Archived decisions

Contact: Julia Davey, ext 6732 email: [email protected]

1. Summary

1.1 This report considers an application to construct and implement a construction and demolition recycling facility on land currently used for industrial and distribution uses off The Avenue, Lasham, near Alton.

1.2 The recommendation is to refuse the application on the grounds that the development does not comply with Policy MW2 of the County Structure Plan Review, and Policies 6 (i)(ii). 7(i) and 6 (iv) of the Hampshire Portsmouth and Southampton Minerals and Waste Local Plan (HPSMWLP) in that the proposed development is likely to give rise to an unacceptable level of noise impact to the occupants of Cedar Lodge and Stable Lodge and that the need for the development does not outweigh the impact it is likely to cause.

2. Site

2.1 The site, as shown on the attached plan, extends across 0.53 hectares of land accessed off The Avenue, Lasham which links the A339 (Alton to Basingstoke Road) with the B3349 (Alton to Odiham Road). It comprises an external storage yard linked to the existing compressor renovation and machine shot blasting business located in buildings to the south of the site (which do not form part of the application). These buildings and car parking areas by the site entrance, whilst not forming part of the application site, are within the control of the applicant.

2.2 The northern part of the site is registered common land (CL318), as is part of the adjacent aggregate storage and other business use to the west. The application site is separated from these businesses by a fence. This registered common land is called Weston Common. The north of the site, which is understood to be owned by the Forestry Commission, is shown on the attached plan as Weston Common, but despite its name, it is not registered common land. The Common Land Register maintained by the County Council as Commons Registration Authority reveals that there are no registered rights of common over CL318.

2.3 The woodland directly north of the site carries no formal designation. The site is approximately 120 metres from the nearest Site of Importance for Nature Conservation (SINC).

2.4 The site lies approximately 150 metres from Stable Lodge and Cedar Lodge. To the east of the site there is a large agricultural warehouse building with its own access from The Avenue. To the northeast of the site approximately 550 metres away is Powntley Copse Estate which comprises 26 dwellings.

3. Proposal

3.1 Planning permission is sought to operate a construction and demolition recycling facility on the application site. The site would comprise part of an existing yard (surfaced in part concrete/part hardcore) and would extend across 0.53 hectares.

3.2 Approximately 250 to 400 tonnes of building and construction waste (mainly comprising soils and concrete) would be imported from the local area. Screening and crushing would then take place. The proposal would create an average of 25 lorry loads per day. The applicant considers that of the vehicle deliveries, 12-15 loads would come from Alton, 10 loads from Basingstoke and 4-5 from the surrounding rural area. The applicant considers that the site would be accessed, where possible, via the A339 because this is a designated lorry route.

3.3 Two to three lorries would be parked at the site overnight. A maximum of four operatives and staff would be based on the site - a manager, loading shovel operator and two employees to operate the screener and crusher.

3.4 Hours of operation would be between 0700 and 1800 hours Monday to Friday and 0700 to 1300 on Saturdays with no working on Sunday or recognised Public Holidays.

3.5 The applicant states he would be willing to enter into a lorry routing agreement and a planning condition restricting vehicle movements to 50 a day (25 loads in and 25 loads out) should planning permission be granted.

4. Development Plan

4.1 The policies most relevant to this proposal are:

(i) Hampshire County Structure Plan Review 1996 - 2011 (Adopted March 2000) Policies MW1 (waste hierarchy) and MW2 (need for the development and any adverse environmental impact caused by the development); and

(ii) Hampshire, Portsmouth and Southampton Minerals and Waste Local Plan (HPSMWLP) (Adopted December 1998) -Policies 6,7 (general considerations), 10 (conditions/legal agreements); 46 (waste recycling facilities).

4.2 The site is designated in the Basingstoke and Deane Borough Local Plan as countryside but has been used for industrial and storage purposes for many years. It was originally a sawmill.

5. Consultations

5.1 The local Member, Councillor Mrs McNair Scott raises concerns about the proposed access to and from the A339 where the dangers of the road are well known and the junction with The Avenue is on a bend. The need for the development is queried because three similar recycling facilities exist in the area at Odiham, Tadley and Bordon and it is understood there is a proposed facility at Blounce. The proposed HGV movements would add 25% to existing HGVs which may well be unacceptable and the use may increase in the future. Councillor Mrs McNair Scott requests an assurance that no resident would be adversely affected by the development.

5.2 The adjoining Member, Councillor Sir James Scott, has been informed of the proposal.

5.3 Herriard Parish Council objects to the application on the grounds that the proposed change of use would be detrimental to the rural environment surrounding the site and that the proposed activity would result in an increase in heavy vehicle traffic on a rural road unsuitable for such traffic. The Parish Council states it is unconvinced that any measures to mitigate noise and dust pollution arising from the proposed activity would be effective and therefore could potentially create significant nuisance for nearby residents.

5.4 Shalden Parish Council considers that the application should be refused on the grounds that all aspects of the proposed use for recycling of waste materials are unsuitable for the rural area. The Parish Council is also concerned about noise pollution and states that the prevailing down wind direction is likely to cause noise impact to Powntley Copse residential area. It adds that the traffic junctions at either end of the C70 with the B3349 and A339 are notoriously dangerous and the B3349 Golden Pot junction is particularly unsuitable for use by HGVs. The site access is adjacent to a sharp bend in the road resulting in a limited sight line and following a fast stretch of road.

5.5 Upton Grey Parish Council objects to the application on the following grounds:

(i) It would increase the number of large and heavy vehicles turning onto the B3349 at an already dangerous point, the Golden Pot Crossroads and also onto the A339, another well-known hazardous road. Any increase at all in heavy traffic turning onto these roads is unacceptable.

(ii) The application makes no reference to Powntley Copse (SINC and part of the Parish of Upton Grey) which is only a few hundred metres away from the proposed site and at which there are 26 residences. The increased noise levels would be unacceptable to anyone living there both from the increased traffic and the proposed crusher.

(iii) There are more suitable areas for this type of activity where industry has been gradually increasing piecemeal along The Avenue over the years.

5.6 Weston Corbett & Weston Patrick Parish Council object to the application on the following grounds:

(i) Traffic and safety - The Avenue links with two hazardous roads the A339 to the west and the Golden Pot crossroads to the east. The site access is within a few metres of a blind bend, which has been the cause of accidents. 55 plus movements per day would increase traffic on the avenue by 25% in both directions. There is no assurance in the application of limiting the traffic movements and this could increase over time. The Parish Council comments that the traffic survey undertaken by the applicant has only been conducted for a period of one week in June 2004.

(ii) Noise - any permission granted without noise limits for the crusher and screener would subject properties to excessive noise. The same noise standards should apply to this proposal as for the nearby oilfield. This is that the levels outside any residential property should not exceed 40dB(A) L10 between 0700 and 2200 hours and 35dB(A) L10 between 2200 and 0700 hours. The application is inaccurate with regards residential properties of which there are approximately 11 residences within 500 metres. Noise from plant on Sundays and Bank Holiday mornings would intrude on leisure time of local residents.

(iii) Environmental Assessment - there appears to be no relevant measures in the application to suggest that the development would not cause an unacceptable environmental impact including no reference to the floras and fauna of the remaining common land or sites of archaeological interest. An environmental impact assessment should be mandatory.

(iv) Planning need - understands similar proposal has been granted permission for a concrete recycling facility at Tadley, Selbourne and South Warnborough.

(v) Common land - the proposal is situated on registered common land. The Parish is seeking legal advice from The Open Spaces Society, and the Council for the Protection of Rural England and wish to submit further objections.

5.7 The Environmental Health Officer at Basingstoke and Deane Borough Council requested a technical noise report from the applicant and if the application is approved suggests conditions in respect of contaminated land and dust suppression, should permission for the development be granted. However, since making these initial comments the applicants noise report has been received . The Environmental Health Officer states that this department acknowledges the desirability of this proposal and fully accepts and understands the environmental benefits of recycling and the reuse of building materials in this way. This Council is committed to fully supporting such proposals which do not have a significant negative impact on local residents or businesses. The Environmental Health Officer concludes that he must raise objection to the application because of the great potential for unacceptable noise levels within dwellings and the curtilages of the dwellings which would result in a considerable loss of residential amenity.

5.8 Basingstoke and Deane Borough Council initially raised no objection to the application subject to conditions relating to a contaminated land assessment. The Borough Council adds that the development is proposed within an existing, lawful industrial use and does not encroach into the surrounding countryside. The application is not a departure from the Development Plan. Having studied the submitted noise assessments the Borough Council has reconsidered the application and decided to raise objection for the following reason:

5.9 If allowed the proposal would led to a loss of amenity to surrounding residential properties through increased noise and disturbance arising from the concrete crusher. The proposal is, therefore, contrary to the advice contained within Planning Policy Guidance Note 24, planning and noise and Policy MW1 and MW2 of the Hampshire County Structure Plan 1996 - 2011 in that the proposal would lead to an increase in noise and disturbance which would have a detrimental impact on the amenities of adjoining residential properties.

5.10 The East Hampshire District Council Environmental Health Officer objects to the application due to the likely harm of amenity for nearby residents. The officer adds that the sound levels will be such that the application is very likely to give rise to nuisance and this is despite the fact that:

(i) the report does not refer to peak/impact noise levels which are often the most intrusive

(ii) the noise measurements were taken at a time when the wind direction would have reduced the affect on the houses.

5.11 The Environment Agency raises no objection in principle subject to a condition restricting solid matter from being stored within 10 metres of any watercourse.

5.12 The Highways Adviser raises no objection in principle subject to the following conditions:

(i) No more than 25 lorries should access and egress the site on any one-day (50 movements)

(ii) HGV's should be routed via the A339 as the Local Lorry Route, as the alignment of Avenue Road to the east of the site is more difficult than that to the west, and the junction of the Avenue with the Golden Pot Public House is problematic with a higher accident rate than the junction of the Avenue Road with the A339.

(iii) Details of parking and turning areas and sight lines should be submitted and approved in writing before any new use commences.

5.13 Safeguarding Plans and TAG Aviation UK Ltd raise no objection to the proposal.

5.14 The Assistant Head of the Countryside Service (Access) has advised that part of the site that is registered as Common Land and is therefore subject to the new rights of access on foot arising from Part 1 of the Countryside and Rights of Way Act 2000 (CRoW Act). There are no recorded rights of access to reach the land although it is understood that there are a number of informal tracks and paths that are currently used which would enable walkers to reach the site in order to exercise the new rights of access. The adjacent land which is managed by the Forestry Commission may be dedicated as `Access Land' under the CRoW Act and thereby formalise the public access to the site into a permanent right of public access. Whilst the public have a right to walk on that part of the land which is registered as common land the County Council as the `Access Authority' has no duty to ensure that a means of access is provided. Indeed, the County Council has agreed a policy with the statutory Local Access Forum to provide access to an initial number of parcels of land where the authority believes there would be clear benefits to the public. This site is not included in that initial list.

5.15 Lasham Parish Meeting objects to the application on the grounds that the site is registered common land and Hampshire County Council does not have the authority to determine the application under the Law of Property Act 1925: the matter should be determined by the Secretary of State; adverse environmental impact (particularly noise and dust); departure from Development Plan; increase in traffic no need for the proposal; no street lighting in Lasham village and no footpaths on the un-kerbed road.;

5.16 The Forestry Commission registers its concerns as freeholder owners of the land to the west of the site area due to the potential effects of noise and dust from the facility on the neighbouring woodland environment, which is enjoyed by the general public for quiet recreation.

6. Representations

6.1 69 letters of objection and one petition have been received to the application. A 36 page submission (sent directly to Members at the time of the site visit) has been made by the Avenue Residents' Association (TARA) and Powntley Copse Ltd. TARA states it represents 40 residents in 15 properties on and adjacent to the Avenue. Powntley Copse Ltd. represents 60 residents in 26 properties on Powntley Copse Estate. Representations have been made other organisations including the Lasham Gliding Society, the Open Spaces Society, the Ramblers Association , the Alton Natural History Society and the Council for the Protection of Rural England.

6.2 The key issues raised by the Residents Association report provide a useful basis for summarising the major objections to the proposal:

(i) Common Land: the application has been made on registered common land; under the Law of Property Act 1925 section 194, this needs the approval of the Secretary of State; the land has been `illegally' part fenced and industrialised; enforcement action has already been demanded to return the site to common land; it is likely that legal action will be taken against Hampshire County Council (HCC) if this application is approved; the title of the application is misleading it should have referred to a change of use from registered common land(CL318); it is argued that HCC should not have accepted the application as valid; it is also questioned whether a false or misleading Article 7 certificate has been completed by the applicant; the Open Spaces Society, amongst other bodies, is keen to pursue the case against the application should some form of approval be given by HCC; the leading case on the subject is Lord Denning's judgement in the Court of appeal Oxford v Gloucestershire County Council (1982); the application should also be refused because a large proportion of the site which is Common Land would be put to a dangerous use in close proximity to or straddles land over which the public have rights of access.

(ii) County and District Policies: the application conflicts with County and District Policies notably HCSP MW2, C2, MW7; Basingstoke and Deane Local Plan policies A6, E6, GS1; East Hampshire Local Plan policy EVV13; site is designated as countryside and therefore should be advertised as departure from the Development Plan.

(iii) Noise Impact: the Office of the Deputy Prime Minister, (ODPM) planning guidance note (2000) expected noise power levels for concrete crushers and screening machines to correspond to a combined noise power level of 116dBLwa; 40dBA noise precedent has already been set by way of HCC planning condition for Star Energy site on Weston Common; the nearest house is likely to receive 70dBA; BS4142 suggests that 60 residents within 500 metres will have sustainable complaints with likely 48dBA; the noise would significantly exceed daytime rural background noise levels; machine shovels, reversing alarms would also create major noise problems; consideration needs to be given to Planning Policy Guidance in particular PPG1 ("Noise can affect health and have an impact on local amenity."), PPG24 and application of BS4142:1990 which states that any new noise should not be more than 5dBA above existing background noise levels to avoid complaints.

(iv) Sensitive Environmental Area: the area is the largest recreational area between Alton and Basingstoke; potential loss of recreational amenity if application approved; area rich in flora, fauna, wildlife, some rare species; several SINC's and historic features are located nearby; the area has been designated as an area of Outstanding Landscape Quality; the industrial appearance and character of the application are wrong for the area and the application is misleading in this and other regards; creeping industrialisation of this rural area.

(v) Population Density: the area has much higher density than the application suggests there are: 2 residents within 200 metres; 60 residents within 500 metres; 84 residents within 1 km, the application is therefore misleading.

(vi) Other amenity and business impacts including dust, fumes, lighting; vibration impacts, environmental impacts of traffic: dust (possibly contaminated) is likely to coat the road, all of the registered common land and part of forestry commission recreational area; a nearby resident suffers from lung fibrosis and is dependent on oxygen for breathing; prevailing winds will spread dust further afield; the Avenue roadway will need daily sweeping (as demonstrated by a crusher site in Easton Road, Havant); this will increase traffic safety risks; fumes caused by increased traffic and plant; lighting pollution (the area along the Avenue is currently unlit and does not suffer from light pollution); businesses that could be affected are Avenue nurseries (500km away), Golden Pot pub (1.1km), Second World War Museum (1.1km), parts of Lasham Gliding Club, all likely to be affected by road dust, noise and increased HGV traffic and damage to the visual attraction of the area which are all likely to affect the level of tourist and leisure use; there are unregistered paths within the vicinity which are much used by walkers.

(vii) Traffic and Safety Impact: the application suggests a 26% HGV increase on a rural road (average width 5.57m) with high accident rates, dangerous junction at both ends (A339 to west and Golden Pot PH to east) and dangerous access with right angle bend nearby; there is no footpath and there are high levels of recreational use; this is a major safety issue and if approved will compound the safety issues; cumulative traffic impact and environmental impact of traffic including wildlife road kill of badgers and other species(badgers are known to live in Weston Common and the surrounding areas.

(viii) Local Need: there are already four advertised crushing sites within 15 miles of the area (Tadley, S. Warnborough, Odiham and Bordon).

(ix) Alternative Sites: inappropriate location. The Avenue is much more sensitive than other concrete crusher sites which are not sited in rural areas; Havant site is next to railway line but after huge complaints and a media campaign Havant Borough Council agreed to re-locate it; a crusher could be accommodated on or by the east Hampshire new recycling site east of Holybourne without impacting on any homes; no other concrete crushers in Hampshire are sited on common land or near major recreational areas.

(x) Enforcement Action: the adjacent area to the application site has been fenced illegally dividing the registered common land into two parts; enforcement action has already been requested from HCC and B and DBC to return this area back to common land.

(xi) Human Rights: amenity and health impacts to local residents in particular a potential health impact to one of the occupiers of a property 180 metres to the west of the site who suffers from lung fibrosis. A letter from this persons doctor has been submitted verifying the condition and stating that the person concerned sometimes is dependent on oxygen;

7. Site Inspection

7.1 In the light of local concerns the Committee undertook a site inspection on 10 December 2004 and met representatives of the Environment Health Departments of Basingstoke and Deane Borough and East Hampshire District Councils, Shalden Parish Council, Weston Corbett and Weston Patrick Parish Meeting and Lasham Parish Meeting, local residents, the Council for the Protection of Rural England and the applicants.

7.2 The Chief Planning Adviser introduced the application and pointed out the proposed layout of the site which would have three bays along the western edge of the site for the finished product, the machinery for the processing of the material in the central area and an area for the stockpiling of material on the eastern side of the site. He confirmed that the applicant had offered to restrict the number of vehicle movements per day to 25 loads in and 25 loads out and to enter into a lorry routeing agreement which would entail use of the A339 and the Avenue. Hours of operation would exclude working on Saturday afternoons, Sundays and recognised Public Holidays.

7.3 The Chief Planning Adviser stated that Stable Lodge and Cedar Lodge are the nearest properties being approximately 150 metres distant, whilst the Powntley Copse development lies approximately 550 metres away and there are some houses on the southern side of the Avenue 300 metres distant with Shalden Park Farm being 500 metres away. Other developments in the area are a garden centre, those associated with the Humbly Grove oil field and Lasham airfield. The plan attached to the briefing report for the visit showed the nearest footpaths but an error had been made in describing some areas of land as Sites of Special Scientific Interest rather than Sites of Interest for Nature Conservation. Part of the site is registered common land, but this would not necessarily be a material planning consideration. However, in the light of changes to legislation brought about by the Countryside and Rights of Way Act this issue was still being discussed with the County Council's solicitors. The Chief Planning Adviser stressed that, in the light of comments made by the Secretary of The Avenue Residents' Association, the briefing note for the site visit did not cover all details and that a full report would be submitted to the Committee when it considered the application.

7.4 The Environmental Health Officers of Basingstoke and Deane Borough and East Hampshire District Councils advised that they were awaiting receipt of the noise report for the site together with details of dust attenuation measures and how any contaminated land at the site would be dealt with. The representative of Weston Corbett and Weston Patrick Parish Meeting expressed satisfaction that the land in question had been identified as common land and hoped that it would not be lost to the proposed development. The representative of Shalden Parish Council hoped that the noise report would cover impact at peak times in the summer months and over a wide area and he wanted a full report on traffic which would be generated, the times that vehicles would use the road and the tare weight of the vehicles. The representative of Lasham Parish Meeting was concerned about the impact of the lorries on Lasham.

7.5 A local resident complained of the possible impact of air pollution on the health of his wife, the possible adverse effect of the lorries on cyclists using the road, and he hoped that if permission was to be granted noise limits would be similar to those applied to the Humbly Grove oil field. The representatives of Powntley Copse Residents' Association raised concerns about the traffic impact and felt that the development would entail a step change to the nature of the site. They drew attention to the refusal of planning permission for a new house on the Stable Lodge site and the nearby Lasham Gliding Society premises which is a very popular facility. They also drew attention to an adjacent woodland area which the public are allowed to walk through and felt that there should be an overall planning view of the whole area rather than applications being dealt with on an individual basis. The secretary of The Avenue Residents' Association stressed that the site lies within the major recreational area situated between Basingstoke and Alton and felt that 150 residents could be adversely affected by noise emanating from the site. He did not feel confident that proper noise attenuation measures would be applied to the development.

7.6 The agent for the applicant stressed that a noise and dust report was being prepared and should be completed by the 15th December. It would compare ambient noise with noise generated by the plant. He pointed out that there are no rights of public access across the site or recognised public footpaths and felt that it would be a low-key facility situated on a brownfield site. Some of those present voiced concerns that there would not be time to give proper consideration to the noise report, bearing in mind the Christmas and New Year holiday period.

7.7 The representative of the Council for the Protection of Rural England was concerned about the common land implications of the proposal and the extensive impact on local residents. Other residents drew attention to the accident situation at the junction of the A339 with The Avenue and in response to a point made concerning activities on adjacent sites the Chief Planning Adviser confirmed that such activities are the responsibility of the relevant district councils and that he had been advised by Basingstoke and Deane Borough Council that there were no outstanding enforcement issues.

8. Additional Information

Noise

8.1 At the site inspection it was agreed that the applicant would submit a noise report addressing the environmental impact of noise from the site on nearby residents. The applicant has since submitted the report based on taking measurements from the nearest noise-sensitive property, Stable Lodge. The report concludes that a comparison between the measured noise climate at Stable Lodge and the predicted noise levels arising from the proposed site operations in the form of a BS4142: 1997 assessment has found that " it is unlikely that complaints would be received from the residents of Stable Lodge in the event that the proposed operations are taken. It is considered therefore that it is unlikely that complaints would be received from other properties in the vicinity due to the greater attenuation of noise levels which would occur." The report also suggests, notwithstanding the findings, that a number of good practice mitigation measures be applied to the site to assist in the reduction of noise levels.

8.2 The noise assessment had been undertaken based on including a 3.0 metre high acoustic screen to the northwest boundary near the recycling plant. The applicant adds that "the site has been used for a number of purposes over many years, which have no restrictions in relation to noise or any other matters. The current application provides the Council with an opportunity to apply noise conditions. In determining the application, the Council should have regard to the' fallback' position, which could include intensification and expansion of the uses on the site and which could easily result in much more noise that that which would be produced by the proposal."

8.3 The County Council has commissioned an independent noise survey by the Institute of Sound Vibration and Research (ISVR) at Southampton University. This report concludes: " A two-day noise survey was carried out at Stable Lodge and two, thirty minute surveys were carried out at Folly House. Predictions of noise levels from the proposed waste-recycling centre show that the noise level will exceed the background level at Stable Lodge by between 16 and 19dB(A), depending on whether or not a 3m high barrier is built. The predictions for Folly Lodge are for predicted noise level to exceed the background level by 6 to 7dB(A). BS4142 states that complaints are likely at Stable Lodge but the situation at Folly House is of marginal significance".

8.4 The East Hampshire and Basingstoke and Deane Environmental Health Officers, having examined the applicants survey and the ISVR survey, object to the application due to the likely harm of amenity for nearby residents.

8.5 The local residents have had the applicants noise report reviewed by an engineering consultant who concludes that "the noise report to be excessively biased in favour of the application, in that it underestimates the likely noise levels outside adjacent properties, and it measured ambient noise levels under non-typical conditions."

Traffic

8.6 On 31 January 2005 the County Council's Highway's Adviser met with representatives of The Avenue Residents Association (TARA) and the Powntley Copse Residents Association to discuss general traffic concerns raised by residents with relation to Avenue Road.

8.7 On 2 February 2004 the residents' associations submitted a traffic report to the County Council, based on information supplied to them by the County Council, the Police and contained within the application. In the report the residents Associations drew attention to the following:

(i) The extremely large increase in HGV traffic on the Avenue, this has risen by between 320% (eastbound) and 43% (westbound) in just 3 years. The application will add a further 25% increase on the new higher levels.

(ii) The average speed measurements reported in the application and the distance of the site entrance from the bend, imply that the visibility at the entrance does not meet planning requirements.

(iii) The junctions at either end of the Avenue (across which lorries must turn) represent bad local accident spots. Although the number of accidents at the junction with the A339 is lower than the junction at the Golden Pot, the percentage of accidents resulting in serious injury is worse here.

(iv) The bend by the applicant's site is the worst accident spot on the Avenue.

8.8 The Highway Adviser's response to the Residents Associations report is that the accident rate at the Golden Pot junction has been sufficient in recent years to merit investigation, and works were carried out in March 2004 to help prevent further accidents occurring. Whilst it is too early to make a judgment on the success or otherwise of the scheme, no reports of further accidents have been received by the Council to date.

8.9 An investigation has been undertaken previously into the nature of the accidents occurring along the length of Avenue Road and the relatively high proportion occurring in wet conditions has lead to investigations of the road surface. These investigations have led to installation of signs to warn motorists of slippery surface and with preparatory works completed, it is proposed to improve skid resistance by surface dressing during the summer months. It is expected that these measures will assist in preventing accidents occurring along the road. In addition the possibility of enhancing the current signs warning of the bend close to the application site is being considered.

8.10 Visibility at the access to the application site and prevention of mud and dust tracking onto the road are capable of being addressed by appropriate conditions should Members be minded to approve the application. Officers recommend that should Members approve the application, the total number of trips to and from the site, the hours when the site will operate and the route taken should all be subject to appropriate conditions.

8.11 On the more general question of the current day-to-day levels of HGV use on Avenue Road and its junctions with the A339 and B3349, it is unknown at this stage how many vehicles are driving to and from sites on Avenue Road, and how many are using it as a through route to other destinations. Whilst the physical dimensions of the road are such that issues of overall capacity to carry traffic are not in question, a lorry survey would allow an understanding of patterns of movement and hence what measures, if any, might be appropriate to limit HGV use now or in the future.

9. Chief Planning Adviser's Comments

9.1 Minerals and waste development almost inevitably gives rise to some adverse impact or other detrimental effect. Policies in the Development Plan establish that, notwithstanding the industrial type of use on the site over many years, planning permission should only be granted if the applicant can demonstrate that the development would not give rise to an unacceptable level of adverse environmental, traffic or other impact, pollution risk or danger to public health. The main issues raised by the proposal are:

(i) Common Land

(ii) County and District Policies

(iii) Noise Impact

(iv) Sensitive Environmental Area

(v) Population Density

(vi) Other amenity and business impacts including dust, fumes, lighting, vibration impacts, environmental impacts of traffic:

(vii) Traffic and Safety Impact

(viii) Local Need

(ix) Alternative Sites

(x) Enforcement Action

(xi) Human Rights

Common Land

9.2 This proposal relates to land which forms part of the registered common land unit CL318. The common land issue has raised much public concern.

9.3 Under the Commons Registration Act 1965 (`the Act'), all common land was required to be registered with the County Council, as the Commons Registration Authority. The definition of common land under the Act is (a) land subject to rights of common and (b) waste land of a manor not subject to rights of common. There are no rights of common registered over CL318.

9.4 Under the Law of Property Act 1925 (`the LPA'), section 194(1) the erection of any building or fence, or the construction of any other work, whereby access to land to which the section applies is prevented or impeded, shall not be lawful unless the consent of the Secretary of State is obtained. The section applies to any land which on 1 January 1926 was subject to rights of common.

9.5 There are no rights of common registered and the County Council has no evidence that rights of common existed over CL318 on 1 January 1926. Thus in the County Council's opinion section 194 of the LPA does not apply to the common. Should satisfactory evidence be presented to the County Council that rights of common did exist on 1 January 1926, then section 194 would apply and in order to carry out the proposed development, the applicant would not only need to obtain planning permission, but he would also need to obtain the consent of the Secretary of State.

9.6 In a case where section 194 of the LPA does apply, and where any building or fence is erected, or other work constructed without the consent of the Secretary of State, the relevant county court, shall, on an application being made by the council of any county or district concerned, or by the lord of the manor or any other person interested in the common (usually taken to refer to persons holding rights of common) have power to make an order for the removal of the work and the restoration of the land to its previous condition.

9.7 Whilst the County Council `maintains' the registers of common land, it has no statutory obligation to `protect' common land; this is a common misunderstanding about the role of the County Council.

9.8 In Hampshire, from 14 December 2004, all registered common land, shown on the maps produced by the Countryside Agency as access land under the Countryside and Rights of Way Act 2000 (CRoW' Act), will be open to the public to access on foot unless restrictions or exclusions apply. CL318 is shown on these maps and is thus access land under CRoW. There are no recorded public roads or rights of way adjacent to the side and therefore the land appears to be an `island' site (i.e. the public have a right to walk on the land but no recorded public means of actually reaching it). In practice however the public do enjoy use of informal paths and tracks which would enable them to reach the land. The Forestry Commission, appears to tolerate informal public access throughout, and thus in one sense, the public may have access to CL318 from the north through Weston Common. Although new rights do apply to the land the County Council is of the view that these offer little new or of benefit to the public and therefore there are no current plans to improve or promote access to the common.

9.9 With regard to the comments by the objectors about the illegal fencing of the common, as stated above, as section 194 LPA does not apply to CL318, there is no requirement for consent to fence.

County and District Policies

9.10 The most relevant Development Plan policy is Policy 46 of the HPSMWLP and by virtue of the planning history of the site the proposal accords with the locational criteria of the policy. The countryside designation in the Borough Local Plan is noted but the history of the site mitigates against this designation being used as a basis of planning refusal. It is also noted that the Borough Council has not objected to the application and state also that the application is not in its view a departure from the Development Plan.

Noise

9.11 It is noted that both District Environmental Health Officers and the County Councils' independent noise consultant consider the proposal would give rise to noise nuisance at the nearest residential property Cedar Lodge. It is therefore considered that even without taking any other factor into the balance , noise impact, based on the matters identified in this report, would be a just planning reason to refuse the application.

Sensitive Environmental Area

9.12 It is considered there are no reasons on landscape grounds nor ecological grounds on which to recommend refusal of the application. The County Council has inspected the site for badgers following local concerns but there are no badgers living on the site and it is not considered that the application poses a threat to local badgers. It is also considered that it poses no threat to any archaeological or historic features in the surrounding area nor impact upon the recreational amenity or business interest of the surrounding area.

Population Density

9.13 The issue raised by local residents about the application being misleading with relation to the locality having a greater population density than is been suggested is also noted. Members are aware of the location of nearby properties and the surroundings from the site visit, local knowledge of the area and from this report and other correspondence.

Amenity Impacts

9.14 The issue of dust can be dealt with by way of conditions on any permission that may be granted and the Environmental Health Officer would be responsible for authorising the concrete crusher to ensure emissions from the crusher are in line with current legislation. Comments of the Environmental Health Officer, with relation to the impact of dust on the health of the local resident who suffers from lung fibrosis living near to the site are awaited. If permission was granted for the development it would be the applicants responsibility to ensure that there was no mud on the road that could cause dust by using a road sweeper. This could be enforced by way of a planning condition. Similarly lighting would be controlled and enforced by way of a planning condition on any permission that may be granted. With regard to the issue of fumes it is unlawful for any vehicle driver to drive a vehicle that does not comply with current exhaust legislation. It is not considered that the traffic generated by the development would significantly impact on local dwellings by way of vibration, particularly when the County Council is not aware of any vehicular planning restrictions on the businesses currently operating along the Avenue.

Traffic and Highway Safety

9.15 Concerns raised by the local Member, Parish Councils and local objectors are noted but the Highways Adviser considers there is no reason to object to the proposal on highway grounds, subject to a lorry routing agreement and a condition restricting numbers of lorry movements. Concerns raised about the environmental impact of traffic on local businesses are also noted but currently there exists industrial type uses permitted by the District Council's either side of the application site, which, it is understood, carry no traffic restrictions. The issue of badger and other wildlife road kill is also acknowledged, but this in itself would not be a reason to refuse such a planning application. The issue of environmental impact of traffic by way of noise and dust on the amenity of local residents will be addressed by the Environmental Health Officer.

Need

9.16 The need for the development has been questioned by the local Member, Parish Councils and local objectors on the basis that there are other recycling facilities nearby. The nearest County Council permitted inert recycling site is located at New Farm, South Warnborough. It is considered that there is a need for the proposal. Work undertaken on the County Council's Material Resource Strategy (MRS) indicates an aspiration to increase commercial and industrial waste recycling beyond the current level and that this will require an increase in the number of sites for recycling, even in the same vicinity, where there is demand.

Alternative Sites

9.17 The fact that alternative sites should be considered are noted but the County Council has a duty to determine the application before it as the Planning Authority for Waste Planning matters in Hampshire.

Enforcement

9.18 Planning enforcement issues are currently the responsibility of Basingstoke and Deane Borough Council because the current planning permission for this site is a District matter. If planning permission for this application is granted then enforcement will be a County matter. The County Council is not aware that there are any outstanding enforcement matters relating to the site With regards to the representations about illegally erected fencing, this issue has been addressed in the section on Common Land, above.

Human Rights

9.19 The County Council is a public authority, which, in the exercise of its statutory powers to determine this application, must not act in a way which is incompatible with the rights set out in the HRA .The advice from GOSE is unequivocal " with respect to Human Rights, all decision makers, and that includes local planning authorities, must consider the impact on the Human Rights of individuals when making decisions. This means that the right may be interfered with in certain circumstances, for example, when it is felt to be in the wider public interest. The right is not absolute, whatever the circumstances". To do so would render such action unlawful and any person affected by such an unlawful determination would have the right to put the issue before an English Court which may include compensation by way of damages or could involve quashing the decision against which the complaint is made.

9.20 The Human Rights Act 1998 (`the HRA'), places more emphasis on the protection of the individual when the local authority exercises discretion in planning decisions. The environmental impact of a planning decision on a neighbouring property brings into play the right for home, private and family life in Article 8. Article 1 of the First Protocol is also relevant and refers to the entitlement of every person to peaceful enjoyment of his possessions. In addition, Article 6 concerns the right of the individual to a fair and public hearing when civil rights are being determined.

9.21 If, having considered all the facts, Members are minded to make a decision which they believe might interfere with human rights they must take into consideration whether this interference is justified under the HRA. This is a balancing exercise which Members are used to carrying out, particularly in the context of minerals and waste planning applications, and the rights of all those concerned in the planning process, including applicants, landowners and local residents must be borne in mind.

Conclusion

9.22 Having examined all the facts there is one key issue which could not be reasonably controlled through a planning condition to avoid nuisance to the residents of Stable Lodge and Cedar Lodge, and this is noise. It is apparent from the views of the County Council's independent noise consultant that even with a 3.0 metre high barrier the residents would suffer a noise nuisance when the site would be operating. The size and context of the site mitigate against screens or bunds higher than 3.0 metres. Accordingly, it is recommended that the application be refused on the grounds that the applicant has not been able to demonstrate that the nearest residential properties, Cedar Lodge and Stable Lodge, could be adequately protected against significant noise impact from the proposed development.

Recommendation

That permission for change of use from industrial land to construction and demolition recycling facility at Industrial Land off the Avenue, Lasham, Nr Alton (Application No. BDB/59555) (County Council Ref. BA120) be refused for the following reason:

It is considered that the development does not comply with Policy MW2 of the County Structure Plan Review, and Policies 6 (i)(ii). 7(i) and 46 (iv) of the HPSMWLP in that the proposed development is likely to give rise to an unacceptable level of noise impact to the occupants of Cedar Lodge and Stable Lodge and that the need for the development does not outweigh the impact it is likely to cause.

9168/JD