Remove section 106 that was signed on application 2/22/448B that restricts the use of building and land to agricultural use and no business or commercial use.
LOCAL MEMBER: Councillor
Gruffydd Williams
Minutes:
Deletion of Section 106 Agreement
signed on application 2/22/448B restricting
the use of the building and land to agricultural
land and no business or commercial use.
(a)
The Planning
Manager elaborated on the application's background and noted that the principle regarding the circumstances under which an application
for removing a Section 106 agreement may be made was explained in detail
in Circular 13/97 Planning Obligations. In addition to the above-mentioned circular, the
Town and Country Planning (Modification and Discharge of Planning Obligations) Act 1992, was relevant
to this application.
It was explained
that the documents (including Regulations 122 and 123 of the Community Infrastructure Levy, 2010), state that in
order for a legal agreement under Section 106 to be valid, five relevant
tests must be met, whether it was a new agreement or an application to remove or amend an agreement.
It was noted that the application to remove the agreement was submitted on the grounds that the applicant was of the view that the agreement was ambiguous, unnecessary and could not be implemented.
It was highlighted although a 106 agreement had been signed in
connection with application 2/22/448B, the limitations
of the 106 agreement had also
to an extent been repeated in
conditions on the planning permission. It was explained that applications for stables would now
be subject to a planning condition on the permission, rather than a 106 agreement.
It was considered that there was no planning
purpose for the 106 agreement and it was not required to make the approved development acceptable for planning purposes.
It was noted that it was considered that the contents of the agreement under Section 106 did not meet the five tests referred
to in Circular 13/97, Planning Policy Wales, Chapter 3 "Making and Enforcing Planning
Decisions" and the
Town and Country Planning (Modification and Discharge of Planning Obligations) 1992, and the agreement did not continue to serve a useful planning purpose. It was recommended to approve the application unconditionally.
(b) The local member
(a member of the Planning Committee) made the following main points:-
·
That Nefyn Town Council objected the proposal as changing the land use to create
any commercial development would have a serious impact on the road
to the site that was used every day
by walkers;
·
That land
on the site was a link to the Coastal Path, and Penrallt path was closed periodically due to land safety. Therefore,
if there was a development on the site then the link
to the Coastal Path may be lost;
·
That the 106 agreement
and the conditions were essential;
·
If the removal of the 106 agreement was granted then the application withdrawn in July
2018 would be re-submitted;
·
That the site comprised stables for horses, if the 106 agreement was withdrawn then they could
be used for business purposes. If there was no further use made of the stables
then they should be taken down;
·
The site was in open countryside, concern regarding
the visual impact of any development on the site following the withdrawal of
the 106 agreement;
·
Request that the Committee keeps
the 106 agreement in place.
(c) In response
to the local member’s observations, the Planning Manager noted that
there were five criteria regarding setting or withdrawing a 106 agreement and it was considered that the 106 agreement duplicated the conditions imposed on the planning permission. She added that the planning conditions were robust enough
and that the current system was to impose conditions to control use. She noted
that although she recognised local concerns in terms of developments
on the site in the future, a planning application would have to be submitted for any
other development.
(ch) It was proposed and
seconded to refuse the application on the grounds of the impact of the development on the Coastal Path and
the landscape (The Llŷn Area
of Outstanding Natural Beauty and the Llŷn and Bardsey Island Landscape of Outstanding Historical Interest), if there
was commercial use, and that the planning
conditions were not sufficient on their
own.
During the ensuing discussion, the following main observations were noted by members:
·
The applicant
was willing to sign when the application was approved, perhaps the applicant wanted to withdraw the 106 agreement in order to have
another plan. If a future application were to be submitted would it come before
the Committee for determination?
·
Did not see
any purpose in deleting the 106 agreement;
·
If there was no useful purpose
for the 106 agreement then the applicant would not apply for its removal;
·
That the application
submitted was to withdraw
the 106 agreement only, there were conditions
in place therefore what was its purpose. Should
the application be refused
by the Committee then it
was likely that the application would be granted on appeal;
·
Why was planning application C18/0332/42/LL withdrawn
by the applicant in July 2018?
(d) In response
to the above observations,
the officers noted:
·
If a future application were to be submitted, and that the local
member called in the application then the Committee would consider it.
·
That planning considerations had changed since the 2/22/448B application had been approved, Circular 13/97 Planning Obligations gave guidance that
use should be controlled via conditions;
·
The existence of a 106 agreement did
not prevent a person from submitting a planning application. Whatever the intentions of the applicant were, the Committee should assess if
there was a purpose for the 106 agreement;
·
That the 106 agreement was part of the considerations when assessing application
C18/0332/42/LL, however the application
was withdrawn by the applicant
to consider options;
·
Any future planning application would be dealt with at that
time;
·
That a strong recommendation had been given, if
there was an appeal then the proposer and the seconder would present the case in an appeal.
RESOLVED to refuse the application.
Reason:
On the grounds of the impact of the development on the Coastal Path and the landscape (The Llŷn Area of Outstanding Natural Beauty and the Llŷn and Bardsey Island Landscape of Outstanding Historical Interest), if there was commercial use, and that the planning conditions were not sufficient on their own.
Supporting documents: