Apologies for absence were received from Councillor Freeman & Murray-Smith.

Councillor Lawn attended as a substitute for Councillor Murray-Smith.

There were no declarations of intertest declared at the meeting.

The minutes of the meeting held on 26 July 2023 were confirmed.

Councillor Galer questioned the validity of the minute which could be found at page 8 of the agenda pack. The Chairman reported that Councillor Galer's recollection of events which had not been minuted per se would not affect the Committee decision. The Chairman suggested that if Members were unhappy with the minutes of the meeting, that they should approach the Democratic Services Team to discuss and amend prior to the meeting.

The Committee received and considered the agenda and addendum report from the Development Manager.

The Development Manager informed Members that he had been advised that the Monitoring Officer required that the presentation of the application could only be an overview of the responses to the reason for deferral of the application at the previous committee meeting and the changes to the application and the updates to the three earlier reports following the deferral of the application at the Development Management Committee of 19th April 2023. The Development Manager identified the three earlier reports and minutes of the two previous committee meetings which had been provided within the circulated appendices of the report provided for this meeting and advised that he would not repeat all the information which had been given at the previous committee meetings as this was all detailed in the agenda report.

The Development Manager informed the Committee that this application was initially presented to the Development Management Committee on 22nd March 2023; the original published Committee Report is attached at Appendix 1 to this meeting's report. An Update Report was released prior to the consideration on 22nd March 2023 (see Appendix 2).  Committee resolved to defer consideration for a site visit, which took place on 31st March 2023. On 19th April 2023, the Committee considered the application again.  A second Update Report was released prior to that meeting (see Appendix 3). At the meeting on 19th April 2023, it was resolved to defer consideration of the application to allow for further appraisal and discussion with the applicant in regard to the scheme’s viability in relation to the proposed affordable housing mix. The relevant extracts of the minutes of the 19th April 2023 Committee are attached at Appendix 5 of this meeting's report.

The Development Manager reminded Members that they should also consider the Development Management Committee Addendum Report dated 5 September 2023 and he reported the information to the committee which had been received after the agenda for this meeting had been published.

The Development Manager reported that following the April 2023 committee, the applicant had revisited their viability appraisal calculations with updated figures and subsequently amended their proposals to include an additional affordable housing dwelling of Shared Ownership tenure property within the ‘Exception Site’ part of the development (the area of ‘countryside’ land located outside the adopted development limit boundary). To enable this, the applicant has changed an ‘open-market’ house into an affordable dwelling, so the overall development remains as 41 dwellings, but the overall mix of affordable housing increases from the 14 proposed originally (34%) to 15 now (37%).

The Development Manager reported that the part of the site within the adopted development limits remains as 22 dwellings, comprising 4 affordable homes and 18 open market dwellings. The 22 dwellings proposed inside the development limits is required to provide 20% (4no.) affordable homes as expected by policy UCS4; this is proposed and this part of the development is therefore policy-compliant. The part of the site outside the development limits remains as 19 dwellings, but it now comprises 11 affordable homes. For the purposes of assessing the viability of the development, 8 of the 11 are affordable rent tenure and 3 are intermediate (shared ownership) tenure. In this ‘exception site’ area, the 11 affordable homes for ‘local needs’ are now required to be supported by 8 open market units (compared to the previously proposed 10 affordable homes being supported by 9 open market dwellings). The overall development proposal is for 15 affordable housing dwellings, comprising 11 no. affordable rent and 4 no. intermediate tenure (shared ownership).

The Development Manager reported that of the overall development the 15 dwellings amount to 37% of the 41 proposed, with 73% of that as affordable rent and 27% as intermediate tenure. Officers have obtained independent viability advice from BNP Paribas. Their advice received 5 June 2023 is available on the Council’s website. In addition to the applicant amending the level of affordable housing being offered, they also provided further evidence on: private residential values; affordable housing revenues; and abnormal costs. These elements have also been considered within the advisor’s re-appraisal of the scheme. 

The Development Manager informed the Committee that of the planning obligations listed in the original Committee Report(s), the following changes are necessary; as follows:-

a) The Affordable Housing provision shall need to increase to 15no. units overall.

b) The GIRAMS habitats mitigation contribution shall need to increase to £8,644.44 (reflecting the 2023-24 value of £210.84 per dwelling to address habitat impact).

c) The County Council’s planning obligations monitoring fee should be interpreted as £500 per obligation (£1,000 total).

The Development Manager gave a verbal update to comments received since the publication of the report in regard to the current position in respect of the garages, the comments received from a Ward Councillor in respect of highways concerns, and the effect of overlooking and impacts on amenity at a bungalow at the rear of Woodland Close from plot number 11 which could be mitigated by condition to secure and protect the neighbours privacy. An email had also been received from the applicant detailing the agricultural use of the site which had last been used for wheat production in 2001/2002, yielding a profit of £600 for the arable use. In the intervening years, the land had been used for PYO soft fruits, car boot sales, parking and use by a travelling circus.

The Development Manager informed the Committee that it was recommended to delegate authority to the Head of Planning to approve the application subject to:-

a) Prior Completion of a Section 106 Agreement to secure the details as set out in Appendix 5 and any amendments to the financial contributions deemed both reasonable and necessary in light further consultee comments; 

and,

b) If the Section 106 Agreement is not completed within three months of the date of this decision, to delegate authority to the Head of Planning (at their discretion) to:

(i) Continue to progress the application to determination, where progress is being made on securing the required Section 106 agreement : or

(ii) refer the application back to the Development Management Committee, for re-consideration of the application; or 

(iii) to refuse the application directly, on the grounds of failing to secure planning obligations as outlined within this report (or the Committee’s decision if the recommended content is varied); 

and,

c) The Conditions as set out below (and any amendments to those conditions as deemed necessary)

Conditions 

1. Standard time limit – commence in 24 months
2. Development to be in accordance with the approved plans and details 

Pre-commencement:

3. Archaeological Written Scheme of Investigation details and undertake trial trenching
4. M4(2) building design standard details to be agreed
5. Water conservation and efficiency measures to be agreed
6. Details of surface water drainage scheme
7. Foul drainage details to be confirmed (capacity and flow rates)
8. Details of pumping station and electric substation layout and appearance
9. Existing vehicle access to be closed from Scratby Road – detail & provide
10. On-site parking for construction workers, loading and delivery areas to be agreed
11. Off-site highways scheme to be agreed
12. On-site highways details to be agreed
13. Fire hydrants scheme layout to be agreed
14. Tree protection measures to be installed prior to commencement
15. Construction management plan to be agreed and followed: inc. avoid the open space area (a) being delayed in its provision, and (b) being compromised by the construction process/squashed and unable to drain, and include dust, noise, air quality, hours of work measures, phasing sequence

During construction:

16. Contamination precautions
17. Construct in accordance with the submitted Arboricultural Method Statement

Prior to constructing beyond DPC / slab levels:

18. Hard landscaping scheme details
19. Soft landscaping scheme details - Planting plan, landscaping schedules & protection
20. POS details
21. Recreational Avoidance Strategy details to promote PROW and minimise visiting designated sites
22. Biodiversity Method Statement
23. Lighting design strategy and ecology mitigation
24. Cycle parking details for each dwelling

Prior to occupation:

25. Visibility splays to be in place
26. The off-site highways works to be completed
27. All highways works to be in place and complete – binder course level for first dwelling
28. All highways works to be complete – to adoptable standard before final dwelling
29. Topsoil certification and soil management plan
30. Removal of permitted development rights to the rear of plots 8-11 and / or other alterations to plot 1.

Councillor Annison was concerned that the present Committee was comprised of different Members to those who had heard the two previous presentations and were therefore not being given a full presentation this evening to enable them to reach an informed decision.

The Committee received and considered the agenda and addendum report from the Development Manager.

The Development Manager referred the Committee to the Addendum Report dated 5 September 2023 and he reported the additional information to the Committee which had been received since the committee agenda had been published.

The Development Manager reported that this was an update report following consideration of the application at the Development Management Committee of 22nd February 2023. This report should be read in conjunction with the previous report of 22nd February 2023 and the addendum Update Report also dated 22nd February 2023 which remain part of the consideration of the scheme and which are attached as appendices to this agenda report.

The Development Manager informed the Committee that following the meeting of 22 February 2023, as officers were drafting the proposed conditions for the permission, it became apparent that the applicant’s Noise Impact Assessment report had not been accessible to public view through the Council website when originally subject to public consultation and the Committee’s consideration.  Officers are of the view that the application was consequently incomplete when available for public inspection and the Committee’s determination, and as such have re-advertised the application and undertaken a further 21 days formal public consultation between 09 August 2023 and 01 September 2023.

The Development Manager reported that, in addition to making sure the Noise Impact Assessment was visible, the application has also been subject to further public consultation because the applicant also provided further information relating to some of the conditions due to be imposed on any permission granted, including the results of surveying the proposed drainage outflow into the IDB network and liaison with the IDB regarding drainage consent requirements, which were noted to have been of concern to the Committee in February 2023. Other information included details of proposed opening and delivery times which had not been formally proposed previously.

The information which has been available to public consultation is as listed below:

• Noise Impact Assessment ref 8219/FD
• Confirmation that the proposed surface water drainage outflow point has been agreed with the Internal Drainage Board
• Applicant’s proposed opening hours
• Applicant’s proposed delivery hours
• Final Draft Section 106 Agreement (see Appendix 4)
• LPA Officers’ proposed planning conditions (see Appendix 5).

Further information has also been supplied and available to consultation; these are documents received originally but which have been updated to account for and reflect the revised site layout plan ref 7723L-20 Rev G which included the proposed attenuation pond and electricity substation (see Appendix 7 to this report).  The layout and designs of these were all considered and resolved to be approved by Committee on 22nd February 2023, so the updates to documents are points of housekeeping:-

• Tree Protection Plan
• Landscaping Plan
• Lighting Plan
• Flood Risk Assessment
• Transport Assessment
• Travel Plan
• Planning and Retail Statement.

The Development Manager reported that the majority of the Committee’s original resolution has been concluded, but Members are requested to consider the following matters which were not originally available:-

• Opening hours in relation to noise and retail impacts
• Delivery hours in relation to noise and disturbance
• Residential amenity mitigations
• Surface water drainage scheme outfall position
• Minor adjustments to proposed landscaping scheme

The Development Manager informed the committee that Officers did not consider these to be so fundamental as to require reconsideration of the whole development or section 106 agreement, only the relevant proposed planning conditions. The applicant had since agreed a final draft version of the s106 agreement in accordance with the committee resolution of 22 February 2023 and have accepted the terms of most of the  Officer's proposed conditions required, including the pre-commencement conditions.

The proposed opening hours to the public are as follows:-

08:00 to 22:00 Monday to Saturday

10:00 to !7:00 Sundays and Bank/Public Holidays
 
Delivery hours:-

07:30 to 23:30 Monday to Saturday

09:00 to 18:00 Sundays and Bank/Public Holidays

Between 07:30 - 08:30 and 21:00 - 22:30 vehicles shall only reverse using broadband reversing alarms or with other forms of reversing alarms disabled and a banksman employed.

 
The Development Manager reported the concerns of the third-party, Tesco Stores Ltd, in regard to the proposed planning conditions, including the need for the store to be used by a "Limited Assortment Discounter" only and with no more than 2000 individual product lines, after their example of a Lidl store approved in Downham Market with such restrictions imposed.

The Development Manager then outlined the Officers' proposed amendments to the conditions as follows:-

 
(i) The application’s Retail Impact Assessment is so orientated towards the store being operated by a ‘deep-discount’ retailer that it should be a requirement of any permission that it is used by a “Limited Assortment Discounter” only.  

(ii) This should be restricted to a limit of 2000 individual product lines. 



The Development Manager explained the reasons for doing so with the following points:-

There are sufficient controls available through other conditions to influence the general operation.

However, a “Limited Assortment Discounter” restriction does ensure the Retail Impact is consistent with the permission and therefore the reason for any favourable decision being made.

The applicant has agreed to the condition and has suggested how this could be enforceable.

On balance, a condition is necessary to ensure the very particular retail impacts of the development continue to reflect the evidence put forward.

As the condition can be seen to be necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects, a condition can be justified. - satisfying NPPF paragraph 56.
 
The applicant has acknowledged ‘Limited Assortment Discounted’ retailer is a clearly defined type of retailer, albeit not a different Use Class. This means the retailer type and characteristic should be understandable and sufficient to avoid confusion.  If a non-LAD retailer were to use the premises it would be possible to enforce.

The condition would require a formal planning application to vary or remove the condition.

The Development Manager informed the Committee that the updated recommendation is to introduce the condition as number 43, in addition to those listed in the committee report; notwithstanding the (i) small net increase of retail floorspace, and (ii) there being no such restrictions on the existing Lidl store.
 
The Development Manager reported the following in regard to the proposed Section106 agreement:-
 
Tesco Stores Ltd requested a change to the legal agreement to build-in protection against a possible future concern.

There is no evidence of likely future problem procedurally.

Whether or not the clause identified is included in the Section 106 Agreement:-

The process would still need to involve a formal Deed of Variation of the Section 106 Agreement

The LPA would be expected to advertise the changes if they affected planning merits of the application

Suitable evidence would be needed to justify a change.

Any change would need to be agreed by all parties in the first 5 years.

After 5 years there is a ‘right of appeal’.
 
The Development Manager reported that the application was recommended for approval, subject to the matters at Section 6.1 of the officer agenda report and to introduce a new Condition 43 as follows:-
 
The development hereby permitted shall only be used as a Class E(a) retail foodstore and shall be restricted to a 'Limited Assortment Discounter' and shall be used for no other purpose falling within Class E of the Town and County Planning (Use Classes) (Amendment) Regulations 2020 (or any order revoking or re-enacting or amending that order with or without modification). A 'Limited Assortment Discounter' shall be taken to mean the sale of no more than 4,000 individual product lines.


The reason for the condition is: - 

For the avoidance of doubt and to ensure that the development hereby permitted does not have a negative impact on the vitality and viability of nearby defined centres in the locality in accordance with the NPPF and Development Plan.

Councillor Boyd asked for clarification as to whether any other stores in the borough were subject to the conditions as set out in Condition 43. The Development Manager reported that he was unaware of any in the Borough but that this type of condition was being used more widely, as in Downham Market in 2020. The Interim Head of Planning informed the committee that this Council must ensure that it made a robust planning decision in case the decision was challenged by a third party.

 
Councillor Mogford reported that he agreed with Councillor Boyd and Condition 43 left a sour taste in his month as it smacked of bullying tactics by Tesco.

 
Councillor Galer asked if the neighbouring Gypsy & Travellers site had been consulted in regard to potential noise nuisance from the site. The Development Manager assured Members that the application had been subject to the additional consultation as would be expected of this type of application which included site notices being posted at the application site in a position visible to the traveller site. 

 
Councillor Pilkington questioned what benefit agreeing to Condition 43 would have for the town as limiting the goods on offer to 4000 items would ultimately only benefit Tesco's. The Development Manager informed the committee that Tesco had originally suggested a maximum of 2000 items.

 
The Interim Head of Planning reported that the Council had a duty to protect retail in the Town Centre. However, a condition limiting the use of the new unit would not normally be considered necessary if the submitted reatil impact assessment had not been focussed on the impacts from a Lidl operation. The new store replaced an existing store without this level of restriction upon it, but there would be an obligation in the proposed Section 106 to prevent the existing store being used as a Class E(a) retailing use once the new store had opened, in order to prevent an increase in cumulative retail impact over and above that of the proposed new foodstore. The net increase in floorspace resulting from the proposed was 348 square metres.

 
Councillor Martin asked for clarification as to whether the committee would have been asked to impose Condition 43 if Tesco had not raised it as an issue, and would Tesco have challenged the committee's decision if they did not impose it. The Interim Head of Planning reported that the committee would need to weigh up the impacts of a possible unfettered retail use outside of the Town Centre when reaching their decision. A challenge to the decision would be a matter of judgement and the Council would need to be able to defend its decision to a third party at  judicial review by having an audit trail of how the decision was reached.

Councillor Pilkington informed the Committee that the existing Lidl store was not fit for purpose in regard to access and traffic concerns. Although he was against imposing Condition 43 as a matter of course, he was happy to support its use on the application as Lidl were happy to consent to Condition 43, and he proposed that the application be approved. This motion was seconded by Councillor Williamson who was also concerned regarding the safe access to the existing site.

Councillor Boyd informed the committee that he was unable to support the application because even though the Town Centre was suffering at the hands of out-of-town retail parks as he was a firm supporter of a "free market", he could not support the implementation of Condition 43 because it imposed too many restrictions on the operator.

Following a vote, it was RESOLVED:-

That application number 06/22/0008/F be delegated to the Head of Planning to approve, subject to:- 

a) Prior Completion of a Section 106 Agreement in the form as set out in Appendix 4 to restrict future uses of the existing foodstore on Pasteur Road; and,

b) If the Section 106 Agreement is not completed within three months of the date of this decision, to delegate authority to the Head of Planning (at their discretion) to:

(i) refer the application back to the Development Management Committee, for re-consideration of the application; or 

(ii) to refuse the application directly, on the grounds of failing to secure planning obligations as outlined within this report (or the Committee’s decision if the recommended content is varied); and,

c) The Proposed Conditions 1 – 41 as set out in Appendix 5 (and any amendments to those conditions as deemed necessary; and, 

d) The following proposed Condition 42 (an amendment to that proposed in Appendix 5): 
42: No deliveries shall be taken at or dispatched from the site for the purposes of the development the subject of this permission outside the following hours:-

0730 hours to 2230 hours on Mondays to Saturdays, 

and, 

0900 hours to 1800 hours on Sundays and Bank Holidays or Public holidays. 

Where unloading and deliveries must occur between 0730 – 0830 and 2100 – 2230 vehicles shall only reverse using broadband reversing alarms or with other forms of reversing alarms disabled and a banksman employed to provide appropriate safety assessment.

The reason for the condition is:- 

To protect the amenity of neighbouring properties and land uses, and to ensure the possible highways impacts of the development are not focussed on the peak hours of use of the local highways network, and to provide a degree of consistency of approach with the permitted delivery hours of the existing retail store which has been assessed to be replaced by the proposed development so as to control the retail impacts of the development, in accordance with policies CS6, CS7, CS9 and CS16 of the adopted Great Yarmouth Core Strategy (2015), and policies UCS7, R1 and A1 of the Great Yarmouth Local Plan Part 2 (2021), and the principals of the NPPF.“

and,

e) The following proposed Condition 43:

The development hereby permitted shall only be used as a Class E(a) retail foodstore and shall be restricted to a 'Limited Assortment Discounter' and shall be used for no other purpose falling within Class E of the Town and County Planning (Use Classes) (Amendment) Regulations 2020 (or any order revoking or re-enacting or amending that order with or without modification). A 'Limited Assortment Discounter' shall be taken to mean the sale of no more than 4,000 individual product lines.

The reason for the condition is: - 

For the avoidance of doubt and to ensure that the development hereby permitted does not have a negative impact on the vitality and viability of nearby defined centres in the locality in accordance with the NPPF and Development Plan.”

The Committee received and considered the report from the Planning Officer.

The Planning Officer reported that the proposal sought conversion and change of use of the integral garage to use as a hair salon. The works included the replacing of the garage door with full height windows.

The Planning Officer informed Members that the application would see a homeworking salon created which would be in accordance with the flexible working aims of Core Strategy Policy CS06 which was consistent with paragraph 82 of the NPPF, so long as the main town centre use does not detract from the vitality and viability of defined local centres, which a condition can ensure.

The Planning Officer reported that the small-scale nature of the development was unlikely to cause unacceptable highways impacts, but the use of an appointment only system limiting the number of clients to two at any one time with a space of 15 minutes between appointments and restricting hours of operation should ensure that unacceptable impacts on neighbouring amenity should not occur.

The Planning Officer reported that the application was recommended for approval with the proposed conditions as set out on pages 202 to 203 of the agenda report.

Councillor Williamson proposed that the application be approved with the conditions set out in the agenda report. This motion was seconded by Councillor Boyd.

Following a vote, it was RESOLVED:-

That application 06/23/0472/F be approved subject to the conditions as set out on pages 202 to 203 of the agenda report.

The Chairman reported that there was no other business being of sufficient urgency to warrant consideration at the meeting.