Agenda item

The Planning Officer reported there was no officer update.

In accordance with Council Procedure Rule 35(b) a member of the public spoke in support of the application and a member of the public spoke against the application.

Councillor Debbie Morris referred to Condition C3 which referenced the maintenance of the planting so it did not fall below the height of 2.5 metres.  If the application was permitted could the Committee have a height above which it did not grow so there was no shadowing to the garden next door?  It could cause a nuisance. 

The Planning Officer advised that with regard to high hedges this would fall within the High Hedges Act which enabled the Council to intervene if the height of the hedge was having an impact or adverse effect on the enjoyment of the property from the neighbour’s point of view.  This was managed under the Environmental Health department so was not a planning matter. 

Councillor Debbie Morris sought clarification that although Members can set a minimum height they were not able to set a maximum height.  Was there a maximum height in the High Hedges Act or a height when the High Hedges Act came into play? 

The Planning Officer stated that if it was a fence or wall as a physical structure you could set a maximum height as it is within the Committees control.  We are not able to have a condition to state a hedge could grow up to particular height as officers did not think it would meet the six tests of the NPPF and could not be enforceable so would advise Members against that.

Councillor David Raw asked if there were any specific laws on the Lelandi trees.  They grow very fast and even if you are using them as a hedge they tend to keep growing. 

The Planning Officer said this was not a planning matter and outside their control.  Having said that there was High Hedges legislation but this was not administered by planning and officers would not want to get into specifics of when you could or could not make a complaint on the height under the High Hedges Legislation.  It was not a development type permission.

Councillor Sara Bedford was concerned that the Committee were not able to limit the height of the hedge by condition.  On the planning portal it stated that the nature of hedges can be controlled through the use of planning conditions and could not see why the Committee could not include this in the conditions.  Although it can be looked as part of High Hedges legislation why can’t it be conditioned?  We can condition hours of operation and hours of work with both of these looked at by the Environmental Health department.  The Planning portal is the guru on this.

The Planning Officer stated that yes you can use conditions about landscaping and do frequently but officers don’t think that it should be used to restrict a hedge height.  If it was to be included as a condition an officer could be visiting the site every week to measure the hedge and they did not think it met the test and could not be enforceable. 

Councillor Sara Bedford said we do not put conditions on and state we will be visiting the site every week to check we react to someone advising us to say that there had been a breach of condition then we go out and check.  We rely on members of the public to advise us when a condition was breached.

Councillor Steve Drury advised that when the Committee had made a site visit during the week they had discussed the conifer trees, particularly their height and spread and the possible use of a condition to limit the height.  The Councillor did not see why the Committee could not put a condition in as residents could be ringing in to say they are 20ft tall and need to be maintained. 

The Planning Officer said officers had offered an opinion but heard what Members were saying.  If Members wanted to move an amendment to the condition they could but officers would need to understand what the maximum height is.  The wording of the condition could be delegated to Officers so that they can discuss this separately with the Planning Solicitor outside of the meeting. 

Councillor Sara Bedford stated that if the neighbour came to the Council under the High Hedges Act, unlike an Enforcement application, it cost £448 each time it was made.  So that could mean every other year a neighbour paid £448. We don’t charge for enforcement and the Councillor did not think it was reasonable the neighbour had to pay out every year/every other year to get the trees reduced. 

Councillor Steve Drury referred to the summary of the responses in the report and the High Hedges Act which enabled the Council to intervene if the height was having an adverse impact on the neighbour’s enjoyment of their home. This Act was under the remit of Environmental Health so if they were given a heads up they could visit the site on our behalf and get the trees cut.

Councillor Sara Bedford reiterated that this would only happen if the neighbour paid £448 first. 

The Planning Officer stated that the High Hedges legislation was separate but if Members are suggesting that the recommendation be moved with an amendment to Condition C3 they just needed to understand what the maximum height was that Members are suggesting and officers can look at the specific wording separately outside of the meeting in consultation with the Planning Solicitor and circulate to Members after the meeting. 

Councillor Debbie Morris said if we are going to provide a maximum height they suggested 5 metres. 

Councillor David Raw asked if the Committee could stipulate a height above the fence itself as it was a visual matter rather than from the ground up.

Councillor Sara Bedford had been thinking of suggesting 4 metres as 5 metres was quite tall.  The Committee could not go for the height of the hedge as that’s 2 metres and there would be no point in having the trees if you did not have some screening and would get rid of the requirement to have it in the first place.  If the Committee defer to the officers to talk to the Planning Solicitor it would be helpful to talk to Arboriculturalist as we don’t have any idea what the most beneficial height is.  We need to think about the health of the trees as well as the health of our residents.

Councillor David Raw said they would be 20 foot in a matters of years as they grow fast and the actual trunk will keep growing even if you are cutting the top of tree.

The Planning Officer said the difficulty in setting a maximum height was that they would not want the Committee setting a height if that was to automatically fall within the High Hedges Act.  A colleague had referenced discussing a figure in consultation with the Planning Solicitor so asked if the Committee may wish to consider deferring the application to allow officers to have discussions to establish if we can legitimately condition the height and how this could be done having regard to the High Hedges legislation and how the two interplay.  Officers would also, with any planning decision, have regard to the possibility that any condition can be appealed so officers would have to be happy and confident in giving the advice on whether they think the condition would stand up on appeal and could be defended.  There was a lot of facets to this and it may be better to defer to allow those discussions to take place.

Councillor Debbie Morris was happy to move the recommendation that Retrospective Planning Permission be Granted subject to the conditions and informatives as set out in the officer report but the decision to be made by the Director bearing in the mind the concerns about the potential height of the hedge and the adverse impact this may have on the neighbour

Councillor Sara Bedford was not happy to delegate the decision if that could mean that the application could go through with no limit on the height of the hedges.  If it was not possible to condition the height of the hedges it should come back to the Committee.  It was quite clear that a number of Members do not want to see an unrestricted hedge along that boundary or refer the neighbour to the High Hedges legislation and did not think that was reasonable. The Councillor would be happy to delegate as long as a height limit was put on the hedge.

The Planning Officer put another potential option to Members.  Planning conditions are used to make an unacceptable scheme acceptable and there had been concerns raised about the nature of the hedge which had been planted and the height it may be retained at.  One potential alternative was to have a different condition which essentially stated that there may be another species of hedge which was more appropriate so officers need to take this away and think about it but along the lines of “not withstanding the species and nature of the hedge planted there at the moment within a period of time (to be determined) asking the applicant to submit details of a potential more appropriate species.”  Officers will need to establish who would be responsible for working out what that might be and the height at which it might be retained in perpetuity and there might be an alternative way of doing this.  It is for Members to consider whether the wording along those lines would be acceptable to allow officers to go away and agree that wording and bring it back to the Committee for determination

Councillor Sara Bedford said it had crossed their mind that we could ask for a landscaping plan to be submitted as part of the conditions however if the applicant failed to comply what can the Council do as the patio is already constructed. 

The Planning Officer said the Council had the power to issue a breach of condition notice if the applicant did not comply with the condition on providing a landscaping plan and there is no right to appeal.  There would be a financial penalty as well but the issue is if you don’t comply you continue to be prosecuted and continue to be fined. 

Councillor David Raw asked if the photograph of the trees and fence be shown to Members again as they could not decide if it looked like a hedge or a tree. 

Councillor Alex Hayward wished to second Councillor Debbie Morris motion to delegate to the Director on the high hedge proposal and that retrospective planning permission be granted.

Councillor Debbie Morris said officers need to be mindful of the Committees concerns on the impact of an unrestricted hedge, in terms of its height, and the impact on the neighbour.  If the Director is not mindful of that it would need to come back to the Committee.  The Director needs to incorporate a condition with deals with Member concerns. 

Councillor Steve Drury said alternatively the Committee could defer the application until we get details on the condition. 

Councillor Alex Hayward said on the site visit Members saw the hedge and on the neighbours property there was a massive tree which was already exceptionally high.

Councillor Debbie Morris was conscious this was the second time the application had come to Committee and felt it was a little unfair to defer it again to have people come back to another meeting.  If we can get the outcome that reflects the views of the Committee now to avoid bringing it back it would be desirable

Councillor Sara Bedford was happy to support the motion as long as there was a restriction on the height of the hedge.  The Councillor had been quite clear that it was not reasonable to have a 7 metre high hedge on the west side of the garden blocking out the evening sun. 

Councillor Steve Drury said the recommendation would be that we add another condition on the height we would want to limit the hedge to.

Councillor Debbie Morris said their proposal had indicated a limit of 5 metres but it had been suggested that we should get advice from the appropriate officer as to what would be the right species and the right height.  It was just an idea that the Councillor thought seemed sensible.  Councillor Bedford had proposed 4 metres.

Councillor Sara Bedford said there suggestion was just an idea but would need to be considered by the experienced officers

Councillor Steve Drury said at the site visit the hedge was not far off 4 metres now. 

Councillor Sara Bedford moved an amendment that the Committee delegate to the Director to grant retrospective planning permission as long as there is a condition which limits the height of the hedge which is both healthy to the tree and would fit within the High Hedges legislation.  There was no point it being higher than the height that we would take action at legally.  We then ask officers to review this and tell us what height it can be.

The proposer was happy with the amendment.

On being put to the Committee the motion was declared CARRIED by the Chair the voting being unanimous.

RESOLVED:

Resolved to Approve (in accordance with officer recommendation) with the decision delegated to the Director for Community and Environmental Services to amend Condition C3 to include reference to a maximum height for hedging. The exact wording to be circulated to Members for agreement.