Agenda item

Application for a certificate of lawfulness of existing use or development, (CLEUD) for the use of land and structures for the following purposes: landscape contractor’s yard including ground-works contractor’s yard, with ancillary plant and vehicle storage, maintenance and repair; incidental hire of plant vehicles and equipment; storage and incidental distribution of landscaping materials and products; and for the importation, processing, storage and re-use/recycling of wastes (mainly construction and demolition wastes and green waste)  for a period of over 10 years. These wastes include hardcore, rubble, subsoils and soils, timber, green garden and contracting waste, and incidental metals and plastics and other materials. Use of land includes screening waste to separate stone and concrete from soils, screening the resultant soils and fines, crushing stones and hardcore, chipping and shredding wood and green waste for mulch and composting.

Report by the Deputy Director for Planning & Property Services (Strategy & Infrastructure Planning ) (PN8).

This application seeks to gain a Certificate of Lawfulness of Existing Use or Development (CLEUD) under Section 191 of the Town & Country Planning Act 1990 as amended by Section 10 of the Planning & Compensation Act 1991 and is being reported to this Committee as the local County Councillor has asked that the application be decided by the Planning & Regulation committee. The applicant claims that the land (southern area and central intermediate area) has been in use for over 10 years for claimed uses. Sworn affidavits, aerial photographs, other photographs, invoices for plant hire and purchase, waste processing and a waste carrier’s licence have been submitted by the applicant in support of this claim. 

The decision on the CLEUD application rests on the examination of evidence and not matters of planning judgement, planning merit or planning policy. The report describes the evidence submitted by the applicant, the third parties and the County Council own evidence. It recommends that the application for a Certificate of Lawful Existing Use or Development for the use of land for –i) landscape contractor's yard including ground works contractor's yard with ancillary activities and ii) the importation, sorting, processing and storage of waste for a period exceeding ten years on the southern and central intermediate area of Hickman Brothers Landscapes Ltd site, Shipton Hill, Fulbrook be approved as set out with a schedule of limitations in the first schedule. The uses specified in the second schedule are not considered as lawful.

It is RECOMMENDED that the application for a Certificate of Lawful Existing Use or Development for the use of land for i) landscape contractor's yard including ground works contractor's yard with ancillary activities and ii) the importation, sorting, processing and storage of waste for a period exceeding ten years on the southern and central intermediate area of Hickman Brothers Landscapes Ltd site, Shipton Hill, Fulbrook be approved as set out below, with a Schedule of Limitations. The uses specified in the Second Schedule are not considered as lawful.

 First Schedule (part 1):

1.                  The use as a landscape contractors’ yard (including groundwork contractors’ yard) of the land shown in plan A in the second schedule to this certificate, together with the following uses in so far as ancillary thereto:

                          i.                  plant and vehicle storage;

                        ii.                  operation of plant and equipment;

                      iii.                  for the importation, sorting, storage reuse/recycling of construction demolition and green waste and other landscape materials;

                      iv.                  the processing of green waste and demolition waste; including  hardcore and soils to produce aggregate, usable hardcore, fines, soils, mulch and compost;

                        v.                  screening waste to separate stone and concrete from soils;

                      vi.                  shredding wood and green waste . 

First Schedule (part 2) - Subject to the following identified limitations:

·                    Imported waste and landscaping materials are predominantly – construction  demolition waste, green waste, spent mushroom compost, soils, subsoil  and aggregates, chipped bark, fencing, timber, incidental metal and plastic items.

·                    Waste is imported to the Land shown in plan A via the land shown in plan B1.

·                    The amount of waste stored on the land shown in plan A has averaged 10,000 tonnes per annum.

·                    In conjunction with the land shown in plan B1, as at April 2012 the business operated with the following large items of plant:

-two 12 tonne excavators, one tractor loader, a crusher, a screener and a shredder.

·                    In conjunction with the land shown in plan B1, no more than 6 lorries and 16 vans have been in consistent use over the 10 years period.

Second Schedule: The Council is not satisfied that the following uses are lawful:

·                    Retail sales.

·                    Operation of plant and equipment over and above that ordinarily ancillary to a landscaping and groundwork contractors’ yard.

·                    Hire of plant, vehicles and equipment over and above incidental hiring  of items ordinarily used for landscape and groundwork contracting.

·                    The hiring of skips for removal of household wastes not connected with the landscape contracting business.

The Committee considered an application for a Certificate of Lawfulness of Existing Use or Development following a request for it do so by the local County Councillor.

Martin Knight accepted that the countryside needed employment opportunities and business ventures but questioned whether this operation was in the right location as in his view what was there now was not the original operation which had been given permission for. The development had not been adequately monitored which had led to creeping development, a doubling/trebling in size and consequently the establishment of an industrial activity by default. It was time to act to ensure the operation was in keeping with its rural location.

Tom Hickman advised that he had been born and bred in Fulbrook and had acquired this site in the 1980s. The recession had proved difficult and continued to do so but he currentlemployed 24 members of staff. He confirmed that this had been the second affidavit he had signed and confirmed that it was a true statement of fact.

Hazel Edwards clarified that the Committee had been involved in the first certificate of lawfulness.  Formal lawfulness was only technically required and she was surprised that the matter was even before the Committee as it was evidence based.  That evidence was comprehensive and had been painstakingly gathered and the recommendation before the Committee would protect both the Committee and the site. She thanked officers for their efforts in this complicated application.

Responding to questions from:

Councillor Tanner – retail sales were not related to this CLEUD.  The company had used skips for 25 years to carry out its business which was different to distributing skips for use on contracts.

Councillor Reynolds – the company had not sought a CLEUD previously as average figures did fluctuate.

Officers confirmed that this was not an application for planning permission but a question of regulating what was happening.  The second schedule to the recommendation stated very low levels of use and were limitations not conditions. This application represented a marker as to the current situation  and presented an opportunity for adequate and meaningful enforcement.

Councillor Couchman stated that breaches at this site had been an issue since his election to the Council in 2005 and the 2008 settlement had clearly  failed to resolve those issues.  He felt certificates legalised breaches and a lack of enforcement by both the County Council and West Oxfordshire District Council had not helped and he hoped that there would be more robust monitoring.  He confirmed that hiring of retail skips from this site was widely advertised across West Oxfordshire even though permission for such operation had not been given.

Councillor Owen could not support the application which he felt gave the impression that the County Council were somehow complicit in allowing breaches to be glossed over.

Officers advised that it was clearly set out what an applicant had to do to get a certificate of lawfulness for what had gone on and it was immaterial whether or not members felt that the law was wrong.  The certificate represented a way of dealing with these issues in the future and allowing for monitoring to be undertaken and levels of activity to be determined and to refuse the application would mean contradicting the evidence which had been submitted in support of it.

RESOLVED: (on a motion by Councillor Hannaby, seconded by Councillor Stratford and carried by 11 votes to 3): that the application for a Certificate of Lawful Existing Use or Development for the use of land for i) landscape contractor's yard including ground works contractor's yard with ancillary activities and ii) the importation, sorting, processing and storage of waste for a period exceeding ten years on the southern and central intermediate area of Hickman Brothers Landscapes Ltd site, Shipton Hill, Fulbrook be approved as set out below, with a Schedule of Limitations. The uses specified in the Second Schedule are not considered as lawful.

  First Schedule (part 1):

1.            The use as a landscape contractors’ yard (including groundwork contractors’ yard) of the land shown in plan A in the second schedule to this certificate, together with the following uses in so far as ancillary thereto:

                    i.            plant and vehicle storage;

                  ii.            operation of plant and equipment;

                iii.            for the importation, sorting, storage reuse/recycling of construction demolition and green waste and other landscape materials;

                 iv.            the processing of green waste and demolition waste including  hardcore and soils to produce aggregate, usable hardcore, fines, soils, mulch and compost;

                   v.            screening waste to separate stone and concrete from soils;

                 vi.            shredding wood and green waste.  

First Schedule (part 2) - Subject to the following identified limitations:

·               Imported waste and landscaping materials are predominantly – construction  demolition waste, green waste, spent mushroom compost, soils, subsoil  and aggregates, chipped bark, fencing, timber, incidental metal and plastic items

·               Waste is imported to the Land shown in plan A via the land shown in plan B1.

·               The amount of waste stored on the land shown in plan A has averaged 10,000 tonnes per annum

·               In conjunction with the land shown in plan B1, as at April 2012 the business operated with the following large items of plant:

-     24 tonne excavator, two 12 tonne excavators, one tractor loader, a crusher, a screener, a shredder and a chipper.

·               In conjunction with the land shown in plan B1, no more than 6 lorries, 4 trailers and 16 vans have been in consistent use over the 10 years period

Second Schedule: The Council is not satisfied that the following uses are lawful

·               Retail sales

·               Operation of plant and equipment over and above that ordinarily ancillary to a landscaping and groundwork contractors’ yard.

·               Hire of plant, vehicles and equipment over and above incidental hiring of items ordinarily used for landscape and groundwork contracting.

·               The hiring of skips for removal of household wastes not connected with the landscape contracting business.