education and healthcare contributions should not be seen as a benefit. The scheme would have an impact on the site and the contributions were provided were to mitigate these impacts.

The Chair questioned whether there had been more objections received on the application. He also sought more detail on NHS England’s comment in paragraph 2.2. Matthew Gallagher answered that there had been 3 more letters of objection and one letter of support from the Agent. The objections expressed disappointment at how Members had resolved the application at the last meeting and the Agent’s letter set out the benefits of the scheme which had already been addressed in the officer’s report and did not add anything new to the consideration of the scheme. Regarding NHS’s comment, he explained that the response was received after the last Committee meeting and highlighted the impact that the development would have on the capacity of the 3 surgeries close to the site and that there was already a waiting list for each surgery so a financial contribution of £29,700 had been sought (which would be through a s106 agreement) to mitigate this impact.

Councillor Byrne questioned whether the development would potentially reduce the number of people on the Council’s housing waiting list. Matthew Gallagher said that the development potentially could and referred to the number of affordable homes in paragraph 3.12 and said that through the s106, the Council would get nomination rights for these.

Councillor Rice commented that Thurrock Council was still working off an old Local Plan from 1996 which hindered the decision making process on applications similar to the one before Committee although each application was judged on its own merit and factors given due weight. Matthew Gallagher explained that the Council was using the Core Strategy from 2015 and currently working on a new Local Plan which was to be in place by 2023, a requirement set out by central Government. He went on to say that each application was judged on its own merits along with the factors surrounding the application. The application before the Committee had been looked at by officers through a balancing exercise and due weight was given to the factors highlighted by the Applicant. Recent appeal decisions on similar applications had been considered alongside this and the Applicant’s factors as well as those put forward by the Committee were not significant enough to clearly outweigh the harm to the Green Belt.

The Committee discussed the need for a 5 year housing land supply and the demand for homes in Thurrock which officers accepted as factors weighing in favour of the application. However, the site before the Committee was Green Belt and local and national planning policies had strong policies about protecting the Green Belt. The benefits of the scheme, including the supply of new housing were not enough to clearly outweigh the harm to the Green Belt. The Chair felt that residents had to be protected from too much development in certain areas as this could impact upon their wards and lives. He felt there were not enough material reasons to approve the application. Councillor Rice felt the site was more of an infill site as opposed to Green Belt and also pointed out that the affordable units would give the Council nomination rights that would help residents that were on the Council’s housing waiting list and that there were enough reasons to depart from officer’s recommendation.

Leigh Nicholson stated that if the Committee were minded to approve the application, clear and convincing reasons had to be found and these reasons needed to be substantiated by evidence. He highlighted that case law did not permit reasons such as affordable housing or a contribution towards housing to be sole factors that could be relied upon to approve the application. He went on to say that Matthew Gallagher had taken the Committee through the reasons given by the Committee for approving the application at the last meeting and there were no grounds to approve the application. He outlined that each of those reasons were not considered to be unique. He also pointed out that the Council’s approach to the new Local Plan is to engaged with residents to allow communities to influence strategic development in their areas through Design Charrettes with landowners and developers. To approve ad-hoc planning applications such as the one that was currently before the committee was not the route to take. He warned Members that at best the approval of the application would be an unwise decision, at worst it would be an unlawful decision. 

The Chair proposed the officer’s recommendation which was seconded by the Vice-Chair.

(Following Chapter 5, Part 3, para. 13.5 of the Constitution, Councillor Churchman and Councillor Potter could not participate or vote on this item).

FOR: (3) Councillors Tom Kelly (Chair), Mike Fletcher (Vice-Chair) and Gary Byrne.

AGAINST: (4) Councillors Gerard Rice, Angela Lawrence, Sue Shinnick and Sue Sammons.

ABSTAINED: (0)

The officer’s recommendation was rejected.

Leigh Nicholson referred the Committee to Chapter 5, Part 3, Paragraph 7.4 of the Council’s Constitution and highlighted that this needed to be fulfilled before the decision made was passed to the Monitoring Officer to consider whether the decision made was lawful or unlawful. If the decision was not considered to be an unlawful decision, it would then go through the drafting of the s106 legal agreements and conditions and then referred to the Secretary of State as a departure. The first step was that Members had to provide rational reasons for going against the officer’s recommendation for refusal which was on paragraph 6.0 on page 59 of the Agenda.

Councillor Rice put forward an alternative motion to approve the application for the following reasons

1. The scheme would create employment during the construction phase.
2. The scheme would contribute toward the 5 year housing supply.
3. Significant weight should be afforded to the contribution towards sustainable development.
4. Delivering a sufficient supply of homes had significant weight.
5. Making effective use of land had significant weight.
6. Achieving well-designed places had significant weight.
7. The scheme was shovel-ready project because it would come back with an  application for the approval of reserved matters and if the current application was passed, the Committee would be ‘duty-minded’ to approve future applications.
8. The site was a windfall site.
9. Soft landscaping could be used to mitigate the impact of the acoustic fence.
10. The Council did not have a local plan.

Leigh Nicholson reminded Members to use extreme caution around factors which were not unique particularly where it was easily repeatable on other sites. Going through Councillor Rice’s given reasons for a motion to approve the application, Leigh Nicholson said that:

• Any building project would create employment opportunities during the construction phase and would not overcome the Green Belt harm.
• Contribution toward the 5 year housing land supply had already been given significant weight in the officer’s report.
• The weight applied by Officers to VSC factors was consistent with the weight applied by the Planning Inspectorate and was based upon case law. Attributing a higher amount of weight to the mentioned factors had to be substantiated by evidence.
• The scheme could not be considered as a ‘well-designed place’ as the application was an outline application with all matters reserved. The application only proposed 75 dwellings and a parameter plan. National and local planning policies sought good design as a minimum requirement
• The scheme was not ‘shovel-ready’ as discussed and highlighted in the officer’s report as the application was an outline application.
• The site was a Green Belt site and not a windfall site.

The Chair discussed the concern that the acoustic fencing would have on the visual impact of the site. Councillor Rice said that planting bushes and trees would help to visually soften the effect of the acoustic fence around the site similar to that of the acoustic fencing along the Manorway on the A13. The Chair felt that an acoustic fence could not be completely blocked out as the fencing would be 2 metres high.

Referring to Councillor Rice’s given reasons for a motion to approve the application, Caroline Robins said that no weight could be given to the design of the site as it was an outline application and shovel ready was not a policy. The weight attributed to the other factors were also weak and unsubstantiated by evidence.

Councillor Rice also added the absence of a Local Plan to the reasons given for a motion to approve the application.

The Chair queried the next step to progress the motion proposed. Leigh Nicholson explained that the proposed motion would require a seconder to the motion before the Committee went to the vote. He reiterated the points on a potential unlawful decision and that the decision would be for the Monitoring Officer to consider. Caroline Robins reminded the Committee again that if the decision was found to be unlawful, this would result in a section 5 report (under the Local Government and Housing Act 1989) from the Monitoring Officer and would go to Full Council.

(The Committee agreed to suspend standing orders at 8.24pm to allow the Committee to continue to the end of the Agenda).

Councillor Shinnick seconded Councillor Rice’s proposed motion to approve the application for the following reasons:

1. The scheme would create employment during the construction phase.
2. The scheme would contribute toward the 5 year housing supply.
3. Significant weight should be afforded to the contribution towards sustainable development.
4. Delivering a sufficient supply of homes had significant weight.
5. Making effective use of land had significant weight.
6. Achieving well-designed places had significant weight.
7. The scheme was shovel-ready project because it would come back with a full planning application and if the current application was passed, the Committee would be ‘duty-minded’ to approve future applications.
8. The site was a windfall site.
9. Thurrock did not have a Local Plan.

FOR: (4) Councillors Gerard Rice, Angela Lawrence, Sue Shinnick and Sue Sammons.

AGAINST: (3) Councillors Tom Kelly (Chair), Mike Fletcher (Vice-Chair) and Gary Byrne.

ABSTAINED: (0)

19/01373/OUT was approved subject to consideration by the Monitoring Officer, then drafting of s106 agreements and conditions and referral to the Secretary of State.