Archived decisions

With the concurrence of the Chairman under Section 100B (4)(b) of the Local Government Act 1972, this matter has been included on the agenda to be considered at the meeting as a matter of urgency. This matter was formerly classed as an exempt item and therefore has not received the requisite five clear days publicity. It needs to be included on this agenda as there is an imminent appeal for a judicial review pending and approval for a legal agreement needs to be secured.

Contact: Peter Chadwick, ext 6728 email: [email protected]

1. Summary

1.1 Planning permission for the development and operation of a facility for the production of recycled aggregates and other recycled materials at Four Dell Farm, Poles Lane, Otterbourne was issued on 10 September 2007. Local residents opposed to the proposal have instructed solicitors to pursue a legal challenge to the decision. One of their grounds for challenge is that there is no condition on the permission as issued controlling dust. This can be remedied by a legal agreement which secures a dust management scheme. Therefore it is recommended that the County Council enter into such an agreement.

2. Recommendation

That the County Council enters into a legal agreement with the applicant and landowner to secure the submission for approval of a dust management scheme, and to provide for the scheme's monitoring and review.

3. Commentary

3.1 At its meeting on 5 September 2007 the Committee resolved to grant planning permission for the development and operation of a facility for the production of recycled aggregates and other recycled materials at Four Dell Farm, Poles Lane, Otterbourne subject to conditions. The planning permission was subsequently issued. Local residents opposed to the proposal have instructed solicitors to pursue a legal challenge to the decision by way of judicial review.

3.2 One of their grounds for challenge is that there is no condition on the permission as issued controlling dust. The issue of dust was raised in the representations made against the proposal. The Chief Planning Adviser comments in paragraph 8.9 of the 5 September 2007 report that "It is considered that the dust issue can be satisfactorily controlled by planning condition". Unfortunately due to an administrative error, `dust' was not included in the wording of the requirements for the Environmental Management Scheme. Consequently there is no specific dust condition on the permission. This is contrary to what was stated in the body of the Committee Report, and so contrary to the expectation of Members when they resolved to grant permission. It is acknowledged that the list of conditions in the appendix to the report did not contain a specific dust condition. It is accepted that this is a legitimate ground for challenge as it could be said that the permission does not accord with Members' expectations when resolving to approve the application.

3.3 Legal advice is that once a planning decision letter has been issued it is not possible for it to be recalled for amendment and reissued. However, advice is that the deficiency (ie the omission of a specific condition controlling dust) can be remedied by a legal agreement which secures a dust management scheme and provides for the scheme's monitoring and review following approval. This would be binding on all operators of the site and would be enforceable. Therefore there would then be the requirement for dust control as Members envisaged. The matter has been raised with the applicant and the landowner, who have both agreed that they would be prepared to enter into such an agreement.

3.4 Consequently it is recommended that the County Council enter into an agreement with the applicant and the landowner to secure dust control measures.

1521/PDC