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Application No.: 15/00484/B Applicant: Mr Malcolm Kelly Proposal: Landscaping works to include creation of pond and associated drainage system and the erection of timber boundary fencing (partretrospective) Site Address: Bees Bothy Ballakinnag Road Smeale Ramsey Isle of Man IM7 3ED Case Officer : Mr Edmond Riley Photo Taken: 25.06.2015 Site Visit: 25.06.2015 Expected Decision Level: Planning Committee
THIS APPLICATION IS BROUGHT BEFORE THE PLANNING COMMITTEE AS IT PROPOSES LANDSCAPING WORKS ON LAND NOT ZONED FOR DEVELOPMENT BUT IS CONSIDERED TO COMPLY WITH THE DEVELOPMENT PLAN AND IS RECOMMENDED FOR APPROVAL.
1.0 THE APPLICATION SITE - 1.1 The application site is a slightly irregularly shaped parcel of land situated to the east of Ballkinnag Road in Smeale. Within the site is the residential curtilage of an existing dwelling known as 'Bees Bothy', along with a number of trees and a large pond. The majority of the site contains an area of trees Registered under the Tree Preservation Act 1993. - 1.2 Ballakinnag Cottage lies west of the site. Other than this, the site is surrounded by open fields of the gently sloping kind characterising this part of the Island.
2.0 THE PROPOSAL - 2.1 Initially, retrospective planning approval was sought for the "drainage of existing pond to create garden space and erection of a timber boundary fencing (retrospective)". Although the application was not clear on the specifics, a number of trees are likely to be affected, or already have been affected, by the proposed works. The proposed site plan indicated a number of saplings would be removed, but does not identify the location or species of these. No tree or wildlife survey was provided. - 2.2 Following extensive discussion between the Senior Biodiversity Officer, the Arboricultural Officer and Planning, and thereafter with the agent to the application, it was agreed that the proposal would not be satisfactory but neither would its refusal. The damage to the biodiversity on the site required an approach that improved the existing situation - as there is no way to re-plant felled trees or re-instate lost wildlife, the view was taken that to create a nature reserve (referred to by the agent now as a Curragh) would represent a very positive way forward. The site's main value is in its biodiversity offer and so a scheme was drawn up with the agent and the abovementioned officers of the Department with a view to maximising this.
2.3 Now proposed is landscaping works to provide the creation of a pond with associated treeplanting; surrounding what would be in essence a small and not publicly accessible nature reserve is a narrow boardwalk for access, a single viewing platform and also an implement shed towards the southwest of the site. The scheme's core elements involve the general flattening of the site excepting the creation of the pond - along with tree planting, clearance of deadwood to allow the regeneration of willow trees, planting of shrub beds, the creation of a bog with native wetland species allowed to regenerate, the planting of wildflowers and bulbs, meadow creation, and the staining black of fencing (see below) along with the planting of native climbers along the roadside. While the majority of this would not ordinarily require planning approval, the engineering works required to provide the pond and bog and the associated flattening of the site all require approval and the associated management of the site thereafter forms a part of the assessment for that approval. A Management Proposal has been submitted with the amended plan outlining all of the above in far greater detail, while the proposed plan for the site is clear on where each of the above elements will be. - 2.4 Also proposed - this now being the sole element of the scheme that is retrospective - is fencing of a 'hit and miss' style to match that already on the site, and at present runs for 30m along the western boundary. - 2.5 The application has been submitted following the opening of an enforcement case. Following receipt of the amended plan showing the proposed landscaping works the application was re-advertised.
3.0 PLANNING HISTORY - 3.1 Alterations and extensions to the dwelling and its garaging were approved under PAs 99/00755/B and 01/01808/B. The aforementioned existing fencing was approved between those two earlier applications, under PA 00/02352/B.
4.0 THE DEVELOPMENT PLAN - 4.1 The site falls within an area zoned as Woodland on the 1982 Development Plan; it is also within an area of High Landscape Value. - 4.2 The Strategic Plan does not really contain any policies that relate to works such as those proposed. There is the general protection to areas not zoned for development provided by General Policy 3 and Environment Policies 1 and 2, and these are set out below. However, none of those policies provide for an exception relating to engineering works such as those proposed. Also relevant are Environment Policies 3, 4, 5 and 7. - 4.3 General Policy 3 sets out the presumption against development outside of areas zoned for development: "Development will not be permitted outside of those areas which are zoned for development on the appropriate Area Plan with the exception of:
4.4 Environment Policy 1 reads as follows:
"The countryside and its ecology will be protected for its own sake. For the purposes of this policy, the countryside comprises all land which is outside the settlements defined in Appendix 3 at A.3.6 or which is not designated for future development on an Area Plan. Development which would adversely affect the countryside will not be permitted unless there is an over-riding national need in land use planning terms which outweighs the requirement to protect these areas and for which there is no reasonable and acceptable alternative."
4.5 Environment Policy 2 reads as follows:
"The present system of landscape classification of Areas of High Landscape or Coastal Value and Scenic Significance (AHLV's) as shown on the 1982 Development Plan and subsequent Local and Area Plans will be used as a basis for development control until such time as it is superseded by a landscape classification which will introduce different categories of landscape and policies and guidance for control therein. Within these areas the protection of the character of the landscape will be the most important consideration unless it can be shown that:
4.6 Environment Policy 3 reads as follows:
"Development will not be permitted where it would result in the unacceptable loss of or damage to woodland areas, especially ancient, natural and semi-natural woodlands, which have public amenity or conservation value."
4.7 Environment Policy 4 reads as follows: "Development will not be permitted which would adversely affect:
"Some areas to which this policy applies are identified as Areas of Ecological Importance or Interest on extant Local or Area Plans, but others, whose importance was not evident at the time of the adoption of the relevant Local or Area Plan, are not, particularly where that plan has been in place for many years. In these circumstances, the Department will seek site specific advice from the Department of Agriculture, Fisheries and Forestry if development proposals are brought forward."
4.8 Environment Policy 5 builds on this:
"In exceptional circumstances where development is allowed which could adversely affect a site recognised under Environmental Policy 4, conditions will be imposed and/or Planning Agreements sought to:
4.9 Environment Policy 7 reads as follows:
"Development which would cause demonstrable harm to a watercourse, wetland, pond or dub, and which could not be overcome by mitigation measures will not be permitted. Where development is proposed which would affect a watercourse, planning applications must comply with the following criteria:
4.10 Also of especial relevance are the following paragraphs of the Strategic Plan:
5.0 REPRESENTATIONS - 5.1 The nature of the proposal and extent of comment received are such that the Representation section is quite long because the technical comments made by the officers within the relevant expertise in the Department of Environment, Food & Agriculture have been central in achieving the amended scheme. With this in mind, it is considered helpful for the Committee to have sight of the dialogue between officers and also the significant concern raised by a local landowner by way of explaining how the arrived-at situation came to be. - 5.2 On 16th April 2015, prior to the application's submission, the Manx Utilities Authority (Water Division) offered no objection to the principle of the proposal and, upon receipt of clarification on a number of matters from the agent, stated that "As long as no excessive flows, flow on to a neighbours land, the Authority has no further comments on these work. For any such works in the future consultation should be undertaken prior to any works as sensitive ecology may be affected." These comments were formally registered as a representation to the application on 15th May 2015. - 5.3 On 15th April 2015, prior to the application's submission, the Fisheries Executive Officer within the Department of Environment, Food & Agriculture commented to the applicant's agent as follows:
"Thank you for the 'development within 9m of a watercourse form' for the above retrospective planning application. Following our discussion on the telephone I have consulted the fisheries officers and considered the proximity of other watercourses. As the pond has already been drained there is nothing that can be done to relocate any potential native fish populations, but it is also unlikely that any non-native fish would have been able to reach other watercourses. It is also unlikely that drained water containing sediment would be able to flow directly into other significant watercourses, and as such the risk to freshwater fish is considered to be low. Obviously, if the planning application was submitted prior to works being carried out a better assessment could be made, but as the situation stands at present DEFA fisheries have no objections to the planning application from a fisheries perspective. Once the application is submitted I will forward a formal response to this effect to Planning."
That formal response confirming the above was received on 5th June 2015.
"In conclusion, this will not be an easy application to assess, being retrospective to a great extent, but the result will either mean its reinstatement, as it refills, or its permanent loss, if the applicant succeeds in draining the site in the long term. A low outflow ditch would suggest an overflow protecting the house and the current garden, rather than a means to drain the pond or irrigate an area historically. It is clear that the loss of the pond will be a detriment from a wildlife perspective and such sites are of increasing importance."
"The plan provides a balance between recreational and wildlife benefits, which should provide habitat for a variety of wetland and related species. Some elements are clearly aimed at managing the wild interest, which is fine, and some at providing the recreational benefit. I don't wish to be over-prescriptive on a site which is not designated, but some notes follow, as advice from a wildlife conservation perspective.
"The wooded boundaries are being maintained, which is important in providing sheltered habitat for wildlife.
"Permanent open water is included which is good, despite requiring the removal of some willow and its roots, but shallow margins are recommended as much of the wildlife will be living in shallow vegetated margins. Sloped margins are stated on the plan and I imagine that the edge slopes off gently at no.5, which is labelled 'bog', which forms 1/3 of the pond margin.
"Willow coppice in the centre is sensible on this site, as planned.
"There is confusion over reed and rush (Phragmites/Juncus), no doubt a typo. I am not clear what measure of control is proposed, perhaps some regular cutting where rushes are particularly thick? Flowers tend to grow through these anyway, and rushes are robust enough to fight back regardless if in suitable soil, so I am not too worried, either way.
"The involvement of native planting from the Wildflowers of Mann is welcomed.
"Ornamental shrubs and mown areas are included. Clearly these are not for wildlife benefit, but the areas are restricted. 'Meadow of short, flowery turf' - a regularly close-mown area will become a grass lawn, even if you start with a flower-rich mix. Daisies and clover will tolerate this management and ground beetles and millipedes may forage below but if maintained as a close mown area, this will be for recreational , not wildlife benefit, and few flowers will survive it. Occasional grass cuts are necessary to maintain a flowery meadow of benefit to wildlife, but if kept close mown, it will lose interest. A mown path may of course be necessary for access/maintenance. The view on this will depend on the accepted usage of the area.
"In conclusion this provides a balance of wildlife interest and recreational usage and is much preferable to the drainage of the site as previously expected and aspects of the management may bring about wildlife benefits when it settles in."
These comments were received 17th December 2015.
"The majority of the area within the site boundary, as shown on the site plan submitted, is within an area of trees registered under the Tree Preservation Act. The clearance of willow scrub that has taken place is a contravention of the Act as no permission was given from DEFA for this work to take place. This area would have been registered because of its importance in the landscape and for that reason, tree cover should be maintained. I will be writing to the owners to express my concern and request that no further work should take place. Unless more trees are to be planted in place of those removed, the coppice growth from the stumps of the willow that has already been cut should be allowed to re-establish. I would not object to the area being managed to allow a wider variety of objectives to be achieved, as long as tree cover was maintained.
"The proposed drainage works have had/will have a detrimental effect to the roots of existing trees through disturbance and compaction because of the ground works that have taken place/will be required. It is obvious that little thought was given to the effect of the work on the trees or what trees needed to be removed to allow the work to take place. There are no details of the proposed landscaping or what planting (if any) will take place.
"I am mindful that if this retrospective application is not approved, further works may be required to reinstate the pond. This would cause further disturbance and damage to the young shoots of coppice regrowth which are emerging. The decision on whether to reinstate the pond needs to be considered in the context of the sites biodiversity value and other factors."
"I'll keep this brief as we have already acknowledged that the main interest in this site is biodiversity/wildlife based.
"The landscaping proposal will have minimal visual impact when viewed from the road. As was suggested, the edge trees have been retained which is good. To aid with management of the middle section which is to remain open, I would be willing to issue a 10 year management plan for coppicing under the Tree Preservation Act (Section 3 (4)(b)). This would mean that work could be carried out without having to come to us for a licence every time. My only concern with the proposal is the risk of damage occurring to tree roots during the installation of the perimeter path.
No details of the construction method were provided. Surfaces should be permeable and installed with a no-dig solution. If it's a boardwalk, posts should be strategically placed to minimise the impact to trees to be retained."
These comments were received 14th December 2015.
5.6 Highway Services of the Department of Infrastructure offered no objection to the proposal on 12th May 2015 and again on 3rd March 2016, with the following comment: "DNOC Fencing must not be above 1.05 metres within visibility splays if positioned less than 2 metres back from the edge of the carriageway". No visibility splays have been shown on the drawings submitted but in any case the fencing proposed continues some existing fencing at the same height already in place nearer to the site entrance so it is not altogether clear what is being sought. In any case, the proposal raises very limited highway safety issues and so a condition in respect of visibility splays would be unnecessary. - 5.7 Andreas Parish Commissioners offered no objection to the original scheme (in comments received 11th June 2016) and offered no objection to the amended scheme in comments received 7th March 2016.
6.1 That the proposal is part-retrospective should neither be to the application's advantage nor disadvantage. However, there also has to be a pragmatic approach when such extensive work has been carried out and where, crucially, the return of the site to its previous state is impossible and / or would cause further (environmental) damage. It is worth noting that the proposal is not of a scale to normally require the submission of a formal Environmental Impact Assessment, but equally the comments received from the appropriate officers within DEFA and the MUA are considered sufficient from which to assess the proposal. - 6.2 Scant details of the trees that are actually proposed to be removed have been provided. This is unfortunate since it makes an assessment of the impact of the proposal on the area of Registered Trees difficult. (The Arboricultural Officer has stated they were likely self-set willow.) Indeed, any application proposing to remove trees from a Registered area, but which is not substantiated by the submission of a tree survey, should really trigger an automatic objection to the application given the provisions of Environment Policy 3 and the Strategic Plan paragraphs 7.4.1 and
7.7.1.
6.3 In this respect, the comments of the Arboricultural Officer presented a difficult balance to be struck: on the one hand, he understandably objects to the loss of trees from the site, while on the other hand he indicates that any attempt to reinstate the pond should the application be refused would cause yet more damage to the trees on the site. It is therefore considered that the assessment must balance short- and long-term impacts against one another, and it was against this background that an amended scheme was sought. In this, the long-term outcome is likely to be the most important, but also not at the expense of significant short-term impacts. In short, the question must be: how can Planning aid in ensuring the most sustainable management of this situation? - 6.4 In answering that question, input from the other consultees regarding environmental management is important to consider: there have been representations from the Senior Biodiversity Officer as well as the Fisheries team within DEFA and the MUA. None of these statutory consultees raise significant concern with the proposal, although both the officers within DEFA raise the application's retrospective nature as defining this lack of objection since full and proper assessment of the proposal is now impossible. This of course does not mean that there should be no objection from the Planning side. The Environment policies of the Strategic Plan are all really quite precautionary in their approach. Environment Policy 7 is particularly relevant, stating as it does that "Development which would cause demonstrable harm to a watercourse, wetland, pond or dub, and which could not be overcome by mitigation measures will not be permitted". - 6.5 The indication from the Biodiversity and Fisheries Officers is that the proposal might not have caused demonstrable harm. Both officers took a precautionary approach in assessing the proposal as originally submitted, as well as the amended scheme, and also considered the implications of its being retrospective. Both concluded that its being retrospective was unfortunate
at the very least. They both independently concluded that on balance there would unlikely have been any species or habitat worthy of protection within the site. The inability to properly assess the impact of the original proposal was, therefore, equally considered to be unfortunate.
6.6 The comments from the MUA's Water Division were of a similar tone. Their remit also includes consideration of ecological matters, but in respect of the main issue from their point of view, the likely limited flows from the site onto neighbouring land was sufficient to offer no objection to the proposal. - 6.7 Against this backdrop, it was considered that while demonstrable harm was difficult to evidence from a biodiversity point of view, equally some harm in terms of the character and appearance of the countryside as well as the loss of an important habitat with a potential for providing biodiversity as well as the loss of Registered trees could clearly be seen.
6.8 In addition to all of the above, the initial works were intended to result in the land becoming part of the applicant's garden, which would also be highly unlikely to receive officer support given the site's location within the open countryside. Environment Policy 1 of the Isle of Man Strategic Plan is clear that the countryside is to be protected for its own sake. The original proposal would have changed the existing land use to residential curtilage. While it would be possible to limit any future development of the land by removing 'Permitted Development' rights, such a limitation would not prevent the character of the land from changing. Many forms of domestic paraphernalia do not require planning permission and simple things such as regular mowing of grass, planting of specimen shrubs/trees, siting of children's playing equipment and the hanging of washing lines would all contribute to a change in the character of the land which would be outside of the control of the Department. As such, the applicant was advised that while his own access to the land would of course be acceptable from a Planning point of view, its use as domestic garden would very likely constitute an unwarranted domestic intrusion into the open countryside, contrary to General Policy 3 and Environment Policy 1. It is therefore very welcome that this element has been removed from the scheme. - 6.9 It was against this backdrop that the new scheme was submitted. The management proposal has been found acceptable by both the Arboricultural and Senior Biodiversity Officers in DEFA, as has the actual development proposed. While the loss of the previous trees remains unfortunate, the site has not benefitted from active management for some time and the scheme now submitted does demonstrate that this is the intention. The vast majority of the site will be pond and bog as appropriate to the site's water retention and so it will remain very clearly as forming part of the natural environment, albeit a managed part. - 6.10 On the basis of the above, it is considered that the proposed landscaping works and associated planting and management proposals are acceptable when viewed against the context of the relevant Development Plan policies. - 6.11 The fencing proposed is not ideal. The area has a natural appearance and is open and flat such that changes to the roadside will be quite noticeable. However, the fencing is of a robust and natural appearance, and is not inappropriate to a rural location. Its hit-and-miss style will ensure it will be fairly easy to maintain and limited wind damage will occur, while the proposal to plant climbers along its length will very much soften its visual impact. No objection is therefore raised to the fencing.
7.0 RECOMMENDATION - 7.1 The amended scheme marks a significant and welcome improvement over the initial submission. It has not been easy to determine the best way forward for the site and yet the outcome is likely to be a very positive one. Accordingly, it is recommended that the application be approved. A condition that does not indicate that the land forms residential curtilage should be attached for the avoidance of doubt. - 7.2 It should be remembered that the application, though no longer retrospective, still relates to land on which fairly significant and unlawful engineering works have been undertaken. In such circumstances it is sometimes appropriate to attach a condition requiring the approved works to be undertaken within a period shorter than the normal four years. While in some cases this might result in the undertaking of the approved works promptly, in other cases - especially where the time limit is very short - it can simply result in the approval expiring before the works have been or can be undertaken if an unforeseen issue arises for the applicant. As such, a standard four-year time limit condition is recommended in this instance and it may be that the Department contacts the applicant separately to discuss moving the works forward.
8.1 By virtue of the Town and Country Planning (Development Procedure) (No 2) Order 2013, the following persons are automatically interested persons:
8.2 In addition to those above, article 6(3) of the Order requires the Department to decide which persons (if any) who have made representations with respect to the application, should be treated as having sufficient interest in the subject matter of the application to take part in any subsequent proceedings relating to the application.
Recommendation Recommended Decision: Permitted Date of Recommendation: 13.04.2016 Conditions and Notes for Approval: C : Conditions for approval N : Notes attached to conditions
Reason: To comply with article 14 of the Town and Country Planning (Development Procedure) (No2) Order 2013 and to avoid the accumulation of unimplemented planning approvals.
Reason: For the avoidance of doubt and with a view to protecting the land from inappropriate domestication.
The development hereby approved relates to Drawing number 8218-01, date-stamped as having been received 29th April 2015, and also to the management proposal and Drawing number PL399/1 Rev A, both date-stamped as having been received 25th February 2016.
I confirm that this decision has been made by the Planning Committee in accordance with the authority afforded to it under the appropriate delegated authority.
Signed : E Riley Presenting Officer
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