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Agenda item

10 Pitt Crescent, Wimbledon Park, SW19 8HS

Application number: 24/P0916

Ward: ?Wimbledon Park?

Recommendation: Grant permission subject to conditions  

Minutes:

The Planning Officer presented the report.

 

The committee received representation from two objectors who raised points including:

 

  • This was not a family home, non-family members come and go.
  • An outside laundry was created that could only be entered from outside of the house through a side door.
  • Questioned why an elaborate office was required for a house that was not a family home but an open shared site.
  • Number 8 and Number 10 formed one site.
  • There were no buildings in the area beyond 30 square metres. If permitted, it would set a precedent.
  • Was supposed to be a home office but was now a self-contained accommodation which was not a permitted development.
  • If the applications were looked at in their entirety previously, it would not have come to committee and should not be considered as an acceptable development.
  • Applicant also owned Number 8 and it was improbable that they needed the extra space for a family of 4.
  • Do not have evidence of other people living on the premises but this was outside the permitted development.
  • No other properties in the area had living accommodation at the end of their gardens.

 

The committee received representation from Cllr Jil Hall who raised points including:

 

  • The building constituted overdevelopment and was far too big for the allocated plot.
  • Initially built as garden offices but were now self-contained accommodation which was in breach of the planning rules.
  • Understood that a condition of a legal agreement could be issued so that the accommodation could not be rented out but how would this be enforced. Notice of a planning enforcement inspection would be given which would allow for arrangements to be made to make it look as if the accommodation was being used by family members.
  • This was a separate self-contained living accommodation that was being used and rented out on a commercial basis, which set an awful precedence for the area.
  • The application did not meet the requirement set out in the Merton Council Small Site Toolkit.
  • The applicant made changes in the knowledge that it could be used as an unlicensed HMO.

 

In response to questions raised by the committee, Planning Officers advised:

 

  • Conditions were attached previously to similar applications, but they now used legal agreements which held more weight and was self-reenforcing. They could take enforcement action and if required, a legal injunction.
  • A local planning authority could impose a condition which necessitated certain enforcement processes, which the applicant could appeal against. A legal agreement would be harder to challenge as the applicant would be a signatory who knew the exact terms and it would not be imposed by the local planning authority like a condition. The legal agreement carried greater weight then a planning condition with potentially more severe penalties and there was a general willingness from courts to enforce S106 agreements. Due to the nature of this application, a legal agreement felt necessary and would be defended if further evidence was received of the agreement not being complied with.
  • The sanction available for the breach of a legal agreement was an injunction action taken by the courts.
  • Enforcement complaints were received and been responded too. A planning contravention notice was served to seek more information and some of the enforcement challenges were challenged by the landowners. This was part of the reason they felt that a legal agreement was required, which the applicant has agreed to. Normal evidence were logs kept of arrivals and where possible footage, which was received but they were trying to put themselves in a different situation.
  • The S106 agreement went with the land and building as approved. As long as the building was there the S106 would apply. The lifetime of the S106 would match the lifetime of the development.
  • Previously, if a building was constructed without the correct consent, the local planning authority would have to enforce within 4 years or it would become immune. The government has changed this to 10 years which means they were well within the enforcement time. Before, if an outbuilding was constructed for residential purposes it had to be ancillary and still does, but ancillary used to require shared facility, such as a bathroom, that was missing from the outbuilding and provided by the main house. This became complicated over the years due to case law which allowed outbuildings to be ancillary with the full set of facilities. This has made it more difficult to police which has led to the situation of what was being proposed today was as good as they could do due to the lack of clarity and the need to assess on a case by case basis. When visiting the premises, it had a gym instead of a bedroom but could essentially have all facilities and be ancillary.
  • Officers were unsure when the development was built but to the best of their knowledge it was at least a year ago.
  • In relation to a query on damages, the legal advisor informed members that the normal remedy would be an injunction and if that wasn't complied with the landowner could ultimately be jailed. Damages would be unlikely here as very difficult to assess - they are more appropriate where for instance sums due under an agreement aren't paid/works are undertaken in default by the Council following a breach of an agreement.
  • It was acknowledged that there was not a clearly defined boundary between the two sites but they were ultimately two separate properties and would be judged on the merits of two individual applications.
  • In terms of neighbouring amenity, there would be an increase to intervisibility between the outbuilding and neighbours on either side. It was slightly more intrusive and as highlighted within the report, this was a relationship tested at an appeal and was now considered acceptable. The boundary fencing did provide some mitigation.
  • If this was an application for an independent dwelling on each property, the officer’s recommendation would be for refusal. The current recommendation was very much based on this being ancillary and people living on the site as one unit so there wouldn’t be excessive noise. If this was for two more dwellings at number 8 and 10, they would be asking members to refuse planning permission.
  • Officers served a planning contravention notice with extensive questions which were answered. Inaccuracies would be an offence, they have to be factored into the balance of next steps which was to bring before members with the associated legal agreement.
  • As there were two dwellings, the lack of a boundary would not be sufficient for an inspector to look at the overall impact and would be treated separately on the basis that a fence could be put up and if under 2meters it wouldn’t require planning permission. Officers have taken their approach as they believe that at appeal they would be treated as two separate units in association with two separate dwellings.
  • Each application was treated on their individual merits so both applications would not need the same outcome but with similar application there would have to be a material reason on why one was allowed and the other was refused. Officers felt that there was not a strong enough reason to win at appeal if one was refused and the other granted permission.
  • If refused, there was a risk that an inspector may consider conditions to be sufficient rather than a legal agreement. There was a willingness from the applicant to sign the legal agreement. If one was refused, they could submit details of the approved application and argue that it was a material planning consideration.
  • As part of the appeals process, the planning inspector would allow planning officers to put forward conditions which could be similar to the legal agreement.

 

The Chair moved to the vote on the Officers’ recommendation including the legal agreement: Votes For – 8, Against – 2, Abstentions – 0.

 

RESOLVED: That the Committee GRANTED permission subject to conditions and legal agreement.

 

Supporting documents: