PAPER C

Purpose: For Decision

Committee PLANNING COMMITTEE

Date 24 MAY 2011

Title P/00378/06 – TCP/06614/N – FULL PLANNING PERMISSION

FOR PART DEMOLITION; CONVERSION OF EXISTING CARE
HOME AND NEW ADDITIONAL DEVELOPMENT TO PROVIDE
A TOTAL OF 8 FLATS, PAIR OF SEMI-DETACHED HOUSES
AND 2 MAISIONETTES; NEW VEHICULAR ACCESS OFF
MADEIRA ROAD AND PARKING (REVISED SCHEME)

E/06614/T – ALLEGED BREACH OF PLANNING CONTROL AT

ST JOSEPHS, 29 MADERIA ROAD, VENTNOR ISLE OF WIGHT

Report Author BILL MURPHY, HEAD OF PLANNING SERVICES AND

REGULATORY SERVICES

1. Summary

1.1 On the 12 May 2006, planning permission was granted for the `part demolition;
conversion of existing care home and new additional development to provide a
total of 8 flats, pair of semi-detached houses and 2 maisonettes; new vehicular
access off Madeira Road & parking (revised scheme) at the former St Josephs
residential home, 29 Madeira Road, Ventnor Isle of Wight (reference
P/00378/06).

1.2 During the course of construction the internal arrangements of the units altered
and in turn some of the fenestration were not constructed in accordance with the
approved plans. The alterations to various doors and windows to the
development did not benefit from formal planning permission as required.

1.3 On the 25th November 2008, an officer’s report was taken to Planning Committee
which outlined that the applicant of the site was seeking amendments to the
previously approved conversion and extension of St Josephs, which detailed
amendments to the fenestration and internal layout of the development.

1.4 During the consideration of the amendments, Officers had also noted that a
retaining wall to the east of the buildings had been positioned further south than
approved. This had resulted in an area of patio being formed to the east of Unit 4,
which was enclosed with railings.

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1.5 The Committee considered that the cumulative impact was unacceptable and
therefore resolved to refuse the fenestration changes and instructed Officers to
commence enforcement action. (Appendix A).

1.6 The planning enforcement team subsequently investigated the unresolved

breaches of planning control (case reference E/06614/T), which are the subject of
this report and include;

• Fenestration amendments to the internal courtyard elevations,

• Fenestration amendments to the eastern external elevation,

• The retaining wall adjacent to Unit 4 and the unauthorised patio,

• The siting of a domestic garden shed south of the retaining wall to the
eastern external elevation (identified by Officers following the Planning
Committee decision).

1.7 It is important to note that whilst the amendments are unauthorised, the principle
of the proposed development was accepted when the Planning Committee
granted full planning consent to redevelop the site in 2006 (P/00378/06). The
unauthorised amendments therefore do not fundamentally alter the authorised
use of the site and the principle of the development has not changed.

1.8 In addition to the breaches of planning control as listed above, Council officers
have recently observed the construction of a closed board timber fence to the
rear of the development site, adjacent to the entrance stairwell to Flat 10.

1.9 A landscaping condition of planning permission reference P/00378/06 (condition

7) sought the submission of details relating to `means of enclosures,` amongst
others, for the Local Planning Authority approval. The condition stipulates that the
approved works shall be carried out as approved, however does not require that
the works as approved shall be maintained or retained thereafter following
implementation. The works as approved were subsequently implemented. The
fence in question was not subject to the approved landscaping works.

1.10 Due to the non-time restrictive wording of the relevant condition and following
confirmation of interpretation with the Council’s legal department, the addition of
the new fence cannot be controlled through the relevant condition of planning
permission reference P/00378/06. Therefore the construction of the fence is
permitted development in accordance with Schedule 2, Part 2, Class A of the
General Permitted Development Order (1995 and as amended). A breach of
planning control in relation to this element of development cannot be established.

1.11 The purpose of this report is to advise Members of the current situation with
regards to the breaches of planning control at St Josephs (as illustrated by the
plans attached, referenced Plan A – H in Appendix B).

1.12 Whilst technical breaches remain present, the steps taken to date by the
enforcement team has resulted in officers and the Local Member considering that
this matter should return to the Planning Committee to gain a formal resolution on

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 whether formal enforcement action is required and expedient, taking into account
the Officer advice outlined below.

2. Relevant History
• P/00378/06 – TCP/06614/N – Full planning permission for part demolition;
conversion of existing care home & new additional development to provide a
total of 8 flats, pair of semi-detached houses & 2 maisonettes; new vehicular
access off Madeira Road & parking (revised scheme), (revised plans) -
conditional approval 12 May 2006.

• P/02664/07 – TCP/06614/P - Variation of condition no. 11 on TCP/06614/N to

permit construction of roof garden serving flat 11 not exceeding 4 metres in
depth - Split decision issued, granting approval for retention of one roof garden
and refusing one on 10 January 2008. A subsequent appeal was determined
in respect of the element refused planning permission and was dismissed on
22 August 2008.

• P/00564/08 – TCP/06614/R - Retention of front balconies serving flats 5 & 6 –

conditionally approved 14 July 2008.

• MINOR AMENDMENT- for fenestration and internal layout alterations to the

approved development of P/00378/06 – TCP/06614/N – split decision by the
Planning Committee 25 November 2008

• P/01502/08 - TCP/06614/S - Retention of roof terrace to unit 4; proposed roof

parapet & opaque glass screening - refused by the Planning Committee 08
December 2008.

• E/06614/T – Enforcement case – non-compliance with approved plans

• P/00162/09 - TCP/06614/U - Alterations to roof terrace to include screening

(Plot 12) (revised plans) - refused under delegated powers on 18 May 2009. A
subsequent appeal was determined in respect of the element refused planning
permission and was dismissed on 22 August 2008.

• P/00821/09 – TCP/06614/V - Variation of condition no. 11 on TCP/06614/N

which restricts the use of roof areas for outdoor amenity areas; alterations to
approved roof; construction of screen/mono-pitch roof - refused under
delegated powers on the 3 September 2009. A subsequent appeal was
determined in respect of the refused planning permission and was allowed on
19 April 2010.

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3. Evaluation
The assessment of these issues comprises the following principal considerations:

• The impact of the fenestration amendments and unauthorised developments

on the design of the building and character and appearance of the Ventnor
Conservation Area (VCA),

• The impact of the fenestration amendments and unauthorised developments

on the amenities of the surrounding property occupiers.

The above considerations will be discussed in order below;

3.1 The impact of the fenestration amendments and unauthorised developments on

the design of the building and character and appearance of the Ventnor
Conservation Area (VCA):

Policy D1 (Standards of Design) of the Isle of Wight Unitary Development Plan

(UDP) states that development should respect the integrity of the site and be
sympathetic in scale and detailing, whilst policy G4 (General Locational Criteria)
of the UDP states that development should harmonise with their surroundings and
not adversely affect the architectural, cultural or historic interest of the surrounding
area, in this case Ventnor Conservation Area.

3.2 It is officers opinion that the fenestration amendments are considered to be in

keeping with the overall design of the approved development. The repositioned
and altered windows within elevations are minor alterations that would not alter
the overall appearance of the buildings, reflecting the design of the approved
development. In addition, the alterations would not compromise the overall
balance of elevations and therefore comply with the principles of policies D1
(Standards of Design) and G4 (General Locational Criteria) of the UDP.

3.3 Officers consulted the Councils Conservation and Design Team Leader when
preparing the Committee Report in 2008 relating to the minor amendments
request. It was concluded by the Conservation officer at the time, that

“These changes appear to be relatively minor in terms of the appearance of the

building as viewed from the main public areas. The details are in character with
the building as a whole and I do not consider that this would significantly affect
the character or appearance of the conservation area in this case.”
(Councils Conservation and Design Team Leader)
3.4 Subsequent to this, the site has been subject to a number of Planning Appeals in
relation to the proposed use of a flat roof external area as a balcony and an
extension to the existing roof height to the east.

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3.5 The most recent decision issued by the Planning Inspector dated 19th April 2010
(following Local Planning Authority refusal reference P/00821/09 – TCP/06614/V)
identified that the main issue for consideration was whether the proposal would
preserve and enhance the character and appearance of the Ventnor
Conservation Area (VCA).

3.6 The Inspector identified that the additional 1 metre high parapet roof to the
eastern elevation would increase the amount of roofing visible within the local
area, however views of the roof would only be seen from limited areas to the side
(East) and rear (North) of the site.

3.7 Subsequently the Inspector concluded that the proposed development would
have `only a limited and not detrimental impact on the external appearance of the
property` and was satisfied that the proposed development would preserve the
character and appearance of the VCA in accordance with policies D1 (Standards
of Design) and G4 (General Locational Criteria) of the UDP. The Inspector
allowed the appeal on these grounds.

3.8 The recent Planning Inspector’s comments are taken into consideration in order
to assess the impact of the breaches of planning control on the VCA and in turn
the expediency of taking enforcement action.

3.9 External Eastern Elevation (Plans F and G);

The Inspector considered that the rise in a parapet roof height by 1 metre on the
same elevation as the eastern fenestration amendments would not adversely
effect the character and appearance of the conservation area, due to the limited
views to which it could be seen. Therefore, by virtue of the height differentiation
between the amended windows and the roof which was subject to the appeal, an
argument that such amendments would adversely affect the conservation area
could not be sustained.

Whilst it is acknowledged that views of the fenestration amendments on the

external eastern elevation can be seen from neighbouring properties to the east
(namely 31 Madeira Road) viewpoints of these amendments within the
surrounding conservation area remain very limited to the south and only partially
observed to the north from Spring Gardens.

3.10 Internal courtyard elevations (Plans B, C, D and E);

The fenestration amendments within the courtyard elevations, by virtue of its
enclosed nature and recessed elevations mean that viewpoints of these
amendments are minimal from Spring Gardens and cannot be seen from Madeira
Road or from the east or west.

Therefore, the fenestration amendment to all elevations subject to investigation

have a limited and non-detrimental impact on the external appearance the
property and consequently does not detrimentally affect the preservation and
enhancement of the character and appearance of the Ventnor Conservation
Area.

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3.11 Retaining wall adjacent to Unit 4 and the unauthorised patio (Plans F and G);
The retaining wall to the east of the buildings has been positioned further south
than shown on the approved plan (plan F) reference P/00378/06. The principle of
a retaining structure within this location was considered to be acceptable when
the Planning Committee granted approval in 2006.

Its relocated position has no greater impact on the Conservation Area to that
approved as it is largely unobtrusive from all viewpoints within the surrounding
conservation area.

3.12 The siting of a domestic garden shed south of the retaining wall to the eastern
external elevation (Plan H);

By virtue of its purpose and design as a traditional timber clad felt roof outbuilding
siting within the residential curtilage of the dwelling, the development is
unobtrusive and characteristically found in similar locations.

Screened from viewpoints of Madeira Road due to the recessed eastern elevation
of the original east wing of the former St Josephs care home and screened
entirely from view of Spring Gardens due to the change in land levels,
demonstrates that the ancillary outbuilding does not adversely affect the character
and appearance of the Conservation Area.

3.13 The impact of the fenestration amendments and unauthorised developments on

the amenities of the neighbouring properties:

Policy D1 (Standards of Design) of the Isle of Wight Unitary Development Plan

(UDP) states that development should not detract from the reasonable use and
enjoyment of the adjoining buildings. It is officer opinion that the fenestration
amendments and unauthorised operational development are minor in nature and
the impact of such amendments do not generate any greater impact on the
neighbouring properties to that which has been approved under P/00378/06, and
therefore comply with policy D1 (Standards of Design) of the UDP.

3.14 Internal courtyard elevations (Plans B, C, D and E);

The repositioned windows within the internal elevations overlooking the central
courtyard combine with the mutual overlooking that would have occurred should
the fenestration details have been constructed in accordance with the approved
plans.

The number of window openings under investigation has not increased within this
courtyard area and therefore, the fenestration amendments have minimal to no
additional impact on the amenity and privacy of properties located within this area
compared to that which was approved under P/00378/06.

3.15 External Eastern Elevation (Plans F and G);

The external eastern elevation of St Josephs is within close proximity of 31

Madeira Road. Particular regard has therefore been given to the altered windows
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 within this elevation of St Josephs and the impact of such amendments on the
amenities of the neighbouring dwelling as it comprises windows that serve
principal living space and a kitchen door that overlooks the site.

Whilst the ground floor window, which services Unit 4 and is immediately adjacent
to the foot of the retaining wall, is larger than approved it should be noted that
those at first floor level are smaller than approved and therefore the alterations to
the windows within this elevation result in no greater impact to the neighbouring
property than that resulting from existing windows that were approved under
P/00378/06.

Furthermore, the shed is sited immediately adjacent to the ground floor window
which was constructed on site by the new freehold owners of Flat 2 and identified
when officers inspected the site the 2008 Planning Committee resolution. The
shed acts as a screen and further minimises any potential overlooking from the
larger ground floor window to the neighbouring dwelling at 31 Madeira Road.

Additional fenestration amendments on this elevation include the repositioning

and reduction in size of four windows and the insertion of an external wooden
panelled door which accessed the rear of Flat 2. The smaller proportioned
windows, some of which are obscure glazed, minimise the impact on the
amenities of the neighbouring property greater to that approved under
P/00378/06.

3.16 The retaining wall adjacent to Unit 4 and the unauthorised patio (Plan F and G);

The retaining wall to the east of the buildings has been positioned further south
than shown on the approved plans (plan F) for planning permission reference
P/00378/06. The construction of this retaining wall originally resulted in the
formation of a patio area to the east of Unit 4, which was enclosed with railings.

The potential harm generated by this unauthorised development was the use of
the patio area for recreational purposes by the occupants of Unit 4 and the
potential overlooking generated by such use onto the neighbouring property
known as 31 Madeira Road.

Following discussions with the site owner, the potential harm has been overcome
as the patio paving slabs have been removed and the area landscaped. The
railings have been removed and repositioned in line with the railing identified on
the approved plan (plan F). These works have resulted in the area being restricted
to access and in turn does not generate any additional harm to the retaining wall
structure as approved by the Planning Committee under planning permission
referenced P/00378/06.

In addition to the above, the retaining structure is one which runs parallel through
the whole residential development. Verbal comments from the Council’s Building
Control manager raise the issue that the retaining structure is likely to be
fundamental to the structural integrity of the entire site, given that the ground
levels change throughout the site due to the steep coastal slopes that are
characteristic of Ventnor. It would therefore not be reasonable or justified for the
Authority to request the removal of this retaining structure in order to overcome

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 the potential harm which has now been alleviated through the landscaping and
partitioning off of the extended raised area.

3.17 The siting of a small domestic garden shed south of the retaining wall to the
eastern external elevation (Plan H);

Characteristic of others within the local area, the garden shed used for general
domestic storage is of traditional and sympathetic design for its purpose of being
ancillary to the enjoyment of the residential property to which is serves.

Sited within the private outside courtyard amenity space enjoyed by Flat 2, the
shed is positioned within close proximity of the boundary with the neighbouring
property known as 31 Madeira Road and the ground floor windows for Flat 2 and
4.

Due to the size and scale of the unobtrusive outbuilding, the development has
limited impact on the amenities of the neighbouring property.

4. Consultation
4.1 A consultation exercise for the preparation of this paper has not been undertaken.

5. Resource Implications
5.1 Should formal enforcement action be initiated by the Council in respect to some or
all of the fenestration amendments and / or unauthorised development at the St
Josephs site, it should be noted that any interested party to whom a notice is
served has a right to appeal against the relevant notice to the Planning
Inspectorate.

5.2 To demonstrate the extent of the resource implications of pursuing enforcement

action against all outstanding enforcement matters, the relevant notice would need
to be served on 17 parties.

6. Conclusion
6.1 By virtue of Section 171(1) of the Town and Country Planning Act 1990, failing to
comply with any condition or limitation subject to which planning permission has
been granted, constitutes a breach of planning control.

6.2 Breaches of planning control are apparent, however it has been established that
the principle of development as a residential site remains unchanged as the
amendments and unauthorised developments do not fundamentally alter the use
of the site.

6.3 The Authority has the ability to take enforcement action against a breach by either
the issue of an enforcement notice or Breach of condition notice (Section 171 or
s187A).

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6.4 In accordance with national guidance Planning Policy Guidance 18 (PPG18) –
Enforcing Planning Control, and the Council’s Enforcement Policy which was
adopted in May 2009, any action taken needs to be considered proportionate to
the case.

6.5 PPG 18, page 2, paragraph 3 and 4 state:

(3) In considering any enforcement action, the decisive issue for the LPA should
be whether the breach of control would unacceptably affect public amenity or the
existing use of land and buildings meriting protection in the public interest;

(4) Enforcement action should always be commensurate with the breach of

planning control to which it relates (for example, it is usually inappropriate to take
formal enforcement action against a trivial or technical breach of control which
causes no harm to amenity in the locality of the site)”

6.6 Whilst acknowledging that the deviation from the approved plans is
unsatisfactory; it is considered that the development as built is acceptable and is
in keeping with the overall design of the approved development.

6.7 The repositioned and altered windows within elevations are minor alterations that
do not alter the overall appearance of the buildings, reflecting the design of the
approved development. In addition, the alterations do not compromise the overall
balance of elevations and pose a limited impact on the amenities of the
neighbouring properties and the Ventnor Conservation Area (VCA).

6.8 Whilst the breaches of planning control are technically a breach, it would not be
expedient to enforce against the fenestration amendments, the repositioning of
the retaining wall or the removal of the small garden shed in accordance with the
advice set out in national and local planning enforcement policy

7. Options

• Option 1:
Not to take enforcement action in relation to all breaches of planning control.

• Option 2:
Pursue enforcement action against all fenestration amendments
• Option 3:
Not to take enforcement action against all fenestration amendments
• Option 4:
Pursue enforcement action to seek the removal of the retaining wall
• Option 5:
Not to take enforcement action in relation to the retaining wall

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 • Option 6:
Pursue enforcement action to seek the removal of the garden shed
• Option 7:
Not to take enforcement action in relation to the garden shed
8. Recommendation
8.1 To note the concerns of objectors with regards to the breaches of planning control
at St Josephs but to give material weight to the advice contained within PPG 18
Enforcing Planning Control and the adopted local Enforcement Policy regarding
the expediency of pursuing formal enforcement action and to take no further
action in respect of all outstanding breaches of planning control (option 1) which
comply with UDP Policies D1 Standards of Design and G4 General Locational
Criteria for Development.

BILL MURPHY
Head of Planning Services and Regulatory Services

Appendices:
Appendix A – Planning Committee Minutes, 25 November 2008

Appendix B – “As approved” and “as built” Plans A - H

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