Agenda item

Members of the public registered to speak on this application were:

Mrs Valarie Creswell in objection to the application.

Dr A Appleyard in objection to the application.

Mr Wesley Bright in objection to the application

Mr Roly Grimshaw in Support of the application

Rita Pope (Agent) in support of the application

Mr Wayne Maher in support of the application

The Senior Planning Officer drew attention to the late correspondence circulated at the meeting and introduced the application for a Proposed bungalow (resubmission of 15/04079/FUL). The application was recommended for refusal. The site was located within a Conservation Area, a Special Landscape Area and was immediately adjacent to a grade II listed property to the east of the site. Conservation had noted that the proposed dwelling on the site would remove an open space from the middle of the conservation area and affect the setting of the adjacent listed building.

Rights of Way (RoW)were in objection to the application, as the council had received an application for a Definitive Map Modification Order (DMMO) to record a public footpath along the east boundary of the proposed site, the application being supported by evidence that a public footpath exists, and that evidence was still being considered by RoW.  They had recommended that the application for the development was either refused or a decision deferred until such time as the outcome of the DMMO application was known. 

Cllr Hewitt had requested additional plans to be shown, detailing Box Hedge Cottage and new dwelling to the south of the proposed site.

Members of the Committee then had the opportunity to ask technical questions of the Officers. It was noted that RoW was still considering the evidence and it could be several months before a decision was expected. As the applicant had requested the application be put forward for consideration, despite there being no decision from the RoW Officer. The Legal Officer explained that this application must be refused or deferred for legal/technical reasons until after a decision had been made by RoW. To approve an application on a site with a registered footpath running through was contrary to law.

The Chairman stated that the Committee would hear from the public registered to speak, once the RoW issue had been resolved, and the application returned to the Committee to consider the merits of the development at a future date.

Members of the Public were not invited to present their views at this time.

The Unitary Division Member, Councillor Hewitt asked for the application to be deferred until the RoW decision had been received.

A motion for refusal in accordance with Officer’s recommendation had already been passed by Cllr Ian McLennan, and seconded, the Committee then voted.

Cllr Richard Clewer abstained from voting on this application.

Decision

The planning permission be REFUSED for the following reasons:

(1) Wiltshire Council has a duty under Section 130 of the Highways Act 1980 to protect and assert the rights of the public to the use and enjoyment of any highway for which it is the highway authority.  The council is also required to prevent, as far as possible, the stopping up or obstruction of (a) the highways for which they are the highway authority, and (b) any highway for which they are not the highway authority, if, in its opinion, the stopping up or obstruction of that highway would be prejudicial to the interests of its area.

Public footpaths are highways, and the duty is therefore clear where the Definitive Map and Statement (the conclusive legal record of public rights of way) shows a footpath, bridleway, restricted byway or byway open to all traffic.  However, if a highway authority is aware of a public right of way that is not shown in the Definitive Map and Statement (DMS), the authority still has the duty to protect it in the ways described above. 

Core Policy 52 also seeks to protect and enhance the green infrastructure network (which includes pedestrian paths and rights of way) in Wiltshire.  The policy requires development to make provision for the retention and enhancement of Wiltshire’s Green Infrastructure network, and ensure that suitable links to the network are provided and maintained. 

The council has received an application for a Definitive Map Modification Order (DMMO) to record a public footpath along the east boundary of the proposed site, the application being supported by evidence that a public footpath exists, and that evidence is still being considered by Rights of Way (ROW).

The footpath width of 1.54m is the used width of the claimed route, although the ROW officer has advised that additional width evidence may be brought to the attention of the Council as the claim is processed and the width of the footpath may increase. 

If the claimed route were a footpath already recorded on the definitive map, then ROW would object to the planning application on the grounds that the development would obstruct the footpath; although based on the evidence before them at the moment (21 user evidence forms) and until their investigations are completed they are treating the claimed route as if it were already recorded.

The block plan proposes the dwelling to be sited 0.7m from the east boundary of the site and the proposed dwelling would therefore obstruct the claimed right of way for the public on foot along the east boundary of the site, contrary to policy 52 of the Wiltshire Core Strategy and section 130 of the Highways Act 1980.

(2) The Planning (Listed Building and Conservation Areas) Act 1990 (sections 16 & 66) places a statutory duty on the local planning authority for ‘special regard’ to be given to the desirability of preserving the special interest of listed buildings and their settings.  Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 also places a statutory duty on the local planning authority that ‘special attention’ shall be paid to the desirability of preserving or enhancing the character or appearance of that area.

The conservation officer has advised that the scale of the development would sit more comfortably with neighbouring properties (compared to the earlier withdrawn schemes) but the scheme stills remove an open space from the middle of the conservation area and will affect the setting of the adjacent listed building.  The character of the High St is primarily one of two-storeyed houses and one-and-a-half storeyed thatched cottages; the proposed bungalow bears no reflection of the character of the Conservation Area and would appear cramped against the boundary with Rose Cottage, intruding into all views of the latter.

The proposal will have an adverse setting on the listed building (Rose Cottage) and the character and appearance of the conservation area with no public benefits arising from the proposal which outweigh this harm (including that as the Council also has a supply of specific deliverable sites sufficient to provide five years’ worth of housing against the housing requirements; the provision of housing is not a material consideration which outweighs the adverse impact to the setting of the listed building and character and appearance of the conservation area).  It is considered that the proposal is contrary to sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, section 12 of the NPPF (paragraph 134 in particular), policies 57 and 58 of the Wiltshire Core Strategy and Objective 16 of the Council’s Design Guide ‘Creating Places’.