Agenda item

6 Public Speakers

Mr Peter Atkins, Pagham Parish Council

Mr Colin Hamilton, Objector

Mr Jim Weston, Objector

Jenny Henderson, Agent

Izabel Philips, Supporter

Councillor David Huntley, Ward Member

Approval of details reserved by condition imposed under P/140/16/OUT relating to condition 30- management and maintenance for adjacent Pagham Harbour SPA Enhancement land.

          The Principal Planning Officer presented the report with updates where it was confirmed that the applicant had advised council officers they had offered to meet with the Parish Council to discuss the contents on the updated BGMP, however due to availability prior to the committee, this had not been possible. The applicant confirmed they had extended an invitation to the Sussex Ornithological Society (SOS) in August 2024 to discuss the mitigation plan, however this had been declined. A letter from the SOS to the applicants stated that they regarded the principal stakeholders in this matter to be Arun District Council, the Applicant and Natural England. Furthermore, the SOS clarified that their role was to provide data and records to support the consideration of the scheme. They added that as they did not manage land, they were also not able to offer any practical assistance in relation to the mitigation plan.

          The officer then provided members with a detailed updated on consultation responses received from Natural England, Environment Agency (EA) and Arun District Council’s Ecology Officer and Drainage Engineers, all of which had not lodged any formal objections to the proposals. The officer advised members that the requirement for a Flood Risk Activity Permit for the scrapes, as identified by the Environment Agency (EA), was a separate requirement to the consideration of this discharge of condition application. Securing discharge of this condition did not negate the need for any relevant permits from the EA. If the landowner was unable to obtain a permit for the scrapes, a new Brent Geese Mitigation Plan would need to be submitted for consideration. 

          Members were provided with detail on the additional 15 objection responses that had been received, those additional representations received did not introduce any new material considerations, nor did they raise any issues that had not been dealt with as part of the assessment and committee report. Comments, including those concerning the principle of housing and the request for a south coast cycle highway, remained non-material to the decision. Several comments were made in relation to the need for the presence of Brent Geese on the mitigation site to discharge the condition and/or deem that the scheme was successful. However, the requirement of the condition was for the developer to submit details showing the Council how the mitigation land identified would be managed in a way to allow for an overwintering crop suitable for the Brent Geese, that provided an equivalent foraging value for the Brent Geese to that lost by the development, should they require it. The condition required management of the land and favourable conditions, such as the removal of bird scaring and increased sight lines, which had been proposed. The condition did not require visual confirmation of the presence of the geese as a condition for discharging Condition 30, as such a requirement would be unreasonable and beyond the scope of the original condition imposed on P/140/16/OUT. Additionally, several representations had also sought for the application to be deferred to allow for consultation with the public, RSPB, Sussex Ornithological Society (SOS), EA and Natural England. Public representations had been considered throughout the application, which was validated by the Council on 26 June 2024. Natural England and the EA had provided their full consultation response supporting the discharge of the condition. While the SOS and RSPB were not formal consultees on the application, their responses on previous iterations of the plan had been considered fully.  In the officer’s summary she provided responses to additional comments received from Pagham Parish Council, the RSPB and SOS.

          The recommendations were proposed by Councillor Partridge and seconded by Councillor Blanchard-Cooper.

          The Chair invited members to make comments, statements and ask any questions they had to officers, where the following was raised: The UK was the most depleted in the world for wildlife; the RSPB objected to the application, yet this had not been addressed by officers; the mitigation plan had been confirmed if approved it would be in place for 80 years, however it was preferable that this be for 125 years; concern raised regarding the certainty the mitigation plan would be successful and if this could not be guaranteed it should not be agreed; SOS had stated that the mitigation plan should be in place before any building commenced, clarification was sought on when this would be completed; it was also asked if the fields could be in the RAMSAR convention; concern was raised regarding the monitoring of the site being the responsibility of the landowner and should this not be independently completed; No evidence had been provided to show that Brent Geese were using these fields and comments received stated that the fields were too close to development; members wanted to see evidence to show that the mitigation plans suggested would be successful, and; members did not want to see the Brent Geese disappear and felt that the objection from the RSPB was as significant concern.

 The Principal Planning Officer was invited by the Chair to respond to comments where she confirmed that the RSPB had provided a written objection which had been based on their previous objections responses, all of which had been taken into account as part of the negotiations of the application. The plan would be in place for 80 years, as per the terms fo the Section 106 agreement that was agreed at outline. She reminded members that the RSPB were not a statutory consultee and confirmed that the council’s drainage team would be sent out to investigate if the ditches on the site were seen to fill up. She then explained that the SOS had included in their response that they would only provide data to the Council and Natural England, all of their comments had been addressed and if members were minded to refuse the application, this would go against the advice received from Natural England.

Further questioning and clarification were sought regarding the crop planting of the mitigation fields and what was the timeframe that would be given to see if after planting the Brent Geese would move before building commenced. Officers confirmed that crops would be planted before any development commenced, there would also be no bird scaring taking place however there was no requirement for the council to see Brent Geese move to that land, the requirement through the application was only to provide the space for the Geese to use and requesting that the Geese to use the land was not enforceable or for the mitigation plan to be deemed successful. Natural England were satisfied that the proposed mitigation plan would provide foraging value and that was seen as suitable for the Brent Geese to use. 

Members commented that they were not comfortable with not knowing if the Brent Geese would use the site, as this was preferred to be evidenced. It was then proposed by Councillor Bower that the application be deferred, until officers were able to provide more detail of enforceable action for members to consider. No seconder was made known at this point.

The Strategic Development Team Leader was invited by the Chair to address the committee, where he explained that through the outline planning application the impact of the loss of the land on Brent Geese was considered and the principal of off-site mitigation was accepted, tested and agreed with natural England as the approach. At that time the Parish Council did have significant objections, SOS and the RSBP to the principal of off-site mitigation but the principal of accepting the mitigation had been established through the outline planning application. He then referred to the Outline Appropriate Assessment slide in the officer presentation that showed all of the recorded records that informed the allocation of the site and also included the surveys undertaken by PAGAM, the local group against housing in Pagham. The records show that Brent Geese have historically used the mitigation sites proposed. However the use of the fields by the Geese cannot be controlled, what could be done was an equivalent level of foraging provision be provided and this is what the Brent Geese Mitigation Plan achieves. It had been designed in accordance with best practice and with extensive input from Natural England.  On this basis, officers strongly support the proposals and it was explained that the position of officers was unlikely to change. It was appreciated that the decision was not a popular one for members. He went on to explain that one of the fields was situated in Flood Zone 3a, Natural England were happy with this as the field does sit within the key habitat area, it would also be planted with more water tolerant species and the bird scaring initiative that would drastically increase the useability of the site. As previously explained, there was currently no obligation on the landowner to plant crops deemed to be suitable for foraging for Brent Geese, and there was no obligation on the landowner to not undertake bird scaring, so the mitigation plan in front of members was as significant improvement in terms of foraging availability for the Brent Geese in comparison to what is available now. Officers had presented the best possible option for members to consider.

Councillor Partridge then made it known to the committee that she would second Councillor Bower’s proposal to defer the application.  As members debate continued it was queried if an additional condition could be added that covered the developers completing independent assessment or research into the Brent Geese use of the land. The Group Head of Planning advised that as a matter of process members could not attach a condition to a discharge of condition application.

          The Chair advised the committee that there was now a seconded proposal which needed to be dealt with, he asked Councillor Bower to explain why he wanted to defer the application, to which he advised that he felt that more work needed to be completed by officers working and to satisfy the ecologists, specifically RSPB and SOS.

The Principal Planning Officer advised members she understood that they would want all other bodies to engage with the process, however the Council could not force bodies to comment or engage with the mitigation plan, and the only formal consultee was Natural England who have no objections. The Group Head of Planning then advised members that the proposal to defer was not clear to officers regarding additional action they wanted them to take, as the councils’ ecologist, the applicants ecologist and Natural England were all in agreement. It had already been clearly explained through the mitigation plans that it would guarantee the land would be maintained and monitored in line with the required condition.

As the debate continued there were more comments from members around how the plan needed to be implemented and evidence that Brent Geese were able to use it, as otherwise it was unsatisfactory. Questions were also posed around whether this has been successful elsewhere. Officers provided further advice and answered questions until the Chair advised that an adjournment was required. The meeting was then adjourned at 5:21pm.

The meeting recommenced at 5:35pm with the Chair welcoming everyone back to the meeting and inviting the Councils Interim Legal Services Manager to address the Committee where she stated that members needed to remember what was being asked of the applicant. It was important that they ensured what they were asking was not unreasonable, if any decision made was found to be unreasonable then the council would be open to legal challenge.

The Chair then invited the Group Head of Planning to speak where he confirmed that the condition on the original permission was to provide suitable mitigation areas, and that was what was proposed, it provided a significant improvement on the current situation. He explained that what members were asking for today was and would be deemed as unreasonable. Finally, he advised that the council’s ecologists had been involved fully throughout the process and Natural England had agreed that the plan was an acceptable solution, if members chose to refuse the application there would be no way the council could defend that decision at an appeal.

          After checking with the Committee, the Chair invited Councillor Bower to speak where he stated that as a local planning authority measurable conditions were required to be in place. It was confirmed by the Strategic Development Team Leader that all measures were detailed in the outline application and what was in front of members addressed everything that was outlined and debated through the determination of the outline application and conditions.

          The Chair allowed the last few comments from members to be heard and then returned to Councillor Bower as the proposer for deferring the application, where it was then agreed that he would withdraw his proposal to defer. The Chair then put the substantive recommendations to the vote.

          The Committee

                    RESOLVED

That delegated authority be given to the Group Head of Planning in consultation with the Chair or Vice Chair authority to:

Discharge Condition 30 subject to the completion of a Deed of Variation to amend the Section 106 Agreement, with any minor amendments authorised by the Group Head of Planning.

In the absence of a signed Deed of Variation, the proposal would conflict with the Section 106 agreements and will not be discharged.