Wednesday April 21st 2010

Bettws Newydd from the beach

The PCNPA Development Management Committee (DMC) met to consider the second retrospective application for Bettws Newydd (10/033). This application was refused by DMC Members..

Yet again the National Park Planning Officers had recommended acceptance, despite evidence showing the building deviated by even more than previously thought from the 2006 permission.

Yet again, DMC Members ignored their Officers’ recommendation and rejected the application by a majority of 9 votes to 5.

This report is based on notes taken by us at the meeting; you can also view the relevant section from the official minutes by clicking here.


Lead-up to the Meeting: We had written twice to both DMC Members and the National Park Solicitor David Prescott) before the meeting as we were concerned that the Officers determination to push this application through was resulting in a number of failures to correctly follow the appropriate planning legislation.

In particular we were most concerned that the Officers' Report for this DMC included, in Appendix 4, a letter dated 26th July 2007 which you can see here. The report, rather astoundingly (given the almost 2 years that the 2 retrospective applications have taken), introduced this letter for the first time, and claimed that the “fall-back” position comprised both the extant 2006 approval and this letter. We disagreed and asked Members to conclude that “That letter should be completely disregarded as a material let alone supervening planning consideration”. We also wrote threatening legal action on this matter, should planning approval be given, and you can see our "Pre-action protocol letter" and the covering letter by following the links. Our actions resulted in Counsel's Advice to the Authority being made available at the last minute by the National Park Solicitor, which is covered below.

Meeting Summary: This was a long and complex meeting. We are publishing a full report.

The Chairman spoke about the flood of mail received and apologised for his lack of response. He instructed the speakers to stick to matters of material consideration.

David Prescott advised that there were complex matters to be considered and that Members should proceed in a measured way.

Catherine Milner, for the Planning Officers, then delivered her Report, explaining that following the June 2009 decision by the DMC to refuse consent for a previous retrospective application, the DMC had approved an Enforcement Notice in principle but, based on Government policy, had given the applicant the opportunity to propose “remedy to the harm to amenity” before this was issued. It had been decided that this required more than the one month originally proposed and required another planning application for proper analysis. Objectors had argued that this was a waste of public money. The National Park could not refuse to consider a valid application.

The rest of Mrs Milner's statement was based on the Officers Report which can be seen here.

The as-built dwelling is without the benefit of permission.

The proposed major earthworks requiring 60 – 70 lorry loads would create two large banks, not according to the Officer, to hide the building, but to allow the house to better sit in its landscape, and Officers were satisfied that it would do so.

The Officer considered that the very adequate landscape proposals reduced issues in relation to JUDP policies, 68, 76, and 78 but that it was accepted the development was more visually intrusive than the original wooden bungalow and as such could be refused as contrary to policy 56. Around 100 objectors had written concerning these points of non-compliance with policies..

With reference to the 2006 approved scheme, the Officer sought to remind the Committee that Newport Town Council had changed their minds to give approval to this at the time.

Of the “fall-back” position, the Officer pointed out that there is a valid, live consent for a large, well-glazed house on the site which can be built provided conditions are complied with and provided work is commenced before the 17th October 2011.

The as-built scheme has recently been found to be 5m closer to the entrance and 5m closer to the southern public footpath than approved.

The claim was repeated that differences between the as-built development and the approved development had been agreed between Officers and the applicant, with a difference of only 8 inches between what Officers considered to be the Ground Floor Level approved and what the applicant considered that level to have been.

For the first time, significantly, the Officer referred to measurements taken in February 2007, which the written report had not done .

The Officer acknowledged that questions had been raised by the Opposition Group about whether the letter of the 26th July 2007 was binding on the Authority. The Officer stated that the opposition had overreacted to what had been said in her Report to Members about this letter. The current development is unauthorised and if the applicant seeks to implement the 2006 consent in future, the levels would be revisited. However, the fact remained that the Officer’s July 2007 letter had discharged condition 3 attached to the 2006 consent which related to the approval of levels and it would be difficult to argue that levels found acceptable in 2007 were no longer acceptable in 2010/2011

It was the Authority’s view that the existence of the fall-back position carried significant weight.The Committee was reminded that Government guidance was not to punish the applicant.

The Officers’ recommendation was to approve the application.

Cllr Robin Evans requested through the Chair to make a comment on the Officer Report - that it was his understanding that Newport Town Council had not given approval to the 2006 scheme.

The Meeting then adjourned for 10 minutes whilst Counsel’s Advice to the Authority and the Supplementary Officer Report concerning revocation were distributed for study amongst all present. (These documents together amounted to 7 complicated pages so it was an impossible task)

Catherine Milner then spoke to her Supplementary Report about Revocation, stating that BNOG’s letter of 12th April had sought revocation of the 2006 consent but that officers did not consider it expedient: there were no planning grounds for this course of action.

The National Park Solicitor spoke briefly concerning the BNOG letter of 16th April which he described as saying that Members were being misled by the Officer’s Report. He said that BNOG had over-interpreted what was said therein concerning the July 2007 letter: the National Park is not claiming this to be definitive. The 2006 consent has not been lawfully commenced. A 2007 letter agreeing levels existed making it difficult to say that the levels agreed are unacceptable now. The Developer could demolish and rebuild strictly according to the 2006 approved scheme. In that case, the developer would have to comply with the conditions attached to the 2006 consent. It was for Members to decide what significance, if any, they wanted to give to the effect of that letter today, bearing in mind what they may be called on to decide in future, in the event of any fall-back to a lawful implementation of the 2006 consent. It may then be difficult to argue that acceptable levels are not the same as those agreed in 2007

The Chairman confirmed that the Meeting must first decide whether to revoke consent.
The National Park Solicitor reminded Members that there must be clear planning reasons to do so

Speakers in Opposition to the Application:

The original house

Town Councillor Paul Harris spoke for Newport Town Council and was emphatic that the Officer’s statement about the Council’s stance on the 2006 scheme was highly misleading: the Council’s decision in 2006 was only a conditional approval and their concerns had not been met when consent was granted. Newport Town Council rejected the current application.
Liz Bellamy described the common man / woman’s reaction to the as-built scheme and the community’s frustration that their complaints, including an early petition asking for the height to be reduced, seem to have been wholly ignored by the Authority.
Nigel Paul was not pleased to have to be addressing the Committee yet again about virtually the same application except that it proposed even more lorry loads of material to be brought onto the site to add to the many already imported to alter levels and to pour into tons of foundations. The applicant had completely ignored the conditions and caused an ecological disaster on the site. This application should be refused by Members.

The following 5 spoke on behalf of BNOG
Reg Atkinson spoke on non- compliance with JUDP policies.
Hywel Williams spoke about loss of vegetation and habitats and the impact on drainage, of site works (which had not been consented) and also of the huge structure constructed, affecting properties and the Coastal Path to the North.
Sandra Bayes outlined BNOG’s view of the “fall-back” position and queried the validity of the 26th July 2007 letter
Chris Draper reminded Members that the last retrospective application which was highly similar had been also recommended by the Officers but had been resoundingly refused by the Committee and that outside consultants had confirmed this to be the right decision. Despite the long extension granted to the applicant to make adaptations to enforcement steps to remedy the harm to public amenity, all that he had come up with was another landscape scheme which did nothing to make the as-built structure more acceptable. He asked Members to refuse the application and issue the enforcement notice that day.
Robbie Manson reiterated BNOG’s views on
(1) The fact that the Authority retained the legal power to revoke the 06 consent despite the near completion of the development. In response to the Officer’s observation that no specific grounds for doing so had been offered, Members might like to reflect on the position that, when they had resolved to delegate the consent back in Mar 06, the development proposed had then been described in the then Officers’ Report as a split 1 to 2 storey building, the drawings before that committee clearly illustrated a building ‘sunken’ by at least one storey into the surrounding ground level, and finally that the large window expanse was shown as a south facing feature. All of this was since changed as a result of the implementation of that consent.
(2) The Officer’s letter of July 07 had no material or relevant planning significance, because it had been invalidly and unlawfully issued. This was because the developer had ignored the terms of the planning condition to obtain approval for site and floor levels “before the commencement of development”. To ignore that fact now, by giving weight to that letter, would be to reward rather than condemn such contemptuous behaviour by a developer.

Robin Williams (for the applicant) stated that there existed a valid planning permission until October 2011. The development could be demolished only to see virtually the same rebuilt. The differences between the as-built development and the approved scheme are only minor, some of them caused by Building Regulations compliance. The as-built development when finished will have less visual impact than that approved in 2006. The application must be considered on its planning merits and be approved.

The Committee then discussed the application. Several Members described concerns about the loss of the original site (existing marshy habitats, biodiversity) as well as drainage issues from greatly increased hard surfaces and disturbance to the site. The Officer answered that the landscaping scheme was designed to bring back the wetland that might eventually be enhanced. One member’s response to this statement was to ask how the Committee could allow a developer to ignore conditions and policies and then decide the situation is acceptable because a landscaping scheme has been submitted. The Member urged that thought be given to previous cases when enforcement action had been taken. as well as to future cases.
Members spoke of the difficulty of successful landscape schemes in an exposed coastal area: planted trees must be small if there was any hope of survival. In addition, no landscaping can ameliorate what is built.
Cllr Robin Evans stated that he had moved for refusal of the previous retrospective application and nothing has fundamentally changed. If it was refused in June 2009, why accept it now? The Opposition Group has described how the development is too big, in the wrong place and out of character with surroundings.
Members who had also served in 2006 confirmed that the 2006 approved scheme is not similar to what has been built. The plans shown to Members in 2006 looked reasonable. Members had then been told that the replacement dwelling was of 2 storeys, not 3. It was sunk into the landscape. The ground levels in the as-built scheme have been altered so that it doesn't sit well in its setting. Members must protect the landscape of the National Park.
One of these Members added that the Committee must think about all those who had been prosecuted before for minor matters. “The National Park will be in tatters if we agree to this”

The National Park Solicitor then reminded Members that this was a section 73A retrospective application which must be treated as a fresh application against the Development Plan. The Officer Report had stated that the application was contrary to JUDP policies but the 2006 consent is a material consideration. The Officers have set out the differences between the as-built and approved schemes. What is built is not as per the 2006 consent: hence the development is unauthorised. On that basis the Committee,s decision in October 2009 was to take enforcement action and this action is still open to the Authority.

The fall-back – the 2006 consent - is still however capable of implementation. The Development Management Officer’s recommendation was to approve the current application because the officers considered the differences between this and the fall-back position were minor- but the decision was with the Committee.

Further debate then followed.

Several Members reiterated that the as-built dwelling is significantly different from what was agreed to in 2006

Other Members argued that the difference between the original dwelling and what has been built had been given too much emphasis. These Members spoke of the Officer’s Report showing that the as-built dwelling was little different from that approved, making such statements as “a similar house can be rebuilt”, “the 2006 scheme is only one foot lower, 5 metres further away”, “The Town Council sought only minor modifications”, “Increased visual intrusion? – what matters is the difference between the approved and as built schemes – not the original house as the objectors claim - Is 20-40cm higher, enough to matter?” “8 inches higher is not enough to justify an argument of increased visual intrusion” “Are there enough differences to refuse?” “If the 2006 permission remains it is difficult to disagree with the Officer’s Recommendation”.

However, one Member who had actually not been on the 2006 Committee responded that from his studies) he had concluded that the as-built dwelling is very different from the approved plans as described by Members who had been present in 2006, and the existing development looked nothing like those approved plans to him. (which meant that he had had to do considerable research as the approved drawings had not been attached to the Officer Report)

The Chairman stated that the first decision concerned whether to revoke the 2006 consent and the National Park Solicitor emphasised that there must be a good reason to do so. The decision was taken not to revoke the 2006 consent

Cllr John Allen-Mirehouse proposed the motion to refuse consent for the current application
Cllr Robin Evans– seconded

The VOTE was 9 for refusal, 5 against.

After John Parsons, Monitoring Officer, had reminded the Committee that the wording of the Enforcement Notice had been agreed in October 2009 the decision was taken to proceed with Enforcement. (Link to Oct 2009 Enforcement Notice)

Following the meeting, the refusal notice was issued the following day.

BNOG has since learnt through following the WAG website that an appeal was subsequently delivered by hand to the Welsh Assembly Government Planning Inspectorate during the week between 14th May and 20th May and is now referenced as Planning Appeal No. 2128919

The Enforcement Notice has not yet been issued as of 25th May.

The above record, as noted and recalled by BNOG members attending the DMC Meeting, largely corresponds with the Minutes of the Meeting as presented to the following DMC Meeting in May 2010

The principal differences are:

1. The Minutes did not record what was said in reference to the 26th July 2007 letter by the BNOG speaker Robbie Manson, “That the effect of the Officer’s letter of July 07 had no material or relevant planning significance, because it had been invalidly and indeed unlawfully issued, since it was agreed that the developer had clearly ignored the terms of the planning condition to obtain approval for site and floor levels “before the commencement of development”. To ignore that fact now, by giving weight to that letter, would be to reward rather than condemn such contemptuous behaviour by a developer.”

2. The Minutes omitted what was said in reference to the 26th July letter by the BNOG speaker Sandra Bayes
"I wish to refer briefly to the 26th July 2007 letter by which Officers have claimed the fall-back ground floor level is established.

  • This letter was written 7 months into work on site
  • The foundations - 68 lorry loads - had long ago been poured and fixed
  • The steel structure was in place and the Case Officer had told a neighbour the building was higher than expected
  • The retaining walls not on the approved plans were constructed.
  • The extra 100 sq m of Lower Ground Floor space was there to see
  • A large amount of material had been imported to make up ground between the entrance and the building
  • The building was in the wrong position on the site by a considerable amount
  • Several complaints had already been made to the Authority about the scale.

Major changes that had occurred from the approved drawings were outside the Authority’s minor amendments protocol and could not be approved by a single Officer. They required a planning application which was not made. Instead this letter was written.

There has never been a record on the file of what levels were taken/agreed/approved at any meeting or site meeting to discharge condition 3.

Many months after the July letter, the Case Officer was seeking such a record from the current architect

The description in this present Report about how just one level was determined, refers to a survey undertaken, not in July 2007 but many months later in February 2008. It is just a distraction, without relevance to levels approved in the process of discharging a condition.

The levels and for that matter the landscaping should have been agreed and approved prior to the commencement of work, not in July 2007 or February 2008, and agreed and approved so that the development does not contravene JUDP policies.

The 26th July 2007 letter should not affect a proper definition of a fall-back position.

The fall-back position is very different from that built and should not override the Development Plan in determining this application."

3. In reporting the general debate which took place towards the end of the considerations, the Minutes simply state “Other Members questioned whether the differences were so great as to merit refusal, particularly when considering the extant planning permission that was still in place” This short statement does not demonstrate how some Members, of whom none was serving on the DMC in 2006 when the decision to grant consent was delegated to Officers, had been thoroughly convinced by reading the Officer Report that the differences between the as-built development and that approved were minor. The contrast between their view and that of Members who had been involved in the original decision was very marked indeed.

The last point of difference highlights the extent to which several of those Members who had not had the benefit of following applications and the complaints concerning those applications over more than 4 years had been led by the Officer Report to Committee to believe that the 26th July 2007 letter actually had the significance of fixing an approved Ground Floor Level for the purposes of considering this application. Catherine Milner’s denial at the Meeting that this was not exactly what she had meant by her written report, and Counsel’s Advice distributed during the Meeting with little time to be properly considered, were complex statements to absorb and came too late for Members who had been encouraged by the Report to for instance view the applicant’s drawings as showing a “useful” comparison between the approved and as-built schemes.


Following the April 2010 DMC Meeting, the BNOG Core Group resolved to write again to Mr Prescott seeking a declaration from the Authority that

"the 26th July 2007 letter was invalid and indeed unlawful and that the said letter, from the assertion or claim of any relevant or planning consideration in future bears no significance or weight and the Authority remains free to take such a position on the future fulfilment of the condition in question, as at the relevant time that it may determine best allows it to satisfy its statutory obligations and democratic purposes".


Please send additions or corrections to these notes (See our contact page).


About Us | Contact Us | ©2009