Success at Appeal against the imposition of a Deed of Easement in Milton Keynes

Impact Planning Services Ltd., is pleased to have secured success, with full awards of costs, at two appeals for our clients Abbey Developments Ltd., in the past two months, against the decisions of Milton Keynes Council to impose a Deed of Easement on residential development at the Reserved Matters Stage.

The Applications

Abbey acquired the site with the benefit of outline planning permission for residential development. At that stage the site was not encumbered by any noise related restrictions other than matters to be addressed during the construction phase. The layout of the site was regarded as the appropriate mechanism for considering and addressing the relationship with the adjacent Stables music venue.

Upon the submission of the first full reserved matters application for the entire site, the proposals attracted objection from Wavendon Allmusic Plan Ltd., which operates The Stables, an established music venue in the vicinity of the site. The objection was supported by legal Opinion suggesting that such a Deed was appropriate. This led to the application being reported to the Planning Committee with the focus of attention being the suggested imposition of a ‘Deed of Easement’ which would allow The Stables to operate at noise levels which might create a nuisance but without future residents in the Abbey scheme being able complain and initiate any action over such noise. Despite the Council being provided with further legal opinion regarding this restriction, advising that this would be unlawful, the Planning Committee approved the reserved matters with the imposition of the deed as a conditional requirement against officer advice. That advice regarded the layout and the application of conventional acoustic mitigation measures as entirely appropriate to the circumstances as endorsed by the Council’s Environmental Health Officer.

The Appellant subsequently prepared a second reserved matters submission for the western half of the site where were proposed those dwellings which were accepted as entirely unaffected by noise issues. Again, despite a further legal Opinion sought by the Council advising both the Planning Officers and the members of the Planning Committee that such a condition would be unlawful, the second reserved matters submission was approved but again subject to a conditional requirement to enter into a Deed of Easement.

Following this decision, the Appellant submitted two appeals. First, a s.78 appeal against the imposition of a condition on the (partial site) reserved matters and second, against a further decision by the Council to refuse to grant a Certificate of Proposed Lawful Development, or CLOPUD (without compliance with the site wide requirement to enter into a Deed) under s.192 of the 1990 Act.  That third application sought legal confirmation that the imposition of the condition on the reserved matters approval was ultra vires, i.e. beyond the powers of the Local Planning Authority and thus unlawful. Despite the clear legal Opinions and related case law authorities supporting the application, the Planning Committee refused the CLOPUD but significantly on grounds relating to the planning merits as distinct from the law.

The Appeal Decisions

In both appeal cases the Inspectors considered that the decisions to impose any Deed of Easement should have been dealt with at the outline planning stage and not at the later reserved matters stage. The Inspectors agreed with the written representations cases presented by IPS, and the extensive case law and authorities which supported the legal Opinions that had accompanied both the consideration of the reserved matters and CLOPUD submissions considered and rejected by Milton Keynes Council’s Planning Committee. The outline stage was confirmed as being the only appropriate point in the planning process, which establishes the principle of development and the parameters within which a site should be developed, subject to conventional reserved matters approvals. Such a procedure beyond the grant of outline permission does not allow a local planning authority to effectively revisit matters which go to the principle of development at the reserved matters stage. It has the effect of nullifying the benefit of planning permission without compensation.

In considering both appeal cases the Inspectors concluded in both cases that Milton Keynes Council had acted unreasonably. Furthermore, following the allowed decision in respect of the s.78 appeal, the Council failed to reconsider its stance and position in relation to the CLOPUD appeal. Full awards costs have thus been authorised by the Planning Inspectorate against Milton Keynes Council.

Conclusions

In both cases the extent of public objection to the reserved matters generated by The Stables music venue was instrumental in Milton Keynes Planning Committee’s decisions to reject both independent legal Opinion and officer recommendations at the reserved matters stage. While The Stables music venue had both submitted legal Opinion and mounted a very strong campaign in support of its call for a Deed of Easement, the fact remained that it was all too late.

The appeal decisions confirmed that such a fundamental consideration i.e. one which might make living conditions so intolerable as to lead to a significant impact on residential amenity, in this case noise, is a matter which must be considered and addressed at the outline application stage. The Stables had indeed raised concerns at the outline stage. Those concerns, which did not raise any need for a Deed of Easement, were taken into account. It was however, the view of both the Environmental Health and Planning Officers, as endorsed by the Council’s Planning Committee, that the consideration of the layout element at the reserved matter stage would enable those concerns to be addressed. It is at this stage therefore that any additional mitigation measures or indeed any need to impose a requirement to enter into a Deed of Easement ought to have been considered and settled.

It also appears that The Stables music venue more latterly came to the notion of a Deed of Easement as a result of recent concerns being expressed by many long-established live music venues threatened by legal action generated by complaints from residents of new development permitted in close proximity to the venues. This is undoubtedly a very real concern as densification and urban regeneration projects have led to flatted developments in and around those areas of towns and cities traditionally associated with the entertainment industry.

In this case however extensive discussions had taken place between Abbey and The Stables, convened by Milton Keynes Council, during the consideration of the comprehensive reserved matters submission. Those discussions had led to a series of agreed on-site mitigation measures including a landscaped and bunded buffer zone, acoustic fencing and, in those dwellings regarded as closest to the venue, specialist glazing. These measures actually went beyond that expected of the applicant based upon independently assessed requirements provided to and endorsed by the Council’s Environmental Health Officer.

Notwithstanding any of this and agreement reached between the parties, the request for a Deed of Easement to be imposed on the grant of reserved matters approval was belatedly sought and campaigned for at the very point the reserved matters approval headed toward consideration by the Planning Committee. Both the officers’ recommendations and Abbey’s response to the requested Deed of Easement were rejected by the Planning Committee before a packed public gallery.

Notably however a different Council case officer was appointed to consider the s.192 CLOPUD application. It went before that same Committee but with a recommendation of refusal on essentially planning and not legal grounds. That recommendation inexplicably failed to refer to and take into account independent legal Opinion sought and provided to Milton Keynes Council. It had clearly advised against the imposition of a conditional requirement to enter into a Deed of Easement at the reserved matters stage.  This was omission was noted by the second appeal Inspector in the second award of costs (CLOPUD appeal) decision letter.

PINS Appeal references: APP/Y0435/W/20/3246822 and APP/Y0435/X/20/3248233    

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