Variation of S106 agreement pursuant to planning application N/99/B/0848 dated 19.02.2002. Land at Mitchell Avenue, Seahouses
V. Cartmell – Planning Area Manager, introduced the application with a PowerPoint presentation and supplied an update advising that the application had been presented to the North Northumberland Local Area Council on the 24th June 2021, where it had been resolved that the provisions and requirements of the Section 106 planning obligation relating to application N/99/B/0848 be varied, however during the meeting the ward member raised a concern regarding notification letters to members of the public, on investigation following the meeting it was discovered that notification letters had not been posted to objectors; to address this error the application was again presented to members for consideration.
M. Creswell addressed the committee in objection to the application. Comments included:
· Mr Creswell had written to V. Robinson in 2013 and copied in L. Henry, requesting that the 106 agreement be adopted.
· The sum had been commuted from the developer and had been discussed with Planning, Legal and the States department, the landowner and developer had signed the original agreement.
· The area of land should be no less than 400sqm, which had been measured by Mr. Creswell at 334sqm. 64sqm less than what was originally agreed.
· The access would be supplied with a hard pathway to the grassed area.
· The ambiguity over land ownership had not been justified in the application.
· The area of land that had been offered was less than what had been in the original agreement.
· The revised offer was for 2041sqm with the original agreement being 2441sqm.
· The original agreement was perfect for residents as it did not affect any housing.
· A complaint was delivered to Northumberland County Council which was moved from stage one to stage two with assurance that the Ombudsman would not be needed as the complaint would be sorted.
· The application was incorrect as the area was less than scheduled.
Councillor J. Hall – North Sunderland Parish Council addressed the committee in relation to the application. Comments included:
· North Sunderland Parish Council objected to the application.
· The Parish Council could not understand the statement of the ambiguity of the area, the section 106 agreement was that the money was to be paid to the County Council, who had continued to maintain the play park.
· The play park along with the grassed area was still suitable for purpose.
· If the application was approved, it would make a mockery of the Section 106 agreement.
C. Ross addressed the committee in support of the application. Comments included:
· The application represented an acceptable and negotiated solution that had been worked on by Planning Officers and the Legal team at Northumberland County Council.
· The issue had been picked up in 2015 by Grainger Homes who was the developer of the site and the Council when it came to the adoption of the open space and the equipped play area.
· The solution agreed by Officers would see no alteration to the play area and no loss of open space.
· The open space would be the same size, and the maintenance monies had already been agreed.
Following questions from Members to the Planning Officers, the following information was provided:
· There would be a right of appeal, given that the open space was the same size as that offered originally, it served the same purpose in the re-orientated position and an additional sum of money had been secured. It was felt that an inspector would likely approve an appeal as it met the test of a Section 106A.
· A developer could come back at any point for modifications to a Section 106, the planning officers felt that the obligation continues to serve a useful purpose and would serve the purpose equally well with the proposed modifications.
· The ambiguity related to who owned the land.
Councillor Hill stated that it was a legal issue, not referring to confidential information but to a simple legal principle and stated that the Committee may need to go into private session to discuss confidential legal advice.
Councillor Bridget proposed
moving Section 100A of the Local Government Act 1972:
That under Section 100A (4) of the Local Government Act 1972, the press and public be excluded from the meeting during consideration of confidential papers as it involves the likely disclosure of exempt information as defined in Part I of Schedule 12A of the 1972 Act andthat the public interest in maintaining the exemption outweighs the public interest in disclosure for the following reasons:-
That the item relates to schedule 12A (5),
information in respect of which claim to legal professional
privilege could be maintained in legal proceedings.
2. The public interest in maintaining this exception outweighs the public interest in disclosure because of the need of confidentiality when discussing legal advice
This was seconded by Councillor Hill.
A vote was taken on the proposal to move into private session, as follows: - FOR 4; AGAINST 7; ABSENTIONS 0.
The proposal failed and the meeting continued.
Councillor Hill stated that the Council had made an error, the principal limitation act 1980 stated that for any proceeding in a Court of Law, the maximum was 12 years. Therefore, in her opinion the Council were unable to enforce the Section 106 agreement.
Councillor Watson proposed to accept the recommendation of the officer, which was seconded by Councillor Thorne.
Councillor Renner-Thompson stated that he could not support this application, due to the disruption it would cause to the residents.
A vote was taken on the proposal to approve the application with the conditions as outlined in the report and the additional amendment, as?follows: -?FOR 8; AGAINST 3; ABSTENTIONS 0.
It was RESOLVED that this application be GRANTED that the provisions and requirements of the Section 106 Planning Obligation relating to application N/99/B/0848 (as varied by N/02/B/0356) in respect of re-siting of open space be varied in the matter set out in the officer report.