Agenda item

Shipdham : Residential Development At Land off Parklands Avenue for Mr I Leonard : Reference : 3PL/2010/1096/O

Report of the Deputy Chief Executive.


This outline application for 15 dwellings had been considered in January and approved, subject to a legal agreement.  Since then there had been further discussions about the terms of the legal agreement which was why the matter had been brought back to the Committee.


Members were reminded that the approval had been subject to the provision of affordable housing, on-site open space and a financial contribution for recreation.


A variation in the terms was sought to amend the third clause to provide land for a cemetery extension in place of the recreation contribution.  The proposed piece of land for the extension would require planning permission which would be subject to ground investigations to ensure it was suitable for that use.  If not, the recreation contribution would be provided.

There was a lot of local support for the proposed variation however, the law on S106 requirements was clear in that anything offered had to be relevant to the application and this proposal did not meet that requirement.  The legal position gave no room for flexibility and therefore Officers could not support the change.


The Solicitor reinforced this information by advising Members that the offered land could not be a material consideration.  There was no guarantee that the cemetery extension would ever be carried out.


Mr Chubbock, from the Parish Council, said that Shipdham had a shortage of cemetery space.  As the applicant owned the land adjacent to the cemetery he had been asked to provide it for the extension.  The extension was needed and he hoped the Committee could look at the spirit of the law.


Mr Hewett, also from the Parish Council, said that Circulars gave guidance for Section 106 agreements to provide benefits to local communities.  The village was growing and the provision of the land would meet an evidenced need for the village in an entrepreneurial way.  He urged the Committee to accept the contribution in kind with no requirement for cash.


Mr Irvine, Agent, understood the Committee’s dilemma.  If the cemetery did not go ahead, the financial contribution could be lost.  To address that concern the applicant solicitor had written an open letter which he read to Members.  It said that the applicant would transfer the land following the grant of planning permission and that if the Parish Council did not require the land within twelve months, the financial contribution would be paid instead.


The Planning Manager accepted that the proposal would be of benefit to the local community but said that that benefit had to be commensurate with the size of the application and 15 dwellings would not require such a large extension to the cemetery.


The Solicitor reiterated that there was no guarantee that the cemetery extension would occur and the inducement was outside the parameters of the new statutory limits.


Members discussed various ways of trying to overcome the legal objections to the variation.  After much debate it was suggested that the time limit for the payment of the financial contribution could be extended to three years and if, in that time, the cemetery extension had been approved, the Council could vary the agreement to remove the requirement for the contribution.


The Agent asked if the Committee could indicate if they would be minded to grant planning permission for the cemetery, but Members were counselled not to respond by the Planning Manager as it would raise questions of pre-determination.


RESOLVED that the previously agreed terms of the legal agreement remain but that the financial contribution payment for recreation be deferred for three years.


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